Religion and law round up – 20th October

Votes for prisoners in the Supreme Court, yet another dispute over school uniform and more on oaths 

Prisoner voting: the Supreme Court says “no, but”…

As we reported earlier, probably the major story of the past week was the Supreme Court’s rejection of both the appeals in R (o a o Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council & Anor [2013] UKSC 63 and its decision not to seek an advisory opinion from the European Court of Justice. Perhaps the most important feature of the various judgments is that their Lordships agreed to reject the Attorney’s request that they should “refuse to follow and apply the approach taken by the European Court of Human Rights in Hirst (No 2) and Scoppola” [para 29]. There seemed to be sympathy for the view that the present total ban is arbitrary and indiscriminate but none whatsoever for the appellants.

Nothing to do with religion as such – but everything to do with human rights and our domestic courts’ attitude to the ECHR and Strasbourg.

Beards, religious dress and school uniform

The Telegraph reported the case of two Muslim 14-year-olds at at Mount Carmel Roman Catholic High School in Accrington who had been “placed in isolation” because they had grown beards. Headteacher Xavier Bowers had said that the matter was not one of religion but about dress code and that parents were told about the rules on appearance and uniform before their children start attending the school and were given regular reminders. Subsequently, however, the school’s governors changed their minds and decided to allow Muslim boys (only) permission to grow a beard as a sign of their faith so long so they had started on the Hafiz programme (which involves daily prayers and learning the Qur’an in Arabic by heart) at their mosques. The Telegraph reported that the school “claimed its about-turn was to comply with the European Convention on Human Rights”.

When Frank read the report in the Telegraph he was reminded of G v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin), in which it was held that an Afro-Caribbean boy who, in accordance with family tradition, kept his hair in “cornrows” or braids and who, in consequence, had not been allowed to take up his place at the respondent school, had suffered unjustified indirect racial discrimination. If cornrows, he wondered, why not beards?

Coincidentally, Stephanie Berry, of Sussex University, recently posted an interesting discussion about the different approaches of the ECtHR and the UN Human Rights Commission to religious dress in state institutions.

Religious oaths – this time in Ireland

We  reported earlier that the issue of religious oaths in court proceedings is to be considered by the Magistrates’ Association at its AGM: yesterday (Saturday), however, the proposal was thrown out. However, the issue has suddenly acquired a much higher profile in Ireland. The Irish Times reports that six of the President’s seven nominees to the Council of State have made a submission to the Convention on the Constitution asking that it consider the appropriateness of office-holders having to take religious oaths.

Article 31.4 of the Constitution [Bunreacht na hÉireann] requires members of the Council of State to make the following declaration:

“In the presence of Almighty God I [N] do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfil my duties as a member of the Council of State.”

The six argue that, approaching the issue “from the perspective of what it means to take seriously the Republican form of Government”, such an imposition “serves neither religion nor the ideal of a public space open to all who are willing to contribute to the common good in a Republic”. They also point to the increasing diversity of modern Irish society as compared with 1936-37, when the current Constitution was adopted.

Recent consistory court judgments

This week six further Consistory Court judgments were published:

Re Christ Church Eccleston [2013] Liverpool Const Ct Sir Mark Hedley Ch: Controversial aspects of this successful petition for reordering were the partial removal or shortening of pews and the installation of under-floor heating. Although the chancellor concluded that the former could properly be characterised as “harm”, notwithstanding the impact this would cause to the significance of the church, the justification advanced by the applicants succeeded. The issue of the heating would be resolved through contractual obligations.

Re St. Paul Eastville [2013] Lincoln Const Ct, Mark Bishop Ch. (Lincoln): In view of the link with the recent problems with the spire of St Mary de Castro in Leicester, and the infrequency of consistory court judgments concerning the application of ss 17-18 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, this was reviewed earlier in the week, here. The present judgment is important since it addresses the legal issues from the identification of the need to demolish St Paul’s to the refusal of a faculty on the basis of s18 of the measure.

Re St. Peter Prestbury [2013] Chester Const Ct, David Turner Ch: Our sympathies are with the Chancellor, who had to consider a hearingbundle of 2,320 pages then adjudicate on one of those “church vs civic authorities & assorted complainants” issues that make one pleased not to be involved in village politics. Whilst the petitioners sought authority to build an extension at the north east corner of the church, for level access works and to provide new paths to the churchyard,

“‘the elephant in the room’ in this case and the source of probably the greatest single aspect of concern for a majority of local objectors to the present Petition (though strictly now only indirectly relevant to that Petition) – was the disposal by the parish of Ford House, a property which had been acquired by the parish in or about 1968”.

The petition was granted and, subject to any appeal, “brings to a conclusion a somewhat unhappy and difficult chapter in village life in Prestbury”.

The other three judgments were more straightforward:

Re St. Margaret Horsmonden [2013] Rochester Const Ct John Gallagher Ch: Faculty for exhumation refused as there were no exceptional circumstances, following guidance in Re Blagdon Cemetery.

