Religion and law round up – 30th June

The Marriage (Same Sex Couples) Bill ground on in the Lords, the  Marriage and Civil Partnership (Scotland) Bill was introduced – and Lady Hale became Deputy President of the Supreme Court

Will the Marriage (Same Sex Couples) Bill lead to the legalisation of polygamy?

Pace Lord Carey of Clifton we think not: and we reported a recent case, Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588, in which the Supreme Court of British Columbia held that the ban on polygamy under  s 293 of the Criminal Code of Canada was not inconsistent with the Canadian Charter of Rights and FreedomsPart 1, Constitution Act 1982.

The Charter is a much less detailed document than the ECHR; however, the Canadian case provides a certain degree of persuasive authority for the proposition that governments can ban polygamy without falling foul of human rights obligations – and the ECtHR can apply a margin of appreciation which is not available to a Canadian Provincial Supreme Court.

Will the Marriage (Same Sex Couples) Bill end the bar on consanguinity?

We noted the discussion in the Lords on Amendment 46A to the Marriage (Same Sex Couples) Bill which would have required the forthcoming review of civil partnerships to look at extending eligibility to “unpaid carers and those they care for, and family members who share a house, who have cohabited for 5 years or more and are over the age of eighteen”. The background was the case of two elderly sisters, Joyce and Sybil Burden, who were unsuccessful in their discrimination claim that, as sisters, they could not become civil partners: see Burden and Burden v United Kingdom [2007] ECHR 723. The Daily Telegraph reported the debate as Spinster sisters could win legal right to be treated as married couples, Peers told.

Or possibly not. For the Government, Lord Wallace of Tankerville, Advocate General for Scotland, was having none of it:

“… civil partnership … is not the appropriate place to open up these new, significant policy questions. The review is about civil partnerships. It would be inappropriate to open it up to look at unrelated issues of carers and family law, and particularly the question of tax and benefits”.

Marriage and Civil Partnership (Scotland) Bill

The Marriage and Civil Partnership (Scotland) Bill was introduced into the Scottish Parliament on 27 June. Besides making provision for same-sex marriage in Scotland, the Bill makes further provision as to the persons who may solemnise a marriage and to marriage procedure itself. The Bill also makes further provision as to the places at which civil marriages may be solemnised. Sections 12 and 13 (Scots bills are divided into sections, not clauses) make provision for a new category of “belief” marriage celebration in addition to religious celebration.

The Bill is accompanied by the customary Explanatory Notes, together with Policy Memorandum and a Delegated Powers Memorandum. In addition, the Parliament’s Equal Opportunities Committee has published a call for evidence which will remain open until Friday 23 August.

We hope to post a longer analysis when we have digested the content.

And while we’re on the subject of same-sex marriage…

As everyone will know by now, in US v Windsor 570 US (2013) – by five votes to four – the US Supreme Court struck down s 3 of the Defense of Marriage Act 1996:

‘‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’.

The effect of that section has been to deny federal benefits to same-sex couples married under state laws or outwith the jurisdiction. The court also declined to rule on the constitutionality of Proposition 8, California’s prohibition of same-sex marriage – which means that California can resume marrying same-sex couples. Further comment is for US constitutional specialists – which we aren’t.

The EU and freedom of religion or belief

As we noted, the EU Council of Ministers adopted new Guidelines on promotion and protection of freedom of religion or belief, based on the principles of equality, non-discrimination and universality, to provide practical guidance to officials of the EU and Member States in their relations with third countries and with international and civil society organisations. The guidelines go further than the previous Council conclusions on freedom of religion or belief adopted in 2009 but not so far as the text adopted by the European Parliament on 13 June. They were generally welcomed by the bodies representing the European Churches – but with slightly less enthusiasm by the Roman Catholic bishops than by the rest.

The Sun gets its comeuppance

Back in February we noted Adam Wagner’s post on UKHRB about a story in The Sun beside a picture of the Soham murderer Ian Huntley under a completely misleading headline: “Now EU could let fiends like him prey on your children“. Evidently this was the last straw for the European Commission, which complained to the Press Complaints Commission.

Adam now reports the Commission’s conclusion that there was

“a clear failure to take appropriate care over the accuracy of the coverage and a breach of the Editor’s Code, which was particularly significant at a time when the roles of both the EU and the Convention were a matter of major public debate“.

No further comment necessary.

The Scout Promise

In the piece in last week’s round-up on GirlGuiding UK’s new promise we suggested that the consultation being run by the Scout movement might result in it adopting a new promise “soon”.  Alas no.  Although the Scouts announced their review of the promise on 4 December 2012, ahead of the Guides, the Daily Telegraph reports that, following the completion of the consultation, the new wording “will be devised by the trustees of the Scout Association and approved by the worldwide movement before being announced in the autumn, at the earliest”.  [Who said the Church of England was slow in its decision-making processes?].

However, rather than seeking “a one promise fits all” and possibly ending up with what the Bishop of Bradford has described as “vacuous nonsense”, the Scouts are to produce an alternative promise to be used alongside the present one, which currently has different versions for Muslims, Hindus and people of other faiths.

Westminster Hall debates

Westminster Hall debates “[give] more time for individual MPs to raise issues of importance to them with a series of Private Members’ adjournment debates on Tuesdays and Wednesdays. The Thursday sitting is frequently used to debate select committee reports and other general business”. On 25 June there were two such debates of interest:

Habitats Directive (Bats in Churches)

The presence of bats in churches presents significant practical and financial problems, which are exacerbated by the protection given by the Habitats Directive.  This is a long-standing issue, yet one which has been difficult to progress.  However, in the debate in Westminster Hall moved by the Second Church Estates Commissioner, Sir Tony Baldry (Banbury), is to be congratulated for his robust condemnation of the competent authorities and his securing follow-up action by the Minister.

