Law & Religion 2013 and 2014: retrospect and prospect

In a vintage year for law & religion anoraks so much happened that it is almost invidious to attempt to pick out the most important events: but we can seldom resist a challenge, so here goes…

Defining “religion”KEEP CALM

Joint top of the list of important issues for 2013 must be the recent attempt by Lord Toulson in the Supreme Court to provide a definition of “religion” appropriate to a multi-faith, multi-cultural and rather secularised society. It begins: “a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite… “: see R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 at para 57.

Religious accommodation in the workplace

Equally important was the ruling of the ECtHR in Eweida and Ors v United Kingdom [2013] ECHR 37, on which we posted at some length. As everyone knows, Ms Eweida won her case while Mrs Chaplin, Ms Ladele and Mr McFarlane were all unsuccessful. The most interesting distinction was that drawn between the two religious dress cases. Ms Eweida won because BA’s uniform policy was about corporate image – and the company shot through its own goal when it subsequently decided to allow employees to wear approved religious symbols, including crosses. On the other hand, Mrs Chaplin lost because her NHS Trust had based its policy on principles of health and safety and the Department of Health guidelines on appropriate dress for clinical staff. The ruling has somewhat moderated the “specific situation rule” (recently and memorably described as “like it or leg it”) and it is already beginning to have some influence in the domestic courts.

[Howard Friedman included Eweida and Hodkin in his world-wide Top 10 Church-State and Religious Liberty Developments in 2013.]

Abortion and conscientious objection

In April we reported that the reclaiming motion of Mary Doogan and Connie Wood,Greater Glasgow HB the labour ward coordinators at Glasgow’s Southern General Hospital who objected on grounds of conscience to supervising staff involved in abortions, had been successful. In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 the Inner House of the Court of Session overturned the decision of the Lord Ordinary [Lady Smith] dismissing their petition for judicial review. Delivering the opinion of the Court in favour of the reclaimers, Lady Dorrian concluded that

“The conscientious objection in section 4 [of the Abortion Act 1967] is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant … [I]t is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it” (para 38).

The Health Board has since appealed to the Supreme Court.

Assisted dying

The tragic case of the late Tony Nicklinson, who suffered from “locked-in syndrome” following a severe stroke, attracted considerable media attention. In the first instance, along with an anonymous claimant, “AM”, he sought declarations that, on grounds of necessity, it would not be unlawful for his GP or another doctor to terminate or to assist the termination of his life and, further or alternatively, that the current law of murder and/or of assisted suicide violated Article 8 ECHR and was contrary to ss 1 and 6 Human Rights Act 1998 insofar as it criminalised voluntary active euthanasia and/or assisted suicide.

He lost in the Administrative Court: see R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors [2012] EWHC 2381 (Admin) and subsequently died. His widow Jane (and two other appellants) appealed unsuccessfully to the Court of Appeal: see Nicklinson & Anor, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961. A further appeal was heard by the Supreme Court on 16 December: judgment is awaited.

In Scotland, Margo MacDonald introduced her Assisted Suicide (Scotland) Bill in the Scottish Parliament on 14 November. The Health and Sport Committee began its preliminary consideration of the Bill on 17 December: the suspicion is that progress through Parliament will be slow – if, that is, it survives Stage 1 at all.

Bed, breakfast and same-sex partners

MarazionThe sequence of judicial hearings in Bull & Bull v Hall & Preddy commenced on 18 January 2011 in the Bristol County Court, where it was held that on 5 September 2008 Peter and Hazelmary Bull had directly discriminated against Mr Preddy and Mr Hall in refusing to let to them the double-bedded room they had booked in the Chymorvah[1] Private Hotel, Marazion, Cornwall. The Court of Appeal upheld that judgment: [2012] EWCA Civ 83; and the Supreme Court dismissed a further appeal unanimously: [2013] UKSC 73. Our post, Double rooms, gay couples, Christians and the clash of rights, makes a detailed analysis of this latest ruling and the Supreme Court’s deliberations on direct and indirect discrimination – on which opinions were divided. Had the discrimination been indirect, it would have been possible for the appellants to argue justification.

Lady Hale observed (para 26) that “civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law” and that it “was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy … [I]ts equivalence to marriage is emphasised by the provision in regulation 3(4) that being married and being a civil partner is not to be treated as a material difference for the purpose of a finding of either direct or indirect discrimination”.

The status of same-sex couples in other jurisdictions has received judicial consideration in both the CJEU and the ECtHR. In Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 the Court of Justice of the European Union ruled that in relation to Article 2(2)(a) of Directive 2000/78/EC on establishing a general framework for equal treatment in employment and occupation, same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses. In Vallianatos & Ors v Greece [2013] ECHR (GC) 1110 the Grand Chamber held that the fact that the “civil unions” introduced by Law no. 3719/2008 were designed only for opposite-sex couples had infringed the right of the applicant same-sex couples to respect for their private and family lives, contrary to Article 8 ECHR, and amounted to unjustified discrimination between different-sex and same-sex couples to the detriment of the latter, contrary to Article 14.

Frédéric Hay is, of course, binding as part of EU law. But Vallianatos is also potentially important because (so far as we know) it is the first case at the ECtHR to address same-sex civil partnership rights outside the context of marriage; and our suspicion is that it may have implications for the forthcoming DCMS consultation on introducing opposite-sex civil partnerships in England and Wales – for which, see below.

Clergy employment

The year saw two major cases on clergy employment that are extremely difficult to reconcile. In President of the Methodist Conference v Preston [2013] UKSC 29 the Court, by four votes to one (Lord Hope DPSC, Lords Wilson, Sumption and Carnwath JJSC: Lady Hale JSC dissenting), reversed the decision of the Court of Appeal that the Revd Haley Preston, former Superintendent Minister in the Redruth Circuit was employed by the Methodist Conference and restored the original order of the Employment Tribunal dismissing her claim.

The majority of the Court distinguished Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73: while it was accepted in that case that Ms Percy (who had previously demitted her status as a minister of the Kirk) did not have a contract of service, the statutory test of “employment” for the purposes of sex discrimination claims was broader than the test for unfair dismissal claims. Under the Constitution and Standing Orders of the Methodist Church a minister’s engagement was incapable of being analysed in terms of contractual formation and neither admission to full connexion nor ordination were themselves contractual: therefore, unless there was some special arrangement with a minister (which in Mrs Preston’s case there was not), that minister’s rights and duties arose from his or her status under the Church’s Constitution rather than from any contract.

Conversely, in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811 Mrs Justice Cox, sitting alone, held that the decision of the lower tribunal that the Revd Mark Sharpe, former incumbent of Teme Valley South Benefice in the Diocese of Worcester, could not be a “worker” within the terms of the Employment Rights Act 1996, as amended, had been flawed. She allowed the appeal and remitted the case to the Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” (para 244). Following the decisions in Percy and Preston, she concluded that it was now “abundantly clear” that the employment status of clergy “cannot be determined simply by asking whether the minister is an office holder or is in employment” (para 146).

The second judgment has left us somewhat confused. Hayley Preston lost in the Supreme Court because the majority accepted that it is the corporate understanding of the Methodist Church that it is not in a contractual relationship with its ministers and that there is, therefore, no intention on the Church’s part to create contracts of employment with circuit ministers. But it takes two to create a contract and, as Professor David McClean explained in evidence, it is equally the the Church of England’s corporate understanding that it is not in a contractual relationship with its freehold incumbents (nor, indeed, with clergy on common tenure, which is why it has given them “as if” employment rights).

So why does the Methodist Church’s understanding of the nature of its ministry defeat Mrs Preston’s claim while the Church of England’s understanding of the nature of its ministry does not defeat Mr Sharpe’s? Moreover, as Philip Jones points out over at Ecclesiastical Law, Cox J “missed a factual distinction of critical importance to Mr Sharpe’s dismissal claim. Ms Percy and Ms Preston did not have the parson’s freehold“. We imagine that before Sharpe gets anywhere near an Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” it will be in front of the Court of Appeal.

