Same-sex marriage and Northern Ireland – the debate continues

We have previously noted developments in Dublin relating to same-sex marriage and the progress that has been made towards its introduction, including the massive vote in favour of the move in the recently-established Convention on the Constitution. However, we also noted that in October 2012 the Northern Ireland the Assembly had rejected a motion tabled by by Sinn Féin and the Green Party which called upon the Executive to introduce same-sex marriage legislation.

On 29 April the Assembly returned to the matter, debating a motion in the name of three Sinn Féin MLAs – Caitríona Ruane, Bronwyn McGahan and Barry McElduff, as follows:

“That this Assembly recognises the importance of the Constitutional Convention; notes the participation of parties from the Assembly; welcomes the 79 per cent majority vote at the Constitutional Convention in favour of marriage equality; and calls on the Executive to bring forward the necessary legislation to allow for same sex marriage”.

The nub of their argument was that “what Churches do is a matter for Churches” but that the state needed to treat everyone equally and that the “traditional” family based on heterosexual marriage should not have any higher status in law or practice than any other form of family life. Law and social policy, in their view, should recognise the diversity of family life in Ireland and all families, including those in which the partners were unmarried, should have the same rights to respect and recognition.

David Ford MLA, leader of the Alliance Party and Minister of Justice in the Executive, proposed an amendment to leave out from “Assembly” to the end of the question and add:

“states its support for the extension of civil marriage provisions in Northern Ireland to same-sex couples, provided that robust legislative measures permit faith groups to define, articulate and practise religious marriage as they determine; and calls for respectful dialogue on this issue between all members of society”.

He believed that the Sinn Féin motion was deficient because it did not balance support for same-sex civil marriage with an acknowledgement of religious freedom and the rights of faith groups. He also accused Sinn Féin of grandstanding on the issue: what was needed, in his view, was constructive dialogue between elected representatives and civil society as a whole.

Unsurprisingly, both the amendment and the original motion were lost – the latter by an overall majority of 53 votes to 42: the Nationalists, broadly speaking, voted in favour and the Unionists against – though there was a thoughtful speech from at least one UUP member in support of the Alliance amendment during which Michael Copeland MLA reminded the Assembly of the disgraceful treatment meted out to Alan Turing. But, in accordance with the rules of the Assembly, the DUP had tabled a “petition of concern” – a mechanism designed to protect the interests of minorities – which meant that the motion would pass only if separate majorities of Nationalists and Unionists supported it. So even if it had achieved a majority of votes cast the motion would still not have been carried because there was no way that a majority of Unionists (of whatever party) was going to vote for it.

So the situation remains deadlocked. The provisions of the Civil Partnership Act 2004 apply equally to Northern Ireland as to the rest of the United Kingdom – but we are unlikely to see same-sex marriage in Northern Ireland any time soon, whatever happens in Great Britain or, for that matter, in Ireland.


By way of a footnote, the Irish Times reports that David Ford stood down as an elder of the Presbyterian Church in Ireland after the Alliance Party had voted on the previous occasion to support same-sex marriage – an initiative that the Presbyterian Church strongly opposes. The PCI press office released a statement which the parish minister, The Revd James Tosh, read to the congregation as follows:

“The kirk session wishes to inform the congregation that David Ford has, with sadness, decided to step aside for a time from the active duties of the eldership to reduce any offence his position has apparently caused to some within the congregation”.

The Clerk of the Templepatrick Presbytery, The Revd John Murdock, said that unease had been expressed by some members of Mr Ford’s congregation at Second Donegore Presbyterian Church.

Sharia and the English legal system: the Government’s view

For an updated and more general view see Catherine Shelley’s guest post

Last Tuesday a brief debate on sharia took place in Westminster Hall (in effect, the parallel Chamber of the House of Commons, where debates are held but no votes), no doubt prompted at least in part by the previous night’s edition of Panorama on BBC 1, Secrets of Britain’s Sharia Councils. Kris Hopkins, the Conservative Member for Keighley, was concerned that his local council of mosques had issued a press release calling for the Government to recognise sharia councils and ensure that they were better resourced.

The debate

Hopkins had four questions for the Government:

  • first, he wanted confirmation that there was “only one law in this country”;
  • secondly, he sought confirmation that sharia councils had to comply with “UK law”, including compliance with all equality and anti-discrimination laws and family law;
  • thirdly, he wanted to know how the Government would ensure compliance with secular law and what penalties would be applied to a sharia council that broke the law; and
  • fourthly, he asked whether the Government had given any consideration to ensuring that all sharia marriages should be legally underpinned by compulsory civil marriage.

Secrets of Britain’s Sharia Councils had shown that women were not always being treated equally by sharia councils and that the councils were not handling issues such as costs and child custody (which latter was not properly a matter for them in any case) in an even-handed way. Moreover, he understood that the act of determining child access or contact could not, legally, be undertaken by a sharia council or court and he hoped that, if evidence of wrongdoing could be established, those who had broken the law would be pursued.

He noted that some men were choosing not to marry through the civil law process because not doing so made divorce simpler; and a woman who had not contracted a civil marriage could not easily claim her share of the assets at the time of a sharia divorce. Marrying under sharia also meant that the man could marry a second wife because the first, sharia marriage was not recognised in civil law. In short, he wanted to see all sharia marriages simultaneously registered as civil marriages in order to protect women.

In reply, the Parliamentary Under-Secretary of State for Justice, Helen Grant, said that there was some confusion over the issue. She stressed that

“… sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it. There is no parallel court system in this country, and we have no intention of changing the position in any part of England and Wales”.

Sharia was the code of personal religious law governing the conduct of Muslims. There were a number of sharia councils in England and Wales that helped Muslim communities to resolve civil and family disputes by making recommendations by which they hoped the parties would abide; but she said that she wanted to

“… make it absolutely clear that they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy – including equality policies such as the Equality Act 2010 – or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law”.

That said, however, the Government did not prevent individuals from seeking to regulate their lives through religious beliefs or cultural traditions; and provided that activities prescribed by sharia did not contravene the law of England and Wales, there was nothing to prevent people from living by it.