In a wide-ranging discussion [25 Jun 2013 Col. 30WH] Sir Tony said that

“This debate would not be necessary, and I would not be detaining the House by raising the issue, if it had been possible to sort out satisfactory bat mitigation measures … The Bat Conservation Trust has singularly failed to solve the problem as, in my judgment, has Natural England, and that is why it has been necessary to raise the issue and to continue to press the Minister to find a solution.[our emphasis]”

He appreciated that Natural England could not grant licence in the absence of satisfactory alternative provision. He could not see that that was a problem: obliging congregations and communities to co-exist with bats was plainly not a “satisfactory alternative”. In addition,

“The second matter to which Natural England must have regard to grant a licence is that, under regulation 53(9)(b), the interference with the bats “will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range”. Again, unless the bats were of a particularly endangered species—for example, Greater Horseshoe bats—it is difficult to see how that provision could cause a problem to Natural England.”

The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs, Richard Benyon, responded on behalf of the Government. He summarized Government action [25 Jun 2013: c 33WH] which includes:

  • ensuring that guidance offered by Natural England and the national bat help line is clear, proportionate and unambiguous;
  • undertaking specific actions at several churches to find means of moving bats away from sensitive areas.
  • ensuring that unnecessary costs are not incurred, and requesting Natural England to provide guidance on the nature of surveys that may be required or the sort of actions to prevent impacts on bats; and
  • requesting Natural England to look into reports of over-zealous advice being given to churches.

Bats in buildings, said Benyon, were “… a problem that I am absolutely determined to resolve” – but it is pretty clear that there will be no swift resolution that will address the problems of congregations currently suffering from bat infestation.

Mitochondrial disease

Later in the day, Chi Onwurah (Newcastle upon Tyne Central) (Lab) led a debate on mitochondrial disease, the devastation it causes and a new techniques developed by Newcastle university to prevent it.  Subsequently, the Department of Health issued a Press Release Innovative genetic treatment to prevent mitochondrial disease announcing “Public consultation expected on draft regulations for IVF-based techniques to prevent mitochondrial disease later this year”.  However, the resulting headlines regarding this possible consultation were more sensational: “UK government backs three-person IVF”, (BBC); “UK Government gives green light to three-person IVF”, (Vatican Radio); “Britain could create first ‘three-parent baby’ through IVF”, (Daily Telegraph).  Nevertheless, in view of the legal implications, we will be covering the issue in a later post.

And finally…

Absolutely zilch to do with law and religion – but Frank couldn’t resist the Beaker Folk’s Church of England News Headline Generator.

Human Tissue Act, Coroner’s Powers and Relatives’ Permission

Circumstances sometimes require that a court reaches its verdict before a specified time, after which any such ruling will become irrelevant.  A recent post considered a case involving the capacity of a bipolar patient to consent to the termination of her pregnancy, and the decision of the court which was expedited so that the termination could be undertaken within the 24 week deadline imposed by section 1(1)(a) Abortion Act 1967.  The case of CM v The Executor of the Estate of EJ (deceased) [2013] EWHC 1680 (Fam) provides a further example, and here the court was asked to permit tissue samples removed under the authority of a coroner following a post-mortem examination, to be analysed before they degraded, in order to determine an appropriate medical regime, if any, for the applicant.

Case Summary

“CM”, a medical doctor, had stopped her car to attend to the motionless body of a woman, “EJ”, lying on the pavement following an apparent fall from a nearby building.  Despite her intervention the woman died, but as a result of her efforts at resuscitation, CM’s hands became covered with EJ’s blood. CM subsequently observed a number of work-related abrasions on her hands, probably caused by an alcohol hand wash, was naturally concerned at the potential of infection from blood-borne diseases, and sought to clarify this by through an enzyme immunoassay of EJ’s blood or human tissue.

However, given its prior history of the organ-retention ‘scandals’ at Alder Hey Children’s Hospital and Bristol Royal Infirmary, the Human Tissue Act 2004, (HTA 2004) and the associated HTA Code of Practice are necessarily prescriptive on the need for consent before “relevant material” is obtained.  In this case, EJ was a foreign national who had no “relatives” as understood by the Act that were readily contactable for such a consent – the closest was “OP”, EJ’s mother’s cousin.

Samples of blood and tissue had been taken by the pathologist on the instructions of the Coroner, pending the decision of the court, but the longer the delay in testing the relevant material, the greater the risk of blood haemolysis and deterioration of the samples, with consequent impact on the reliability of the results. Hence, an urgent application was brought by way of Originating Summons under the inherent jurisdiction, made without formal notice having been given to the First and Second Respondents, (the Executor of the Estate of EJ (deceased) and Her Majesty’s Coroner for the Southern District of London, respectively), although the Second Respondent had informal notice of the application.

The Hon. Mr Justice Cobb noted [at para. 14]

“sources of appropriate consent (in relation to the removal, storage or use of relevant human tissue of deceased adults) are set out in Section 3 of the 2004 Act.   Where the person from whom the human tissue or blood is to be removed has died, ‘appropriate consent’ means:

(i) his (or her) consent (if the consent was in force immediately before he/she died);

(ii) if (i) does not apply, a person appointed to deal with the issue of consent in relation to the specific activity;

(iii) if neither (i) nor (ii) apply, the consent of a person who stood in a qualifying relationship to him/her immediately before he/she died.

In this case it is of course impossible to ascertain EJ’s wishes as to the removal, storage or use of her relevant human material, and there is no evidence that she had appointed another person as her ‘nominated representative’ in this regard.”

