Religion and Law roundup: 9th December

The week’s roundup of stuff we blogged about earlier together with updates and a few other items that weren’t quite worth a separate post…


We posted about the MRC-funded research by EPICure that had found that there had been no significant increase in survival-rates for babies born before 24 weeks gestation – the current legal limit for abortion – which slightly calls into question recent arguments for reducing the 24-week limit.

We also noted that in Ireland the debate had started on how to implement the judgment of the ECtHR in A, B and C v Ireland 25579/05 [2010] ECHR 2032 (16 December 2010) – a debate which, we suspect, will consume an immense amount of Parliamentary time, printer’s ink (or maybe, nowadays, electrons) and emotional energy.

Assisted dying

We reported a pan-European poll on assisted dying that provides an interesting supplement to the YouGov/Telegraph and ComRes data reported in February 2010. The new poll appears to present a balanced picture of the present state of opinion – but this is a notoriously difficult area in which to conduct opinion surveys.

Charities and taxation

The Charity Tax Group has just produced the second edition of the Charity Tax Map, with funding from the Nuffield Foundation and the generous assistance of several specialist tax lawyers and accountants. It is something of an urban myth that “charities do not pay tax”: they certainly do pay tax  –  and in surprisingly large amounts . The publication is a study of the interaction between the tax system and the voluntary sector intended to give charity trustees an up-to-date and accurate guide to the taxes that impact on their charities as charities, so that if they think they have a problem they can make an informed judgment about whether or not to seek professional advice.

The Tax Map is intended to be as comprehensive as possible and much of it is devoted to the broad range of VAT issues – the general principles, including exemption, partial exemption and zero reduced rates – and to other more specialised VAT issues such as cross-border transactions, staff secondments and shared servicesAlthough it is VAT that often throws up the knottiest problems, the Tax Map also covers such issues as income from property, primary-purpose and non-primary-purpose trading, Capital Gains Tax, Stamp Duty Land Tax, Income Tax and PAYE, and NICs. So far as possible it includes hyperlinks to the case-law and the relevant HMRC Guidance Notes.

Conscientious objection to military service

We have previously reported on Bayatyan v Armenia 23459/03 [2011] ECHR (GC) 1095 (7 July 2011), in which the Grand Chamber held that the conviction and imprisonment of a Jehovah’s Witness for refusing compulsory military service violated his freedom to manifest his religion under Article 9 ECHR (thought, conscience and religion) and Savda v Turkey [2012] ECHR 42730/05 (12 June 2012) [French text only], in which the Second Section held that the absence of provision for conscientious objection failed to strike a proper balance between the general interest of society and that of conscientious objectors, contrary to Article 9, and further, that including military officers in courts trying conscientious objectors also breached Article 6 (independent and impartial tribunal). Especially after Bayatyan one might have thought that the matter was settled: but some states parties still don’t quite seem to get it.

In Khachatryan & Ors v Armenia 23978/06 – HEJUD [2012] ECHR 1987 (27 November 2012) the nineteen applicants, all Jehovah’s Witnesses eligible for call-up, objected to the alternative labour service because, in reality, it was under the control of the military. They requested that the Alternative Service Act be modified so that they could serve in a genuine civilian alternative service and after filing their objections left the service. To cut a long case-report short, all were prosecuted and all but three served various terms of imprisonment; but the prosecuting authorities finally dropped the charges and told the applicants that they could seek compensation. When they sought reparation through the courts however, their claims were dismissed. They claimed breaches of Article 5 § 1 (liberty and security) and Article 5 § 5 (right to compensation for unlawful detention). The Court held that the application was inadmissible so far as two of the applicants were concerned but awarded the other seventeen 6,000 euros each for non-pecuniary damage and 10,000 euros jointly for costs and expenses.

Opt-out organ donation Bill in Wales

Following the consultation on opt-out organ donation – but prior to the clarification by the Supreme Court on the challenge to delegated legislation – on 4 December the Human Transplantation (Wales) Bill was presented to the National Assembly. Associated with the Bill is an Explanatory Memorandum incorporating the Regulatory Impact Assessment and Explanatory Notes. There are presently 379 people in Wales waiting for a transplant; and if the bill became law individuals would have to opt out of the donor system if they did not want their organs reused in the event of their death.

Health Minister Lesley Griffiths admits that

“[w]e know a soft opt-out system alone won’t increase donation rates. Evidence from other countries shows the health service infrastructure has to be right to make it work”,

but is confident that Wales has a strong infrastructure for organ donation. The Welsh Government has also launched “Heart to Heart”: a publicity campaign to encourage people to share their organ donation wishes with their families.

Were the Bill to be passed it would create a system specific to Wales which potentially could be different from the remainder of the UK. NHS Blood and Transplant (NHSBT) is “a Special Health Authority in England and Wales, with responsibilities across the United Kingdom for organ donation and transplantation”. It is presently considering a number of options for increasing organ donations by 50 per cent by 2013; and a recent consultation addressed a number of ways in which these targets might be delivered, here.

