Religion and Law roundup: 16th December

The weekly roundup of things we blogged about, things we didn’t blog about – and one or two updates… 

Defamation, free speech and sexual shenanigans in a seminary

We noted three linked cases about defamation and freedom of the press – Küchl v Austria 51151/06 – HEJUD [2012] ECHR 2017 (04 December 2012), Rothe v Austria 6490/07 – HEJUD [2012] ECHR 2008 (04 December 2012) (in which the principal and deputy principal of a Roman Catholic seminary claimed that they had been defamed by an article in a weekly news magazine, Profil, stating that that they had had sexual relations with some of the seminarians) and Verlagsgruppe News gmbh and Bobi v Austria 59631/09 – HEJUD [2012] ECHR 2012 (04 December 2012) (in which the publisher and editor of Profil claimed that an injunction preventing them from re-publishing a compromising photograph of Mr Küchl had interfered with press freedom). The somewhat surprising result was that the court rejected both sets of claims.

The fact that the same set of facts can sometimes give rise to what appear to be quite opposite conclusions in linked cases reminds us of the strange tale of Alderman Sidney Sporle and the notorious T Dan Smith, self-styled “city boss” of Newcastle in the 1960s: Sporle was convicted of accepting a bribe from Smith – who was then, bizarrely, acquitted of having bribed Sporle. Funny old business, “reasonable doubt” and “balance of probabilities”.

The human rights debate: could more light mean less heat?

David Feldman has written a very helpful post on the UK Constitutional Law Group blog which might reasonably be described as Strasbourg for Dummies. He explains why the judgments of the ECtHR bind the UK and why that does not infringe the UK’s national sovereignty or the legislative supremacy of Parliament: in short, because the UK has agreed to be so bound, “not just once but on many occasions”.

Religion in England and Wales 2011

The Office of National Statistics published some of the early statistical data for England and Wales from the 2011 Census. The tables included information on religious affiliation which revealed, to no-one’s surprise, that the number of avowed Christians had fallen since 2001. Nevertheless, Christianity remained much the largest religion in England and Wales in 2011 (at 59.3 per cent), while the next largest group were Muslims (at 4.8 per cent). However, one in four of the population of England and Wales reported that they had no religious affiliation at all.

Ritual circumcision in Germany

In earlier posts we reported the decision of a local court in Cologne that non-therapeutic ritual circumcision was illegal – and the subsequent furore. Last week Deutsche Welle reported that the Bundestag had approved a bill by 434 votes to 100 to reinstate its legality. Under the new law, which had previously been agreed by the Bundesrat, parents may have boys no more than six months old circumcised by a trained practitioner: for boys above that age the procedure must be performed by a doctor.

Roman Catholic schools in Richmond

We have previously mentioned the unsuccessful application by the British Humanist Association and the Richmond Inclusive Schools Campaign for judicial review of the London Borough of Richmond’s acceptance of proposals for two new Roman Catholic schools in Twickenham. Sales J rejected the application and said that he would give his full reasons at a later date. His judgment in British Humanist Association & Anor v London Borough of Richmond Upon Thames & Ors [2012] EWHC 3622 (Admin) (14 December 2012) has now been posted on BAILLI.

The applicants had argued that by accepting the proposals made under section 11(1A) of the Education Act 2006 the Council had breached its statutory obligation under section 6A – the so-called “academy presumption” – to seek proposals for setting up an academy school offering more non-religious places. In the alternative, the public consultation it carried out in relation to the two proposals had been flawed. The Council, on the other hand, said that it had not identified any “need” for any new school in the Borough within the terms of s 6A of the 2006 Act and that it was not, therefore, bound by the academy presumption under that section.

