Law and religion round-up – 13th August

Blasphemy in Ireland, flying spaghetti in Germany, silly hats in Canada – just a typical week…

Ireland’s blasphemy laws “least restrictive in the world”? Possibly, but…

The Report of the US Commission on International Religious Freedom 2017 noted that

“many countries in Western Europe, including Austria, Denmark, France, Germany, Ireland, and Italy, retain legislation on blasphemy, defamation of religion, or ‘anti-religious remarks’, though these laws are seldom enforced. In one promising development, Ireland’s coalition government announced in May 2016 its intention to hold a referendum on the removal of its blasphemy law” [212].

No-one has ever been prosecuted for blasphemy under the Defamation Act 2009, for which an offender can be fined up to €25,000 and, according to a report in the Irish Independent, one of the International Religious Freedom Report’s authors, Joelle Fiss, said that even if a person intends to blaspheme in Ireland it is unlikely he or she will be prosecuted. Nevertheless, she called for the law to be repealed in the interest of safeguarding debate: “Ireland should repeal its blasphemy law to reaffirm that debating ideas, or even criticising religions, is not equivalent to inciting to hatred”: further, repeal would show solidarity with those who continue to be “persecuted in the name of blasphemy”. Precisely.

“Unhappy marriage” on the way to the UKSC

Readers may recall Owens v Owens [2017] EWCA Civ 182, in which Mrs Tini Owens lost her appeal against the ruling of the Family Court that she cannot divorce her husband on grounds of irretrievable breakdown of the marriage because the judge at first instance  preferred the version presented by her husband, who had defended the divorce petition. Crucially, the couple has not lived apart for the requisite five years that triggers the right of one partner to divorce without the consent of the other. The Court of Appeal was unanimous: Sir James Munby P observed that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be. [84]”, while Hallett LJ concurred “with no enthusiasm whatsoever” [99].

The Supreme Court has now announced that Mrs Owens has been granted permission to appeal.

No flying spaghetti in Brandenburg

On August 2, the Fourth Civil Division of the Higher Regional Court of Brandenburg rejected the appeal of the Church of the Flying Spaghetti Monster Deutschland, a registered association, against a ruling of the Landgericht Frankfurt (Oder) on 13 April 13. The association sought to compel the State of Brandenburg to allow the erection of signs with indications of the weekly “Nudelmesse” on three streets at the entrance of Templin. It also sought a declaration that it was entitled to draw up appropriate signs. The association argued that it was to be regarded as a worldwide community whose activity was in accordance with the Brandenburg constitution and the Federal Basic Law and came under the special protection for religious communities.

The Fourth Civil Division, held, inter alia, that the applicant association was not, in law, either a religious community or a “worldview” [Weltanschauung] community. Its statutes lacked any reference to a transcendent reality or any reference to God. Moreover, it could not be classified as a “worldview” community because its members did not have a common view of the world: the essential characteristic of Weltanschauung was a consistent philosophy dealing extensively with questions about the nature and meaning of the world and the existence of humanity leading to values derived from that philosophy. The association pursued the goal of satirising views perceived as intolerant and dogmatic,  imitating and alienating texts and symbols borrowed from Christianity for the purpose of religious satire. Its convictions did not, therefore, represent a system of thought comprehensively related to the world.

[With thanks to Ass. iur. Klaus Kohnen at R-W-R.]

Public sector boardrooms and religious diversity

The Catholic Herald reports that the Chair of Creative Scotland, Ben Thomson, has made a submission to a call for evidence by the Scottish Parliament’s Equalities and Human Rights Committee on the Gender Representation on Public Boards (Scotland) Bill in which, it is claimed, he writes:

“The lack of women as part of the leadership in religion leads to wider problems in society … Most of the religions practised in the UK to some extent discriminate on the basis of gender and it is time we stopped supporting this exemption in our legislation.”

Which prompts two thoughts. First, “religions” are not public authorities, nor do they have public boards within the definition in section 2 of the Bill. Secondly, has he heard of Article 9 ECHR? The consultation closes on Friday 31 August.

Equality and Human Rights Commission

The Department for Education has announced vacancies for up to three Commissioners to the Equality and Human Rights Commission. In particular, the Secretary of State is seeking to appoint a Commissioner who will bring “particular insight in the sphere of religion and belief”. Appointments to the Commission are for between two and five years and it is envisaged those appointed will take up their roles in January 2018. Applications close on 12 September.

Oaths and affirmations

The issue of oaths and affirmations has come up again. An MP or Peer wishing to take a seat in the Commons or Lords is obliged by law either to swear an oath or to make a solemn affirmation of allegiance to the Crown. The Church of England in Parliament blog has posted Oaths and Affirmations, which explains the process.

