Religion and law round up – 4th August

Parliamentarians are enjoying the recess, Cathedral choirs are on holiday, and other  blogs are having a summer vacation (or drafting in guest authors) . . . .

 . . . . . . .leaving Pope Francis to discuss his Brazilian trip with the Press corps, Justin Welby to fret about Wonga, and David and Frank to summarize the week’s events.

The right to die?

The important legal story of the week was the Court of Appeal’s judgement in R (oao Nicklinson and Lamb) v Ministry of Justice & R (oao AM) v Director of Public Prosecutions [2013] EWCA Civ 961 which we covered in summary on the day the judgement was handed down, and in more depth later, when Frank considered the question “Is there a ‘right to die’ in English law?”. Dyson MR and Elias LJ held that the DPP’s Policy on prosecution required clarification in relation anyone assisting a suicide who did not have a close relationship with the “victim”. was On balance, we are both inclined to agree with the Lord Chief Justice’s dissenting view that judges “cannot suspend or dispense with primary legislation” – which, in effect, is what one of the appellants, “Martin”, was asking them to do.

However, the case again highlights the larger questions as to whether legalising assisted suicide might lead to someone who is terminally ill being pressured into being “assisted” and whether we place a greater value on the uniqueness of personhood by accepting that there should be individual autonomy about when to die or by concluding that in no circumstances should a life be ended prematurely.

Both the Director of Public Prosecutions and the Nicklinson and Lamb families have indicated their intentions to appeal the judgment to the Supreme Court, so the strong likelihood is that all the arguments will be rehearsed yet again.

Religion and employment: a couple of marginal cases

The issue of religion surfaced somewhat peripherally in two recent cases before the Employment Appeal Tribunal. In neither was it sufficiently central to make it worth a separate post; but some readers may wish to follow-up the cases for themselves

In Carmelli Bakeries Ltd v Benali [2013] UKEAT 0616 12 3107 (31 July 2013)  Mr Toufik Benali, who had worked for seven years as a pastry chef at Carmelli’s bakery in Golders Green – whose products are strictly kosher – was sacked in June 2011 after admitting using non-kosher jam from Tesco’s when he had run out of the kosher product. The EAT upheld the finding of the Employment Tribunal that Mr Benali’s dismissal was an act of victimisation contrary to the Equality Act 2010 and therefore unfair. Mr Benali, who suffered from sciatica and a degenerative disc disease, had asked the bakery to make reasonable adjustments to his work: in short, to relieve him of the need to do any heavy lifting. The ET had concluded at paragraph 54 that his dismissal

“… was an act of victimisation. The claimant’s on-going complaints about the lack of adjustments plus the complaints of his line managers to senior management about what they saw as malingering on the claimant’s part meant that the respondent saw the claimant as a problem employee. When faced with the non-kosher jam incident, the respondent was not prepared to show the claimant any leniency. The resulting dismissal was tainted therefore by his complaints in relation to his disability and is therefore an act of victimisation”.

The EAT held that the conclusion of the ET was “not perverse”.

In CVS Solicitors LLP & Anor v Van Der Borgh [2013] UKEAT 0009 13 2607 (26 July 2013) the claimant was a solicitor specialising in private client work. He had strongly-held Christian beliefs. He had been an equity partner in CVS from 1994 until 2006, then resigned his partnership and became a consultant on terms set out in a consultancy agreement. The Employment Judge had found that relations between  Mr Van Der Borgh and the senior partner of CVS (the original second respondent) had deteriorated badly; and the claimant complained that the firm and the senior partner had taken adverse actions against him because of his age (he was then 68) or his religious beliefs.

The EAT dismissed the firm’s appeal and upheld the finding that Mr Van Der Borgh, even though a consultant, was subordinate to the firm because he was integrated into it and obliged to carry out work for it personally. The ET had not been perverse to conclude that he was therefore “under a contract personally to do any work” within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2006.

But, apart from the bald statement in para 1 that Mr Van Der Borgh had “strongly held Christian beliefs”, we are not told how they impacted on his deteriorating relationship with the firm or engaged with the 2003 Regulations.

Sikhs, same-sex marriage and unpicking the quadruple lock

Responding to advice from Sikhs In England that Sikh temples that they should halt all civil marriage ceremonies on their premises to protect them from possible legal challenges for refusing to conduct same-sex weddings, the Sikh Council UK (SCUK) – the largest representative body of Sikhs in the UK – has issued a Press Release urging  Gurdwaras to be cautious when considering this advice, and issued its own advice and guidance for Gurdwaras.  Included was the statement that

“[if], at any time, there is a legal challenge to a Gurdwara offering Civil Marriage Ceremonies or indeed the Anand Karaj ceremony it would be clearly against the spirit and the word of the guarantees and the Sikh Council UK will robustly hold politicians to account.”

