Religion and law round-up – 9th November

An unexpectedly busy week: gender-selective abortion, a debate on ritual slaughter, the Lords on assisted dying, religion and property rights and more…

Assisted dying

On Friday Lord Falconer’s Assisted Dying Bill [Lords] had its first day in Committee of the whole House. The most important development was that the Committee agreed without division Amendment 4 (moved by Lord Pannick), which amended Clause 1 of the Bill so that it now reads as follows:

“1 Assisted dying

(1) A person who is terminally ill may request and lawfully be provided with assistance to end his or her own life.

(2) Subsection (1) applies only if the High Court (Family Division), by order, confirms that it is satisfied that the person—

(a) has a voluntary, clear, settled and informed wish to end his or her own life;

(b) has made a declaration to that effect in accordance with section 3; and

(c) on the day the declaration is made—

(i) is aged 18 or over; and

(ii) has the capacity to make the decision to end his or her own life; and

(iii) has been ordinarily resident in England and Wales for not less than one year.”

In short, the amendment puts the process firmly under the control of the judiciary. The Guardian reported that the move had been welcomed by campaigners in favour of assisted dying as “a major step in changing the law”. Perhaps: but we still think it unlikely to become law in what is left of the present Parliament. It still has some way to go in the Lords – and has yet to be considered by the Commons.

Abortion and sex-selection

On Tuesday (the other) Fiona Bruce (Con, Congleton) successfully sought leave to introduce her Abortion (Sex-Selection) Bill in the Commons under the Ten Minute Rule: “a Bill to clarify the law relating to abortion on the basis of sex-selection; and for connected purposes”. The Bill has all-party backing but the suspicion is that its chances of reaching the statute-book are fairly remote.

Ritual slaughter

Also on Tuesday in the Commons there was a debate in Westminster Hall on “Meat slaughtered in accordance with religious rites”, initiated by Neil Parish (Con, Tiverton and Honiton), chair of the All-Party Parliamentary Group on Beef and Lamb, on whose 16-page report we posted in August, here. Strangely, no one spotted his “own goal” when he stated [HC Hansard 4 Nov 2014 c 150WH]:

“The revelations of horsemeat contamination in 2013 highlighted the importance that consumers place on the origin of their food, and the trust that they place in retailers to guarantee that”.

However, this was the period during which the Jewish Chronicle reported a surge in the sales of kosher meat since “transparency in the kosher food chain, and the safeguards employed in shechita, guarantee that kosher meat is protected from the spiralling threat posed by confusion over food safety”.

Shechita UK claims that the British Veterinary Association is misleading consumers over the issue of labelling, i.e. nine out of 10 vets believe that labelling which explained the method of slaughter would help shoppers make an informed choice about meat purchases. Shechita UK’s director Shimon Cohen said: “the BVA position on labelling assumes that consumers understand exactly what industrialised mechanical stunning involves”: a statement that itself needs a little unpicking regarding what percentage of consumers labelling might influence, and how “exactly” their knowledge must be to make an informed choice.

There are clearly arguments on both sides; but on the issue of labelling, the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (George Eustice) said, [4 Nov 2014 c 168WH]

“The European Commission is conducting a study on labelling at the moment; we expect it to conclude in December. Initially, it was planned that the study would be published this summer, but as usual—because this is a very contentious issue—it has taken the Commission rather longer than it thought. Nevertheless, we hope that the study will come by the end of the year, or perhaps the beginning of next year,”

effectively ensuring that this remains a NIMTO[1] issue.

Church Commissioners Questions

On Thursday 30 October, the Second Church Estates Commissioner, Sir Tony Baldry, (Co, Banbury), answered MPs’ questions on issues concerning the Church of England, [30 Oct 2014: Vol 587 (53) Col 391]. Church Commissioners Questions does have a valuable role in providing timely updates on matters of concern, but this was not one of those occasions. Other than Sir Tony’s admission that he was neither omniscient nor omnipotent – a fact of which he made his constituents aware – there were no new revelations. However, the Speaker praised his compendious knowledge, and his patience in providing responses was evident.