The same is also true in the courts; however, the issue of swearing or affirming in civil or criminal proceedings is much more controversial; and Ryan McKay and Colin Davis discuss the issue in The Conversation. Their post, Abolish the oath: moral prejudice against atheists may bias courtroom decisions, suggests that “There is a real risk that defendants who take the religious oath when giving evidence may, by that very fact, enjoy more favourable verdicts and sentencing decisions than those who opt for the secular affirmation”. They note that a proposal to abolish the oath altogether in English and Welsh courts was considered and rejected by the Magistrates’ Association in 2013: we commented on it at the time. The issue is further confused by the fact that some with religious beliefs would not swear as a matter of principle. Quakers never do so, while some mainstream Trinitarian Christians would presumably choose to affirm in obedience to the injunction in James 5:12 to:

“… swear not, neither by heaven, neither by the earth, neither by any other oath: but let your yea be yea; and your nay, nay; lest ye fall into condemnation.”

Colours of day dawn into the mind…

In Re All Saints Bramham [2017] ECC Yor 3, the minute of the DAC meeting was specific in recording the recommended colour temperature of the proposed lighting: “the [proposed] spotlight should be 3000 deg K not 6000 deg K, as the lighting to the wonderful reredos needed to be warm”. However, the colour of the upholstered seating proposed by the petitioners in Re All Saints Higher Walton [2017] ECC Bla 9 proved more difficult to describe, and is referred to in the judgment as: “a sort of orangey red” [2], “claret” [8 and 19], “dark red” [8 and 21], “bright red” [14 (x2) and 19], “the colour of a high-viz safety jacket” [19]. The CBC Guidance on seating states:

“Upholstered seats are not considered to be appropriate for the following reasons: They have a significant impact in terms of colour, texture and character which is not consonant with the quality of a highly listed church”.

This was clearly problematic and caused the Chancellor to ponder:

“[35]. Whether one indirect effect of the Guidance may be that DAC’s and others will in future give stronger advice about colour, remains to be seen”.

Whilst the court plumped for a relative assessment – “same colour as before”, a reference in the Statement of Needs to the colour palette of fabrics supplied by the chair manufacturer would have provided a greater degree of clarity. A more detailed review of the judgment will be posted next week.

Postscript

We noticed an item posted on Premier Christian Radio entitled Why is there so much church chair controversy? citing the replacement chairs in All Saints Church in Higher Walton. The bulk of the article consisted of a report of the discussion between Premier’s reporter and Russell Clynch, senior commercial manager for Treske Church Furniture; this was essentially an advertorial, which readers interested in Treske products may find with a Google search. However, our interest was aroused for, in the process of “Chinese Whispers”, the colour of the All Saints’ chairs had become “bright orange”.

Reuse of graves

As well as the “pews vs chairs” debate, the reuse of graves is becoming a more frequent topic for consideration by the consistory courts, if not by successive government administrations. Belying its unpromising origins, the church of St Peter Terwick, now “a bucolic idyll, with this small twelfth-century church set in a field, remote from any settlement”, is an exemplar of the approach to be taken on the reuse of burial space. In Reuse of graves – further considerations we consider the problems the shortage of burial space is causing, and the view in Terwick of Chancellor Mark Hill that “parishes elsewhere should not be deterred by the need to ‘lift and deepen’ or to re-position memorials”, and his indication that in future cases, the court would be happy to give directions to address and determine preliminary issues where proposals for the reuse of graveyards are under consideration.

Mixed messages

This week, the National Churches Trust tweeted “Mwnt church needs your help”, explaining that the Church of the Holy Cross, Mwnt, has been named as one of the 50 most beautiful and historic churches and chapels in the National Churches Trust’s ‘Sacred Wales’ – ‘Cymru Sanctaidd’ competition, and inviting members of the public to vote for their favourite church in Wales. People can vote online at www.sacredwales.org.uk until August 31; the winning church or chapel will be announced on September 28 and will receive a ‘Sacred Wales’ – ‘Cymru Sanctaidd’ trophy, together with a cheque for £500.

The tweet was linked to an article in the Tivy-Side Advertiser in which the RC Archbishop of Cardiff is quoted as saying “If you’re any good at DIY, why not volunteer with some repair work? Or if you’re simply looking for a day out in another part of Wales, why not pop into a church or chapel and discover the fascinating history?” A tweeted reply from the Trust to David confirmed that whilst maintenance work such as clearing gutters was OK, it considered that repairs such as fixing the steeple was not.

Phew – one remembers the damage caused by the unauthorized work in Re St Mary Mildenhall [2016] ECC SEI 1. On the second of the Archbishop’s suggestions, however, Mwnt church is now on the itinerary for David and Gerry’s holiday in Wales in September.

