Religion and Law round up – 24th March

A fairly quiet week for law & religion (unless you’re the Pope or the Archbishop of Canterbury)

Pope Francis’s inaugural Mass and Archbishop Justin’s Enthronement  some lessons from Rome and Canterbury

As we noted in our post summarizing some recent canon law issues in Rome and Canterbury, it is unrealistic to compare Pope Francis’s inaugural Mass in St Peter’s Square, attended by 200,000 or so, with Archbishop Justin’s installation in Canterbury Cathedral in the presence of 2,000.  However, the two events focused the attention of a significant proportion of the world’s Christian communities, 1.2bn Roman Catholics and and 80 million within the Anglican Communion, and provide lessons for both groups

  • The use of the Missa de Angelis as the ordinary in both the inaugural Mass and the Mass on the election of a Pontiff provided a setting that is widely known among the faithful and many non-Catholics. Despite the misgivings of those of us who do not particularly like the setting, (i.e. Frank and myself), its use is likely to be more inclusive and hence appropriate for the occasion.
  • Likewise, the “hymn sandwich” format of the enthronement in Canterbury used 9 hymns, many of which would have been familiar to those present. More importantly, it was conducted in English which while not quite the lingua franca, would be widely understood worldwide.
  • The Canterbury service included “The Greeting of the Peace” in a non-Eucharistic setting; and while shorter and less tactile than in some parts of Oxfordshire, it provided an inclusive means of “embracing all Christians and beyond, without diminishing the Christian nature of the event”.
  • Although both events were attended by various heads of states and other religious groups or their representatives, the international nature of the Roman Catholic Church was emphasized on Friday 22 March when Pope Francis addressed members of the Diplomatic Corps (in Italian) – the VIS notes “currently, 180 States maintain full diplomatic relations with the Holy See, to which number are also added the European Union, the Sovereign Military Order of Malta, and a mission of a special nature: the Palestine Liberation Organization (PLO), which is headed by a director”.
  • There were subtle acknowledgements to the sensibilities of other faiths at both services: the papal inauguration Mass was attended by the Orthodox Patriarch Bartholomew I, the first time for Ecumenical Patriarch since the Great Schism of 1054, and in an ecumenical gesture, the Gospel was intoned in Greek instead of Latin; in a similar vein, at Canterbury the Nicene Creed omitted the filioque

The tortoise and the hare

In a recent comparison between the time involved in the election of the Pope and in the selection of the Archbishop of Canterbury, it was claimed that “The Church of England is a tortoise compared to Rome’s hare”

“the two posts are very different; as are the two churches, denominations, ecclesial communities, or whatever you want to call them; but when it comes to comparing them, the Church of England is most definitely a tortoise compared to Rome’s hare.”

The article provides an excellent blow-by-blow of events between Rowan Williams’ announcement on 16 March 2012 and Justin Welby’s installation on Thursday, and supports our view that in most areas with the possible exception of the current initiative on women in the episcopate, the CofE moves at an exceedingly ponderous pace.  We would, however, respectfully point out that in Aesop’s Fable, eventually, the winner was the tortoise, not the hare.

Cohabitation, family life and Article 8 ECHR 

To what extent is the state permitted to set limits on its recognition of unmarried partners as “dependents” for the purpose of matters such as compensation? The Court of Appeal addressed the issue in Swift v Secretary of State for Justice [2013] EWCA Civ 193 (18 March 2013) in a judgment that is not quite “law and religion” but close enough to it to be worth a brief note. (For a more detailed analysis see Damages for death and human rights on UKHRB.)

Ms Swift had been living with her partner for about 6 months when he was fatally injured in an accident at work as a result of the admitted negligence of a third party. Their child, born after his death, was able to make a claim for loss of dependency under section 1(3)(e) of the Fatal Accidents Act 1976, as amended (the FAA); but Ms Swift could not qualify under the FAA because she and her partner had been living together as husband and wife in the same household for less than two years immediately before his death. The issue before the Court was whether the facts fell within the ambit of Article 8 ECHR (private and family life) so as to engage Article 14 (discrimination), whether as a cohabitant of less than two years standing Ms Swift had “other status” within the meaning of Article 14 and whether, if Article 14 was in fact engaged and the claimant had “other status”, the difference in treatment of claimants by the FAA based on the duration of their cohabitation was objectively justified.