Consistory Court judgments

Carmarthen Const CtSince August, we have included reports of recent consistory court judgments in our weekly round-up as soon as they become available on the Ecclesiastical Law Association website. Petitions for exhumation to correct basic errors in burials by those responsible for churchyards and cemeteries appear with depressing regularity, making one wonder what would happen if these individuals ever had to manage FMCGs. On the positive side, however, are the instances in which the chancellor had given detailed consideration to a petition when at first reading it appeared as though it should be rejected.

As a commentary on the range of issues being faced by the Church of England, the judgments provide a valuable insight into the everyday workings of a PCC, from unpleasant village politics and the often misplaced and incomprehensible objections from a single individual with a “habitual concern for the congregation”, to the sale of chattels where the church has either insufficient funds or apparently poor stewardship of its finances. In addition, some of the more obscure aspects of church law were given detailed consideration:

  • the arcane law concerning churchyards and, in particular, monuments erected in churchyards: Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch);
  • the narrow interpretation given to the word “building” in the context of the Disused Burial Grounds Act 1884Re St Peter in the East, Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep Ch); and
  • the respective criteria in sections 17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 for the demolition of a church: Re St Paul Eastville [2013] Lincoln Const Ct (Mark Bishop Ch).

Family law, morality and religion

Sir James Munby’s speech to the Law Society’s annual Family Law Conference in October, “The sacred and the secular: religion, culture and the family courts“, provoked a certain amount of controversy (and resulted in Frank being picked up in a taxi at 6.45 to be taken to the nearest BBC studio for a two-minute down-the-line interview on Sunday on Radio 4 – an experience he would not care to repeat). Almost inevitably, Melanie Phillips was one of the severest critics, complaining that “today’s judges see it as very much their business to enforce secular beliefs” and that “traditional moral codes have merely been replaced by the modern religion of human rights”.

We disagree; and we would pray in aid the judicial oath to do justice to all manner of people “without fear or favour, affection or ill-will” – which must sure entail an even-handed approach to questions of religious belief. Of course, our views are neither here nor there; but when the matter was raised with the new Lord Chief Justice, Lord Thomas, at his first press conference since taking office he replied:

“[W]e have to apply the law and the law is essentially a secular law and so, yes … as it is our duty to apply law which is secular law we should do that”.

End of argument. Maybe.

New Pope, New Archbishop

Benedict XVI’s words “meas ingravescente aetate”[2] alerted Vatican correspondent Giovanna Chirri to the likelihood that the consistory on 11 February 2013 would be more than a routine event; and the first papal resignation since that of Gregory XII in 1415 caught everyone by surprise. Whilst this possibility is addressed the 1983 Code of Canon Law, (primarily through Canon 332 §2 and more generally in Canons 187 to 189), it was necessary for Pope Benedict to make some last-minute changes to the “standing orders” concerning the sede vacante with the Universi Dominici Gregis and take decisions regarding his future position, style, title, vesture &c prior to the start of the sede vacante, i.e. 8.00 pm on 28 February 2013.

In contrast to the short, 13-day conclave to determine the new Pope, [during which there was a limited edition issue of four stamps – €0.70, €0.85, €2.00 and €2.50 – for use within this period, the minting of €2.00 coins of legal tender plus a limited number of “collectible” €5.00 and €10.00 coins and interim changes to the coat of arms], the selection of the Archbishop of Canterbury was a ponderous affair. Although Rowan Williams announced his resignation on 16 March 2012, it took until 9 November 2012 before the Prime Minister’s office announced Justin Welby’s appointment. He was formally elected as of 10 January 2013 in Canterbury Cathedral, legally took office on 4 February at a ceremony in St Paul’s Cathedral and was enthroned in Canterbury Cathedral on 21 March.

Since Archbishop Rowan’s resignation took effect on 31 December 2012 and Archbishop Justin was formally elected by the College of Canons of Canterbury Cathedral early in January (i.e. the equivalent to the end of the sede vacante) it could be argued that the CofE was without a head for three days less than the Roman Catholic Church. However, there are lessons to be learned by both Churches: a less bureaucratic method of appointing a new ABC and further revisions to/replacement of the Universi Dominici Gregis that take into account the present situation, (i.e. a Pope and Pope Emeritus), and the possibility of future resignations.

Same-sex marriage

The Marriage (Same Sex Couples) Act 2013 received Royal Assent on 17 July. Briefly, it provides for same-sex marriage in England and Wales, permits marriage of same-sex couples by way of a civil ceremony and, except for the Church of England and the Church in Wales, permits religious marriage of same-sex couples if and only if the religious organisation concerned has opted in to that process. The Act also provides a process for the C in W to request legislative change should it one day wish to marry same-sex couples. The Act does not remove the availability of same-sex civil partnerships and provides for their conversion into marriage if the partners so choose. But it makes no provision for opposite-sex civil partnerships, in spite of the fact that a group of heterosexual couples wishing to contract civil partnerships have taken the matter to Strasbourg: see Ferguson & Ors v United Kingdom (Application No. 8254/11) lodged on 2 February 2011. At the last gasp, the Government agreed to bring forward the timing of its intended consultation on the issue.

The Scottish Government took a much more comprehensive approach. Considered proposals, together with a draft Bill, were published in December 2012. The detailed proposals were the subject of a further consultation which ended on 20 March 2013 and the Marriage and Civil Partnership (Scotland) Bill was introduced on 26 June 2013. It passed Stage 1 is currently being considered at Stage 2 by the Equal Opportunities Committee.

As to Northern Ireland however, the Assembly has now had two opportunities to consider the matter and on both of them has voted to reject the possibility of same-sex marriage.

Succession to the Crown

Although the Succession to the Crown Act 2013 received Royal Assent on 25 200px-Crown_of_Saint_Edward.svgMay 2013 the only part in force is section 5, which states, inter alia, that the substantive provisions will only 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”. Given that the provisions within section 1 regarding succession are retrospective to 28 October 2011[3], one wonders exactly why it was fast-tracked through Parliament, allowing insufficient time for the consideration of many of the associated issues. As Viscount Astor noted during the Bill’s second reading [14 Feb c 810],

“[t]he Select Committee report pointed out that the retrospective element of the provision obviates the need for fast-tracking … even after the passage of the Bill, it will not come into force until, under Clause 5, an award is made by the Lord President of the Council”.

Historian and broadcaster David Starkey observed that the birth of HRH Prince George of Cambridge on 22 July has meant “the effect of the Act that everybody has been labouring over (?) will not now be felt for 100 years”. The monarchy now has three generations of heirs to the throne for the first time since 1894, but as Lord Trefgarne observed during third reading of the Bill, [22 April c 1229]

“[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“.

Women as bishops in the C of E

Synod’s narrow vote against women in the episcopate on 20 November 2012 presented Justin Welby with an unwelcome legacy to address, just over a week after his appointment as ABC had been announced. The situation was exacerbated by adverse reaction within the Church and Parliament but few, if any, of the initiatives other than that taken by the House of Bishops provided a realistic way forward towards resolving the situation. The Bristol Diocesan Synod’s “no confidence vote” in General Synod was a non-starter and gained no support from other dioceses, while action from within the House of Laity to force a meeting to discuss a vote of no confidence in its Chair, who voted against the motion, proved to be a costly embarrassment and burdened the CofE with an estimated cost of £38,000 for holding the House of Laity’s extraordinary meeting on 12 January.