Sales J rejected both arguments by the applicants, concluding that Parliament had not intended section 6A to operate so as to disapply the obligation of a local authority to consider on their merits proposals “… put forward by persons by virtue of rights set out in or arising under the Act”. In short, the academy presumption did not overwrite the possibility of establishing other schools that would not be academies. For a longer analysis see High Court rejects Humanist Association’s challenge to faith school proposals in Richmond on the UK Human Rights Blog.

Same-sex marriage – the Government changes its stance

We had already reported that David Cameron had declared himself in favour of religious celebration of same-sex marriages. The Government’s general proposals – though not the detailed legislation – duly appeared and were greeted with some very mixed reactions.

Perhaps the feature which caused the greatest surprise was the statement that the primary legislation would include specific provision to make it illegal for both the Church of England and the Church in Wales to marry same-sex couples or to opt in to doing so. The purpose is evidently to reduce the chance of a challenge at Strasbourg under Article 12 ECHR (right to marry) on the grounds that the two Churches are probably quasi-public authorities in relation to marriage. But the news seemed to come as a considerable surprise to the Archbishop of Wales.

Likewise, the Church of England indicated that it had not been consulted or briefed on this important aspect of the proposed legislation; and a spokesperson has accused the Minister’s handling of the announcement as an “omnishambles”.  A useful summary of the media coverage of the on-going situation is given by Thinking Anglicans.

Volunteers and employment rights

Some readers may possibly recollect the Mid Sussex Citizens Advice Bureau litigation, in which the appellant Mrs X, who had become a volunteer adviser with the Mid Sussex CAB, claimed that the CAB’s actions in dispensing with her services had amounted to discrimination on the grounds of disability, contrary to the Disability Discrimination Act 1995 and to the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. At an earlier stage in the proceedings it became common ground between the parties that if Mrs X was, in fact, protected by the disability discrimination legislation, then volunteers generally could be regarded as having employment rights more generally.

Fortunately, the Supreme Court would have none of it and dismissed her appeal. In X v Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59 (12 December 2012) Lord Mance, delivering the judgment of the Court, held that Directive 2000/78/EC “does not cover voluntary activity” and was not prepared to refer the matter to the Court of Justice of the EU for an Opinion. Which is just as well: had Mrs X won, almost every charity in the United Kingdom would have had to start re-examining its employment and volunteering policies as a matter of urgency.

UKHRB has a detailed and wide-ranging analysis of the judgment by Rosalind English: Volunteers not entitled to protection of disability discrimination laws.

Votes for prisoners

At its meeting last week the Committee of Ministers of the Council of Europe (in reality, a meeting of their Deputies) considered the UK’s continuing non-compliance with the judgments of the ECtHR in Hirst v United Kingdom (No. 2) 74025/01 [2005] ECHR 681 (6 October 2005) on the voting rights of prisoners. The Deputies concludedinter alia, that

“the third option [ie to maintain the current blanket ban] aimed at retaining the blanket restriction criticised by the European Court cannot be considered compatible with the European Convention on Human Rights”.

The Deputies decided to resume consideration of the case at their 1179th meeting in September 2013.

Women in the Church of England episcopate

Following its meeting on 10 December, the House of Bishops issued a statement  summarising its plans on how to take forward the issue of consecrating women as bishops. The House of Commons also had its say in a backbench debate on 12 December which, it should be said, was of variable quality. Frank Cranmer gritted his teeth and summarised it – but with a sinking feeling as he did so that no sensible Quaker would ever have thought of going there. David Pocklington posted what we hope is a useful timetable of how the House of Bishops hopes to progress the matter.

Anglican Nuns to join Ordinariate

The Catholic Herald and others report that ten Sisters from the Community of St Mary the Virgin in Wantage, Oxfordshire, and one of the three Walsingham Sisters received into the Roman Catholic Church before the Ordinariate was first launched, will be received into the Church by Mgr Keith Newton, leader of the Ordinariate in England and Wales, on New Year’s Day. The Community will be called the Sisters of the Blessed Virgin Mary and is intending to follow the Rule of St Benedict. The group, which includes the Reverend Mother of the Community,

“are in the main, but not exclusively, the able-bodied members who provide the work and management to keep the Community going, so, since the Ordinariate community do have to relocate, considerable time has been spent and will continue to be devoted to ensure that the remaining [30 or so] members of CSMV will be well cared for: spiritually, physically, emotionally as well as financially.”