In addition, the use of religious councils or other extra-legal bodies to deal with civil disputes was well established and non-contentious – but such decisions were subject to national law and were not legally enforceable:

“Any member of any community should know that they have the right to refer to an English court at any point, especially in the event that they feel pressured or coerced to resolve an issue in a way with which they feel uncomfortable”.

Sharia councils did not have any legal means of enforcing their decisions: they could only make recommendations that they hoped the parties would follow and a challenge to a sharia decision in a civil court would be made in accordance with English law.

She reiterated the Government’s determination to tackle domestic violence; but the Government believed that the current legislation already made adequate provision to meet concerns about the perceived use and interpretation of sharia. Instead, what was needed was to raise awareness of the existing position under English law.

As to the criminal law, in England and Wales criminal proceedings were always heard in a criminal court. The Government did not recognise any criminal law decision made by any alternative court in England and Wales and had no intention of changing that position. As to the recognition of sharia marriages by English courts, the Government was working to raise awareness of the need to have a legally-recognised marriage and it was encouraging mosques to register in order to carry out legally-recognised marriages.


It should be said at the outset that if Helen Grant did not actually get the law wrong, it is, nevertheless, slightly more complicated than she suggested.

When she said that “… sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it” she was correct in the sense that in none of the three jurisdictions does the courts recognise as law rulings made by tribunals of voluntary organisations.[1] However, there is no reason in law why parties in a dispute should not agree under the terms of the Arbitration Act 1996 or the Arbitration (Scotland) Act 2010 to accept and be bound by the ruling of a sharia tribunal, just as parties sometimes agree to accept and be bound by the ruling of a beth din – and if they do so, the English courts will enforce that ruling. For recent examples see Kohn v Wagschal & Ors [2007] EWCA Civ 1022 and (though, admittedly, extremely specialised and fact-sensitive) Re AI and MT [2013] EWHC 100 (Fam). (I am not aware of any recent Scots precedent but I doubt the situation in Scotland is any different.) Equally, however, the courts will not enforce religious law where its provisions conflict with an order of a secular court: see, for example, Al-Saffar v Al-Saffar [2012] EWCA Civ (unreported) – but the Al-Saffars had married under civil law as well as under sharia.

The issue is not, presumably, the possibility that two people in dispute would enter a formal arbitration agreement under which they would agree to be bound by the ruling of a sharia tribunal in the same way as they sometimes agree to be bound by a ruling of the London Beth Din: the problem is religious adjudications that take place totally outside the civil law.

If a man and a woman contract a nikah marriage under Islamic law but do not also contract a civil marriage, it is difficult to see at what point their relationship engages the secular courts. There is no concept of “common-law marriage” in English law; and though irregular marriage existed in Scotland until very recently, marriage “by habit and repute” was finally abolished by s 3  of the Family Law (Scotland) Act 2006 (though not in respect of subsisting marriages).

So if a couple who contracted a nikah marriage but not a civil one obtain a religious divorce, absent any criminal behaviour such as domestic violence and always provided that proper and adequate arrangements are agreed for any children, it is difficult to see what concern that is of the domestic law. To take the extreme case, in the eyes of the secular law a childless couple in a nikah marriage are surely in no different position from a childless couple who live together without getting married. Any associated difficulties in the case of a break-up, such as dividing their assets, is a problem that they will have to sort out between themselves.

Moreover, there is always the possibility that a couple who have contracted a religious but not a civil marriage may find themselves in a (?quasi-) contractual relationship. In Uddin v Choudhury & Ors [2009] EWCA Civ 1205 the court was prepared to accept evidence of an arranged marriage under sharia for the purposes of civil proceedings. A nikah ceremony had taken place in Battersea Town Hall in August 2003 but the intended civil ceremony had never taken place because the marriage had not worked; and on the application of the bride the Islamic Sharia Council pronounced a sharia decree of divorce in December 2004. The subsequent dispute was, in short, over the return of the dowry to the bride’s family and whether various gifts made to her should be returned to the groom’s family. Mummery LJ concluded at para 11 that the agreement under sharia should stand:

“… it was a valid marriage under sharia law and… it was then validly dissolved by decree of the Islamic Sharia Council. This was not a matter of English law. There was no ceremony which was recognised by English law, but it was a valid ceremony so far as the parties were agreed and it was valid for the purposes of giving legal effect to the agreement which had been made about gifts and dowry”. [emphasis added].

And yet there remains a considerable degree of concern that there is a problem of what might be termed “equality of arms”. Our understanding of the position is that divorce may be instituted unilaterally by the husband, the most common means being ṭalāq. The wife, on the other hand, must petition for khula (literally “extraction”, or release from the marriage) and if the husband refuses her request may petition the sharia tribunal to overrule his refusal. Moreover, where there are problems, a wife with little English may have difficulty in engaging with the secular authorities such as social workers and solicitors.

In conclusion, it is clear that there is a problem – but it is equally clear that there is no quick-fix solution. When Helen Grant spoke of “raising awareness”, that might possibly have been as much as she could reasonably have suggested.

Unless, of course, we tear down the entire system and start again from scratch: Parliament could make it illegal for any religious body to conduct a wedding ceremony without a prior civil wedding – as in France. But that might possibly be regarded as a step too far (and, incidentally, marriage law in Scotland and Northern Ireland are devolved matters, so in order to have a UK-wide system the Westminster Government would have to gain the agreement of Edinburgh and Belfast).


For further background see our post on sharia law and attempts to amend the Arbitration Act 1996 and Professor Maleiha Malik’s extremely learned and perceptive report for the British Academy: Minority legal orders in the UK: Minorities, pluralism and the law

[1] It should be remembered that the Church of England and the Church of Scotland are not voluntary organisations and their courts are sui generis.

Cite this article as: Frank Cranmer, "Sharia and the English legal system: the Government’s view" in Law & Religion UK, 29 April 2013,

Church Safeguarding in Jersey – Progress

In March we reported that the Diocese of Winchester had issued a Press Release stating that, following the publication of the report Independent Review of a Safeguarding Complaint for the Diocese of Winchester, the Rt. Rev. Tim Dakin, Bishop of Winchester, had withdrawn the commission of the Dean of Jersey, the Very Rev. Robert Key, effectively suspending him. The report, commissioned by the Diocese of Winchester’s Safeguarding Panel,

“… found that there were a number of failures in the implementation of policies, in relation to a safeguarding complaint in 2008”, and

“… raises concerns that the Dean of Jersey did not comply with key safeguarding procedures in dealing with the complaints of a vulnerable adult parishioner, who had made a complaint about abusive behaviour by a Churchwarden in Jersey.”