In Parliament there was a rash of activity: EDMs, Private Members’ Bills, questions to the Second Church Estates Commissioner and a Westminster Hall debate, all of which served to highlight the urgency with which the issue was perceived. However, Sir Tony Baldry reminded the House [22 Nov 2012 c 723] that

“the occasions in the past when Parliament and the Church of England have gone head to head on matters of worship and doctrine—there were disputes about the prayer book in the late 1920s, for instance—are not happy precedents,”

and added:

“I hope and believe that Parliament will give it time to sort itself out and get on with the issue, and I assure the House that we will do so as speedily as possible”.

A guest post by Bob Morris considered the possible intervention of Parliament but concluded

“… the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining church/state ties is another question.”

This in fact was the case, and whilst it might not have been the approach favoured a number of parliamentarians, it provided an added impetus to the discussions, the progress of which we reviewed in December 12, in relation to the “next steps” consultation paper: Women in the episcopate: a new way forward, the July Synod, here, and the next steps following the positive vote in the November Synod in the morning of 20 November. Valuable insights into these developments were provided by Will Adam, Editor of the Ecclesiastical Law Journal, here and here.

Synod gave First Consideration to the proposals in the afternoon session of 20 November and voted to progress the legislation to the next legislative stage: revision. However, Synod also voted to dispense with the normal Revision Committee process and move straight to revision in full Synod, which next meets in February 2014, “thereby clearing the way for a possible vote on final approval later in 2014”.

Where should we rebury Richard III?

St Denys, S-i-t-VThe licence for the removal of the remains of “persons unknown” from Grey Friars was issued on 3 September 2012, shortly after the commencement of the archaeological dig. By the end of the year, although the identity of the remains had not been confirmed, speculation on their reinterment had commenced and initially centred on the “appropriate rites and ceremonies of the Church”. Answering Church Commissioner’s oral questions in October, Sir Tony Baldry speculated correctly that there would be “quite a lot of competition” if the bones were identified as belonging to Richard III, but we had to wait until the Leicester University press conference on 4 February 2013 to learn that this was the case “beyond reasonable doubt”.

Although there was a rival claim for the reinterment to be in York, it was not until the Plantagenet Alliance came upon the scene that the dominant legal issue changed from an interpretation of section 25 Burial Act 1857 and common law provisions regarding “custody and possession” of the remains, to a judicial review of the actions of the Ministry of Justice and the extent to which consultation was required in relation to the issue of an exhumation licence under the Act.

Judicial review was granted on 16 August, Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin), and following challenges by the MoJ, the substantive hearing was scheduled for 26 November. However, this was adjourned after the judges decided that Leicester City Council should also be a defendant in the case rather than an interested party and it is expected to resume in 2014.

In the meantime, the plans for reordering Leicester Cathedral are on hold following a decision by the Cathedrals Fabric Commission for England, (CFCE), to withhold permission for the work until the outcome of the judicial review hearing is known and there has been further study and discussion of the proposals relating to the objections from the amenity societies. Provided the outcome of these discussions and the judicial review are positive vis-à-vis Leicester, it is anticipated that the works necessary to provide the tomb and its place of honour will take about six months. Information on the conduct of a medieval reburial service is available as the result of the research by Dr Andrea Buckle of Oxford University on the reburial of Richard Beauchamp, Earl of Warwick, a contemporary of Richard III.

Unfinished business and unpublished reports

On the day following the election of Francis I as the new Pope, we commented:

“[a]s long as the two stiff, unmarked red folders containing the ~300 pages [Vatileaks] report remain in a safe in the papal apartments of the Apostolic Palace, speculation is bound to continue.  An important first step towards increased credibility and transparency would be for Pope Francis to authorize the release of the general findings of the Vatileaks report and the action that is to be taken”.

With the benefit of hindsight, it is clear that such an approach is not consistent with the modus operandi of Pope Francis, who has in other ways put measures in place that will increase the credibility and transparency of the Holy See. However, the existence of an unpublished report such as Vatileaks remains a potential threat from speculation and investigative journalism.

The as yet unpublished report of Dame Heather Steel’s inquiry into safeguarding in Jersey has raised similar issues, although these have been exacerbated by the noli nos tangere attitude of some on the Island combined with some less than helpful analyses from the mainland. The non-publication of this report is on the basis of legal advice following representations from an interested party; the investigation related to the treatment of one individual, HG, the procedures on safeguarding within Jersey, and the interface between the Church in Jersey and the Diocese of Winchester. Nevertheless, we are surprised that only peripheral mention is made on the CofE’s Child Protection and Safeguarding web page.

Despite the statement [23 Apr 2013 c 789] by the Parliamentary Under-Secretary of State for Business, Innovation and Skills, Jo Swinson, that the Government intended to make caste an aspect of race discrimination within the Equalities Act 2010, the Government Equalities Office timetable indicates that the final draft Order is unlikely to be introduced into Parliament before summer 2015.

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And for 2014?

Generally, we expect the year to be dominated by two things: the Scottish independence referendum and the continuing debate (?row) over the relationship between the UK and the European Court of Human Rights. But specifically we expect:

  • the forthcoming SC judgment in Nicklinson;
  • the forthcoming appeals in Doogan and (almost certainly) Sharpe;
  • the ECtHR hearing on the French ban on face-coverings in public places;
  • the consultation in Northern Ireland on limited reform to the abortion law;
  • further consideration by General Synod of women in the episcopate: in London, 10-14 February, and in York, 1-15 July;
  • (presumably) resolution of the dispute between the Charity Commission and the Preston Down Trust about the charitable status of chapels of the Exclusive Brethren; and
  • (possibly) same-sex marriage in England and Wales from 29 March.

And who knows what else?

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And that, believe it or not, was Post 500. And a happy and prosperous New Year to all our readers


[1] Cornish for “the house near the sea”.

[2] “my advanced age”.

[3] the date of the Commonwealth Heads of Government Meeting in Perth.

 

 

Religion and Law round-up – holiday edition

For those of us who can tear ourselves away from the Christmas leftovers…

Few newsworthy issues of law and religion tend to arise during the period between Christmas Day and New Year’s Eve, although the National Secular Society published a short post early on 25 December just as choristers were preparing for their last service of the festive season. Nevertheless there have been one or two items of interest, as well as others clearly manufactured by the media, and we have summarized a selection of each.

Alcohol, pork and M & S

Marks & Spencer was in the news after someone told the Telegraph about a failed attempt to buy a bottle of champagne from an M&S store in London: apparently the member of staff on the checkout “was very apologetic but said she could not serve me” and asked the customer to use another till. A spokesperson for M&S said:

“Where we have an employee whose religious beliefs restrict food or drink they can handle, we work closely with our member of staff to place them in suitable role, such as in our clothing department or bakery in foods”.

Over at UKHRB Adam Wagner suggests that:

“There is no clear obligation on M&S in law to allow Muslims (or Jews or vegetarians for that matter) not to serve a product they disagree with, but there may be an obligation, once the issue is raised, to consider it reasonably and at least try to make an accommodation if possible.

But even if there is no such obligation at all, so long as the champagne-buyer gets hold of his or her booze, what’s the problem? Sounds to us like a sensible example of reasonable accommodation.

Veiling in France

The National Secular Society’s post provided a link to an article by Jonathan Derbyshire on The veil and religious neutrality—version française which explored the application of France’s charte de laïcité in relation to schools and the grey area concerning persons who are required sometimes to enter the school, such as mothers of Muslim pupils. This was considered recently by the Conseil d’Etat which on 20 December reported on its deliberations: it concluded that parents collecting their children from school are merely “users” of public services, as opposed to “agents” of or “collaborators” in those services, and therefore not subject to the “demands of religious neutrality”.

Clergy and “dress down Sunday”

Clearly grasping at straws, on 21 December the Daily Mail ran with the headlineVicars defrocked! Fears of jeans and hoodies in pulpit as Synod votes to decide if clergy’s robes are surplice to requirements. There is no need to remind readers of this blog of the error in equating the laicizing of a priest with the specific issues of vesture referred to in the Revd Christopher Hobbs’ Private Members’ Motion to General Synod, which relate to paragraphs 1 and 2 of Canon B 8.