He furthermore summarized [at para.18, emphasis added] the effect of Section 11 of the 2004 Act and the Code above is that:

(i) A Coroner may remove, store and use relevant material for the purpose of the post-mortem examination to determine the cause of death without obtaining the consent of relatives;

(ii) A Coroner does not have the power to consent to samples being taken for the benefit of a third-party;

(iii) A Coroner’s consent is required before any sample can be removed, stored or used for purposes other than in the exercise of his own functions or authority.

With regard to consent, Mr Justice Cobb was satisfied that it was not reasonably practicable to seek the consent of EJ’s parents within the time available, as required by section 27(8) of the Act.  In the absence of  formal relatives, OP had a “qualifying relationship” within the definition of Section 3(6)(c) and Section 27(4)(h)), and as a reasonably close relative can properly be regarded as falling within the definition of a “friend of longstanding”.  Since OP had given relevant consent and the Coroner has indicated his agreement to the removal and testing of the relevant material, both communications by email, the judge could then exercise his discretion under the inherent jurisdiction.

In doing so, he indicated the importance of respecting the integrity of the deceased’s body prior to burial or cremation, but noted that the corpse was inevitably to be subject to thorough post-mortem examination, necessarily involving dissection and inspection of EJ’s body parts.  This was balanced against the fact that CM’s request only arose because she undertook an act of great humanity in attempting to save EJ’s life, and if this testing were not to be undertaken, CM would live for the foreseeable future in a state of profoundly anxious uncertainty as whether she had contracted a serious, life-threatening illness.

He therefore had little hesitation in granting the relief sought by CM, and pursuant to his declarations [para. 26], the samples of EJ’s blood and tissue obtained at post-mortem examination were tested for blood-borne diseases, and the test results were negative.

Comment

The Human Tissue Act 2004 is not restricted to coronial activities and is of general application, and imposes prescriptive requirements on any activity related to “relevant material” as defined by section 53[1], such as exhumation, in addition to other legislative controls.  However, certain exemptions apply including; “religious relics”, section 40; and bodies of persons who died before 15 November 1904.

The declarations made by Mr Justice Cobb [para. 26] indicate the range of activities controlled by the 2004 Act, in addition to the consent requirements discussed above, viz.

(i)    that it shall be lawful for blood, bodily fluid and/or tissue to be removed from body of EJ for the purposes of testing for blood-borne diseases for and on behalf of CM, [section 14(1)(a)];

(ii)  that it shall be lawful for tests on the samples referred to in (i) to be performed as are necessary to establish whether, at the time of her death, the deceased was infected with any communicable blood borne diseases, [section 14(1)(b)];

(iii)  that it will be lawful for CM or those acting on her instruction to be informed of the results of the testing referred to in (ii), [section 11(1)];

(iv) that it will be lawful for CM or those acting on her instruction to destroy the sample(s) used for testing, [section 14(1)(g)(iii)];

(v)  that it will be lawful for the Coroner and CM or those acting on her instruction to discuss what samples have been or are to be taken by the Coroner from the body of EJ for the purposes of the Coroner’s investigations, [section 11(1)].

Rosalind English explores the case in The Good Samaritan doctor and the Human Tissue Act on UKHRB.


 [1] Section 53 “Relevant material”: (1) In this Act, “relevant material” means material, other than gametes, which consists of or includes human cells. (2) In this Act, references to relevant material from a human body do not include— (a) embryos outside the human body, or (b) hair and nail from the body of a living person.

Wedding dance flash-mob, viral vicars and the law

As Digitalnun noted in her blog, “unless you have been living in monastic seclusion for the past few days, you will know about the excitement generated by a Church of England vicar’s flash-mob dance routine”.  Quite so, but for those unaware of this news story, Vicky Beeching’s piece in The Independent contains a link to the video and summarizes the event:

“The viral video of Reverend Kate Bottley, a young and energetic vicar from Nottingham, set the social media world alight for exactly this reason [how to make religion interactive]; a wedding ceremony attended by people unaccustomed to church or religion was suddenly punctuated by a surprise flash-mob. Kate and the couple unexpectedly broke into a choreographed dance, followed by more of more members of the congregation”.

She continues:

“In this digital age, participation has become our natural way of life; the internet has moved from “1.0” to “2.0” and the formerly passive experiences of reading a static webpage of text has exploded into a multi-directional, fluid exchange of views and user-generated content. We don’t just consume or passively receive information any more; we comment back, we contribute, we change things. We aren’t just receivers; we are shapers of the digital environments we inhabit.”

At this point, it is necessary to clarify a few definitions, courtesy of Wikipedia, which may not be obvious to all [1] [including Frank and myself]:

A flash mob is a group of people who assemble suddenly in a public place, perform an unusual and seemingly pointless act for a brief time, then quickly disperse, often for the purposes of entertainment, satire, and artistic expression.  Flash mobs are organized via telecommunications, social media, or viral emails.

Web 2.0 describes web sites that use technology beyond the static pages of earlier web sites.  . . . . . . A Web 2.0 site may allow users to interact and collaborate with each other in a social media dialogue as creators of user-generated content in a virtual community, in contrast to websites where people are limited to the passive viewing of content.

A viral video is a video that was created and becomes popular through the process of Internet sharing, typically through video sharing websites, social media and email.

From here, the focus of the discussion diverges, from the straightforward reporting of events as on the BBC site, to Beeching’s analysis of “how to make religion interactive”, and then to Dame Catherine Wybourne’s consideration “Viral Vicars and Roman Restraint”, where she points out that “most Catholic congregational worship is linked to a celebration of the sacraments, there is a certain gravity and purposefulness about it, ‘the noble simplicity’ Vatican II aimed at but did not always and everywhere achieved”.