Quick answers

Readers will be aware of Cathy Caridi’s Canon Law Made EasyChurch Law for Normal People and Fr John Zuhlsdorf’s Quaeritur/Ask Father, and it occurred to us that there is no equivalent this side of the Tiber. Consequently, below is an attempt at answering questions on “issues of law and religion in the United Kingdom – with occasional forays further afield” which arose this week through searches of the blog, details of which are available to Frank and David as administrators. Many of these can be dealt with one-word answers, or be referenced to an earlier post.

Question Quick Answer L&RUK Answer
Who can wear a dog collar UK? Anyone Is it an offence to impersonate a cleric?, (150206).
Can religious texts be used at a civic marriage ceremony? No “Religious” content of civil marriage ceremonies, (130705).
Revd Alice Whalley We don’t do “personal”: see Crockford’s for basic information Subscription to Crockford’s for further information
Reading the bans Church of Scotland? Abolished in 1977 Calling the banns in Scotland: a curiosity for canon law anoraks, (120814), and

Calling the banns in Scotland? – on reflection, maybe not, (150116).

If a PCC refuses burial request? It can’t and neither can the incumbent. Common law right to burial in churchyard of the parish, unless closed.  Includes all persons dying within the parish, whether parishioners or not.
Insulation church lead roof? David is a metallurgist/Chartered Engineer, but this is beyond his expertise. See Shrinking the Footprint article here.
CofE vicar refuses to baptise baby unless parents attend church services. The only legal reason for a priest to refuse to baptise a child is that the parents or guardians or godparents have not been given the required preparation/ instruction Baptism, Canon Law and the Church, (120903).

[Note: we will address the principles of law involved, but cannot comment on specific pastoral issues].

The dates of our posts, in parentheses, are in the format (yymmdd).

Whilst this is a “one-off”, readers may deduce from this that it’s how the “weekly round-up” began…

Quick links

  • ErasmusA legal defeat for a pious prison gardener is good news for bosses: interesting comment on Trayhorn v S of S for Justice [2017] UKEAT 0304/16/0108, on which we posted a note last week.
  • Neil Foster, Law and Religion Australia: Religious Freedom protections in new same sex marriage proposals: too few, too narrow: discussion of proposed legislation in Federal Parliament to redefine marriage to extend it to same-sex couples.
  • Scottish Government: Brexit Bill talks, 9th August: “…The bill as currently drafted is impractical and unworkable. It is a blatant power grab which would take existing competence over a wide range of devolved policy areas, including aspects of things like agriculture and fishing, away from Holyrood, giving them instead to Westminster and Whitehall”. “That means that unless there are serious and significant changes to the proposed legislation, the strong likelihood is that the Scottish Parliament will vote against the repeal bill…” What practical effect a negative vote at Holyrood would have on the withdrawal process remains to be seen.
  • Stijn Smet, Strasbourg ObserversMedžlis Islamske Zajednice Brčko v Bosnia and Herzegovina: A Simple Speech Case Made Unbelievably Complex?: “In a complex judgment marked by contorted reasoning, the Court equates NGOs to the press. The Court also suggests that it ultimately does not matter all that much whether wrong factual allegations are made in private letters or disseminated publicly.” We noted the case briefly in the round-up for 9 July, but without any analysis.

And finally…

Somewhat late in the day (but thanks anyway), Irish Legal News noticed a very strange piece of judicial activism in Canada. According to a report in The Globe and Mail, Toronto, on the day after the November US presidential election Provincial Court Justice Bernd Zabel, who sits at Hamilton, Ontario, wore a “Make America Great Again” hat in court while carrying out his judicial duties. He is now facing a public disciplinary hearing.

He made two comments about the hat: “Just in celebration of a historic night in the United States. Unprecedented” and “Brief appearance for the hat. Pissed off the rest of the judges because they all voted for Hillary, so I was the only Trump supporter up there, but that’s okay.”

Which is extremely odd, because we wouldn’t have thought that very many judges in Ontario would have been able to vote in a US presidential election – unless we’re missing something really, really obvious.

21 thoughts on “Law and religion round-up – 13th August

  1. Yes, the issue of oaths and affirmations is an interesting one. Great to see your reference to Quaker practices and James 5:12. I’ve made the point in my thesis that refusing to swear an oath/opting to affirm does not necessarily reveal that an individual does not hold a religious belief. As you rightly point out, it’s more complicated than this.

    Thanks for another great round-up!

  2. Thanks for another terrific review, Frank and David.
    Does the common-law right to burial in the churchyard extend even to everyone, even to the unbaptized? It used not to extend to those that committed suicide.

    • The former restrictions on suicides and the unbaptised no longer apply, (apart from assisted suicide). There is a good explanation by William Fittall in GS 1972B including the historical development of the ecclesiastical and common law. The general rule was that no body may be buried in consecrated ground without the burial service being performed, although this has now been changed through Amending Canon 37.