Although on the Agenda for the February 2014 Synod, Mr Hobbs’ proposal was first raised in November 2012, and is down for consideration on the final day after Synod has concluded its deliberations on the Girl Guide promise. Those who have seen the Revd Roly Bain (aka Roly the Clown) will appreciate that the Church of England can be quite relaxed in the matter of vesture at divine service[1] , but the proposed laissez faire regime, applicable to all service and subject only to the whim of a priest, is seriously misguided. Furthermore, any such change in the specifics referred to in Canon B 8 would still be subject to the generality of Canon C 27, Of the dress of ministers:

“The apparel of a bishop, priest, or deacon shall be suitable to his office; and, save for purposes of recreation and other justifiable reasons, shall be such as to be a sign and mark of his holy calling and ministry as well to others as to those committed to his spiritual charge.”

Pardons, Amnesties and Anniversaries

An anniversary, or the prospect of a forthcoming one, provides a convenient focus for action that would otherwise have not been considered.  The 20th anniversary of Russia’s Constitution provided an opportunity for the State Duma, the lower house of parliament to give its unanimous support the amnesty legislation submitted by President Vladimir Putin. This will allow the release of Pussy Riot members Nadezhda Tolokonnikova and Maria Alyokhina, who are serving ‘two years deprivation of liberty in a penal colony’ for ‘hooliganism motivated by religious hatred’, having ‘crudely undermined social order’. The amnesty also applies to the Arctic 30, the thirty members of the Greenpeace’s Arctic Sunrise crew who have now been released following their detention in September after staging a protest at Gazprom’s Prirazlomnaya oil rig in the Barents Sea.  The proximity of the 2014 Sochi Winter Olympics in February may also have been persuasive.

The posthumous pardon granted to Dr Alan Turing under the Royal Prerogative of Mercy by the Queen on 24 December presents a more complex set of issues, the legal aspects of which are analyzed in Carl Gardner’s thought-provoking post Alan Turing: a strain’d quality of irrational and arbitrary mercy.  Government dismissed the opportunity to grant a pardon in the centenary year of Turing’s birth, [2 Feb 2012 : Column WA341], and there were objections from government whips to the second reading of Lord Starkey’s Private Members Bill, Alan Turing (Statutory Pardon) Bill [HL] 2013-14.  Carl Gardner quotes the point made by Lord Bassam on Twitter:

“[t]his pardon won’t touch Turing’s conviction any more than the statutory one would have. But the new argument against the government’s approach is that, in order to claim the main credit for this PR gesture, it’s had to monkey with the traditional grounds for exercise of the prerogative of mercy”.

The Guardian presented a different perspective, quoting David Leavitt, Professor of English at Florida University

“With the situation in Russia regarding LGBT rights, and the recent decision by the supreme court in India to reinstate the criminalisation of homosexuality, “for this [the pardon] to come from the Queen, is going to send a really important message, especially to the Commonwealth”.

And then there’s the knock-on effects on the Pilling Report.

‘Overzealous’ Church vets 58,000 workers in a year…

… or so readers of the Boxing Day edition of the Daily Telegraph were led to believe, as the result of a report by the Manifesto Club [“for freedom in everyday life”] following a FoI request and extrapolation of the data received [2]. However, one wonders what the editorial staff and readers of the paper would make of the Manifesto Club “think piece” A Grown-up Child Protection Policy by George Hoare which concludes:

“Child protection policies are harmful to children, and encourage suspicion amongst adults. […] CRB checks and ‘no touch’ rules should be scrapped in favour of a policy that supports spontaneous, unregulated interaction between generations,”

In his letter to the Archbishop of Canterbury, Lord Vinson suggested that criminal records checks

“are not necessary on volunteers … who do not have an intensive relationship with children and whose contact is minimal”.

The Safeguarding Handbook of the Oxford Diocese, which is “consistent with the policies of the national church, with legal requirements and with accepted good practice”, demonstrates the adoption of such an approach. It states [page 25] “PCCs must not request CRB Disclosures for those for whom it is not required. To do so may be acting illegally and could lead to prosecution”, and lists seven groups who are “unlikely to be eligible for CRB Disclosures”, including

“[t]hose who work only very occasionally and not regularly and do not meet the frequency or intensity definitions of regulated activity”, c.f. supra.

However, in addition to clergy, pastoral assistants and lay workers, there are several roles within a church that have more frequent contact with children or vulnerable adults, and as such are likely to be eligible for Criminal Records Bureau (CRB) Disclosure, including: musical directors, organists, choir leaders; tower captains, ringing masters and adult ringers involved in training; youth club leaders and helpers; Sunday school teachers and helpers.

Given that the CofE has over 16,000 churches, it does not take much imagination to see how the figure of 58,000 might be produced. What we would query, however, is the use of the word “overzealous”, and why those in the above categories should not be subject to some degree of scrutiny. One suspects that the readers of the Torygraph would be amongst the first to complain were safeguarding to fail as a consequence of such an omission.

[And just in case you think we’re scaremongering, the vicar of the church that Frank attended as a teenager was sent down for a year for indecently assaulting small boys (though F was not one of his victims)]



[1] See  http://www.wantageparish.blogspot.co.uk/ for 6 September 2013.

[2] The Report was not available on-line at the time of writing, but the Telegraph article suggests “some 25 CofE dioceses made 22,235 checks, 80 per cent of which were made on volunteers. Extrapolated for all 42 dioceses, it would have resulted in some 37,000”. The final figure includes checks were made by umbrella bodies, but it is not clear from the article how the final figure was derived.

Religion and Law Quiz 2013

Last year we followed the example of the King William’s College Quizpublished each year in The Guardian, and posted our own End of Term Quiz to ascertain whether our readers had been paying attention since June 2012 when this blog started in earnest.  Since then our readership has increased appreciably, and we have compiled a further quiz concerning events in law and religion during 2013, many of which have featured in our posts.

Answers will be posted in early January.

  1. When did the Queen last say “No”?
  2. During which period in 2013 did an umbrella replace a tiara?
  3. Who ordered skeletons to be exchanged?
  4. Which centenarian ended up in prison a month after his death?
  5. What is the link between the Victorian MP, Ross Donnelly Mangles and the present MP for Exeter, Ben Bradshaw?
  6. How will the Supreme Court become independent of government in 2014, and which other legal body will follow suit?
  7. How many government U-turns have there been since May 2010: 0-49: 50-99; 100 or more?
  8. Which Winsome ladies found a new home in Birmingham?
  9. Translate and contextualize:
    1. Ecce dinero;
    2. Miserando atque eligendo;
    3. Reno erat Rudolphus;
    4. Evangelii Gaudium;
    5. Lumen Fidei
    6. meas ingravescente aetate“?
  10. What connects: the part of an arm; hairs from a beard; and some skin? [Points will be deducted for any reference to Ezekiel 37: 1-14]?
  11. What, and according to whom are “musically illiterate, almost is if they were written by semi-trained teenagers, getting to grips with musical rudiments”?
  12. Which UK Cathedral church: featured its (allegedly underpaid) choir in Songs of Praise; had a concert celebrating the completion of its £1.5M organ refurbishment; and announced the redundancy of most of its choristers, all in the same week?
  13. Who said of whom: “it is rather unattractive for the executive to be taking up court time and public money to establish that a regulation is valid, when it has already taken up parliamentary time to enact legislation which retrospectively validates the regulation”?
  14. Who is concerned about the “relative importance” of the work of Charles Nicholson?
  15. Where were Mary and Joseph required to wear safety helmets?
  16. Who said: “the first rule for keeping security in Bethlehem was: no kings, no mention of kings, no mention of David.  Anyone who shows up talking about David or kings was on their way . . . . . [t]he second rule of keeping order was to keep the shepherds sober and on the hills, looking after their sheep by night, or day, or any other time”?
  17. In which Cathedral church did replacing the old Philharmonic cost £350,000?
  18. Which Act re-enacted part of an earlier Act that had been repealed without ever having been brought into force?
  19. In which section of which Act is “the devil in the text” rather than “in the detail”?
  20. In what respect did Cambridge University catch up with Oxford in 2013?