Following discussions between the Diocese and the Bailiwick, this morning the Diocese issued a further Press Release which states

“…  the Dean of Jersey has …  apologised for mistakes in the handling of a safeguarding complaint and added his own apology to that of the Bishop of Winchester and Archbishop of Canterbury to the vulnerable person at the heart of this matter.

He has confirmed that he shares the Bishop of Winchester’s and Archbishop of Canterbury’s stated commitment to safeguarding in the Diocese and the wider Church. The Dean was speaking following meetings with the Bishop last week.

The Bishop acknowledges that, although mistakes were made, the Dean believed he was acting in good faith. Following the commitment that the Dean has made, the Bishop has decided that he will issue a new Commission to the Dean with immediate effect.”

Leading today’s 10 am service at the Town Church, which was attended by the Bailiff, Sir Michael Birt, and the Lieutenant Governor, General Sir John McColl, the Dean confirmed that he would cooperate fully with the on-going investigation.


As we noted in our earlier post,

“[a]lthough there are legal issues arising from the relationship between Jersey and the United Kingdom, the main issue remains the Independent [Korris] Report and the subsequent investigation.”

On 26 March, the Bishop of Winchester published the Terms of Reference for an independently-led Visitation into safeguarding procedures in the Deanery of Jersey. This is to consider the implementation of safeguarding in Jersey and across the Diocese, and provide recommendations for enhancing policies and procedures.  The Visitation will be led by the Rt. Rev. John Gladwin, formerly Bishop of Chelmsford, who will be joined on the panel by the Ven. Norman Russell, Archdeacon of Berkshire and an independent senior lawyer.

In today’s Press Release, the Bishop of Winchester is quoted as saying

“Safeguarding must always be of paramount concern and is a vital part of the Church’s mission. We will now press ahead with the Visitation and Investigation and see them through to their conclusions, as we all have important lessons to learn. At the heart of this matter is safeguarding the vulnerable who have frequently been let down by the Church”.

With regard to the associated legal issues, it comments

“The Bishop and the Dean have also agreed that, in the light of these recent events, there are areas in Jersey Canon Law which would benefit from further review and they are committed to working together as necessary to revise them.”

Religion and Law round up – 28th April

Succession to the Crown Act 2013

The Succession to the Crown Act received Royal Assent on 25 April, but whilst section 5 (Commencement and short title) is now in force, “the other provisions of this Act come into force on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint,” for which “different days and times may be appointed for different purposes”.  This is required because it is necessary for other the other Commonwealth countries of which HM is Head of State to pass complementary laws on Succession.

We reviewed the debate in the Lords prior to the passing of the Act, here, and indicated some of the implications – primarily, should the Duchess of Cambridge give birth to a girl in July, the baby could not subsequently be displaced by the birth of a brother. In addition to absolute primogeniture, other key impacts of the Act are summarized in the Royal Central blog as follows:

  • members of the Royal Family who marry, or who have married, a Roman Catholic are not be excluded for the line of Succession to the Throne;
  • descendants of George II, of whom there are many, no longer require the permission of the Queen to marry – which overcomes the problem of such marriages being automatically annulled in the absence of the Monarch’s permission; and
  • the first six people in line of Succession must still seek the permission of the Queen to marry– and if they fail to obtain permission they are excluded from the Succession.

Conscientious objection to abortion

We noted the judgment of the Inner House of the Court of Session in Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 (24 April 2013), in which the Court recognised the conscientious objections of Mary Doogan and Connie Wood, labour ward co-ordinators at the Southern General Hospital, Glasgow, to supervising staff involved in terminations. The Inner House concluded that the two were part of the team responsible for the overall treatment and care of patients and would therefore “participate in treatment authorised by” the Abortion Act 1967. The court distinguished the judgment of the House of Lords in R v Salford Area Hospital Authority ex parte Janaway [1989] 1 AC 537 (which involved a conscience claim by a secretary who was required to type appointment letters for patients seeking a termination) and, in doing so, has probably both widened the scope of conscientious objection and brought it closer to what Parliament intended in 1969.

Lords win “ping pong” on caste discrimination

Having addressed the issues of the Succession to the Crown Bill, later on 22 April their Lordships turned their attention to third reading of the Enterprise and Regulatory Reform Bill which was in the process of “ping pong” between the Lords and Commons.  In our previous round-up we reported that the significant amendments made by the House of Lords in relation to the inclusion of caste discrimination and a reduction in the general powers of the Equality and Human Rights Commission, (EHRC), had been overturned when the Bill returned to the Commons.  However, on 22 April the Lords reiterated their objections to the Government position on these issues, and insisted on their amendments. As a consequence, the Government subsequently agreed to drop its insistence on the inclusion of these amendments in the Act.

These represented the 41st and 42nd “U-turns” of the Coalition to date [1].

“Denouncing” the ECHR?

The ill-considered threat of the Prime Minister to denounce the ECHR under the terms of Article 58 presents a further opportunity of the Coalition to exhibit the level of its “legal competence”.  As Richard A. Edwards notes:

“In order to remove one man [Omar Mahmoud Othman, aka Abu Qatada], from the jurisdiction the government is contemplating removing the protection of human rights for all”.

The full critique was published on Euro Rights Blog and is reproduced on the UKHR blog. Or as Adam Wagner tweeted on Tuesday:

“Temporarily withdrawing from Human Rights Convention to deport Abu Qatada is like temporarily withdrawing from a marriage to have an affair”.

Same-sex marriage and the Church of Scotland

Following the publication of documents on men and women in marriage by the Church of England and the Church in Wales, which we reviewed here and here, we published our review of the Church of Scotland report, Theological Commission on Same-Sex Relationships and Ministry. The three reports differ in their remit and the scope of the same-sex issues addressed, but are all driven by a common same-sex marriage agenda as it is being pursued in the respective governments in Westminster and Holyrood. Each of the organizations has been active in its contact with government, here, here, and here, but it is likely that in each case, the legislation will be put in place before the membership has given the matter detailed consideration

With regard to the Church of England’s report, Men and Women in Marriage, two weeks after advising its readers in the leader “On Marriagethat “the kindest thing to do with [the Report] … is to ignore it”, the Church Times ignores this advice and revisits the issue in another leader “Selling marriage short”, (but this time outside the pay wall).  We were not privy to the editorial processes which lead to this new article and will not speculate; but the current piece is an uneasy mix of justification for the production of the report and further criticism of different aspects of it.