But what of the law?

Apart from noting a similarity between Gary and Tracy Richardson’s wedding video and the spoof “royal wedding” video made for T-Mobile, (itself based upon “Jill and Kevin’s Big Day”, another viral video from the US), a few legal thoughts sprang to mind:

–        Is it licit within the context of the marriage ceremony?

–        What are the limitations on the music that can be used? and

–        What are the copyright issues?

The choice of music is the easiest to resolve and in the Church of England is specified in Canon B20 Of the musicians and music of the Church.  Although the organist/choirmaster/director of music may advise the minister on the choice of “chants, hymns, anthems, and other settings, and in the ordering of the music of the church”, and the minister “shall pay due heed to his advice and assistance”, “at all times the final responsibility and decision in these matters rests with the minister”. However, under Canon E1 Of Churchwardens, Churchwardens are under a general duty to “maintain order and decency in the church and churchyard, especially during the time of divine service,” which presumably would include the manner in which the flash-mob dance were performed.

Although it does not specifically refer to dancing, the spirit of Canon B 9 Of reverence and attention to be used in the time of divine service is one of participation, requiring that “All persons present in the time of divine service shall audibly with the minister make the answers appointed and in due place join in such parts of the service as are appointed to be said or sung by all present”, and “give reverent attention in the time of divine service . . . .[and] shall have regard to the rubrics of the service and locally established custom in the matter of posture, whether of standing, kneeling or sitting.”

In the case of the Richardson wedding, the music was Everybody Dance Now by C&C Music Factory, followed by Celebration by Kool & The Gang.  The video clip provides a record of the dancing, which was: choreographed; well-rehearsed; and anticipated by about 30 of the 100 strong congregation.

But was the flash-mob dance actually part of the service?  Digitalnun’s reference to “the whole congregation breaking out into dance during the celebration of a sacrament” highlights the issue of liceity – i.e. to what extent does a so-called “flash mob dance” constitute part of the liturgy or more broadly part of the celebration of a sacrament.  While in the Roman Catholic Church marriage was acknowledged as a sacrament at the Council of Trent, there are different views within the Church of England on the interpretation of Article XXV (of the Thirty Nine Articles of Religion) on the sacramental nature of marriage;

However, taking the narrower consideration, as it did not appear to comprise any part of the formal liturgy, it could be argued that coming at the end of the service, the dance was no different from any other recessional music.  The Press Release Church of England wedding web hit on the CofE website and the reported support of the bishop suggest a degree of official approval.

Copyright is addressed by the Copyright Designs and Patents Act 1988, and from 1 January 2011 some of the exemptions that were applicable to not-for-profit organizations such as churches were removed.  The complexity of copyright in relation to weddings is evident from the overview on the web page of Church Copyright Licensing International, (CCLI), which indicates that whilst a PPL Church Licence and a PRS Music for Church Licence [2] are not required for acts of worship/weddings/funerals, a Church Copyright Licence (CCL) may be needed, and also a Limited Manufacture Licence (LML) when the service is recorded, whether by professionals or amateurs (i.e. using mobile phones).  Recording also requires permission to be given by all participants in the service, (musicians, readers etc.) where these are to be recorded. Then there are the issues relating to use on the social media.  Copyright is an area which is currently outside the comfort zone of this blog, yet one in which expert guidance is needed.

Comment

The events at St Mary and St Martin, Blyth, raise two issues. Firstly, is when other couples requesting similar events at their own wedding.  Clearly there will be less of the novelty element, but equally they need to balance the element of surprise with a sufficient number of the congregation who are expecting it and are prepared to participate.  Whilst the bride and groom need to prepared to address the logistic problems associated with the delivery of the event, a church will need to be aware well in advance of exactly what is planned, whether this is acceptable, and if it is covered by its existing licences

Secondly is Vicky Beeching’s point about making religion more interactive. This is perhaps a more important issue since it extends beyond the “occasional office” of marriage, to the re-imagining of day-by-day worship within the church.  Referring to the Fresh Expressions movement, Beeching ponders moving from a “front-led, classroom style experience” to a “’church 2.0’  . . . . where leadership is more open-handed and every attendee shapes the experience and collaborates.”

Perhaps deliberately, she refers to the model of “worship services”, since the celebration of the Mass necessarily presents fewer opportunities when the priest is considered to be acting in persona ChristiCanon 1008 CIC and Ominum in Mentum in the Roman Catholic Church, and less prescriptively, Article XXIII. Of Ministering in the Congregation and Canon B12 in the Church of England, although in the CofE, there is a more relaxed approach to the administration of communion.

Similarly, a move to “a far more interactive seating plan” is possible, but governed by the size and dimensions of the existing building, and for the CofE, by the faculty jurisdiction.  Nevertheless, the Ecclesiastical Law Association web site contains numerous examples in which churches were re-ordered to provide more flexible worship arrangements, here.  However, we will leave the matter of the music, the impact of Vatican II &c to another post.


 [1] However, important components of a “flash mob” – “seemingly pointless”, “quickly disperse” – do not the match facts, and perhaps coup de théâtre would be a more accurate, if pretentious description.  Likewise Tim Berners-Lee is said to query whether Web 2.0 is substantively different from prior web suggesting that the term is merely jargon.  At least we are left with the alliteration of “viral video” in combination with “vicar”.

[2] Phonographic Performance Ltd (PPL) Church Licence, for playing recorded music; PRS Music for Church Licence for public performance of live music and sound recordings during church activities, [PRS Music was formerly the Performing Right Society)].