Lord Dyson MR, delivering the judgment of the Court, upheld the judgment at first instance and dismissed the appeal. In his view, Parliament had been entitled to prefer a bright-line distinction to an approach that depended on deciding on the facts of each case whether or not a relationship was sufficiently constant or permanent to justify a right of claim under section 1 FAA. Inevitably, wherever Parliament chose to draw a line there would be hard cases falling on the wrong side of it; but that was not a sufficient reason for invalidating it where it produced a reasonable and workable solution. The two-year requirement gave greater certainty as to the scope of the Act and ensured that courts had some evidence of past experience and the nature of the relationship to inform its assessment of damages under section 3(1). Moreover,

“… it reduces the need to conduct an intrusive and intimate inquiry into the nature and quality of the relationship, in order to establish whether it satisfies some objective standard of permanence and constancy”.

So even if section 1(3)(b) of the Act was an interference with Ms Swift’s right to respect for her family life in breach of Article 8(1), that interference was justified under Article 8(2). In short, if a line had to be drawn somewhere, two years was not an unreasonable place to draw it.

Freedom of religion: ECtHR fact-sheet 

The Press Office of the European Court of Human Rights has updated its fact-sheet on freedom of religion. The fact-sheet covers all the major cases up to and including Vojnity v Hungary [2013] ECHR 131 (on which we recently posted). For those new to the subject it provides a very helpful brief guide to almost all of the most significant ECtHR cases on religion.

Guesthouses and equality

Readers will no doubt recall the facts in Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012), in which an Evangelical Christian husband and wife, Peter and Hazelmary Bull, were found to have breached the laws on equal treatment when they refused to let civil partners Martyn Hall and Steven Preddy stay in a double-bedded room at their guesthouse in Marazion. The case is currently awaiting oral hearing in the Supreme Court.

The Telegraph now reports that the Bulls have turned Chymorvah House into a not-for-profit organisation providing respite care for Christians only, with articles stating that guests will be expected to abide by the Bulls’ Bible-based beliefs. Whether this approach will circumvent discrimination law remains to be seen  but perhaps the SC might possibly take a view on the matter.

London buses, advertising and controversy 

We noted the judgment in Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) (22 March 2013),  which rejected the Trust’s claim for judicial review of TfL’s decision not to allow an advertisement reading “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” to appear on the sides of its buses. Lang J’s view was that if the Core Issues Trust’s proposed advertisement was “likely to cause widespread or serious offence”, so were those by the British Humanist Association and Stonewall which TfL had already displayed on its buses. That led us to wonder whether, if displaying the disputed advertisement would have breached TfL’s statutory equality duty, the display of the BHA and Stonewall advertisements might also have breached TfL’s statutory equality duty?

Alasdair Henderson at UKHRB suggests that not only does the judgment uphold a serious interference with freedom of expression but that its grounds for doing so are rather doubtful – and that Lang J’s conclusion that Article 14 ECHR (discrimination) was not engaged is “pretty unconvincing”. Leave to appeal has been granted, so we will no doubt be returning to this one in due course.

Pussy Riot – the saga continues 

Back in August 2012 we posted on the Pussy Riot affair and we have continued to report on subsequent developments, mainly in the context of the draft law on offences against religion currently before the Duma. As a result of their “punk prayer” in Moscow’s Cathedral of Christ the Saviour ridiculing Vladimir Putin, Yekaterina Samutsevich, Maria Alekhina and Nadezhda Tolokonnikova were jailed for two years. Samutsevich was subsequently released on appeal but her conviction was not overturned.

Associated Press reported on Wednesday that during the previous week the Praesidium of Moscow City Court had upheld the verdicts against the three – and had done so in spite of an intervention by Russia’s Human Rights Ombudsman, Vladimir Lukin, who filed a petition under Article 29 of the Law on the Ombudsman for Human Rights in the Russian Federation asking for the convictions to be overturned. His petition pointed out that the three had only violated “the internal rules of conduct inside the Cathedral” and that that could not be regarded as a gross disturbance of public order – but to no avail.

And finally…

The Scotsman reports that passengers going through full-body scanners at Edinburgh Airport are being asked their religion. The scanners – which provide operators with a “naked” image of the passenger – were introduced at Edinburgh last September and the questionnaire has been part of the process since then.

A spokesman for Edinburgh Airport said that the purpose of the questions is to make sure that the airport meets  “diversity guidelines set out by the Department for Transport” and that certain groups are not being repeatedly singled out for full-body checks. Moreover,  those selected for scanning are not obliged to answer the questions and “This is clearly stated by our security staff”. The Department for Transport’s body scanner protocol confirms the voluntary nature of the questions: however, one passenger randomly selected for a scan, Iain McGill of Leith, told The Scotsman that afterwards he was asked his country of residence, his age and his religion but “I was absolutely, definitely, one hundred per cent not informed I was not obliged to answer the questions”.

Hmm. Article 8 ECHR, anyone?

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