Religion and law round-up – 22nd December

A week in which the Supreme Court considered the right to die, the House of Lords debated Part 2 of the Lobbying Bill, and it became necessary to distinguish between PACS and super-PACs

Abortion law in Northern Ireland

We posted an analysis of the current state of abortion law in Northern Ireland, partly in response to the announcement from David Ford MLA, Minister of Justice and Leader of the Alliance Party, that he is going to consult early in 2014 on changing the law to allow women carrying babies with fatal foetal abnormalities to have a termination and partly triggered by a post on God & Politics by Edward Kendall.

Our analysis was not intended so much as a response as a long comment. The whole issue of abortion law on both sides of the Irish border is complicated by both political and religious considerations. In Dublin the matter was brought to a head by the avoidable death of Savita Halappanavar in October 2012 at University Hospital, Galway. In Belfast the tragic story of Sarah Ewart, who was obliged to travel to England in order to abort a foetus without a developed brain, seems to have been a major factor in the decision to launch the consultation. Whether or not the law in Northern Ireland will be reformed, however, is another matter. There appears to be no majority for reforming the law, either in the Assembly or among the population at large.

Employment and equal treatment

Last week the CJEU ruled in Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 that Article 2(2)(a) of the of the Equal Treatment Directive 2000/78/EC requires that same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses. M Hay had concluded a civil solidarity pact (PACS) with his partner in 2007: the Court ruled that same-sex partners in civil partnerships and similar legal arrangements could not be excluded from employment-related benefits granted to married couples, even where the same-sex partnership legislation of the member state in question was not comprehensively equivalent to marriage, as was the case with the French civil solidarity pact.

Employment and religion

The Daily Mail reported (accurately) that Ms Karen Holland, a Wiccan who claimed that she was sacked by her employers because she had attended a Halloween ceremony, had been awarded over £15,000 by an Employment Tribunal in compensation for unfair dismissal and sex and religious discrimination. Her erstwhile employers announced that they would appeal.

We now have a copy of the ET decision (a snip at ten quid from the Tribunals Service at Bury St Edmunds) and will post an analysis as a Christmas treat for employment lawyers .

Lobbying registers

Attention this week has focused on the Lords’ deliberations on the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which the former bishop of Oxford, Lord Harries of Pentregarth (CB), has suggested [18 Dec 2013 : Column 1278]

“. . . represents an attempt to escape the influence of the super-PACs [Political Action Committees[1]] in this country. It is as though a huge net has been thrown in order to catch some great fish which might swim across the Atlantic, but the only effect of which is to trap smaller fish quite legitimately swimming freely in the waters of democracy.”

European developments in this area have received little attention, but in addition to the publication of the first Annual Report on the Transparency Register, a working group of MEPs has presented its recommendations for future improvements. Unlike the UK, there appears to be a better grasp of what lobbying entails, and possible changes include these:

  • Only organisations on the register of lobbyists should be given access to the European Parliament and Commission: lobbyists who do not comply with the rules should be removed from the database and barred from such access and other advantages of registration.
  • Registered lobbyists should be allowed to give their input to the European Commission and the European Parliament more easily, but the data they disclose should be peer-reviewed with be a better system for outsiders to alert inaccuracies and file complaints.

The European media reactions to the report have been mixed, ranging from “EU lobby register on track to becoming mandatory” to “Mandatory lobbyist register ‘unlikely’ under current law”, the latter picking up on the group’s conclusion that only legal basis for a mandatory register would be Article 352 TFEU which requires unanimous consent from all Member States and approval by national parliaments.

The possibility of a register was first raised by Siim Kallas, Vice-President of the European Commission in 2005, whose speech in Nottingham made reference to the “Open Government” episode of Yes Minister.  However, it was 2011 before a joint Parliament and Commission register was launched. Today in Europe, only Austria, Denmark, France and the Netherlands have mandatory registers, and the US has a mandatory register for lobbying in Washington, DC.

Frank points out (as a professional lobbyist, albeit a semi-retired one) that, currently, no-one has any problem with the existing EU lobbying and transparency rules and that making them entirely mandatory would in practice make very little difference to  commercial lobbyists.

Henry VIII powers to be ousted from Deregulation Bill?

A Report has been produced by the Joint Committee on the Draft Deregulation Bill recommending that the proposed powers in the draft Bill to allow Ministers to make orders to scrap legislation if they consider it “no longer of practical use” should “be removed from the Bill on the grounds that the power is ‘too wide and the safeguards are inadequate’”. The Committee has suggested that as an alternative, the Law Commissions should be encouraged to bring forward an annual Statute Law (Repeals) Bill, in consultation with Government departments, and that this “would provide the flexibility to allow departments to repeal legislation in areas of concern to them with the benefit of the expertise and independence of the Law Commissions”.

Readers will recall the present Administration’s attempt to incorporate extensive Ministerial powers within the Public Bodies Bill 2011; and although the greater excesses of these proposals were voted down, Ministers nevertheless have sweeping powers to abolish, merge, modify constitutional arrangements, modify funding arrangements and modify or transfer functions of NDPBs, (Schedules 1 to 5 respectively), albeit under the super-affirmative procedure.

Statement from ONS on marriage and divorce statistics consultation

On 12 December, the Office of National Statistics issued the following statement in relation to its consultation on marriage and divorce statistics, which has just closed:

“ONS would like to thank all users who have contributed so far to the consultation ‘User requirements for marriage, divorce and civil partnership statistics given the introduction of marriage of same sex couples‘. ONS would like to clarify that it is not proposing to produce only total figures for marriages where the distinction between same sex and opposite sex couples is not available. ONS do intend to publish marriage and divorce statistics in the future where figures for opposite sex and same sex couples are shown separately. ONS are consulting on the characteristics of these marriages/divorces which are of particular interest so that published statistics meet user requirements.”

The Coalition for Marriage claims that this to be a climb-down in response to the concerns it raised to ONS. Whilst some of the questions in the consultation might lead one to agree with its assertion that

“ONS had proposed merging official figures for same-sex and traditional marriage with “no differentiation possible”. The move would have airbrushed true marriage from official data,”

the explanatory information to the Consultation clearly states:

“When marriages of same sex couples begin to be registered, ONS intends to continue to publish: marriage statistics for the UK and England and Wales including marriages of opposite sex and same sex couples; civil partnership formation statistics for the UK and England and Wales; civil partnership dissolution statistics for the UK and England and Wales; statistics on the number of civil partnerships converted into marriage in England and Wales; and divorce statistics for the UK and England and Wales.”

Nevertheless, as the Church of England has found on a number of occasions this year, the need to issue a “clarification” tends to put an organization on the back foot with regard to its credibility and also the control of its agenda, and in terms of public perception the ONS statement will regarded in many quarters as C4M 1: ONS 0.

Votes for prisoners?

The Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill has concluded that (as any fule kno) the UK is under a binding obligation in international law to comply with judgment of the ECtHR in Hirst v United Kingdom (No. 2) [2005] ECHR 681. It recommends that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections and that six months before their scheduled release, prisoners should be entitled to apply to be registered to vote in the constituency into which they are due to be released.