EU guidelines on promotion and protection of freedom of religion or belief

On 24 June the EU Council of Ministers adopted new Guidelines on promotion and protection of freedom of religion or belief in EU external action and human rights policy. The guidelines are based on the principles of equality, non-discrimination and universality and are intended to provide practical guidance to officials of the EU and Member States in their relations with third countries and with international and civil society organisations. The guidelines go further than the previous Council conclusions on freedom of religion or belief which were adopted under the Swedish Presidency in 2009 and take into account most of the text adopted by the European Parliament on 13 June; but they are not as detailed as the EP text in relation to monitoring and assessment requirements.

The guidelines reaffirm that it is up to each individual State to ensure that its legal system guarantees freedom of religion or belief and to put in place “effective measures” to prevent or sanction any violations. The EU and its Member States should focus on:

  • fighting against acts of violence on the ground of religion or belief;
  • promoting freedom of expression;
  • promoting respect for diversity and tolerance;
  • fighting against direct and indirect discrimination; notably by implementing non-discriminatory legislation;
  • supporting freedom to change or leave one’s religion or belief;
  • supporting the right to manifest religion or belief;
  • supporting and protecting human rights defenders including support for individual cases; and
  • supporting and engaging with civil society, including religious associations, non-confessional and philosophical organisations.

The guidelines clarify the EU’s own position of neutrality towards religion or belief, not aligning itself with any specific view but upholding the individual’s right of conscience to choose, changeor abandon a conviction. Moreover, the priorities are of equal importance.

The guidelines recommend action to be taken at different levels. At the local level, EU missions (i.e. EU delegations and Member States Embassies and Consulates) will be responsible for monitoring, assessing and reporting on these priorities. When necessary, the EU and its Member States should promote freedom of religion or belief during their official visits to third countries. At the multilateral level, the EU will continue to participate actively in the UN agenda. In practice, the guidelines call for using external and thematic financial instruments by providing funding to human rights defender projects, especially capacity building and mediation training projects.

The Council Working Group on Human Rights (COHOM) will be responsible for developing further guidance for EU missions and provide general support. After three years, COHOM will also conduct an evaluation of the implementation of the guidelines, based on reports from the EU Heads of Missions and consultations with civil society, including Churches and religious associations.

The Church and Society Commission of the Council of European Churches (CEC), representing the Orthodox, Protestant, Anglican and Old Catholic Churches, welcomed the guidelines but said that it would monitor their implementation and evaluation to ensure that they were being used effectively to combat violations. The guidelines were also broadly welcomed by the Commission of [Roman Catholic] Bishops’ Conferences of the EU (COMECE) but with somewhat greater reservations. COMECE suggested that any future review of the guidelines might usefully follow the European Parliament’s recommendations on:

  •  the reinforcement of the collective dimension of religious freedom, broadening the individualistic interpretation of the right so as fully to include its social and institutional dimension;
  • the recognition of the full right of parents to educate their children according to their religious beliefs as provided for by international law; and
  • a more balanced approach to the principle of non-discrimination with sensitivity to the impact of that principle on religious freedom.

Comment

The Erasmus Blog on the website of The Economist greeted the guidelines with very muted enthusiasm indeed, on two grounds:

  • the fact that the EU is making detailed prescriptions for outsiders without addressing the issue of religious freedom within the Union itself: “Article 17 of the Lisbon Treaty allows EU members the full range of options, from the strict secularity of France to the state churches of England, Denmark and Greece. If the Union allows for such internal diversity, perhaps it should be more hesitant to micromanage the affairs of others”; and
  • the almost complete lack of publicity for the document: “[i]f the EU is to have a religious-freedom policy worth the name, then political figures of real standing (the heads of government or foreign ministers of leading members, for a start) will have to offer some high-profile backing, and persuade people they have thought through some hard issues”.

The first point, in particular, has a good deal of weight behind it. A few EU members still pursue policies which appear to be rather at odds with the some of the provisions of the ECHR: the rather restrictive requirements for registration of religious communities in countries such as Austria and the almost complete failure of the Romanian Government to resolve the issue of properties expropriated from faith-groups such as the “Greek-Catholics” in communion with Rome [Biserica Română Unită cu Roma, Greco-Catolică] are just two examples.

With thanks to my colleague Caroline Antoine

Same Sex Marriage Bill – Committee, 3rd Day Summary

On the third day of the Committee Stage of the Marriage (Same Sex Couples) Bill, the House of Lords debated the Third Marshalled List of Amendments, and Government Amendments 49 to 53, and  58 were agreed.

An item of legal interest is the discussion on Amendment 46A concerning the two elderly sisters, Joyce and Sybil Burden, who were unsuccessful in their bid to be treated as civil partners in relation to inheritance taxation, Burden and another v United Kingdom Application No. 13378/05, (2007) 44 E.H.R.R. 51In the subsequent discussion, Lord Mackay of Clashfern made the interesting observation [24 June Col. 537]

“It is important to remember that this Bill is not about gay marriage but same-sex marriage. As I pointed out, and I invited correction—so far I have not been corrected—it includes platonic relations between people of the same sex. Therefore, the idea that sexual relationships are fundamental to it is a mistake.”

Although Amendment 46A was withdrawn, it is likely that these issues will be discussed at the Report Stage which is scheduled for 8th and 10th July.

Links to Monday’s debate and a summary of the outcome are given below, and a more detailed analysis of all three days of the Committee Stage will follow.

Schedule 4: Effect of extension of marriage: further provision

Amendment 45

Withdrawn

Schedule 4, as amended, agreed.

