Religion and law round up – 14th July

Another row with the ECtHR

Inevitably, the major event of the week – though it has nothing especially to do with law & religion – was the Grand Chamber judgment in Vinter & Ors v United Kingdom [2013] ECHR 645. The GC held by sixteen votes to one that the whole-life tariff without review imposed on some prisoners in England and Wales violates Article 3 ECHR (inhuman or degrading treatment or punishment).

The interest from the point of view of this blog lies in the (entirely predictable) reaction from most of the media and Westminster politicians.The Daily Mail ran an article by the Lord Chancellor, Chris Grayling, under the screaming headline This meddling in our affairs must stop now, in which he declared that

“Yesterday’s ruling underlines the need for urgent change. We need to curtail the role of the European Court of Human Rights in the UK. The days when it could interfere with the settled wishes of the British Parliament and people must end. We need a proper balance between rights and responsibilities in our laws. You can’t be allowed to take away the rights of others, and then use your own rights to avoid facing the consequences. I would introduce such changes immediately.

But Labour and the Lib Dems will have none of it. They want things to stay as they are. This is mad. I don’t understand them. But they have more votes in Parliament and have said a clear ‘no’ to change. So we are working on alternative plans. All options are on the table. And we will go into the next general election with a clear promise in the Conservative manifesto of major change, together with a detailed plan of how we will deliver it. For me, that change cannot come quickly enough”.

Earlier in the week the Daily Telegraph had reported that Chris Grayling had gone even further than the above, telling BBC1’s Sunday Politics programme that he regarded withdrawing from the ECHR as a viable option. Which will not come as any great surprise to anyone – though whether withdrawing from the ECHR is, in fact, a viable option remains to be seen.

In a more moderate tone the Law Society Gazette reportedinter alia, that former Home Secretary David Blunkett agreed with criticism of the GC’s ruling, defending his decision in 2003 to cancel the right to review after 25 years in order to “to make life mean life”.

Incurable liberals as we are, we have observed on more than one occasion that human rights are indivisible: if politicians have just decided that they don’t like Article 3, why should they stop there? Why not Article 9? Moreover, in the final analysis who will defend individuals from arbitrary or illegal acts by their governments if it is not the courts? And how could the courts do that without some objective and binding piece of legislation to use as a yardstick? Fifty years ago, as a baby law student, Frank had dinned into him the maxim enunciated by William Blackstone in his Commentaries on the Laws of England that “It is better that ten guilty persons escape than that one innocent suffer”. So just what has changed?

Holy See, Vatican City State – internal and international law

A number of important legal issues relating to the Roman Catholic Church have arisen this week:

  • the UN Committee on the Rights of the Child has requested the Holy See to provide information in relation to the Committee’s second periodic report of the Holy See.  Report CRC/C/VAT/2 details a number of issues of concerned, including, inter alia, clerical sexual abuse and the Magdalene laundries in Ireland, paragraphs 11 and 8 respectively.
  • modifications to the criminal law of the Vatican City State [1] including: abolition of life imprisonment, (please note, Chris Graying); a broader definition of the category of crimes against minors, applicable to officials and Roman Curia staff and also Apostolic Nuncios,  staff from organisations and institutions linked to the Holy See, regardless of whether they are on Vatican soil or not.  Reflecting the concerns raised by the Vatileaks scandal, there is a new article 116b regarding the theft of documents.

These changes to Vatican City civil law come into effect on 1 September 2014 and are separate from the universally applicable canon law, norms and sanctions.

  • on the day these changes were announced, Pope Francis issued a Motu Proprio making the criminal laws adopted by the Pontifical Commission for Vatican City State, above, applicable also within the Holy See. In explaining the significance of these new laws, Archbishop Dominique Mamberti said “The most recently approved laws, while not constituting a radical reform of the penal system, revise some aspects and complete it in other areas, satisfying a number of requirements”.
  • on 9 July, it was announced that Pope Francis had made a modification to Article 5 of the Norms made under Anglicanorum Coetibus [2]  which clarified the contribution of the Personal Ordinariates of OLW in the work of the New Evangelisation.  It has earlier been suggested that Pope Francis had doubts regarding the value of the Ordinariate.

Marriage (Same Sex Couples) Bill

The House of Lords completed the Report stage of the Marriage (Same Sex Couples) Bill on Wednesday, the debate revisiting the issues raised during the three days of the Committee stage, summarized here, and the extent to which government had taken these into consideration when introducing its own Amendments.

The Third Reading of the Bill in the House of Lords is scheduled for 15 July, for which the Marshalled list of amendments to be moved is here, and the Bill as amended on Report is here.  All five Amendments in the list have government approval, and are therefore likely to be agreed.  A summary of the issues debated during the three days of the Committee stage is here, and our notes the Report stage are summarized here.  

General Synod

The more important legal issues that were raised at the Church of England’s General Synod in York are summarized here.  In addition to the progress of the admission of women into the episcopate, we will be following a number of other matters, including possible changes to section 25 of the Burial Act 1857.  An early consideration of the proposed (Miscellaneous Provisions) Measure in 2008, GS 1683Y, indicated that that sub-paragraph concerning cathedrals was inserted since the Ministry of Justice interpret the legislation on consecrated ground as that falling within the faculty jurisdiction, and since this doesn’t apply to cathedrals, a section 25 licence was deemed necessary for an exhumation.  A further lacuna in relation to the cryptic “Provisions relating to Christ Church, Oxford” is the comment in GS 1683Y that observes  “[t]he unique status of Christ Church Cathedral, Oxford, as part of a joint ecclesiastical-academic foundation, means that the provisions of the Cathedrals Measure 1999 do not apply to it”.