We note that a same-sex couple Barrie and Tony Drewitt-Barlow have indicated that they are “planning a legal challenge against the Church of England’s refusal to conduct same-sex weddings”: presumably, an application for judicial review of the statutory ban on the Church of England conducting same-sex marriages that was included in the Marriage (Same Sex Couples) Act 2013 :see especially s 4(1). Barrie Drewitt-Barlow was reported as saying “‘I am a Christian – a practising Christian. My children have all been brought up as Christians and are part of the local parish church in Danbury”.

It is perhaps useful that such a challenge has come so close to the Royal Assent to the Act; and the courts will have an opportunity to give judicial consideration to the strength of the so-called “quadruple lock”. The Government’s willingness to put its money where its mouth is will be a good indication of whether the approach of Sikhs In England or of the Sikh Council UK is the more prudent.

A challenge was bound to happen, whatever the Government may have thought when the policy was first being formulated. The suspicion must be that if the case ends up in Strasbourg the ECtHR would regard the legislation as within the margin of appreciation of states parties; and the recent decision in Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646 seems to suggest that the Court is reluctant to interfere in the internal affairs of religious organisations. But who knows? –  With man it is impossible, but with Strasbourg all things are possible.

The re-interment of Richard III

On 30 June, the Anglican Communion News Service published a long feature article entitled “Cathedral prepares to receive King’s body, apparently prompted by the Dean of Leicester’s video message giving an update on the progress to date, here. In a subsequent post we will consider the legal issues involved in the reburial.

Peripheral to the on-going judicial review request by the Plantagenet Alliance, but of general interest in this area are the planned changes to section 25 of the 1857 Burial Act, which we will also cover at a later stage.

Canon 401§2

This week, followers of the Vatican Information Service will have observed that under Other Pontifical Acts, VIS announced

“Today, the Holy Father: accepted the resignation from the pastoral care of the archdiocese of *********, presented by **********, in accordance with canon 401 para. 2 of the Code of Canon Law”

in relation to: the Archbishop of the archdiocese of Yaounde, Cameroon, (29 July 2013); and two of the six the Archbishops in Slovenia, of the archdioceses of Ljubljana and of Maribor, (31July 2013).  An earlier post examined: the use of Canon 401§2 in the case of a diocesan bishop who has “become less able to fulfill his office because of ill-health or some other grave cause” and is ”earnestly requested to present [his] resignation from office”; the suggestions here, here and elsewhere that a separation should be made between the two causes for early resignation; and the relative merits of these suggestions.

Under the heading Financial transparency: Now it’s the bishops’ turn, Giorgio Bernardelli of Vatican Insider gives the background to these three resignations, suggesting that each concerns serious financial mismanagement and asking “whether Francis’ tough crack down on financial behaviour in the Church will extend from the Vatican Bank (IOR) to dioceses across the world”.  Regrettably, such resignations for financial mismanagement are not unknown, but as Oscar Wilde might have said: “to lose one archbishop in a week may be regarded as a misfortune; to lose three looks like the start of coordinated action”.

The importance of rubrics

In his recent post Stripped Down Liturgy – Funeral, Peter Ould considers what parts of the Church of England liturgy are “essential” for a service, and starting with the Common Worship Funeral service, considers the mandatory components according to the rubrics.  From a legalistic point of view, the first reaction is to reach for Rupert Bursell’s Liturgy, Order and the Law, (1966, OUP, Oxford), or to note the difficulties encountered by a former Wantage curate, Alexander Heriot Mackonochie, in Martin v Mackonochie (1868) LR 2 PC, where the Judicial Committee of the Privy Council stated  

“it is not open to a Minister of the Church … to draw a distinction, in acts which are a departure from or violation of the Rubric, between those which are important and which appear trivial”.

However, rather than considering the present-day importance of the Rubrics, (a possibly subject for a future post?), one might consider the views of other bloggers on significant, though not necessarily mandatory, aspects of the liturgy. Digitalnun recently posted on the value of the caesura in Gregorian chant, and coincidentally, the Psalm used in Peter Ould’s example includes these mid-verse markings. Perhaps in the context of a funeral service, such contemplative silences are a useful component?  Or more generally, one might take the approach of Fr Z, (Fr John Zuhlsdorf) who advocates “say the black, do the red”, a recurring theme on which he earlier has added a gloss. 

And finally . . . . . . . . .

As we approach the pre-Christmas shopping season, it seems odd that the Church of England is already there in Truro with the Cathedral opening a city-centre Christmas shop. The Church Times quotes the Dean of Truro, the Very Revd Roger Bush, as saying: “The high-street shop is just around corner from the cathedral. What goes on inside the cathedral is a bit of a mystery to many people, even though it has a prominent place in Truro; so a high-street outlet just gets the cathedral a bit more noticed … We will review the situation in the New Year, and, if it is still a feasible proposition, we will carry on. If it works, great; if it doesn’t, I’ll be the first to apologise and say, let’s move on.”

It is worth remembering that the now-established Christmas tradition of the Service of Nine Lessons and Carols also originated in Truro Cathedral. The format was drawn in 1880 up by Bishop (and later ABC) Edward White Benson in 1880, although his raison d’être was said to be to keep men out of the pubs on Christmas Eve.

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