Amendment 46

Not moved

Clause 12

Agreed

Schedule 5 : Change of gender of married persons or civil partners

Amendment 46ZA

Withdrawn

Amendments 46ZB to 46ZG

Not moved

Schedule 5

Agreed

Clause 13

Agreed

Schedule 6

Agreed

Clause 14 : Review of civil partnership

Amendment 46A

Withdrawn.

Clause 14 agreed

Amendment 46B

Withdrawn

Amendment 46C

Withdrawn.

Amendment 46D

Not moved

Amendment 47

Withdrawn

Amendment 48

Withdrawn

Amendment 48A

Withdrawn

Clause 15 agreed

Schedule 7 : Transitional and consequential provision etc

Amendments 49 to 53

Agreed

Amendment 54

Not moved

Amendment 55

Withdrawn

Amendment 56

Withdrawn

Amendment 56A

Withdrawn

Schedule 7, as amended, agreed

Clause 16 : Orders and regulations

Amendment 57

Not moved

Amendment 58

Amendment 58 agreed.

Clause 16, as amended, agreed.

Clauses 17 and 18 agreed

Clause 19 : Short title and commencement

Amendment 59

Not moved.

Clause 19 agreed.

Bill reported with amendments

Human rights in Canada and statutory bans on polygamy

Introduction

One of the arguments advanced against the Marriage (Same Sex Couples) Bill, notably by Lord Carey of Clifton, has been that it would set a “dangerous precedent” that could lead to sibling marriage or polygamy. The Government’s immediate response was that the United Kingdom does not recognise polygamous marriages and that that is not going to change – to which the critics’ riposte was, more or less, “Ah, but what happens when the issue gets to Strasbourg? You just can’t trust the ECtHR”.

By a curious coincidence, the issue has just come up in Canada and has received an immensely long (though, it should be said, immensely learned) reply.

The reference

Under s 293 of the Criminal Code of Canada (Revised Statutes of Canada c C-46 1985) the practice of polygamy is prohibited; and British Columbia asked its Supreme Court to declare whether or not that prohibition was consistent with the Canadian Charter of Rights and FreedomsPart 1, Constitution Act 1982.

In Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588, Bauman CJ agreed [para 1178] that the issue engaged s 7 of the Charter, as follows:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

Nevertheless, he concluded that the Attorney General of Canada and the Attorney General of British Columbia had demonstrated a reasoned basis for the proposition that polygamy (especially polygyny [1]) was “inherently harmful to the participants, to their offspring and to society generally” [para 1182].

As to freedom of religion, he concluded that the case was about competing fundamental rights under the Charter [para 1097] and concluded that s 293 violated the religious liberty of those persons with religious convictions about the appropriateness of polygamy “in a manner that is non-trivial and not insubstantial” [para 1098]. He then gave very short shrift to the proposal that the ban on polygamy engaged the right to freedom of expression [paras 1099–1102].

As to freedom of association, Parliament had not “targeted associational conduct because of its concerted or associational nature”: it had “targeted polygamy because of the physical, psychological and social harms perceived to be associated with the practice” [para 1126]. He therefore rejected the contention that s 293 infringed s 2(d) of the Charter [para 1127].

As to liberty and security of the person, he accepted that s 7 of the Charter was triggered in light of the potential for imprisonment under s 293. He rejected the challengers’ arguments that polygamy was plainly not harmful in and of itself and that consensual and harmless adult polygamous unions did exist [para 1181] since, as noted previously, the Attorneys General had demonstrated a reasoned basis for the harm done by polygamy [para 1182]. Nor was it necessary for him to decide whether consent as a defence to criminal liability rose to the level of a principle of fundamental justice, since

“[e]ven if it did, the principle could only apply where the ‘victim’ of the offence consented. In the case of polygamy, the risks of harm associated with the practice extend beyond the immediate participants to those who are not in a position to give their consent. The children of a polygamous union … cannot consent to their situation, which includes exposure to the increased risk of harms that flow from their parents’ marital relationship” [para 1184].

As to the issue of equality, he rejected the argument that Parliament had drawn a distinction on the basis of marital status by criminalising polygamists specifically, even though “polyamorists” [ie those in informal multi-party unions] engaged in similar conduct but did not come within the ambit of s 293. He concluded that “… the distinction between the two groups is not one based on stereotypes but, rather, on harm, in particular in this scenario, harm to the institution of monogamous marriage” [para 1266].

In short, s 293 as generally applied did not violate the terms of the Charter. However:

“In criminalizing ‘every one’ in a prohibited union, s 293 includes within its ambit young persons who are parties to such unions. This serious impairment of young persons’ liberty interests does not advance the important objectives of s 293. Even according Parliament a healthy measure of deference, it cannot be said that the measure, in this limited respect, is ‘carefully tailored so that rights are impaired no more than necessary’… [para 1356]

Accordingly, I find that to the extent s 293 is contrary to the principles of fundamental justice guaranteed by s 7 of the Charter by criminalizing young persons between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time. [T]he Attorneys General have not met the burden of demonstrating that this infringement is justified in a free and democratic society” [para 1357] .

(For further background, see the CBC’s news report on the case.)

Discussion

In her recent examination of polygamous marriage[2] Dr Ruth Gaffney-Rhys, of the University of Wales, Newport, notes that

“[t]he Universal Declaration of Human Rights 1948, the European Convention on Human Rights 1953, the International Covenant on Civil and Political Rights 1966, the American Convention on Human Rights 1969 and the Arab Charter on Human Rights 2004, each provide a right to marry, but do not specifically mention monogamy or polygamy.

However, she suggests that

“[i]n Johnston and Others v Ireland [1986] ECHR 17 the applicants (a married man and the woman he wanted to marry) argued that the prohibition against divorce contained in the Irish Constitution at the time, infringed their right to marry. The European Court of Human Rights held that the right to marry does not imply a right to divorce in order to remarry and by analogy would not entail a right to marry polygynously.