To suggest that “[h]ad there been more time and more scrutiny, the limitations of the report might have been recognised” suggests that whereas the average recipient of the report was able to make such an assessment in a single reading, its writers did not possess the same critical faculties – an unlikely possibility.

The (second) leader concludes:

“It is generally unfair to criticise a work for not being something else. We have not dwelt on the sins of commission – the obscure language, the unsupported pronouncements – but in this instance, the sins of omission have created the greatest disappointment. Marriage is a precious element in our society, and it needs a more robust defence”.

We would challenge the assertion that “the sins of omission have created the greatest disappointment” and repeat our initial comment:

“The problem, it strikes us, is this: that the Church appears to be trying to have it all ways at once. Either you decide on biblical grounds that same-sex relationships are wrong in all circumstances and stick to that (which is an entirely consistent position even if it is one that looks increasingly at odds with the views of wider society) or you decide that they are not – in which case when you try to accommodate them you run the risk of getting tangled up in conflicting arguments in the way that is currently engulfing the C of E. But seeming to suggest that same-sex relationships are not always wrong and then maintaining that, nevertheless, they are basically second-class strikes us as the worst of all worlds – and much the most difficult position to defend, whether intellectually or pastorally”.

Richard III reburial – application for judicial review

The reinterment (or entombement) of the remains of Richard III was again in the news with plans for the consideration by the High Court of a request for judicial review in relation to the issue of a section 25 licence to the University of Leicester.  The JR is being sought by the Plantagenet Alliance as part of its campaign to have the remains reburied in York.  As we noted in our last update of the case, a challenge on the basis that the Alliance had not been consulted and that its rights had been breached may prove difficult on a number of practical and legal grounds:

  1. the “Catch-22” situation, whereby when the section 25 licence was issued it was not known whether the remains were those of Richard III, and it would therefore be premature for the MoJ to identify possible “relatives”;
  2. the fact that since Richard III is thought to have no living descendants, any distant relations would be descended from his siblings and, statistically, many tens of thousands of individuals alive today are descended in this way; and
  3. following Rudewicz, R (o a o) v Secretary of State for Justice & Ors [2012] EWCA Civ 499, which dismissed the Article 8 (private and family life) arguments of a first cousin once removed, it is difficult to see how the claims of the relatives of someone who died almost 500 years ago and whose familial links are extremely tenuous at best might succeed.

It could be argued that the section 25 licence is currently in sufficiently general terms to permit reburial, inter alia, “in a burial ground in which interments may legally take place”, i.e. in York, Leicester Worksop, or elsewhere, and that, rather than JR, the Alliance might consider a common law action against the organization that currently has “custody and possession” of the remains: the University of Leicester.  Furthermore, the licence was primarily concerned with the exhumation, (for which the University was clearly the most appropriate body), and as such expired on 31 December 2012.

However, if these legal hurdles are surmounted and secular provisions permit burial in York, whether this is to be in York Minster, or another Church of England church or churchyard, any decision will be subject to the appropriate ecclesiastical law and further delay.  The deadline on the licence for reburial is “no later than 31 August 2014”.

Are Infallibility and Informality compatible?

Clearly yes, but Pope Francis’ liking for fervorini (short homilies) during his daily celebrations of Mass at the Domus Sanctae Marthae is causing consternation in some quarters with regard to where, and if, they are reported through official Vatican channels.  In addressing Papal Infallibility at a General Audience on 17 March 1993, Pope John Paul II said, inter alia

“the Second Vatican Council states that all the Pope’s teaching should be listened to and accepted, even when it is not given ex cathedra but is proposed in the ordinary exercise of his Magisterium with the manifest intention of declaring, recalling and confirming the doctrine of faith. It is a consequence of the institutional fact and spiritual inheritance that completes the dimensions of the succession to Peter.”

Consequently, anything said in the exercise of his Magisterium will be of potential relevance to Roman Catholics worldwide; yet at present there is no consistency in the reporting of these fervorini. Importantly, in order to be considered in context it is important that they are available in toto rather than as edited abstracts on Vatican Radio

As an indication of the scope of these short, off-the-cuff homilies, his recent consideration of the profound essence of the Church

“… which must never consider itself a ‘company’ that ‘makes deals to gain more partners’, neither does it measure its success in terms of organisation … The path Jesus chose for his Church is a different one: he chose the difficult path, the path of the Cross, the path of persecution…”

included explicit reference to the Istituto per le Opere di Religione, (IOR), aka the Vatican Bank, a number of whose employees were present. He indicated that, along with all Curia’s various bodies, it would be undergoing a review and reform in the next few months, although commentators suggest that he implied that the IOR would not be shut down, as some have suggested [2].

Canonization of John Paul II

Within days of the unveiling of a five tonne, 13.8m high statue to the Bl. Karol Wojtyła, (Pope John Paul II) in Czestochowa in southern Poland, the medical council of the Congregation for the Causes of Saints has recognized as inexplicable one healing attributed to him: it must now be approved by theologians and then by the cardinals and bishops of the Congregation before being subjected to the Pope for the definitive confirmation. It has been suggested that canonization might be timed for Sunday 20 October, close to the liturgical holiday assigned to the blessed Wojtyla on October 22nd.  

Whilst it is believed that Pope Francis is supportive of the early canonization of John Paul II, his views on beatification and canonization per se are as yet unknown. Pope John Paul II made significant simplifying changes to the underlying canon law with the promulgation of the 1983 Code and Divinis Perfectionis Magister, but he also canonized over 450 saints (more than all the popes since the Council of Trent combined) as well as beatifying more than 1,300 men and women. Benedict XVI was more circumspect as evidenced by his letter in 2006 to the Congregation for the Causes of Saints.