  3. Many thanks for this, David. The new Canon does not yet show up at https://www.churchofengland.org/about-us/structure/churchlawlegis/canons/section-b.aspx. Has it received Royal Assent yet?
    Am I right in thinking that this does not alter the position regarding the burial service for the unbaptized (and the excommunicate), i.e. that there is still a legal requirement for a special service to be used, and, in particular, a legal requirement that the BCP be *not* used?

    • In July, General Synod passed the petition seeking Royal Assent for Amending Canon 37, GS 2029CC. However, it tends to be quite difficult to trace the progress of events from then on, particularly when Her Majesty may be away on her hols.

      Applying the Amending Canon to Canon B38, one has:

      “2. It shall be the duty of every minister to bury, according to the rites of the Church of England, the corpse or ashes of any person deceased within his cure or of any parishioners or persons whose names are entered on the church electoral roll of his parish whether deceased within his cure or elsewhere that is brought to a church or burial ground or cemetery under his control in which the burial or interment of such corpse or ashes may lawfully be effected, due notice being given; except the person deceased have died unbaptized, or being of sound mind have laid violent hands upon himself, and the minister cannot in good conscience use the Order for the Burial of the Dead contained in The Book of Common Prayer or a form of service for burial which is approved by the General Synod under Canon B 2; in which case having notified the Ordinary accordingly and in any other case at the request of the relative, friend, or legal representative having charge of or being responsible for the burial he shall use at the burial such service as may be prescribed or approved by the Ordinary, being a service neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter”.

      The amending canon therefore removes the general rule banning the use of the standard burial service for those who had taken their own life while of sound mind, and for those who died unbaptised. In addition, the modification includes a conscience clause for clergy to object to these changes.

  4. PS Does the (old) restriction pertain just to the burial service, not to funerals with cremation, or to funerals with a separate burial? Thanks.

    • Off the cuff, it is my belief that the CofE is quite relaxed about the distinction between different forms of corporeal disposal, and it was the Roman Catholic Church that was more sensitive to the distinctions. However, as with all ecclesiastical law, “the devil is in the detail”.

  5. I remember years ago that Punch magazine ran a number of ‘legal definitions’ in which they defined the Oath as “a means of combining Blasphemy with perjury” Speaking as a practising lawyer, and practising Catholic, I would like to see the present Oath abolished and replaced with a simple declaration to tell the truth combined with a warning regarding the penalties for perjury. I daily see people to whom the religious aspects of the Oath clearly mean nothing and I feel the present system is demeaning to the dignity of legal proceedings. In addition there are the problems and expense caused by Courts needing to keep copies of different religious scriptures.

    • I agree. I wouldn’t swear in any case, as a matter of principle: James 5:12. But I can’t see any point in inviting people to blaspheme as well as perjure themselves.

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  8. Commenting on another story about admission charges to cathedrals, I said that parish churches are not allowed to charge entry. Someone asked me for chapter and verse, and I don’t have it. Simple internet searches come up blank. Can you help?

    • Thanks Jeremy, an interesting questions that I too had to look up. As Second Church Estates Commissioner, Sir Tony Baldry gave a Written Answer on 4 July 2013. At that time nine cathedrals charge an entry fee and two of the great parish churches charge entry fees or a modest charge to enter part of the church: St Bartholomew’s the Great in London Diocese and Holy Trinity Church, Stratford upon Avon in Coventry diocese, the resting place of William Shakespeare.

      “Both the churches and cathedrals resort to charging primarily to recover the cost of repairing the fabric of the building due to the large volume of tourist visitors they receive”.

      It therefore appears that there is no restriction on churches or cathedral charging visitors for entry. Dame Caroline Spelman, as the current 2CEC, would be in a position to give a more up-to-date summary, if an MP could be persuaded to formally request the information.

      Rosslyn Chapel, originally known as the Collegiate Church of St Matthew, is part of the Scottish Episcopal Church, in the Diocese of Edinburgh. However, Rosslyn Chapel is privately owned and managed by the Rosslyn Chapel Trust, and as such charges an entry fee. It receives a substantial number of visitors as a consequence of its appearance in Dan Brown’s Da Vinci Code. Likewise, the Temple Church, London, was also featured: this is jointly owned by the Inner Temple and Middle Temple Inns of Court, and charges for entry.

      • Thank you David. I was on the Chapter at York when we started to charge in 2003. Our understanding was that we could charge for entry to the building itself as we were not a parish church.

        At Beverley Minster, a parish church, we understood we could not charge for entry to the building – not that we wished to, but it was a simple answer when people suggested we should.

        Stratford on Avon makes a charge, once you are in the building, to the place of Shakespeare’s burial, but entry to the church is free. At Beverley, we too charged for ‘extras: a tour of the roof, or a guided tour.

        I would be interested in the underlying statute which says that C of E parish churches are legally bound to admit visitors into the building without charge – does anyone know?

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