A busy week: assisted suicide at Strasbourg, the CPS and gender-specific abortion, the Council of Europe on circumcision, misleading adverts, a non-religious Promise for the Scouts – and the Irish Senate survives by a whisker
We reported both the DPP’s statement on the decision not to prosecute the two doctors identified as a result of the Daily Telegraph “sting” (which David discussed in Gender-specific abortion: statistics) and the Attorney-General’s subsequent remarks in the Westminster Hall debate on the issue.
Much of the resulting furore, it seems to us, is based on what people think the law ought to be, rather than an understanding of what the Abortion Act 1967 actually says. Neil Addison – who is certainly no supporter of the 1967 Act or, indeed, of abortion in any circumstances – is firmly of the opinion that gender-specific abortion is not illegal and, as a former Crown Prosecutor himself, reckons that the CPS knew that if it brought a prosecution in the cases under discussion it would probably lose. His post on the matter merits careful reading.
Coincidentally, in Northern Ireland (where the 1967 Act does not apply) Justice Minister David Ford, of the Alliance Party, has come out in favour of a joint consultation with the Department of Health over whether or not foetal abnormality should be made a ground for abortion under Northern Ireland law. The issue surfaced after Sarah Ewart went public about having had to go to England for an abortion because her foetus was anencephalic, while another woman, known only as Laura, pregnant with anencephalic twins, appealed to Health Minister Edwin Poots to let her to have an abortion in Northern Ireland.
On 7 October 2013 the ECtHR appeals panel of five judges decided to refer to the Grand Chamber the case of Gross v Switzerland  ECHR 429 at the request of the Swiss Government. The case, about which we have previously posted, concerns a woman in her eighties who wishes to end her life but who does not suffer from any clinical illness. She complains that the Swiss authorities will not give her permission to be provided with a lethal dose of a drug in order to commit suicide, in breach of Article 8 ECHR (respect for private and family life).
Switzerland is appealing the Second Section’s majority decision that there had indeed been a violation of Article 8 and, in particular, that though Swiss law provides the possibility of obtaining a lethal dose of a drug on prescription it does not provide adequate guidelines to ensure clarity about the extent of that right – and that its uncertainty is likely to have caused Ms Gross a considerable degree of anguish. At the same time, it did not rule on whether or not she should in fact have been allowed to acquire the necessary lethal dose of medication to end her life.
Circumcision and the Council of Europe
We reported the non-binding resolution of the Parliamentary Assembly of the Council of Europe on ‘protecting the physical integrity of children’ which called for an end to non-therapeutic circumcision of minors, anticipating that it would cause a shocked reaction by the Jewish and Muslim communities. Shimon Peres, the President of Israel, subsequently wrote to the Secretary General of the Council of Europe, Thorbjørn Jagland, to complain about the resolution which, he said, threatened “a fundamental element of our tradition and obligation as Jews”. Jagland responded with a tweet (!) from his press spokesman Daniel Holtgen (@Daniel_Holtgen) which declared “Female genital mutilation violates human rights. Male circumcision does not”.
ASA rules against Home Office
David has long advocated the use of the Advertising Standards Authority (ASA) as a relatively quick and costs-free means of obtaining the removal of misleading advertisements, and this week it was the turn of the UK Border Agency whose vans were appearing in certain boroughs of east and north London in July carrying the message “go home or face arrest”. Now as a result of 224 complaints, the ASA has published its adjudication which upheld two of the five complaints and concluded:
“The ad must not appear again in its current form. We told the Home Office to ensure that in future they held adequate substantiation for their advertising claims and that qualifications were presented clearly.”
The poster’s claim “106 ARRESTS LAST WEEK IN YOUR AREA” was deemed to have breached: CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation) regarding complaint #3; and rules 3.1 (Misleading advertising) and 3.10 (Qualification), regarding complaint #4. However, it was concluded that
“the poster was unlikely to incite or exacerbate racial hatred and tensions in multicultural communities, and that it was not irresponsible and did not contain anything which was likely to condone or encourage violence or anti-social behaviour”, CAP Code (Edition 12) rules 1.3 (Social responsibility) and 4.4 (Harm and Offence).”
Whilst the ASA has few sanctioning powers, the publicity surrounding issues such high-profile adjudications makes pursuing action worthwhile. The case is also interesting in that it is an example of quasi-legislation directed against a government department/ executive agency.
Postscript 1: The organization Liberty countered the UKBA campaign with one of its own, in which similar billboard-type vans toured London carrying the message
“Stirring up tension and division in the UK illegally? Home Office, think again.”
Given the above ASA ruling, for consistency perhaps it would deem this advertisement misleading as well, should a “meddlesome busybody” lodge a complaint?
Postscript 2: There may be further problems ahead for the Home Office. Design Week reports “Designer Fabien Delage claims the Home Office has used his Plane Crash typeface for the campaign, without paying him or requesting a licence”. Delage says “[m]y partners and customers now suspect I might have been involved in this campaign which, let me tell you, has been quite unpopular abroad”.
Postscript 3: The whole affair is ever so slightly reminiscent of the ‘Ex-gay’ London bus advert ban about which we posted at the time. The ban was upheld by the Administrative Court even though it was procedurally flawed.
The Scout Promise
Readers will be aware of the (mild) controversy surrounding the Promises made by members of the Scout and Guide movements. In June, GirlGuiding UK adopted a new Promise from which the phrase “To love my God” has been omitted. The Scouts announced a review of their own Promise on 4 December 2012 and on 8 October issued a press release outlining the review’s conclusions. In short, the Scout Association has introduced an additional alternative version of the Scout Promise for non-believers, alongside the current alternative versions for Muslims, Hindus, Buddhists and residents in the UK who are not UK citizens – which have been available for nearly 50 years.
