Religion and law round up – 30th June

The Marriage (Same Sex Couples) Bill ground on in the Lords, the  Marriage and Civil Partnership (Scotland) Bill was introduced – and Lady Hale became Deputy President of the Supreme Court

Will the Marriage (Same Sex Couples) Bill lead to the legalisation of polygamy?

Pace Lord Carey of Clifton we think not: and we reported a recent case, Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588, in which the Supreme Court of British Columbia held that the ban on polygamy under  s 293 of the Criminal Code of Canada was not inconsistent with the Canadian Charter of Rights and FreedomsPart 1, Constitution Act 1982.

The Charter is a much less detailed document than the ECHR; however, the Canadian case provides a certain degree of persuasive authority for the proposition that governments can ban polygamy without falling foul of human rights obligations – and the ECtHR can apply a margin of appreciation which is not available to a Canadian Provincial Supreme Court.

Will the Marriage (Same Sex Couples) Bill end the bar on consanguinity?

We noted the discussion in the Lords on Amendment 46A to the Marriage (Same Sex Couples) Bill which would have required the forthcoming review of civil partnerships to look at extending eligibility to “unpaid carers and those they care for, and family members who share a house, who have cohabited for 5 years or more and are over the age of eighteen”. The background was the case of two elderly sisters, Joyce and Sybil Burden, who were unsuccessful in their discrimination claim that, as sisters, they could not become civil partners: see Burden and Burden v United Kingdom [2007] ECHR 723. The Daily Telegraph reported the debate as Spinster sisters could win legal right to be treated as married couples, Peers told.

Or possibly not. For the Government, Lord Wallace of Tankerville, Advocate General for Scotland, was having none of it:

“… civil partnership … is not the appropriate place to open up these new, significant policy questions. The review is about civil partnerships. It would be inappropriate to open it up to look at unrelated issues of carers and family law, and particularly the question of tax and benefits”.

Marriage and Civil Partnership (Scotland) Bill

The Marriage and Civil Partnership (Scotland) Bill was introduced into the Scottish Parliament on 27 June. Besides making provision for same-sex marriage in Scotland, the Bill makes further provision as to the persons who may solemnise a marriage and to marriage procedure itself. The Bill also makes further provision as to the places at which civil marriages may be solemnised. Sections 12 and 13 (Scots bills are divided into sections, not clauses) make provision for a new category of “belief” marriage celebration in addition to religious celebration.

The Bill is accompanied by the customary Explanatory Notes, together with Policy Memorandum and a Delegated Powers Memorandum. In addition, the Parliament’s Equal Opportunities Committee has published a call for evidence which will remain open until Friday 23 August.

We hope to post a longer analysis when we have digested the content.

And while we’re on the subject of same-sex marriage…

As everyone will know by now, in US v Windsor 570 US (2013) – by five votes to four – the US Supreme Court struck down s 3 of the Defense of Marriage Act 1996:

‘‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.’’.

The effect of that section has been to deny federal benefits to same-sex couples married under state laws or outwith the jurisdiction. The court also declined to rule on the constitutionality of Proposition 8, California’s prohibition of same-sex marriage – which means that California can resume marrying same-sex couples. Further comment is for US constitutional specialists – which we aren’t.

The EU and freedom of religion or belief

As we noted, the EU Council of Ministers adopted new Guidelines on promotion and protection of freedom of religion or belief, based on the principles of equality, non-discrimination and universality, to provide practical guidance to officials of the EU and Member States in their relations with third countries and with international and civil society organisations. The guidelines go further than the previous Council conclusions on freedom of religion or belief adopted in 2009 but not so far as the text adopted by the European Parliament on 13 June. They were generally welcomed by the bodies representing the European Churches – but with slightly less enthusiasm by the Roman Catholic bishops than by the rest.

The Sun gets its comeuppance

Back in February we noted Adam Wagner’s post on UKHRB about a story in The Sun beside a picture of the Soham murderer Ian Huntley under a completely misleading headline: “Now EU could let fiends like him prey on your children“. Evidently this was the last straw for the European Commission, which complained to the Press Complaints Commission.