Furthermore, it is necessary to take into account the current position of the UK in relation to polygamy, which is more complex than the Government’s immediate response above. In our post Child of Polygamous Marriage Refused Entry to UK we noted that the issue of polygamy is one of policy as much as it is one of law, as outlined in a recent House of Commons Library Note which considers the recognition of polygamous marriages in relation to immigration issues, social security benefits and pension entitlement.

The Attorney General has confirmed that polygamy is not regarded as a specific offence – unlike bigamy, which is a crime in England and Wales under section 57 of the Offences Against the Persons Act 1861. Marriages that take place in the United Kingdom must be monogamous but polygamous marriages are recognized provided that: “the parties [are] domiciled in a country where polygamous marriage is permitted, and must have entered into the marriage in a country which permits polygamy”.

To date, the legal implications of introducing same-sex marriage legislation vis-à-vis polygamy have not been considered in the debates in Parliament nor in associated legal analysis such as Proferssor McCrudden’s considered advice to the Catholic Bishops’ Conference of England and Wales, Human Rights Implications of the Marriage (Same Sex Couples) Bill. Some have suggested that the wide-ranging changes in marriage law in moving away from a one-to-one relationship, whether same-sex or opposite-sex, would militate against its introduction; however, such practical considerations do not address the associated human rights issues and the ECtHR has been unwilling to acknowledge a general right for same-sex marriage. In Schalk and Kopf v Austria [2010] ECHR 1996  and Gas and Dubois v France [2012] ECHR 108 the ECtHR held  that the right to marry under Article 12 could not in all circumstances be limited to two persons of the opposite sex but was unwilling to extend this more generally in the absence of any European consensus.

Conclusion

The Canadian Charter of Rights and Freedoms is in many ways a much less comprehensive document than the ECHR: for example, there is no explicit equivalent to Article 8 (private and family life) or Article 12 (marriage). Nevertheless, what Re: Section 293 does demonstrate is that in a mature liberal democracy it is still possible to conclude that a ban on polygamy does not violate modern human rights standards. Moreover, the care with which the Court considered the matter is indicated not only by the exhaustive nature of the judgment but by the conclusion at paras 1356–57 that criminalising such behaviour in relation to young persons does, in fact, violate their Charter rights.

Given that there is no simple read-across from the Charter to the Convention one cannot be certain that the ECtHR would follow the same reasoning as the Supreme Court of British Columbia should the issue arise after the Marriage (Same Sex Couples) Bill and the parallel Scots Bill become law; however, it is a reasonable assumption that Re: Section 293 would be cited in support of the present ban. Moreover, the ECtHR has at its disposal an option not available to the Supreme Court of BC: the margin of appreciation.

Frank Cranmer and David Pocklington


 [1] Polygamy: marriage of more than two persons at the same time; Polygyny: the marriage of one man with more than one woman; Polyandry: the marriage of one woman with more than one man; Polyamory: an umbrella term that describes a romantic and/or sexual relationship involving multiple partners at the same time, the participants of which may or may not consider themselves to be married to each other.

[2] R Gaffney-Rhys, Polygamy: A Human Right or Human Rights’ Violation?, (2011) 2 Women in Society, Autumn.

Religion and law round up – 23rd June

A week dominated by the first two days of the same-sex marriage debate in the House of Lords

House of Lords

The first two days of the House of Lords committee stage examination of the Marriage (Same Sex Couples) Bill took place this week, and we reported on the debates here, here and here Media reports and others tended to focus on what individual peers said rather than the context of their comments in relation to particular amendments.  We were also puzzled by the appearance of an advertisement in The Times which gave ten general reasons to reject the Bill, but nothing specific on what the peers were voting on – i.e.the list of over 60 marshalled amendments, here, of which 6 were debated in 17th June, and 17 on 19th June, the others being “not moved”.  The majority of amendments were withdrawn after debate but in a number of cases the proposer reserved the right to raise the issue again at the Report Stage.  Nevertheless, important aspects of the Bill were examined in detail and certain aspects clarified.

Wednesday’s debate continued until the early hours with Baroness Butler-Sloss’s probing amendment into adultery (Amendment 40).  Her forceful and informed speech against the government position was lightened by the following exchange at 12.15 am,

Baroness Thornton:  . . . . . . . I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss, [i.e. using section 1(1) Sexual Offences Act 2003 as a template]. The Government have probably ended up in the right place.

Baroness Stowell of Beeston: My Lords, I was wondering earlier how BBC Parliament would cope if this group of amendments came up before the 9 pm watershed. However, we are clearly okay.

Baroness Thornton: They could turn the lights down.”

The third day of debate on the Committee Stage of the Bill in the Lords will take place on Monday 24th June, for which the current list of marshalled amendments is to be found here.  We will publish a summary the major points raised, in advance of the Report Stage which is scheduled for 8th and 10th July.

Presentation Bills

For completeness, we should perhaps refer to last week’s Presentation Bills and the 42 proposed by three Conservative MPs [1], many of which would have an impact in the area of law and religion if only they ever had a chance of reaching the statute book.  The BBC describes the Bills as “a combination of hard policy, political wish-fulfilment fantasy and tee-hee jibes at the Liberal Democrats” but “[w]hat Mr Hollobone and allies have done is to reserve a place close to the back of the parliamentary queue . . . . . but they’re still behind the latest set of private members’ bills, which means that they’re left with the fag ends of the Friday sittings, when the Commons debates PMBs.”  A full list of the Bills is here

A UK Bill of Rights?