[1] This week, a new book by Aldo Maria Valli has been published, Il forziere dei Papi. Storia, volti e misteri dello Ior (The Popes’ coffers. History, faces and mysteries of the IOR).  Publicity material states: “You have to put together many pieces spread out and form a pattern . . . . . but there is no need to romanticize: reality goes far beyond imagination,” [Google translation].

[2] A full list of U-turns to 7 February is available in The Guardian

Succession to the Crown Bill passed

At a little after 4-00 p.m. on 22nd April, the Succession to the Crown Bill successfully passed its third reading in the House of Lords and is now awaiting Royal Assent.  Although in this short ~45 minute session the two proposed amendments were discussed and withdrawn, the debate provided some clarification to the issue of the religious upbringing of the children of a Monarch whose spouse was a Roman Catholic.  It also highlighted two opposing views: the desire of some of their Lordships “to put beyond doubt the requirement that the sovereign be a Protestant and in communion with the Church of England”, [Lord Wallace of Tankerness, col. 1220]; and the views of those who consider that Act of Succession as a “piece of rampant discrimination” towards “Her Majesty’s Roman Catholic subjects, all of whom pray for Her Majesty every Sunday and every Mass,” [Lord Deben, col. 1218].

Both amendments concerned Clause 2 of the Bill – Removal of disqualification arising from marriage to a Roman Catholic – and the first of these, moved by Lord Cormack addressed the issue of the religious upbringing of children of “mixed marriages”.  The purpose sought by the amendment was to “make explicit what is already implicit” and translate into legislative form many of the sentiments voiced by the Minister in a previous debate.

During this earlier debate, (on 13 March 2013) , the Lord Bishop of Guildford, who admitted that he had “some modest understanding of both Anglican and Roman Catholic canon law”, had noted that whereas in the 1917 Code of Canon “the position was rigid and, I would say, harsh”, this was not so in the current 1983 Code, (Canons 1124 and 1125), which speaks of “permission”, not “dispensation”. Furthermore, the old code also required the non-Catholic party in a marriage to promise that the children would be brought up as Roman Catholics, but no such promise is required today.

Supporting the position that permissions for mixed marriages have been given even where it was foreseen that the promise could not be fulfilled in whole or in part, the Lord Bishop quoted J P Beal, New Commentary on the Code of Canon Law (Paulist Press, New York 2000) pages 1345 to 1347, which states inter alia, that

“[p]ermission for mixed marriages can be given even when it is forseen that the Catholic’s efforts to pass on the Catholic faith will probably be fruitless because of the resistance of the non-Catholic spouse.  In these circumstances, the Catholic party can fulfill his or her obligations, at least in part,

“playing an active part in contributing to the Christian atmosphere of the home; doing all that is possible by word and example to enable the other members of the family to appreciate the specific values of the Catholic tradition; taking whatever steps are necessary to be informed about his own faith so as to be able to explain and discuss it with them, praying with the family for the grace of Christian unity as the Lord wills it”.

This was further supported in the debate on 22nd April, in which the Lord Bishop indicated that his exposition of Roman Catholic official teaching in canon law, and the pastoral and flexible practice in terms of the Roman Catholic rules over the upbringing of children in mixed marriages is completely has been confirmed in the letter from Marcus Stock, general secretary of the Catholic Bishops’ Conference of England and Wales, on behalf of the Archbishop Vincent Nichols.

Lord Wallace of Tankerness, (Advocate-General for Scotland), reported that he had met Monsignor Stock on behalf of Archbishop Nichols and the Catholic Bishops’ Conference of England and Wales to discuss this matter, and could inform the House that

“the view taken by the Catholic Church in England and Wales is that in the instance of mixed marriages the approach of the Catholic Church is pastoral. It will always look to provide guidance that supports and strengthens the unity and indissolubility of the marriage. In this context the Catholic Church expects Catholic spouses to sincerely undertake to do all that they can to raise children in the Catholic Church. Where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, the Catholic parent does not fall subject to the censure of canon law.”

In view of these assurances, Amendment 1 was withdrawn, and it was hoped that “something can go into the Library of the House” to provide a gloss to the discussions, as requested Lord Trefgarne.

The position of the Roman Catholic Bishops has attracted some lively, but not always informed, comment in The Catholic Herald, Rorate Caeli, and elsewhere, mainly based on third-hand media reports.

Amendment 2, was moved by Lord James of Blackheath, who had concerns that passing the Bill in its present form would represent a denial by this House of the words and intentions of the Bill of Rights and the Act of Settlement and place Her Majesty in a position where we would be in breach the Coronation Oath.

This supposition was not supported by Lord Wallace of Tankerness, who noted that dicta of Lord President Cooper in MacCormick v Lord Advocate 1953 SC 396 had raised some question concerning Scotland, although in the consideration of the 1911 Parliament Act in Jackson v Attorney-General  [2005] UKHL 56,  the late Lord Bingham said:

“The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament … Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished”.

Given that the prohibition on the sovereign being a Catholic remains, the government do not believe that there is any conflict between the Bill and the Accession Declaration or the promise made by the sovereign to preserve the Presbyterian Church in Scotland.

At the end of the debate, Lord James withdrew his amendment.  However, prior to its conclusion, Lord Trefgarne commented on the speed at which the Bill was driven through, and expressed that many would have preferred a Joint Select Committee to consider some of the important constitutional implications that it raises, and indeed changes. However, that has not been the case, and therefore that, for now at least, must be that, [col. 1229].

He also observed

“[t]his Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers.  . . . . . those arrangements are . . . . . a great deal more complicated even than they are for the Crown.  . . . . . .  if Bills come forward for that purpose they will delay the noble and learned Lord very much longer than this Bill has.”

These possible impacts on hereditary peers have been explored here.

Practical issues – Line of Succession

Whilst these are not likely to impact directly on the majority of our readers, “royal watchers” may be interested in the post on the Royal Central blog, which, in addition to giving an updated line of succession that will come into effect once the bill passes to become law, gives an indication of how it will work in practice, viz.