Adam now reports the Commission’s conclusion that there was

“a clear failure to take appropriate care over the accuracy of the coverage and a breach of the Editor’s Code, which was particularly significant at a time when the roles of both the EU and the Convention were a matter of major public debate“.

No further comment necessary.

The Scout Promise

In the piece in last week’s round-up on GirlGuiding UK’s new promise we suggested that the consultation being run by the Scout movement might result in it adopting a new promise “soon”.  Alas no.  Although the Scouts announced their review of the promise on 4 December 2012, ahead of the Guides, the Daily Telegraph reports that, following the completion of the consultation, the new wording “will be devised by the trustees of the Scout Association and approved by the worldwide movement before being announced in the autumn, at the earliest”.  [Who said the Church of England was slow in its decision-making processes?].

However, rather than seeking “a one promise fits all” and possibly ending up with what the Bishop of Bradford has described as “vacuous nonsense”, the Scouts are to produce an alternative promise to be used alongside the present one, which currently has different versions for Muslims, Hindus and people of other faiths.

Westminster Hall debates

Westminster Hall debates “[give] more time for individual MPs to raise issues of importance to them with a series of Private Members’ adjournment debates on Tuesdays and Wednesdays. The Thursday sitting is frequently used to debate select committee reports and other general business”. On 25 June there were two such debates of interest:

Habitats Directive (Bats in Churches)

The presence of bats in churches presents significant practical and financial problems, which are exacerbated by the protection given by the Habitats Directive.  This is a long-standing issue, yet one which has been difficult to progress.  However, in the debate in Westminster Hall moved by the Second Church Estates Commissioner, Sir Tony Baldry (Banbury), is to be congratulated for his robust condemnation of the competent authorities and his securing follow-up action by the Minister.

In a wide-ranging discussion [25 Jun 2013 Col. 30WH] Sir Tony said that

“This debate would not be necessary, and I would not be detaining the House by raising the issue, if it had been possible to sort out satisfactory bat mitigation measures … The Bat Conservation Trust has singularly failed to solve the problem as, in my judgment, has Natural England, and that is why it has been necessary to raise the issue and to continue to press the Minister to find a solution.[our emphasis]”

He appreciated that Natural England could not grant licence in the absence of satisfactory alternative provision. He could not see that that was a problem: obliging congregations and communities to co-exist with bats was plainly not a “satisfactory alternative”. In addition,

“The second matter to which Natural England must have regard to grant a licence is that, under regulation 53(9)(b), the interference with the bats “will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range”. Again, unless the bats were of a particularly endangered species—for example, Greater Horseshoe bats—it is difficult to see how that provision could cause a problem to Natural England.”

The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs, Richard Benyon, responded on behalf of the Government. He summarized Government action [25 Jun 2013: c 33WH] which includes:

  • ensuring that guidance offered by Natural England and the national bat help line is clear, proportionate and unambiguous;
  • undertaking specific actions at several churches to find means of moving bats away from sensitive areas.
  • ensuring that unnecessary costs are not incurred, and requesting Natural England to provide guidance on the nature of surveys that may be required or the sort of actions to prevent impacts on bats; and
  • requesting Natural England to look into reports of over-zealous advice being given to churches.

Bats in buildings, said Benyon, were “… a problem that I am absolutely determined to resolve” – but it is pretty clear that there will be no swift resolution that will address the problems of congregations currently suffering from bat infestation.

Mitochondrial disease

Later in the day, Chi Onwurah (Newcastle upon Tyne Central) (Lab) led a debate on mitochondrial disease, the devastation it causes and a new techniques developed by Newcastle university to prevent it.  Subsequently, the Department of Health issued a Press Release Innovative genetic treatment to prevent mitochondrial disease announcing “Public consultation expected on draft regulations for IVF-based techniques to prevent mitochondrial disease later this year”.  However, the resulting headlines regarding this possible consultation were more sensational: “UK government backs three-person IVF”, (BBC); “UK Government gives green light to three-person IVF”, (Vatican Radio); “Britain could create first ‘three-parent baby’ through IVF”, (Daily Telegraph).  Nevertheless, in view of the legal implications, we will be covering the issue in a later post.

And finally…

Absolutely zilch to do with law and religion – but Frank couldn’t resist the Beaker Folk’s Church of England News Headline Generator.