On 20 June, Members of the House of Lords, including three members of the Commission on a Bill of Rights, a former Attorney General and a former Justice Minister debated the Commission’s report, which was published in December 2012, here, here and here.  However, the motion before the House was “[t]hat this House takes note of the report of the Commission on a British Bill of Rights” and no further parliamentary action is currently in prospect.  The full report of the debate is available here, and Parliament’s summary here includes short reports of the three Commission members, Lord Lester of Herne Hill, Lord Faulks and Baroness Kennedy of the Shaws, and Lord Woolf, QC and former Lord Chief Justice of England and Wales, who oppose the Bill of Rights.  Responding for the government, Lord McNally “spoke of human rights and civil liberties as principles which are ‘deeply rooted in the history of the people of this country’ and reassured the members of the Commission that their report would prove valuable for ‘any political party looking forward and working on its policy on this issue’ ”.

Sentence reduced for late abortion

In September last year we reported on the case of a woman who was given an eight-year jail sentence for aborting her own baby in the final phase of her pregnancy. Sarah Catt had pleaded guilty at Leeds Crown Court to administering a poison with intent to procure a miscarriage: taking an abortifacient when near or at full term – 39 weeks pregnant – to induce an early delivery. Although her guilty plea resulted in a reduction of her sentence by one-third, we noted that several commentators had queried its severity and, in the circumstances, the appropriateness of a custodial sentence at all. We suggested that she needed help rather than punishment, given that her previous history – which included trying to terminate an earlier pregnancy and concealing a further pregnancy from her husband before the child’s birth – indicated that she had some serious mental health issues.

The judgment is not yet on BAILII; but the BBC reports that the Court of Appeal has reduced her sentence to three-and-a-half years. Heading the panel of three appeal judges, Lady Justice Rafferty said that though it was a difficult sentencing exercise the eight-year term was “manifestly excessive”.

Forced marriage in Ireland

Under Ireland’s Family Law Act 1995 the minimum age at which a person ordinarily resident in the State may contract a marriage valid in Irish law is 18, whether the marriage takes place in Ireland or elsewhere. This provision also applies where one party to the proposed marriage is over 18 years of age and the other is under 18 and to all non-residents who wish to marry in the State. Under-eighteens who wish to marry must obtain the prior permission of the Circuit Family Court or the High Court.

The admirable Human Rights in Ireland reports an interesting case on the 2011 annulment of a marriage in 2010 between R, a 16-year-old Irish Muslim girl of Egyptian origin and a 29-year-old man, on grounds of  R’s  lack of capacity to give true consent. The judgment has not yet been made public; however, the Irish Times reports that a Circuit Court judge had made orders made in chambers in May 2010 exempting the girl from the statutory requirement minimum age for marriage and the requirement to give three months’ notice of marriage. In his final ruling as a High Court judge, MacMenamin J suggested that it might be appropriate to review the practice under which exemption applications might be heard in private and without any notice to the relevant State authorities.

Mairead Enright remarks that the case “reminds us of the very limited remedies available to a person forced into marriage under Irish law”; however, she is sceptical about the practical value of creating criminal offences around forced marriage. But it’s not for us to plagiarise her post: do read it for yourself.

GirlGuiding Promise

On 18 June, GirlGuiding UK announced the conclusion to its consultation on the wording of the Promise made by its members, and a consequence the 1994 version, (the 11th in the history of the movement), is changed from “I promise that I will do my best: To love my God, To serve the Queen and my country, To help other people and To keep the Guide law.” to “I promise that I will do my best: To be true to myself and develop my beliefs, To serve the Queen and my community, To help other people and To keep the (Brownie) Guide law.”

GirlGuiding UK describes the consultation as “an open process with no predetermined outcome [which] gathered the views of 44,000 people – girls and adults, members and non-members. These opinions have helped us shape the new wording”; and the updated Promise is intended to continue “to emphasise the spiritual development [GirlGuiding offers and] will open up the guiding family to many potential members”.

The background to this change is summarized in a set of FAQs.  The new Promise will be effective from 1 September this year and the Chief Guide says that they hope that “the new wording will help us reach out to girls and women who might not have considered guiding before, so that even more girls can benefit from everything guiding can offer”.

Christina Odone strongly disapproves (no surprise there, then). Scouts’ revised Promise due soon?

“Be Prepared”

The GirlGuiding motto, which has been retained, provides a convenient segue to an item carried in Fr Z’s excellent blog concerning US advice on emergency situations in churches, here.  Issued by the Obama administration, the 38-page document Guide for Developing High-Quality Emergency Operations Plans for Houses of Worship, contains wide-ranging advice on natural hazards, technological hazards, and adversarial and human-caused threats, some of which are relevant in the UK.  We have often stressed the importance of risk assessments, and the need for PCCs to adopt a professional approach to health and safety.

However, Fr Zuhlsdorf’s post focusses on the 9 pages relating to “Active Shooter Situations”, an issue of relevance in the US following a recent incident in Utah.  In his on-line poll, he posed the question, “Provided that laws of a state permit, should people bring concealed or open carry weapons to church?”, to which 41%, of the 2,383 [2] respondees voted “Yes, definitely” with a further 11% voting “Yes, I guess so”.

Inevitably, this post was followed by one entitled Are priests allowed to carry handguns? and whilst favouring the biretta over the Beretta, (“it is a little hard to get at your handgun when you are wearing vestments”) suggests as an alternative  “perhaps an electronic gadget is a better option, perhaps pepper-spray”.


[1] Strictly 40 Presentation Bills and two 10 Minute Rule Bills (SO No 23), put forward by Philip Hollobone, Peter Bone, and Christopher Chope.

[2] At the time of writing.