Religion and law round up – 13th April

Caste discrimination

We noted the publication on 9 April of the Commons Library Standard Note SN06862 The Equality Act 2010: caste discrimination, which gives an overview of the concept of caste, explains the existing law and sets out the background to the order-making power inserted into the Equality Act 2010.

Conservatives “doing God” again

Conservative ministers have returned to the theme of religion. Eric Pickles told delegates to the Conservative spring forum in London that non-believers should not be able to impose “politically correct intolerance” on others:

“I’ve stopped an attempt by militant atheists to ban councils having prayers at the start of meetings if they wish, Heaven forbid. We’re a Christian nation. We have an established church. Get over it. And don’t impose your politically correct intolerance on others”.

In what reads like an off-the-cuff speech but which was much more measured (the post on God and Politics is worth reading, as always) David Cameron spoke at his Easter reception at No. 10 of his own Anglicanism and committed the Government to fighting persecution of Christians abroad:

“I hope we can do more to raise the profile of the persecution of Christians around the world. It is the case today that our religion is now the most persecuted religion around the world. I think Britain can play a leading role in this … We should stand up against persecution of Christians and other religious groups wherever and whenever we can, and should be unashamed in doing so.”.

Two rather different sides of the coin. No-one would condone persecution of anyone on religious (or any other) grounds. But the UK “a Christian nation”??

Latter-day Saints and business rates

The ECtHR has published its own legal summary of the issues in Church of Jesus Christ of Latter-Day Saints v United Kingdom [2014] ECHR 227, about the refusal to grant the Mormon Temple in Preston the full statutory exemption from business rates under the Local Government Finance Act 1988 for places of “public religious worship” We posted our own analysis of the judgment here.

Modern slavery

We noted the Archbishop of Canterbury’s welcome for the report and draft Bill by the Parliamentary Joint Select Committee on Modern Slavery. the Committee’s Report includes its own draft Modern Slavery Bill, produced as a revision to the Government Bill “to illustrate the ways in which [the Committee’s] recommendations might be translated into legislation”.

Registration of religious groups and Articles 9 & 11

In Magyar Keresztény Mennonita Egyház and Ors v Hungary [2014] ECHR the Second Section ECtHR found by a majority (Spano and Raimondi JJ dissenting) that the requirement in Act no. CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities for religious communities not listed on the face of the Act to apply to Parliament for re-registration violated Articles 9 and 11 ECHR. Though measure was “prescribed by law” and could be considered to have the legitimate aim of attempting to combat financial fraud by certain religious groups, its means of doing so were not “necessary in a democratic society”.

As we noted, the court held that it was inconsistent with the state’s duty of religious neutrality that religious groups not named in the Act were treated differently from incorporated churches without any objective grounds for such treatment. Nor should religious groups have to apply to Parliament and canvass political parties for their votes in order to obtain re-registration.

The Church of England on civil partnerships

On 11 April, the Church of England submitted its response to the Government’s consultation on the future of civil partnership, the 12 week consultation period of which closes next Thursday.  The key point is the Church’s belief that civil partnership should not be abolished, and in response to specific questions [our emphasis],

– “the retention of civil partnership will mean that Christian and other same-sex couples who hold the traditional understanding of marriage as being between a man and a woman, will still have a social and legal framework in which their relationship can be honoured and recognised, (Q1);

– “we believe that this constituency for civil partnership extends beyond those who chose civil partnership over marriage on religious grounds, (Q2)”;

– “we do not believe that a case has been made for extending civil partnerships to opposite sex couples. Our arguments for the retention of civil partnership are based on the need to maintain an option for those same sex couples who wish for proper recognition of their relationship but do not believe that their relationship is identical to ‘marriage’, (Q3);

– “ … where one member undertakes gender reassignment …we agree that it should be made as straightforward as possible for such couples to translate their civil partnership into a marriage. Such a couple would have made the transition from being, in law, a same sex couple to being an opposite sex couple … However, we believe that, because the relationship remains one between the same two individuals, and where their bonds of affection and commitment are untouched by the gender reassignment of one party, the transition to marriage should be made in such a way as to emphasize the continuity of the relationship, (Q7).

The relevance of this last point is that under section 5B of the Marriage Act 1949, as amended, a priest in the Church of England or Church in Wales may refuse to solemnize a marriage if gender has been acquired under the Gender Recognition Act 2004 Act.  The Church is clearly anxious to retain this conscience clause.

Women as Lords Spiritual

The Church Times reported that officials are looking look for ways to fast-track women into Lords once their admission to the episcopate has been incorporated in law; and in a later post we will consider the implications involved in making changes to the relevant legislation: the number of bishops in the Upper House was first limited (to 26) by the Bishopric of Manchester Act 1847 and the present arrangements are made under section 5 Bishoprics Act 1878.