Our readers will appreciate that: there were issues with clause 2 of the draft Measure; Royal Assent has been granted; and so section 2 is now, rightly or wrongly, “the law of this land”. From the first question of Diana Johnson (Lab, Kingston upon Hull North), [30 Oct 2014 Col 392] it might have appeared that is was necessary for Sir Tony to explain this to the House, again; however, it is often the follow-up question that relates to the questioner’s real concerns, but in this case, its phrasing provided Sir Tony with the opportunity to make an appropriate riposte. Nevertheless, there is an underlying uncertainty in some quarters on how the Church of England will rely upon section 2 in relation to equality law other than its application to women in the episcopate – an issue to which we will return in a later post.

The House also received further “Please Sir, can we have a woman bishop?” pleas which named specific candidates, possibly to their great embarrassment. Whilst questions on the Church Commissioners’ investment decisions were more pertinent, in the absence of notice of the question relating to SOCO International he was unable to give a substantive response, although he undertook to provide written information following inquiries.

There is clearly plenty on which Sir Tony’s successor in the next Parliament might ponder before accepting the appointment.

Lex posterior derogat priori

In 2010, a faculty was granted for the refurbishment and augmentation of the four bells and the replacement of the bell frame at All Saints, North Scarle, Lincolnshire. However, lack of funds did not permit the work to be considered until 2014, and on reapplying to the court the project was reconsidered: Re All Saints North Scarle [2014] Lincoln Cons Ct, Mark Bishop Ch. In his earlier judgment the Chancellor had found that the Bishopsgate test had been satisfied; but since then that test had been superseded by the judgment of the Arches Court in Re Duffield: St Alkmund [2013] 3 WLR 854. By 2014 funds had been secured, the Petition was renewed, and the Chancellor felt obliged to reconsider his 2010 decision in the light of the new tests in Duffield, St Alkmund. He determined that these tests were satisfied. Faculty granted.

Religious privilege in Scotland

On Tuesday The Herald reported that the Humanist Society Scotland is providing £40,000.to Glasgow ­University for a study of influence that religion has on Scots law in areas such as education and marriage. The study will be carried out over the next ten months by Callum Brown, Professor of Late Modern European History, Jane Mair, Professor of Private Law and Dr Thomas Green. According to The Herald, the HSS says that the purpose of the project is to encourage talks with the ­Scottish Government to change current laws to reduce religious privilege and make the country more equal.

It was quickly pointed out on Twitter that “Churches speak for millions of Scots, these secularists speak for several dozen” – but that rather misses the point. An exhaustive academic study and analysis of religious exceptions in Scots law will no doubt be just that: what pressure-groups and policymakers then use it for is another matter. But that’s no reason for not doing the work in the first place.

Regulation of Fireworks

In addition to the religious aspects of Robert Catesby’s plot to blow up the Houses ofGuy Fawkes' Lantern_edited-1 Parliament, the legislation associated with the subsequent marking of 5th November and other religious or cultural festivals with fireworks is addressed in the latest Commons Briefing Paper SN 05794. Of importance to such groups are the Fireworks Regulations 2004 SI 1836 (as amended) for which Regulation 7 provides a derogation from the curfew within the Noise Act 1996, as amended, for 5th November (when it begins at midnight), Diwali, New Year’s Day and Chinese New Year (commencing at 1.00 am on the following day); and Regulation 9 which extends the periods where selling without a licence is permitted for these occasions. However, some will no doubt regret the restrictions within the Pyrotechnic Articles (Safety) Regulations 2010 SI 1554 which preclude the sale of certain fireworks to the general public including, inter alia: aerial wheels; bangers, flash bangers or double bangers, jumping crackers, jumping ground spinners, mini rockets, air bombs and shell-in-mortars.

Religious dress in Belgium

The Raad van State/Conseil d’Etat, Belgium’s highest administrative court, has shown what the Strasbourg Observers blog described as “judicial bravery” its recent decision about religious dress in state schools for Sikh and Muslim pupils.