Charity law reform – this time in Jersey

The Chief Minister’s Department in Jersey has just launched a consultation on whether or not a Charities Law is needed for the island. At the moment, the current definition of “charity” as set out in Jersey’s 1961 Income Tax Law is drawn from the (English) Statute of Charitable Uses 1601 and is interpreted to exclude what are generally regarded as major areas of bona fide charitable activity: for example, community sports clubs. The proposed Law “would define what makes a charity a charity, set out what charitable purpose is and put in place a requirement for all charities to deliver public benefit [and] make it a requirement for all charities to be included on a public register”. The Government is also consulting on whether the proposed Law “should provide for the future introduction of light-touch, proportionate regulation”. The consultation is not about the detail but about whether or not legislation is needed at all – though it looks suspiciously as if it expects the answer “yes”. It will close on 30 August 2013.

It looks as if Jersey is seriously considering something on the lines of the Charities and Trustee Investment (Scotland) Act 2005 or the Charities Act 2006. Hopefully, the Jersey version will be better-drafted – but that’s detail, not principle.

Government pulling back on agreement on caste?

Following the Lords insistence on its amendment 37 to the Enterprise and Regulatory Reform Bill on 23 April this year, here, a new sub-paragraph was added after section 9(1)(c) (race) of the Equality Act 2010 to include caste discrimination as a protected characteristic.  An article in The Independent on 11 July quotes from a leaked letter sent from Equalities Minister Helen Grant to the Alliance of Hindu Organisations, which opposes such an inclusion of caste. She is reported as saying

“We remain concerned that there is insufficient evidence of caste-based discrimination to require specific legislation. We also have concerns that incorporating caste into domestic law – even in the context of anti-discrimination – may send out the wrong signal that caste is somehow becoming a permanent feature of British society.”

“Because, as I have said, we do not believe or accept that caste and caste division should have any long-term future in Britain – we have introduced an additional safeguard into the Act. This is the ability to carry out reviews of caste legislation to see whether it remains appropriate. If it does not, we have the option of removing it from the statute book.”

Trades union rights – or not – in the Romanian Orthodox Church

We noted that the Grand Chamber handed down judgment in Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646, about the refusal of the secular authorities to register the Union of the Good Shepherd) formed in 2008 by a group of clergy and lay employees in the Metropolis of Oltenia. The GC reversed the Third Section, holding by eleven votes to six that though there had been an interference with the union’s right of association it had been insufficient to violate Article 11 ECHR. The minority, however, concluded that the necessary balancing exercise between the Article 11 rights of the applicant union and the Article 9 rights of the Church had not been carried out and, therefore, that the interference with the union’s right to organise had not been “necessary in a democratic society”. Frank tended to agree with the minority view.

Canonical dress code

In view of the continuing hot weather, the Rorate Caeli item “For the Record: dressing modestly as Catholics” naturally caught one’s eye. Having been hurriedly directed into alternative robing facilities when the clergy in Milan Cathedral realized how little the ladies in our choir wore beneath their cassocks, David is aware of such sensitivities. The Rorate Caeli piece is in fact a rebadged SSPX item, and given the SSPX’s lack of canonical status, it seemed prudent to turn elsewhere for a view on the legislation referred to, Canon 1262, §2 (CIC), and as ever, a post by Ed Peters provided the answer. The canon referred to was within the pio-Benedictine Code of 1917 and whilst permitting men to be bareheaded, required women to have their heads covered and be modestly dressed when assisting in the liturgy [3].

The 1917 Code went out of force in November 1983, but if one stands by this provision, it would be logical to also abide by §1 which requires men and women to be seated separately [4]. The SSPX piece notes of this now-defunct canon as “[t]hough this reflects the Church’s mind for sacred places, it nonetheless also comprises a general rule of thumb for public life.” Readers may make up their own minds on its further debate concerning relative merits of “woman’s pants” (usually worn out of pleasure or commodity) against miniskirts.


[1] Law No. VIII containing Supplementary Norms on Criminal Law Matters; Law No. IX containing Amendments to the Criminal Code and the Criminal Procedure Code; and Law No. X containing General Provisions on Administrative Sanctions.

[2] This inserts into the Complementary Norms as Article 5 §2, “A person who has been baptised in the Catholic Church but who has not completed the Sacraments of Initiation, and subsequently returns to the faith and practice of the Church as a result of the evangelising mission of the Ordinariate, may be admitted to membership in the Ordinariate and receive the Sacrament of Confirmation or the Sacrament of the Eucharist or both.”

[3]  §2. Viri in ecclesia vel extra ecclesiam, dum sacris ritibus assistunt, nudo capite sint, nisi aliud ferant probati populorum mores aut peculiaria rerum adiuncta; mulieres autem, capite cooperto et modeste vestitae, maxime cum ad mensam Dominicam accedunt.

[4] Optandum ut, congruenter antiquae disciplinae, mulieres in ecclesia separatae sint a viris.

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