Not, you might think, a whole lot to do with “law & religion” – except that the reach of the Equality Act 2010 is tending to extend beyond the confines of bodies that are purely public authorities in the strict sense. And respect for equality and diversity is now a core part of the legal culture.
Demolition and listed churches
We commented on the precautionary emergency demolition of part of the spire of the Grade I listed St Mary de Castro in Castle Gardens, Leicester, and the powers of the diocesan chancellor to take immediate action in the interests of safety or health or for the preservation of the church building when there is insufficient time to obtain a faculty in the normal way. The law on the matter is quite complex: for further particulars see David’s analysis.
Oaths in court proceedings
We noted the debate at the forthcoming AGM of the Magistrates’ Association on a proposal to remove the possibility for witnesses and defendants to swear a religious oath in court. The Manchester Evening News subsequently reported that “lawyer to the stars” Nick Freeman, who has acted for Sir Alex Ferguson and David Beckham, has launched an e-petition on the 10 Downing Street website to save the oath, arguing that “The values and traditions of our country appear to be under constant attack and removing the Bible from the courtroom is the latest attempt to undermine our heritage”.
Whether the opportunity to lie under oath rather than to perjure oneself after making a mere affirmation is part of our “values and traditions” is arguable – but it leads us neatly to…
The e-petition with the semi-literate title Keep Richard III remains in Leicester closed at 12.54 on 12 October having attracted 34,351 signatures, overtaking the 31,340 signatures of Richard III to be re-interred at York Minster which closed at 12.03 on 24 September. Other than indicating a certain degree of local support and organizational ability associated with each possible location, these figures prove very little. However, when compared with the figures presented to the court in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor  EWHC B13 (Admin) – Leicester at 8,115 and York at 26,553 – they do indicate that it is a mistake to read too much into figures such as these.
Nevertheless, on the basis that “[a] judicial review could decide whether the bones of Richard III are laid to rest in Leicester or York”, the Leicester Mercury sent reporter Peter Warzynski and photographer Mike Sewell to York to sample opinion.” Friday’s article concluded:
“There is just one more day to go to sign the e-petition. This morning the total had reached just over 35,500. To show your support for Leicester, log onto the Government’s e-petition website”.
Apart from a discrepancy between the numbers of the government web page and those quoted by the Leicester Mercury (which include those who have signed paper petitions and its own coupons), and a misunderstanding over the purpose of judicial review, not a bad story. But then, our readers will be aware of that.
Party conference season
Over at God and Politics there have been a couple of guest posts reporting on the 2013 party conference season: The Conservative Christian Fellowship: Bridging the gap at the Conservative Party Conference written by Colin Bloom, Executive Director of the Conservative Christian Fellowship (CCF) and The C of E goes looking for ‘God-doing’ at the party conferences – and comes away impressed by Richard Chapman, the Church of England’s Head of Parliamentary Affairs.
The gushing style of the former was a little hard to take – “The Conservative Party conference in Manchester was a great place to be. There was a sense that not only does the party know where it is going but it is also confident and proud of its achievements thus far” – but useful in providing an insider’s opinion of the mood of the conferences, a good indicator of a party’s confidence in itself, remembering the contrast between the two Labour conferences immediately after Blair came to power in contrast to that at the end of the Brown era.
Richard Chapman’s piece was significant primarily in the fact that the CofE had attended the “three main party conferences” and that this was his fourth year of attendance. Conference attendance is a costly activity; and it is generally difficult to justify the balance the obvious costs, (fringe pass, travelling, accommodation) with less definable potential benefits, (access to ministers in the absence of their civil servants, promises of future PQs from opposition MPs, and networking with other “self-confessed political geeks”).
Richard’s piece was also a reminder of the very strange lifestyle these few days impose on participants: early breakfast meetings, little on the fringe until lunch, and then another quiet period before a heavy evening session, when there are often too many possibilities to choose from. It is also important to turn up at the right place – during the 2009 season, a large group assembled outside The Old Ship hotel to lobby David Miliband on foreign policy only to find that the speaker at the fringe event was younger brother, Ed, speaking on climate change.
The proposed abolition of Seanad Éireann was narrowly defeated in the recent referendum with 48.3% voting in favour of abolition and 51.7% against: a margin of 42,500 votes. The result merits a mention here because one of the traditional arguments for Ireland having a second chamber at all has been that it has provided a voice for religious minorities in an overwhelmingly Roman Catholic country. That was probably more marked in the days when the seats reserved for representatives of Trinity College were invariably held by Protestants (because until 1970 the Roman Catholic Church forbade adherents from attending without permission from their bishop, which was only rarely given); but Conor Mulvagh, editorial assistant on the Royal Irish Academy’s Documents on Irish Foreign Policy, suggests that:
“[o]ne of the obvious benefits of the Senate of the Irish Free State was that it gave representation to geographically scattered religious and class minorities, namely Protestants and the Anglo-Irish landed gentry. Neither of these minorities were sufficiently clustered in any part of the twenty-six counties to make their vote decisive in any one constituency, even under the PR-STV system”.
Perhaps it still does: though whether the religious argument still has any traction in an increasingly secular society, who knows?
A propos equality and the Scouts – and Guides, come to that: the law could not touch them as they persuaded the then Government to insert a disgraceful last minute exemption in the 2006 Act. This makes it lawful “for a charity to require members, or persons wishing to become members, to make a statement which asserts or implies membership or acceptance of a religion or belief” so long as it had been discriminating in this way before 18 May 2005.
Thank you David for this historical background. It would provide an interesting insight into the Scout or GirlGuiding movement if we knew whether either of them took this factor into consideration when making their decision. As we know from another part of the Equality Act 2010 – section 48 – the “devil” is in the detail.
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