  • it will not change the current immediate line of succession of those likely to inherit the throne;
  • the first person to be affected will be the Earl of St Andrews, son on the Duke of Kent (who married a Catholic), who will be restored to the line of succession at 32nd.
  • Prince Michael of Kent will be restored to 44th in line to the throne;
  •  the 26th and 27th in line, currently Tāne Lewis and Senna Lewis, (children of Lady Davina Lewis [1]), change places since Tāne was born after 28 October 2011 and so loses his position of male preference over his older sister.

Readers with an interest in the “what if” scenario, had absolute primogeniture applied in earlier periods of history, will gain some entertainment from an article in The Guardian, here.

[1] née Windsor, elder daughter of Prince Richard, Duke of Gloucester and the Duchess of Gloucester.

The Abortion Act 1967 and the right of conscientious objection


Mary Doogan and Connie Wood, the labour ward co-ordinators at the Southern General Hospital, Glasgow, who sought to assert their conscientious objection to supervising staff involved in abortions have won their appeal. In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 (24 April 2013) an Extra Division of the Inner House (Mackay of Drumadoon, Dorrian & McEwan) overturned the decision of the Lord Ordinary [Lady Smith] dismissing their petition for judicial review and refusing the petitioners’ minute.

The background

Ms Doogan and Mrs Wood (“the reclaimers”: you don’t appeal from the Outer House of the Court of Session – you reclaim) worked as midwives in the labour ward at the respondents’ Southern General Hospital as labour ward co-ordinators. Both are practising Roman Catholics who, when they started working in the labour ward, claimed conscientious objection to participation in termination of pregnancy pursuant to s 4 of the Abortion Act 1967. That was accepted and, as a result, they took no part in the treatment of certain patients in the labour ward. Previously, medical terminations of pregnancy had been carried out in the labour ward if the foetus was more advanced than 18 weeks; otherwise, they had taken place in the gynaecological ward. From 2007, however, all terminations took place in the labour ward and their number increased in 2010 with the closure of the Queen Mother’s Maternity Hospital.

The reclaimers initiated a formal grievance procedure in September 2009 in which they sought confirmation that, having expressed a conscientious objection to abortions, they would not be required to delegate, supervise and/or support other staff in the participation and provision of care to patients undergoing medical terminations at any stage in the process. The grievance was not upheld and they were refused permission to appeal to the Board on the grounds that

“… delegating to, supervising and /or supporting staff who are providing care to patients throughout the termination process does not constitute providing direct 1:1 care and having the ability to provide leadership within the department is crucial to the roles and responsibilities of a Band 7 midwife, therefore this part of your grievance is not upheld.”

They sought judicial review on the basis that the decision was ultra vires, unreasonable, irrational and contravened of the Act. Principally, they sought declarator that their right of conscientious objection in terms of the Act

“… includes the entitlement to refuse to delegate, supervise and/or support staff in the participation in and provision of care to patients undergoing termination of pregnancy or feticide throughout the termination process”.

It was agreed that their duties as labour ward co-ordinators included the following:

(1) management of resources within the Labour Ward, including taking telephone calls from the Foetal Medicine Unit to arrange medical terminations of pregnancy;

(2) providing a detailed handover on every patient within the Labour Ward to the new labour ward co-ordinator coming on shift;

(3) appropriate allocation of staff to patients who are already in the ward at the start of the shift or who are admitted in the course of the shift;

(4) providing guidance, advice and support (including emotional support) to all midwives;

(5) accompanying the obstetricians on ward rounds;

(6) responding to requests for assistance, including responding to the nurse call system and the emergency pull;

(7) acting as the midwife’s first point of contact if the midwife is concerned about how a patient is progressing;

(8) ensuring that the midwives on duty receive break relief, which may mean that the labour ward co-ordinator provides the break relief herself;

(9) supporting and assisting medical interventions such as forceps deliveries;

(10) communicating with other professionals, e.g., paging anaesthetists;

(11) monitoring the progress of patients to ensure that any deviations from normal are escalated to the appropriate staff level, eg to an obstetrician;

(12) directly providing care in emergency situations;

(13) ensuring that the families of patients are provided with appropriate support.

During argument at the two hearings, the Board accepted that under item 8 they could not require the reclaimers personally to provide break relief which would involve them in having to step in and ensure the achievement of a termination of pregnancy: the reclaimers’ obligation would be to find somebody else to do so. So far as medical intervention was required (item 9) it was accepted that the reclaimers could not be required to be present during such intervention. It was further accepted that items 4 and 7 (supporting and advising midwives) would also be covered by the right of conscientious objection insofar as they might involve advising midwives about appropriate treatment:

“In fact, counsel for the respondents accepted that the performance of any of these 13 listed duties might involve participation in treatment authorised by the Act and as such be covered by the right of conscientious objection. Whether the performance of the duties did so would require to be addressed on a daily, task by task basis. That would require to be decided by management. There was, however, no expectation on the part of the respondents that the reclaimers would be required to deliver any direct patient care during the termination process itself.” (para 8).

The point at issue

The 1967 Act provides as follows:

4. Conscientious objection to participation in treatment

(1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:

Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

(3) In any proceedings before a court in Scotland, a statement on oath by any person to the effect that he has a conscientious objection to participating in any treatment authorised by this Act shall be sufficient evidence for the purpose of discharging the burden of proof imposed upon him by subsection (1) of this section”.

Mary Doogan and Connie Wood maintained that the performance of any of the duties listed above in connection with a patient admitted to hospital for a termination of pregnancy would give rise to their participation in treatment which is the subject of their conscientious objection. The Board maintained that their right of conscientious objection was limited to a right to refuse to participate only in any “direct involvement in the procedure of terminating pregnancy”.

The Lord Ordinary’s opinion and the reclaimers’ averments

In the Outer House the Lord Ordinary concluded that the word “treatment” in the phrase “participate in any treatment authorised by this Act” in section 4(1) was being used “to denote those activities which directly bring about the termination of the pregnancy.” (para [78]). As to “participate”, that connoted “taking part in” but did not extend to all those involved in the chain of causation (para [79]). Since the reclaimers were not being required to play any direct part in bringing about the termination of pregnancy, they were not being asked to “participate in any treatment authorised by this Act”. Their role was a supervisory and administrative one. The Lord Ordinary made two further observations in support of her conclusion:

  • that the 1967 Act was concerned only with authorising acts that would previously have been criminal under the common law and that “not all involvement with terminations of pregnancy … was criminal prior to the authorisation that the Act conferred”; and
  • that the right under section 4(1) was not unrestricted since, in her opinion, it did not extend to terminations authorised under section 1(1)(b) or (c) of the Act nor to an emergency situation where the woman’s life was at stake or there was the risk of grave injury to her health.