In 2013 the Flanders Board of Community Education [het Gemeenschapsonderwijs] issued a Circular banning religious symbols for students and staff in all its schools. Though the ban was primarily aimed at Muslim girls, Sikh pupils wearing the turban or patka were also affected. Earlier, in its decision No. 40/2011 of 15 March 2011 the Constitutional Court had declined to rule “on the compatibility of such a ban with freedom of religion” under the Constitution because the point had not been argued.

In decision No. 228 752 of 14 October 2014 [in FlemishFrench summary], the applicants argued before the Council that the ban under the 2013 Circular violated their freedom of religion under Article 9 ECHR. Because the Circular was only for competent bodies of the Board of Community Education rather than directly for students or teachers, the Council held that it was not competent to annul the Circular itself. However, the Council did point out that such a ban had to meet the conditions under which Article 9 allowed interference with freedom of religion: to be provided by law, to serve one of purposes listed (exhaustively) in Article 9 §2 and to be necessary in a democratic society. It concluded that the ban met the first two conditions but that, on the facts, the interference with the applicants’ freedom of religion was not “necessary in a democratic society” within the meaning of Article 9 §2. It therefore annulled the ban.

Clergy legal training

The All Souls and Saints Edition of Gospel & Law notes that Re Emmanuel Church, Leckhampton [2014] Gloucester Cons Ct and Re St Giles Uley [2014] Gloucester Cons Ct are “classic examples of clergy who didn’t know what they were doing”. The Editor, Catherine Shelley, wonders whether there is a perception that “law and pastoral ministry, law and mission, law and the life of the spirit are divorced from or even opposed to each other” and comments that:

“Surely it is time for some mandatory, basic minimum legal training for clergy and regular legal updates. Clergy and wardens are in most cases charged with the care of buildings and contents worth several £100,000s. Clergy are responsible for the cure of souls of many 1,000s in theory and in practice provide pastoral care for many 100s if not 1,000s over the course of their ministry. They deal with people at some of the most vulnerable points in their lives and make decisions about some of the most significant and personal events of peoples’ lives.”

We could not agree more.

However, we would also add that in Re St Giles Uley Chancellor Rogers also noted:

“total failure to carry out clear rules and instructions to ensure that this procedure has been carried out properly. This, notwithstanding the directions given with what I might describe as child-like clarity to the Petitioners by the Diocesan Registrar” [11].

Remedying such disregard for rules and instructions does not entail a detailed understanding of the faculty jurisdiction but it does require subsequent action by the diocese (rather than the Court) to ensure that those involved are left in no doubt as to the error in their inaction. However, as we noted earlier, the formal sanctions that may be taken against churchwardens or PCC members are very limited.

When religious sensitivities and property rights collide (1)

Of at least marginal interest this week was the case of Potomska and Potomski v Poland [2014] ECHR 1188, in which the applicants, Zygmunt Potomski and Zofia Potomska, had complained that they had been prevented from developing land in Rusko which they had bought from the Polish state in 1974 because the authorities subsequently decided to enter the property, which had formerly been a Jewish cemetery, in the register of historic monuments. In particular, the couple had argued that the failure of the authorities either to expropriate their land or to provide them with an alternative building-plot for a house had violated their rights under Article 1 of Protocol No. 1 (protection of property).

In its principal judgment of 29 March 2011 the ECtHR had already found a violation of A1P1 but had held that the question of the application of Article 41 (just satisfaction) was not ready for decision and reserved it for a later date. On 4 November the Court handed down its conclusion: the couple had claimed a total of some 180,000 euros in pecuniary and non-pecuniary damages, costs and expenses but the Court awarded them a total of 14,800 euros – less than a tenth of their claim.

Part of the claim had been for loss of rental income; but the Court noted that though the applicants had acquired the plot in 1974 they had done nothing to develop it until the listing decision in May 1987 – which meant that their claim for loss of rental income was entirely speculative [22]. Nevertheless, the listing decision had severely restricted their use of the property: they were obliged to preserve the cemetery area intact and protect it from damage and were prohibited from carrying out any works without a permit [23]. The interference had pursued the legitimate aim of conserving historical or cultural heritage [25]: the violation resulted not from unlawful dispossession but from the failure to strike a fair balance between the general interest and the applicants’ property rights [24].