Future of English Heritage

The Government’s proposals for the future of English Heritage [1], outlined in the DCMS Consultation English Heritage New Model, were the subject of a short Westminster Hall debate on Wednesday, [2 April : Vol 578 Col 264WH]: a new charity retaining the name “English Heritage” would be established for the conservation and public enjoyment of the National Heritage Collection, taking full responsibility for delivering the eight-year programme and running the Collection until 2022/23; the Commission’s other duties and responsibilities for preserving England’s wider historic environment will be delivered by the smaller non-departmental body “Historic England”.

Speaking as the Second Church Estates Commissioner, Sir Tony Baldry (Banbury) (Con) stated that although the Church of England agrees strongly with the proposed benefits of the new model for the national heritage collection, it is concerned that the new charity may have an adverse impact on the funding available to churches, and requested that the importance of ecclesiastical heritage not in the care of English Heritage be given due weight in funding decisions.

Research into historical buildings and their treatment is important work undertaken by English Heritage using its own properties, and if the new charity does not take on the conservation research team, Historic England should be allowed to access the national heritage collection for research.

He concluded by emphasizing that the advice currently provided by English Heritage to the Church of England through its response to faculty consultations, to staff membership of diocesan advisory committees and to the Cathedrals Fabric Commission for England is extremely valuable. This input helps to keep the ecclesiastical exemption strong and robust, and the Church requested that the advisory work should continue with Historic England and be free at the point of delivery.

APCMs

Those who are about to attend their Vestry Meetings for the election of churchwardens under section 4, Churchwardens Measure 2001 and subsequent Annual Parochial Meetings under the Synodical Government Measure 1969 No. 2 might find some light relief in the Beaker Folk’s Post Minutes of the Annual Moot Meeting.

And finally… Scotland, corroboration and canon law

In a speech to the Law Society of Scotland the Secretary of State, Alistair Carmichael (LLB, Solicitor and Notary Public), suggested that “the greatest threat to the distinctiveness of Scots law seems to come from those who are arguing for independence”. He was particularly scathing about the proposal to abolish the requirement for corroboration in criminal trials, suggesting that

“… we seem to have got to this position with the Scottish Government openly acknowledging that their policy is deeply flawed but asking the Scottish Parliament to pass it all the same and promising to sort it out later”.

He describes the proposal as “a reckless misadventure” that should be abandoned.

As it happens, we entirely agree with him that the rule should not be scrapped: from a perspective South of the Border it looks like a valuable safeguard against people being convicted merely on their own uncorroborated confessions that we could probably do with in England and Wales. However, where the Secretary of State for Scotland has drifted off-beam is in his apparent assumption that the issue has anything whatsoever to do with independence or, primarily, much to do with the Scottish Government. The proposal originates not from Scottish ministers but from Lord Carloway’s recent review of Scots criminal law and practice.

Perhaps surprisingly, the rule in Scots law was derived from the canonical ius commune, as Lord Carloway points out at 7.1.9 of his report. The Romano-canonical rule which required proof by two or more sworn witnesses was transposed into secular law, though its subsequent development was extremely complex.

Lord Carloway explains at para 7.2.13 that the current rule:

“… does not require two witnesses in the original Romano-canonical law sense of two testimonies, each confirming guilt. It requires one such testimony and another witness speaking to facts which make the truth or accuracy of the first witness’s evidence more likely. Whether these facts do make the first witness’s evidence more likely to be true is a matter of judgment, upon which there can be disagreement, even amongst the judiciary. Even then, it is not every fact which the law imbues with this corroborative characteristic. Although a statement made by a witness to a third party immediately after an incident may, if proved, lend support to that witness’s veracity, a jury would be directed that, even so, it does not provide corroboration as it emanates from the same source (i.e. the same witness)”.

He regards the rule as outmoded and, to cut a long story short, recommends at para 7.2.57 that

“the current requirement for corroboration in criminal cases be abolished; and in solemn prosecutions where there is no corroboration of testimony, there should be no requirement on the judge to warn the jury of any dangers perceived purely as a consequence of the absence of such corroboration”.

As suggested above, we happen to disagree with Lord Carloway’s recommendation – not that our opinion on the matter counts for anything. Very much more to the point, however, so do the current Lord Justice General and Lord President of the Court of Session, Lord Gill (you can see his statement on the issue here on YouTube) and all three of his surviving predecessors: Lord Hamilton, Lord Cullen of Whitekirk and Lord Hope of Craighead.

But whatever one’s views of the merits or demerits of the proposal, it is not simply some bright idea dreamed up by politicians at Holyrood: it’s the considered and carefully-researched opinion of the current Lord Justice Clerk – the second most senior judge in Scotland after the Lord President. Whoever wrote the Secretary of State’s speech should have been better informed.


[1] English Heritage (officially, the Historic Buildings and Monuments Commission for England) is an executive non-departmental public body sponsored by the Department for Culture, Media and Sport (DCMS).

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