There is a certain irony in this, given that shortly after the establishment of CSMV in 1848 by Fr William John Butler, Vicar of Wantage, one of their early morning tasks was to remove the “No Popery” graffiti from the walls around the town, where there was a hostile reaction to his Oxford Movement views.  At that time the Sisters were also involved in the many social improvements introduced to Wantage by Butler.

The end of the world is nigh – possibly

The Mayan and Hopi Mesoamerican calendar reaches the end of its 5,125-year cycle (“the Long Count”) on 21 December. This has caused speculation that it will signal the end of the world, and has triggered both serious and not-so-serious responses. The Independent reports concern from “Moscow to France, and the US to Brazil … some spooked Russians have been panic-buying matches, fuel and sugar to prepare for the post-apocalypse”. The potential for such reaction is one that responsible governments must take seriously; and there have been fact-based denunciations by the US Government and NASA and a ban by the Mexican authorities on Mayan spiritual leaders performing ceremonies at their ancestral temples.

In the main there has been a predictable response from the Catholic Church – José Funes, the Vatican Observatory’s Jesuit director, published an article in L’Osservatore Romano entitled “La fine che non verrà (almeno per ora)” [“The end which will not come (at least not now)”]. However, Mgr Bernardo Bastres Florence, Bishop of the Diocese of Punto Arenas in Chile, adopted a different approach and is reported by Vatican Insider as saying:

 “So many people think the world is going to end on 21 December? Well, we would be more than happy for people to leave their possessions and property to the Church if they so wish. I assure you that after 21 December … we will pray for them eternally, because I am certain we will still be alive after that date. If people want to leave and go somewhere far from here, they would be doing us an enormous favour by leaving their possessions to the Church.”

Within the UK organizations have adopted a less serious approach, here, with advice from the London Fire Brigade, the RSPCA and the AA, which advises:

 “Before heading off, take time to do the basic checks on your car and allow extra time for your journey … Local radio is a good source of traffic and weather updates and for any warnings of an impending apocalypse. Should the announcer break such solemn news, try to remain focused on the road ahead and keep your hands on the wheel.”

In view of the timeline of events, more questionable was the spoof television appearance of the Australian Prime Minister, Julia Gillard, for the radio station Triple J, which commenced “The end of the world is coming” … ”It turns out the Mayan calendar was true…”.

And finally … Edward Elgar, the bells and nuisance

The jurisdiction is different, the legislation is different, but many readers will be familiar with the situation – a village property purchased by a “townie” as a pied-à-terre and the subsequent legal action based upon an alleged private nuisance. Although one of the parties in the recently reported case has the particularly English name of Edward Elgar, the action takes place near Tornac in the Cévennes range of hills in the south of France.

With a farmer, Claude Mesjeans, he has been summoned to appear before the Tribunal de Grande Instance d’Alès to determine whether the noise from cowbells of the herd on his land constitutes a breach of the privacy of Yves Meignan, who claims that they are causing him “exhaustion and anxiety”. Elgar and the farmer have strong local support; and their legal justification is that not only is it a tradition for the local cows to wear bells, it is also essential because it allows the farmer to differentiate between cows. Elgar views the issue as “more Clochemerde than Clochemerle”, but if he loses the court may impose a fine of up to €5,000.

[An additional piece of completely and utterly useless information: the Sanctus of Howard Goodall’s Missa Aedis Christi was inspired by the composer noting down the sounds of the mingling of distant and nearby bells when he was staying in Embrun in the South of France.]

3 thoughts on “Religion and Law roundup: 16th December

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