Adam Wagner observes on UKHRB that it would be completely unprecedented for any state that has ratified the ECHR to enact legislation in defiance of a binding ruling of the European Court of Human Rights. That said, however, you never can tell…

Ritual circumcision: yet another update

At the beginning of the month we noted what was (to two secular English lawyers) a rather unusual report in Haaretz  that Israel’s Supreme Rabbinical Court of Appeals had upheld the ruling of a lower rabbinical court imposing a daily fine of 500 shekels (£86) on a woman in dispute with her husband who had refused to have her son circumcised. The Jerusalem Post now reports that the High Court of Justice has issued an interlocutory injunction freezing the order and has, in turn, ordered the Netanya Rabbinical Court and the Supreme Rabbinical Court to provide a response to the mother’s petition by 9 January.

Recent consistory court judgments

The replacement of lead roofing with alternative materials following its removal by theft is a growing concern of the Church of England.  Repairs using matching materials may come within an archdeacon’s jurisdiction under Rule 7.2 of and Schedule 2 to the Faculty Jurisdiction Rules 2013, effective from 1 January 2014, and further clarification may be introduced through List B of the proposed Draft Care of Churches and Ecclesiastical Jurisdiction (Amendment Measure, GS 1919X, considered by the November 2013 General Synod.  However, problems arise when different replacement materials are proposed, and in Re St. Peter Church Lawford [2013] Coventry Consist Ct, Stephen Eyre Ch, a petition to allow the replacement of lead roofing with zinc was refused. In this case, the Chancellor determined that it was premature to replace the entire roof, which had an estimated life of a further 10 to 15 years, and that a more appropriate course of action would be to undertake repairs.  A more general consideration of replacement roofing materials will form the basis of a future post. Likewise, the disposal of vestments in Re St. Mary Bourne Street London [2013] London Const. Ct, Justin Gau Dep. Ch bears further consideration. Although a faculty was granted, the disapproval of the acting Deputy Chancellor on the stewardship of parish resources was readily apparent.

The last reported judgement of the year is Re Selmeston Parish Church [2013] Chichester Const. Ct, Mark Hill Ch, in which a faculty was granted for the removal of a pew platform and four pews from the west end of the church, the Chancellor being satisfied that there were “compelling justifications on the basis of liturgical freedom, pastoral well-being and putting the church to other viable uses consistent with its sacred character.”

And finally . . . . . . . . .

“Tension, politics, terrorists, crowds, parties, drunks and crooks, in a huge confusion of unknown people in your small borough … the first rule for keeping security in Bethlehem was: no kings, no mention of kings, no mention of David. Anyone who shows up talking about David or kings was on their way … [t]he second rule of keeping order was to keep the shepherds sober and on the hills, looking after their sheep by night, or day, or any other time”.

Extracts from Justin Welby’s sermon at the Metropolitan Police carol service at St Margaret’s Church, Westminster, on 17 December, in which he relates the Christmas story from the point of view of “a Bethlehem Borough Commander”.


 

[1] OpenSecrets.org defines super PACs as: Technically known as independent expenditure-only committees, Super PACs may raise unlimited sums of money from corporations, unions, associations and individuals, then spend unlimited sums to overtly advocate for or against political candidates.”

Lords review Part 2 of Transparency of Lobbying Bill

In an earlier post we noted that on the first day of the Committee Stage of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill in the House of Lords, November 5, as a consequence of a motion moved by Lord Ramsbotham, [5 Nov 2013  Col 108], the minister agreed to a five-week delay in the discussion of Part 2: Non-Party Campaigning &c, “so that there can be wide consultation over the coming weeks and so that the Government can try to address the concerns of those involved and interested . . . “, [HL Hansard 5 Nov 2013 c 109]. Their Lordships then proceeded to the 1st Day Committee Stage, and consideration of other aspects of the Bill, [5 Nov 2013 c 117].

The debate on Part 2 recommenced on 16 December with the line-by-line consideration of its relevant clauses and associated Schedules, viz.

Controlled expenditure: 26 Meaning of “controlled expenditure”; 27 Changes to existing limits; 28 Constituency limits; 29 Targeted expenditure limits; 30 Extension of power to vary specified sums

Information and reports: 31 Notification requirements for recognised third parties; 32 Reporting of donations to recognised third parties; 33 Statements of accounts by recognised third parties.

On 16 December, their Lordships considered a new Amendment 156B before clause 26, and Amendments 159A to 160F, all relating to Clause 26, details of which are in the third marshalled list of amendments. These Amendments were either withdrawn after debate or not moved. These discussions were summarized by Lord Tyler who observed [HL Hansard 18 Dec 2013 : Column 1274]

“I carefully read the whole of our Hansard proceedings on Monday. If anybody has been having as much difficulty in sleeping as I have recently, I fully endorse that as a very good way of avoiding insomnia”.

The debate on 18 December on the remaining clauses promised to be more contentious, as the fourth marshalled list of amendments 160G to 183 indicates that in relation to: Clause 26; Schedule 3; Clauses 27 to 32; Schedule 4; Clauses 33 to 35; Clauses 40 to 44, a number of their Lordships have given notice that these provisions should not stand as part of the Bill.

The former Bishop of Oxford, Lord Harries of Pentregarth (CB), led much of the opposition to the Bill.  He chairs the Commission on Civil Society and Democratic Engagement, a consortium of charities opposed to many aspects of the Bill, and whose report on Part 2 was published on 10 December.  Lord Harries suggested [18 Dec 2013 : Column 1278] that in relation to the thresholds

“So much of this legislation, and the lowering of the thresholds in particular that we are talking about now, represents an attempt to escape the influence of the super-PACs [Political Action Committees[1]] in this country. It is as though a huge net has been thrown in order to catch some great fish which might swim across the Atlantic, but the only effect of which is to trap smaller fish quite legitimately swimming freely in the waters of democracy.”

and in his concluding remarks in the debate stated [18 Dec 2013 : Column 1377]:

“My final point is that it is clear that the Government have approached this legislation from the standpoint of how electoral law might be abused. It is the contention of those who are heavily engaged in the democratic process, charities and other campaigning groups, that in trying to clamp down on potential abusers, they have severely curtailed the legitimate activities of people who want to contribute during an election year. “

The full debate is reported here and here. Their Lordships discussed how the Bill might affect “coalition working between charities” and the proposals would make it difficult for joint campaigning work to continue.  The need for guidance for third parties on compliance with the new legislation on regulation of expenditure was raised, and it was also suggested that the Bill should include a sunset clause.  The Minister indicated that the Electoral Commission would produce guidance in consultation with the Charity Commission.

However, the proposed amendments were either withdrawn or not tabled. The Bill now moves to report stage, scheduled for Monday 13 January, when there will be further opportunities for scrutiny.



[1] OpenSecrets.org defines super PACs as: Technically known as independent expenditure-only committees, Super PACs may raise unlimited sums of money from corporations, unions, associations and individuals, then spend unlimited sums to overtly advocate for or against political candidates.”

Reforming abortion law in Northern Ireland?

The case-law material first appeared in my article on “Abortion: An Irishwoman’s Right to Choose?” 166 Law & Justice (2011) 5–27; but what follows takes the story further.

In a recent post on God & Politics Edward Kendall asks Is the proposed change in Northern Irish abortion legislation to be welcomed? My suspicion is that he thinks that it is probably not. But there is another side to the argument: and what follows is an attempt to look at the issues primarily from a legal rather than a moral perspective.

The statute law

The Abortion Act 1967 applies only in Great Britain. In Northern Ireland, abortion remains in principle illegal under ss 58 and 59 Offences Against the Person Act 1861 (which, incidentally, is still the basic statute law in Ireland also), subject to s 25 Criminal Justice Act (Northern Ireland) 1945 which extended to Northern Ireland the provisions of the Infant Life (Preservation) Act 1929, as follows:

“25(1) Subject as hereafter in this sub-section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

(2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive”.