All of which raises the issue of the extent to which religious or culturally significant buildings and sites must be preserved intact against development or degradation. A “fair balance” is often difficult to determine. In the case of the Rusko cemetery, it was one of the few remnants of the former Jewish culture in the region; and the Regional Inspector of Historic Monuments had found that the layout of the cemetery was discernible and that certain parts were intact: the foundations of a house of prayer, a stone wall and some gravestones. In those circumstances the listing seems reasonable: but is every single listed building – without exception – of architectural merit?

When religious sensitivities and property rights collide (2)

Of much more general interest (which is why it got its own post) was the strange tale of the piece of land that was registered twice: once by the purchaser then, 16 years later, by the Roman Catholic Diocese of Palencia, effectively by fiat, on the grounds that it was the curtilage of a dilapidated church so it must belong to the Diocese, mustn’t it? In Sociedad Anónima del Ucieza v Spain [2014] ECHR 1186 [French only] the Third Section ECtHR was unimpressed by the arguments advanced on behalf of the Diocese and found that the second registration had violated the owner’s rights under A1P1 ECHR.

Bishops, archbishops and cardinals

On 8 November Il Bollettino announced some important changes in the hierarchy of the Roman Catholic church: the official announcement of the movement of the Cardinal Raymond Burke from the head of Supreme Tribunal of the Apostolic Signatura to a minor post as patron of the Sovereign Military Order of Malta. He has been replaced by Archbishop Dominique Mamberti, the Vatican’s Secretary for Relations with States, whose position as “Foreign Secretary” has been filled by Archbishop Paul Gallagher, the first English holder of such a position, here.

The Tablet notes that Burke is “a leading conservative voice in the Church” and “an outspoken critic of the recent Synod on the Family in Rome where many participants called for the Church to adopt less harsh language when talking about homosexuality, the divorced and remarried, and cohabiting couples”. His move to a largely ceremonial role is unusual for a cardinal of his age, 66.

Unconnected with these moves, on Wednesday Il Bollettino published a Rescriptum which introduced new norms modifying the presentation and acceptance of resignation from pastoral ministry by diocesan bishops and offices of the Roman Curia by pontifical appointment. These are discussed in more detail here.

Quick Links

  • Colin Podmore: Women as Bishops, from the 2 November edition of The Living Church, 2 November
  • Simon Kershaw: 2014-15 Almanac, calendar for the forthcoming liturgical year, according to the rules of the Church of England’s Common Worship Calendar and Lectionary
  • YouGov: Survey of Anglican clergy A survey of 1,509 Anglican clergy, commissioned by the Westminster Faith Debates on: clergy attitudes to: faith in “personal God” and the parish system; abortion, euthanasia and same-sex marriage; current welfare system. Data are available here
  • Rachel Harden: Blogging Faith The Church of England’s Deputy Director of Communications writes about the increasing importance of the internet.

And finally …

Ray Hemingray kindly alerted us to the outcome of Re St Andrew Hornchurch [2014] Chelmsford Cons Ct, Pulman Ch. The petition, which was opposed, sought approval for replacing moveable audiovisual equipment in a 14th century Grade I listed church with permanently-fixed equipment, which would mean removing three pews to make room for a mixing desk. The matter was determined on written representations and the faculty was granted subject to conditions that (1) all equipment was to be indelibly marked, (2) certain equipment should be fitted with tracker devices and (3) the mixing desk should have front and sides made from the pews that would be removed.

To which the only comment one can make is, “Gosh – a Grade I listed mixing desk“…
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[1] Not In My Term of Office

3 thoughts on “Religion and law round-up – 9th November

      • Thanks – I have a particular interest in such cases just now as I am preparing a faculty application for a projection system myself… however our church is only Grade 2 listed and no pews are to be removed…

        There are an increasing number of judgements on such matters on the very useful Ecclesiastical Law Association site, though they can take a little finding.

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