Re Holy Trinity Dawley [2013] Lichfield Const Ct Stephen Eyre Ch: Faculty refused for exhumation of cremated remains from a family grave in one part of the churchyard to a double plot for cremated remains in another part of the same churchyard, as “a case of a change of mind on the part of those who caused the first interment … is not an exceptional circumstance of a kind which can justify an exhumation going against the principle of the permanence of Christian burial: Re Blagdon Cemetery again.

Re St Michael’s Whichford [2013] Coventry Const Ct Stephen Eyre Ch: Faculty granted for repairs to external stonework of a twelfth-century church. This followed an earlier faculty for similar work, but on different facts, and the issue of the requirement for conservation vs renovation was considered. [1]

Richard III – an alternative perspective

In the current edition of Private Eye, No.1351, 18-31 October, what it views as a “controversy … fuelled by fanatics of the Richard III Society” is examined by ‘Piloti’ in the Nooks and Corners column which provides a commentary on proposed changes to architecturally-important buildings. Whilst favouring Leicester over York, the columnist comments

“it is odd that so much passion has been engendered about which Anglican church should house the body of a medieval Catholic monarch who was scarcely a national hero or founding father. As far as the Dean and Chapter was concerned, what mattered was ‘the possibility of the cathedral and its surroundings becoming a tourist attraction.’”

Although Piloti praises the architects for responding to their brief with sensitivity and intelligence, he questions whether the tomb should be made the focus of the cathedral interior, noting that “for all their ideas about dragging the cathedral into the 21st century, the Dean and Chapter are behaving like their superstitious medieval forbears, for every pre-Reformation cathedral needed a prominent shrine to rake in money from the pilgrims”.

Not all will agree. The important decision, however, now lies with the Cathedral Fabric Commission for England.

And finally…

Thanks to Simon Hunter of 13 Old Square who alerted us to these exchanges in the House of Lords on 14 October:

Church of England: Appointment of Bishops

14 Oct 2013 : Column 264

Lord Faulkner of Worcester (Lab): My Lords, what assistance are Her Majesty’s Government giving to the most reverend Primate the Archbishop of Canterbury in redressing the gender imbalance on the Bishops’ Benches in your Lordships’ House?

Lord Wallace of Saltaire: My Lords, the Church of England is moving with all deliberate speed towards the appointment of women bishops. I think it quite possible that the first women bishops will be consecrated before we have reached the next stage of House of Lords reform.

[…]

Lord Foulkes of Cumnock (Lab): My Lords, will the Minister confirm that one of the great things about Church of England bishops is that their number in this House has an upper limit, whereas coalition Peers seem to be flooding in with no apparent upper limit? Are there any members of the Liberal Democrat Party who are not in the House of Lords?”

Lord Wallace of Saltaire: I am sorry that the noble Lord, Lord Foulkes, did not take the other path appropriate to the Question, which is that the Bench of Bishops is the only section of this Chamber that has an upper age limit, which is 70.


[1] Non-architects may benefit from an understanding of certain terms used in the judgment: a reveal, the side of an opening for a door or window between the frame and the outer surface of a wall, showing the wall’s thickness; a hood moulding, gothic ornamental stone moulding which projects over an arch, doorway or window, in order to throw water clear of the building; ferramenta,  metal window grid to which glazing, especially stained glass, is secured. See Pevsner’s Architectural Glossary, available as an iPhone App.

3 thoughts on “Religion and law round up – 20th October

  1. Dear Frank and David

    Thanks for another excellent round-up. Yes, I’m really interested in the proposals (which were defeated) to replace religious oaths in court with one secular oath. As a Magistrate and a postgrad researching this area I have been excited to keep up with the developments. I think that the reporting has been somewhat misleading on this issue. The motion was submitted to the Magistrates Association AGM by an individual Magistrate – the headline used by the National Secular Society (Judges call for one secular oath for all) therefore was incorrect – and after a vote at the AGM the motion was defeated. So, whilst the newspaper coverage suggests it was a momentous occasion, in reality, it was far less so. Sean Templeton, a member of the National Secular Society, has been campaigning for one secular oath for all, for some time now. There are some strong arguments on all sides. It remains to be seen whether this is the end of the debate.

    I’m not surprised that the issue has acquired a much higher profile in Ireland. I say this because the requirement for office holders to take a religious oath can be much more problematic given that, unlike the oath in court, there is no choice to affirm here. It reminds me of some of the Greek cases concerning religious oaths and public offices.

    • Dear Caroline

      To say that “the reporting has been somewhat misleading on this issue” is something of an understatement. As you say, one individual submitted a motion to the AGM and the motion was defeated. (In addition, I thought that the casual description of magistrates as “judges” was a bit odd as well.)

      I suspect that the move by the members of the Irish Council of State is much more significant. As you say, unlike in court proceedings there’s no alternative of affirmation – but it also goes to the much more fundamental issue of the relationship between religion and the state. The Irish Constitution is, broadly-speaking, separatist – but separatist in a community in which the overwhelming majority of the population adheres to one particular religious community. Evidently the rise in secularist sentiment is bringing about something of a re-examination of that relationship. It’s all of a piece with (eg) the current re-examination of abortion law in light of A, B & C v Ireland.

      Frank

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