The reclaimers argued that the Lord Ordinary had been wrong to conclude that the right of conscientious objection did not include entitlement to refuse to delegate, supervise and/or support staff providing care to patients undergoing termination of pregnancy because they  involved “participation in treatment” authorised by the Act: for example,  monitoring the condition of the patient and the progress of the procedure the patient was undergoing, including whether the medication was having its intended effect. “Treatment”, they averred, included the whole medical or surgical process involved in termination, including pre- and post-operative care and care pre- and post-administration of abortifacients. Treatment as a whole was a team effort and supervision was a necessary element of that effort.

They accepted that section 4(2) overrode any conscientious objection and that they would be bound to participate in any treatment which was necessary to save the life of or to prevent grave permanent injury to the physical or mental health of a pregnant woman; but they averred that it was wrong for the respondents simply to consider the list of duties and concede a few. Instead:

“[they] should be given an exemption from duties which was co-extensive with the bounds of their beliefs. The issue was a subjective one to be determined according to the conscience of each individual. They should not [be] require[d] to carry out duties which were, or were liable to be, in conflict with their conscience. There was no scope in the Act for imposing duties which were in conflict with individual conscience. … [T]he question of whether any aspect of their work would in fact do so should be dictated by conscience and not be determined by an administrator” (para 13).

In short, their duties had to be regarded as an interconnected whole; and if they were required to carry out the tasks in question they would be participants, not passive bystanders.

The judgment of the Inner House

Delivering the opinion of the Court, Lady Dorrian noted that, in passing the Act, Parliament had tried to balance competing interests by liberalising the law but exempting from participation those with a genuine conscientious objection, qualified only by the need to participate if treatment was required to save the life of a pregnant woman or prevent grave permanent injury to her physical or mental health (para 14).

The Lord Ordinary had erred in stating that the right to conscientious objection did not extend to terminations carried out under section 4(1)(b) or (c) of the 1967 Act. She had also erred in concluding that the Act had no application to acts that had not been criminal before its passing, because section 1 contained an exhaustive statement of the circumstances in which either abortion or feticide were lawful and there was no residual category to which the common law applied.

“The categories which were envisaged in v Bourne [1939] 1 KB 687 (in which a doctor carried out an abortion on a 14 year old girl and invited prosecution for clarification of whether there was in law a defence based on actions necessary to prevent grave injury to the mother) were all covered under section 4(1); the Act required that ‘any’ treatment for the termination of pregnancy had to be carried out in a hospital or approved place; and made provision for regulations requiring any medical practitioner terminating a pregnancy to give the requisite notice thereof. Section 5 provided that for the purposes of the law relating to abortion (defined in s 6 as including ‘any rule of law relating to the procurement of abortion’) ‘anything done with intent to procure a woman’s miscarriage … is unlawfully done unless authorised by section 1 of this Act’.”  (para 16).

Lady Dorrian further noted that

“Even in a supervisory role, the labour ward co-ordinators were part of the team responsible for the overall treatment and care of the patient and would thus “participate in treatment authorised by the Act”. In any event, insofar as any of the items within their job descriptions involved them directly in treatment, they would also do so” (para 19).

In short, the Board’s decision letter of 14 June 2011, in referring to “direct 1:1 care”, assumed a definition of participating in treatment which was not in accordance with a plain reading of the Act (para 20).

She concluded:

  • that the 1967 Act is exhaustive as to the circumstances in which abortion may lawfully be carried out (para 31);
  • that, though the right of conscientious objection does not apply to a procedure carried out under section 1(1)(b) because the circumstances envisaged by section 1(1)(b) are part of the circumstances envisaged by section 4(2), the right does extend to section 1(1)(c) (para 32); and
  • that Lord Keith’s statement in R v Salford Area Hospital Authority ex parte Janaway [1989] 1 AC 537 (which involved a claim by a secretary who was required to type appointment letters for patients seeking a termination) that to participate meant “actually taking part in treatment” was intended to distinguish participation in the ordinary sense of the word from the different forms of participation which can arise under the criminal law and to distinguish those who were involved in treatment in hospital from those who were not so involved (para 33).

“The duties of the reclaimers in this case are far removed from those of a secretary typing a letter of referral, and it has not been argued that their duties involve anything other than treatment in the proper sense. The reclaimers are, in the words used by Lord Keith in Janaway ‘actually taking part in treatment administered in hospital or other approved place in accordance with section 1(3), for the purpose of terminating pregnancy’ “ (para 36).

Finally, she pointed out that while the advice provided by the professional bodies, should be treated with respect “there is always the possibility that the advice from the professional body is incorrect” and that the advice of the Royal College of Midwives and the Nursing and Midwifery Council had been defective (para 33).

The appeal was allowed.


There are various points to be made about the judgment, the most important of which that it is not about the rights or wrongs of the current law on abortion; nor is it particularly about “religion”, because it is perfectly possible for a convinced atheist to have a deeply-rooted moral objection to participating in a termination of pregnancy. What it is about is the correct interpretation of s 4 of the 1967 Act.

On reading Lady Smith’s opinion in the Outer House the impression was that she gave undue weight to the judgment of the House of Lords in Janaway. Organising a labour ward in which terminations were carried out is far removed from typing appointment letters. In addition, it was pretty evident that Mary Doogan’s and Connie Wood’s duties had changed dramatically, at least from their point of view, when from 2007 onwards all terminations took place in the labour ward. (My own feeling was that they had been hard done by, to say the least.)

Lady Dorrian quoted with approval the dictum of Sachs J in Christian Education SA v Minister of Education (2001) 9 BHRC53 at para 35, as follows:

“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not … Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”.

Precisely: and in the case of participation in termination of pregnancy, the 1967 Act also seeks to avoid putting non-believers to “extremely painful and intensely burdensome choices”. But, of course, all cases of this nature are highly fact-sensitive and there is no predicting the outcome of any future dispute between an employer and employee about conscientious objection under s 4. It is also worth noting in passing that, from a Roman Catholic canon law perspective, given that the Inner House clearly identified their role in participation in abortions, Ms Doogan and Mrs Wood must have been in danger of excommunication latae sententiae.