After 1939 the impact of the 1861 Act was somewhat moderated as a result of Macnaghten J’s charge to the jury in R v Bourne [1939] 1 KB 687 to remember in reaching its verdict that Dr Bourne had performed an abortion on a rape victim under the age of fifteen “as an act of charity, without fee or reward, and unquestionably believing that he was doing the right thing” (at 690).

Even though it was an English case, the courts in Northern Ireland followed Bourne; and the acquittal had considerable influence on the development of the law in the Province, blunting the impact of the words “shall unlawfully administer to her” in s 58 of the 1861 Act and extending the reach of the saving in the 1945 Act. It came to be accepted that it was lawful to procure an abortion in good faith in order to preserve the life of the mother and that a jury was entitled to acquit in a situation where a doctor had believed on reasonable grounds and with adequate knowledge that continuation of her pregnancy was likely to wreck the woman’s physical or mental health.

Moreover, s 25 of the 1945 Act appears to leave doctors with considerable discretion. Because the prima facie proof under 25(2) as to whether or not a foetus is “capable of being born alive” is a pregnancy of twenty-eight weeks or more, cases up to the twenty-seventh week are a matter for individual clinical judgment. That places an enormous degree of responsibility on the individual practitioner –.and the issue of clinical judgment was an important factor in the decision of the Crown Prosecution Service not to prosecute the two doctors caught by the Telegraph‘s recent sting on gender-specific abortion (about which we posted at the time).

The modern case-law

The case-law suggests that, at least in recent years, the courts have tended to give a fairly generous interpretation to the kinds of circumstances that might affect the health of a woman forced to carry a pregnancy to term against her will.

In Northern Health and Social Services Board v F and G [1993] NI 268 K, a pregnant fourteen-year-old ward of court who lived in a children’s home and was suspected of substance abuse had threatened suicide if she was not permitted an abortion. She had also attempted to induce her own miscarriage. K’s mother, who had not seen her since she was five and refused social workers’ requests to meet K, opposed the abortion: K’s father, however, had maintained contact and felt that the abortion should proceed. Sheil J concluded that an abortion would be in K’s best interests; however, he also noted that no consultant in Northern Ireland was prepared to carry out the abortion because of her mother’s opposition and their uncertainty about the state of the law on termination of pregnancy in Northern Ireland. K subsequently travelled to Liverpool for a termination.

In Northern Health and Social Services Board v A & Ors [1994] NIJB 1 the Board applied for a declaration that it would be lawful to terminate the pregnancy of a severely mentally handicapped woman in the tenth week of pregnancy. Granting the declaration, MacDermott LJ considered the meaning of the phrase “for the purpose only of preserving the life of the mother” in s 25(1) of the 1945 Act and commented that:

“… ‘for the purpose only of preserving the life of the mother’ does not relate only to some life-threatening situation. Life in this context means the physical and mental health or well-being of the mother and the doctor’s act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother. The adverse effect must however be a real and serious one and it will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child” (para 5).

In Western Health and Social Services Board v CMB and the Official Solicitor [1995] NI High Ct (unreported) Pringle J decided that termination would be in the best interests of a seventeen-year-old mentally handicapped girl who was twelve weeks pregnant and a ward of court. A gynaecologist and two psychiatrists gave evidence that S would suffer severely if her pregnancy continued, with a strong possibility of mental breakdown. The abortion was subsequently carried out in Northern Ireland. Similarly, in Re CH (a minor) [1995] NI High Ct (unreported) a sixteen-year-old ward of court wished to have her pregnancy terminated and threatened suicide if forced to continue with it. On the basis of the medical evidence, Sheil J held that a termination would be lawful.

The challenge by the Family Planning Association of Northern Ireland

Given the perceived uncertainty of the law noted by Sheil J in Northern Health and Social Services Board v F and G, in 2003 FAPNI decided to challenge the Executive’s failure to issue guidance or advice to women and clinicians on the availability and provision of termination of pregnancy services. Kerr J dismissed the Association’s application at first instance; but in FAPNI v Minister for Health, Social Services and Public Safety [2004] NICA 37, 38 & 39 [for some unfathomable reason the three judgments are numbered and listed separately on BAILII] the Court of Appeal agreed unanimously that the Minister had indeed failed to comply with the duty under Article 4 of the Health and Personal Social Services (Northern Ireland) Order 1972

“… to provide or secure the provision of integrated health services in Northern Ireland designed to promote the physical and mental health of the people of Northern Ireland through the prevention, diagnosis and treatment of illness”.

He had not secured the provision of “integrated health services” to women seeking lawful termination because he had neither enquired into the adequacy of termination services nor issued guidance to health professionals involved in termination of pregnancy (including aftercare), to those working for concerned organisations and to women seeking termination.

The Court of Appeal therefore decided that guidance should be issued on the law relating to the provision of termination, referral procedures, informed consent, aftercare services for women whose pregnancies had been terminated (whether in Northern Ireland or, insofar as practicable, elsewhere) and the right of conscientious objection. (Unsurprisingly, that decision was highly controversial and in 2007 was the subject of an adverse resolution by the Northern Ireland Assembly.)

The Guidance and the response by SPUC

In July 2009, in response to the judgment in FPANI, the Department of Health, Social Services and Public Safety published a consultation draft of its proposed Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland which was followed by definitive Guidance in March 2009.Pro-life activists promptly resorted to judicial review of its content; and in Society for the Protection of Unborn Children, Re Judicial Review [2009] NIQB 92 SPUC sought an order of certiorari to quash its publication, a declaration that the decision to publish had been unlawful and an order that the Department rescind the Guidance and remove it from its website or, alternatively, vary it in accordance with the judgment of the court.

SPUC argued that the draft failed to acknowledge the presumptive illegality of abortion and was based on the misleading premise that each Health and Social Care Trust had to ensure that its patients had access to termination of pregnancy services: SPUC’s contention was that, at the very least, the phrase had to be qualified by adding “where necessary in order to preserve the life of the patient”. Moreover, the Guidance failed to recognise the rights of the unborn child, it failed to provide advice as to whether a child which might be aborted was capable of being born alive, it was inaccurate as to the law, it gave inadequate information for women considering abortion about obtaining a valid consent, it failed to give appropriate guidance on the offence of withholding information in relation to an illegal abortion and/or the duty to report an abortion thought to be illegal and it did not properly recognise the right of clinicians to decline to participate in abortion. The Department argued that it would be appropriate for the Court to give it a wide degree of latitude in deciding how the Guidance should be expressed.

Girvan LJ rejected SPUC’s argument that the Guidance had adopted the wrong starting-point. Read fairly and dispassionately, its first section made it “clear beyond peradventure” (para 12) that abortion was unlawful except in certain limited circumstances. He also rejected SPUC’s contentions that, because abortion was unlawful except in limited and clearly-defined circumstances, the reference in the Guidance to “termination of pregnancy services” was an inaccurate euphemism and that it was inconsistent with the law to describe induced abortion as a “service” provided by Health Trusts. Likewise, the Guidance did not misstate the position as to the survivability of the foetus, since whether or not termination was necessary in a particular case to save the woman’s life or to prevent permanent damage to her physical or mental health was a matter of clinical judgment. Nor was it inadequate in relation to the issue of obtaining informed consent from women considering abortion. He also rejected SPUC’s further contention that the Guidance failed anywhere to refer to the interests of the unborn child.

Where the Guidance did fall down, however, was on the issues of non-directive counselling and conscientious objection on the part of medical staff. Section 5.9 of the draft stated that:

“In terms of best practice, the purpose of counselling for women considering termination of pregnancy is to offer support in a non-judgmental and non-directive way to enable them to make an informed choice about termination or its alternatives”.