On not (yet) repealing the Human Rights Act 1998

Some sharper-eyed readers may have noticed that the Human Rights Act survived an assault by Ten Minute Rule on Tuesday 4 December. Richard Bacon’s application for leave to bring in a Bill to repeal the Act was defeated by 195 to 72 –  moreover, a cursory scan through the division list suggests that by no means all those who voted against the motion were Labour.

Not worth a separate post because it is inconceivable that any Government of whatever political hue would allow such a serious matter to proceed by private Member’s bill: but a reminder that there is a vocal minority that would like to see the Act repealed – and in all probability would like to derogate from the ECHR as well.

The Pope and charity

The Pope has issued a Motu Proprio On the service of charity, in which he decrees that

“… Catholic organisations should not limit themselves merely to collecting and distributing funds but should show special concern for individuals in need and exercise a valuable educational function within the Christian community, helping people to appreciate the importance of sharing, respect and love in the spirit of the Gospel of Christ.”

Interestingly, he warns against “the proliferation of charitable initiatives to the detriment of their activity and effectiveness” –  something that some secular charities could well take to heart and which the Charity Commission would very much like to discourage. Civil Society has a useful summary.

Pussy Riot and its aftermath

We have posted before on the Pussy Riot affair, in particular that the Duma is considering a draft law on offences against religion – but its repercussions are still being felt even though two of the three participants in the original protest are now in penal colonies far from Moscow and the third has been released.

Reuters now reports that the parliamentary committee overseeing the legislation is looking again at the wording of the draft bill because President Putin is concerned that, as drafted, it could undermine the delicate balance between the Russian Federation’s multiplicity of religious communities. Yaroslav Nilov, the chair of the Duma committee on civic and religious groups, is reported as saying that he hoped the jail terms would stay in the draft but that the committee was refining the wording:

“For example, we will move away from talking of safeguarding the feelings of believers towards creating a punishment for offending people because of their views on religion. Such a phrase will also include non-believers.”

Shades of Article 9 ECHR – to which, of course, the Russian Federation is bound as a member of the Council of Europe.

Same-sex marriage – the Government changes its stance

David Cameron surprised many people (including several in his own party) by declaring himself in favour of religious celebration of same-sex marriages with suitable safeguards for those faith communities that want no such thing. The Church of England quickly put out a press statement stating that “the consequences of change will not be beneficial for society as a whole”.

Unsuprisingly, the Quakers and the Unitarians welcomed the statement. Paul Parker, the Recording Clerk of Britain Yearly Meeting, was quoted by the BBC as saying that “For Quakers, this is an issue of religious freedom and we don’t seek to impose this on others.” Derek McAuley, Chief Officer of the Unitarians, said

“Unitarians look forward to the announcement next week of the Government’s response to the equal marriage consultation and are hopeful that this will mean we will be free to conduct same-sex marriages in our places of worship. We don’t expect Parliament to force other churches or individual clergy, who may disagree with us, to marry same-sex couples if they do not wish to do so. However, we do not consider that our wishes should therefore be set aside”.

Although we do not normally take any notice of what happens outside the reach of the ECHR (because it’s a big world out there and we can’t cover everything) we could not fail to notice the Reuters report that the US Supreme Court has decided to hear argument on the constitutionality of the federal Defense of Marriage Act 1996, which only recognises marriages between a man and a woman. Gays and lesbians married under state laws have filed suits challenging their denial of such benefits as social security survivor payments and the right to file joint federal tax returns. They argue that the provision, known as Section 3, violates the equal protection provisions of the US Constitution. The admirable Pew Forum has a useful guide to the issues.

“Scout’s honour” revisited

In October we reported that an eleven-year-old had been told that he could not join the Scouts since, as a non-believer, he refused to make the Scout Promise because it mentions God. UK Scouting has now launched an on-line survey to ask its members whether an alternative version of the Scout Promise should be developed for atheists and others unable to make the Promise in its existing form.

There is an interesting discussion of the whole issue on God and Politics which also indicates that the Guides have launched a consultation on their promise, goes one step further and considers removing all references to God.  But perhaps the quote from Baden-Powell to the effect that “No man is much good unless he believes in God and obeys His laws. So every Scout should have a religion” tells one more about Baden-Powell than it does about religion. Why should he have thought that belief in God was a necessary element of religious practice?

And finally

Theos has just launched Religion and Law, a series of sixteen fairly short essays written with the non-specialist, general reader in mind (assuming that any such person exists). The book, which grew out of an initial idea hatched between Nick Spencer of Theos and John Duddington of Law & Justice, has been written by an invited group of academics: for example, Maleiha Malik writes on religious minorities, Conor Gearty on faith and human rights, Julian Rivers on the Christian basis of English law, Charlotte Smith on Establishment, Russell Sandberg on the definition of “belief” in discrimination law and Javier García Oliva (and Frank Cranmer) on religious dress and religious symbols. John himself writes on conscience and the law while Nick, as editor, contributes the introductory chapter.

Not, perhaps, a stocking-filler except for insomniacs: but for any reader looking for a way into the subject in reasonably systematic way it might not be too bad a place to start. It is available as a free pdf download; but if you prefer hard copy at £5 it’s not likely to over-strain anyone’s budget.