Further, as Lady Dorrian pointed out, advice from professional bodies cannot displace statute law and has got to be correct. Or as we would sometimes mutter in despair when I was Clerk of Bills in the House of Commons and someone was being particularly obtuse about a statute, “RTBA” – “Read the bloody Act”.

Finally, will the Health Board seek to take the case to the Supreme Court?

Frank Cranmer

[For a rather different view see Conscientious objection in Scotland: a worrying precedent on the RHM Blog.]

Human embryos & beginning of life back at European Court

In our post Human Embryos, the beginning of life, and EU Citizens we reported on the “One of Us campaign, its use of the European Citizens’ Initiative and the underpinning judgement, Oliver Brüstle v Greenpeace e.V [2011] case c-34/10.  This case concerned the interpretation of Article 6(2)(c) of Directive 98/44/EC on the legal protection (i.e. patentability) of biotechnological inventions. Article 6 of the Directive states:

1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.

2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable: (a) processes for cloning human beings; (b) processes for modifying the germ line genetic identity of human beings; (c) uses of human embryos for industrial or commercial purposes.

In its judgement on Brüstle, the Court of Justice clarified:

  • the circumstances under which a human ovum falls within the definition of “human embryo” within the meaning of Article 6(2)(c) of the Directive in the context of patentable inventions;
  • that fertilization of the ovum “commences the process of development of a human being”.

However, this does not:

  • equate a fertilized human ovum with a human being;
  • suggest that a legal personality should be assigned to such a fertilized ovum.

The matter is set to return to the Europe following a reference by the High Court in International Stem Cell Corporation v Comptroller General of Patents [2013] EWHC 807 (Ch) (17 April 2013) in relation to an appeal by ISCC against a decision that the inventions disclosed in two of its patent applications relating to human stem cells were excluded from patentability. The issues raised by the appeal are summarized in paragraph 3 of the judgement, which states:

“… What is meant by the term “human embryos” in Article 6(2)(c) of the Biotech Directive? In particular, what was meant by the CJEU in Brüstle by the expression “capable of commencing the process of development of a human being”?  Does that contemplate the commencement of a process which must be capable of leading to a human being? Or does it contemplate the commencement of a process of development, even though the process cannot be completed, so that it is incapable of leading to a human being?

Henry Carr QC, sitting as a Deputy Judge of the High Court, suggested at paragraph 59 that subject to any further submissions from the parties, the question he intended to refer to the Court of Justice was:

“Are unfertilised human ova whose division and further development have been stimulated by parthenogenesis, and which, in contrast to fertilised ova, contain only pluripotent cells and are incapable of developing into human beings, included in the term “human embryos” in Article 6(2)(c) of Directive 98/44/EC on the legal protection of biotechnological inventions?”


International Stem Cell Corporation turned on whether the term human embryos as defined in Article 6(2)(c) of the Directive on the legal protection of biotechnological inventions, 98/44/EC, encompasses activated oocytes [referred to as parthenotes [1] ].  Although the case was technically complex, there was common ground between the parties and the judgment of the Bundesgerichtshof in Brüstle regarding human embryogenesis, paragraphs 11 to 15, and parthenogenesis, paragraphs 16 to 20.

Brüstle gave some guidance on Article 6(2)(c), ruling that

any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis constitutes a ‘human embryo” within the meaning of Article 6(2)(c) due to it being capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so,” [emphasis added].

However, problems arose in the application of this guidance to the instant case in view of:

  • differences in the factual matrix: in the High Court, the Hearing Officer had made a finding of fact that the parthenotes produced by the methods of the invention are incapable of continued normal development, whereas the evidence presented to the CJEU was that parthenotes have the potential to create a human being.
  • uncertainty in the meaning of the test “commencing the process of development” which had been adopted not only in relation to parthenotes but also in relation to fertilised ova, non-fertilised ova subjected to somatic-cell nuclear transfer and stem cells obtained from human blastocysts;
  • uncertainty as to whether the test is to be applied to: the commencement of the process of development of a human being, whether or not the potential exists for the completion of the process; or to the commencement of a process which is capable of leading to the birth of a human being.

Referring to the (non-exhaustive) examples in recital 38 of the Directive [2] , the Deputy Judge concurred with the opinion of the Advocate General in Brüstle that totipotent cells should be excluded from patentability, whereas pluripotent cells should not.  Rosalind English notes that when the court considered neural stem cells in Brüstle, it took the view that, with its emphasis on human dignity, the Directive invited a wide interpretation of the concept of the “human embryo”, but concludes:

“[p]atent law has to strike a balance between the interests of encouraging research in biotechnology and the need to respect the principles safeguarding the integrity of the person. But to give too wide a role to “human dignity” by excluding processes of development which are incapable of leading to a human being does not strike a balance at all. This is particularly so in the case of parthenotes, which are not the same as fertilised ova at any stage. Excluding such important achievements from the protection of intellectual property, in the name of “human dignity”, achieves nothing.”

Not all would necessarily agree, and the judgment of the Court of Justice will be followed by both researchers and religious groups.

[1] Parthenogenesis refers to the initiation of embryogenesis without fertilisation by activation of an oocyte, [an unfertilised ovum], in the absence of sperm.  Such activation can be induced with a variety of chemical and electrical techniques.  The activated oocyte (referred to as a parthenote) contains a single or double set of maternally derived chromosomes but does not contain any paternal DNA, [para. 16];

A parthenote is capable of developing into a blastocyst-like structure comprising trophectoderm and an inner cell mass.  However it cannot develop to term because of the absence of any paternal DNA, [para.17].

In contrast to a fertilised ovum and its early stage descendants the cells of a parthenogenetically-activated oocyte are pluripotent, not totipotent, even in the first few cell divisions after activation. The same is true of the cells in a parthenogenetic blastocyst-like structure, [para.18].

[2]  . . . . . . . . whereas processes, the use of which offend against human dignity, such as processes to produce chimeras from germ cells or totipotent cells of humans and animals, are obviously also excluded from patentability, [Recital 38].