SPUC argued that this was perverse, given that abortion was in principle illegal, while the Department contended that the entire tenor of the Guidance made clear that abortion was only lawful in strictly limited circumstances. Girvan J concluded at para 38 that the text did not provide the necessary clarity for professionals in carrying out their lawful duties and should be reconsidered. He also concluded that Section 4.1 of the Guidance was simply inaccurate in stating that “there is no legal right to refuse to take part in the termination of pregnancy”. It was also ambiguous about the right to object on grounds of conscience “except in circumstances where the woman’s life is in immediate danger and emergency action needs to be taken”. It was not clear whether this related only to a situation in which the actual life of the mother was at stake or whether it extended to a situation where, in the absence of an abortion, there would be serious long-term effects on her physical or mental health. He concluded that, overall, there was no need for the Guidance to be quashed but it should be withdrawn with a view to being “reconsidered by the Department taking account of the contents of this judgment” (para 48).

In February 2010 the Department reissued the Guidance with the sections on conscientious objection and counselling omitted and marked in the text “Section temporarily withdrawn”. The issue does not seem to have been resolved: the current version of the Guidance, issued in April 2013, is still marked “DRAFT”.

The proposed consultation

On 8 December, David Ford MLA, Minister of Justice and Leader of the Alliance Party, announced that he was going to consult on changing the law to allow women carrying babies with fatal foetal abnormalities to have a termination. The BBC suggested that termination of pregnancy resulting from rape or incest would also be covered. Ford said that he hoped to issue a consultation document for the “potential for change” by Easter 2014 and that he anticipated that it would only apply to a narrow range of cases:

“Now this is not talking about a wholesale introduction of the 1967 Abortion Act as applies across the water, it is simply saying that in a very narrow range of cases … we do need to consider whether it should be lawful to have an abortion in those circumstances where there is no chance of the foetus being delivered and having a viable life”.

Conclusion

As a result of the tragic death of Savita Halappanavar at University Hospital Galway, on which we reported in our roundup on 18 November 2012, the Oireachtas passed the Protection of Life During Pregnancy Act 2013, which was signed into law by President Higgins on 30 July. It is a very limited measure indeed, providing for termination in cases where there is the risk of loss of life from physical illness, risk of loss of life from physical illness in an emergency or risk of suicide  – but it does not provide directly for the termination of pregnancy as a result of rape or incest. Possibly the proposed consultation in Northern Ireland will range somewhat wider than the terms of the Irish Act; but Mr Ford must be conscious of the fact that, whatever the outcome of the consultation, it will not be at all easy to secure the passage of the necessary legislation through the Assembly.

The current law in Northern Ireland remains worryingly uncertain. It is no surprise that it has come in for withering criticism from a feminist socio-legal perspective: see, for example, Eileen V Fegan and Rachel Rebouche: “Northern Ireland’s Abortion Law: The Morality of Silence and the Censure of Agency” (2003) Feminist Legal Studies 11:221–254. Perhaps less predictably, however, mainstream medical practitioners seem equally unhappy at its lack of clarity.

In its draft response to the Executive’s initial draft Guidance that was challenged in SPUC, Re Judicial Review, the NI Council of the Royal College of General Practitioners argued that in order to exercise their clinical judgment in individual cases, doctors needed to be confident about the standards to which they were working. The College concluded that “the case law and the draft guidelines give no range of circumstances which might come within the definition of a lawful cause for abortion in Northern Ireland”. Whatever one’s personal views on the morality or otherwise of abortion, such a lack of clarity cannot be acceptable, whether to clinicians or to their patients.

There is also the broader question of compatibility with the ECHR: in short, exactly why should a resident of one part of the UK be denied an abortion, while a resident in another – in precisely similar circumstances – should have access to a termination? Moreover, the final guarantor of human rights within the Province is the UK Government, not the Northern Ireland Executive. And how might the ECtHR balance the opposition of the majority of local politicians and religious groups to liberalisation of the law against a demand from an atheist Northern Irishwoman (or, indeed, from an atheist Englishwoman resident in Belfast) that she be given the same rights of access to termination services at her local hospital as her fellow-citizens enjoy in Great Britain? “Due regard to local requirements” or “respect for private and family life”?

Frank Cranmer

CJEU rules on employment rights of same-sex couples

In Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 the Court of Justice of the European Union ruled that in relation to Article 2(2)(a) of Directive 2000/78/EC on establishing a general framework for equal treatment in employment and occupation, same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses.

Background

M Hay, a French citizen, concluded a civil solidarity pact (PACS) with his partner in 2007 and subsequently applied to his employer, Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres (‘Crédit agricole’), to award him days of special leave and a bonus, as granted to staff who marry under Crédit agricole’s national collective agreement.  However, this was not granted and on 17 March 2008, M Hay brought an action before the Conseil de prud’hommes de Saintes (Labour Tribunal, Saintes), which was dismissed on the ground that the bonus granted in the event of marriage was not linked to employment but to marital status, and that the Civil Code differentiated between marriage and PACS. The EUCJ noted that the collective agreement had been amended on 10 July 2008 to cover couples with a PACS arrangement but that that extension could not be given retroactive effect.

The ruling of the Labour Tribunal was upheld on 30 March 2010 by the Cour d’appel de Poitiers (Court of Appeal, Poitiers), and M Hay appealed against this judgment before the Cour de Cassation claiming that Crédit agricole’s national collective agreement was discriminatory, contrary to Article L.122-45 of the Labour Code, Articles 1 to 3 of Directive 2000/78 and Article 14 ECHR (discrimination). The Cour de cassation decided to stay proceedings and refer the matter to the EUCJ for a preliminary ruling.

CJEU considerations

The court noted [para. 22] that although, as indicated in recital 22 in the preamble to Directive, legislation on the marital status of persons falls within the competence of the Member States, the purpose of Directive 2000/78 as stated in Article 1 is to combat certain types of discrimination relating to employment and occupation, including discrimination on the ground of sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment: see Case C‑147/08 Römer [2011] ECR I‑3591, para. 38. Where the provisions of a collective agreement such as the one at issue adopt measures which fall within the scope of the Directive, management and labour must respect that Directive, [para.27].

Under Article 2 of the Directive, the ‘principle of equal treatment’ was held to mean that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1, and direct discrimination is to be taken to occur when a person is treated in a less favourable manner than another person in a comparable situation including sexual orientation, [para. 30 and 31]. Whilst under the case law cited in para. 33, married couples and couples in a PACS arrangement were not in a comparable situation for the purposes of a survivor’s pension, the court held that this does not rule out the comparability of the situation in relation to the grant of days of leave and bonuses at the time of marriage, [para.38]. It also noted:

“Similarly, the differences between marriage and the PACS, noted by the Cour d’appel de Poitiers … in respect of the formalities governing its celebration, the possibility that it may be entered into by two individuals of different sexes or of the same sex, the manner in which it may be broken, and in respect of the reciprocal obligations under property law, succession law and law relating to parenthood, are irrelevant to the assessment of an employee’s right to benefits in terms of pay or working conditions”, [para,39].

The judgment

The CJEU concluded that:

“Article 2(2)(a) of Council Directive 2000/78/EC … must be interpreted as precluding a provision in a collective agreement, such as the one at issue in the main proceedings, under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits … as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.”

Comment

In relation to the legal status of marriage and civil partnership, the situation in Frédéric Hay is equivalent to that in England and Wales before the Marriage (Same Sex Couples) Act 2013 came into force: under Article 144 of the French Civil Code, only persons of different sexes may marry, whereas, under Article 515-1 of the Civil Code, persons of the same sex only have the possibility of concluding a PACS. However, the CJEU’s conclusion underlines the principle already established by its earlier case-law that to exclude same-sex partners in civil partnerships and similar legal arrangements from employment-related benefits granted to married partners is direct discrimination on grounds of sexual orientation. Moreover, this applies even where the same-sex partnership legislation of the member state in question cannot be regarded as comprehensively equivalent to marriage, as was the case in France at the material time.