Religion and law round up – 10th November

A week in which the main talking-points seemed to be issues of public law and human rights and legal recognition of same-sex partnerships

Sir James Munby on family law, morality and religion

We started the month by posting about the view of the President of the Family Division, Sir James Munby, that secular judges “must be wary of straying across the well-recognised divide between church and state” and his general conclusion that religious belief “can never of itself immunise the believer from the reach of the secular law”. That post sparked off a heated (and very enjoyable) debate about the relative spheres of “law” and “religion” which is unlikely to be resolved any time soon – and Frank found himself cast in the role of tame secularist (which he is most certainly not) on the Sunday programme on Radio 4.

However, Sir James has been now given much weightier support by the new Lord Chief Justice himself, Lord Thomas. In his first press conference since taking office he told the assembled journos:

“We are a court where we have to apply the law and the law is essentially a secular law and so, yes … as it is our duty to apply law which is secular law we should do that”.

You can’t put it any more plainly than that.

The EU Charter of Fundamental Rights and domestic law

We have been agonising for some time about the precise relationship between EU law, the ECHR and domestic law in the context of proposals to repeal – or at least seriously to limit the scope of – the Human Rights Act 1998; and we have suggested that, one way or another, the UK is bound by human rights law by virtue of its membership of the EU.

Support for that view now comes from the High Court. In AB, R (o t a) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) Mostyn J pointed to the CJEU’s ruling in Secretary of State for the Home Department v ME and others (reported on BAILII as NS (European Union law) [2011] EUECJ C-411/10). The judgment was a response by the Grand Chamber to references from the UK and Ireland for preliminary rulings about, inter alia, the  Charter of Fundamental Rights of the EU and the application of the Charter to Poland and to the UK; and the GC held at paragraph 120 that:

“Article 1(1) of [the seventh] protocol explains article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter or to prevent a court of one of those member states from ensuring compliance with those provisions”.

Mostyn J pointed out in his own judgment that the constitutional significance of the Grand Chamber’s decision could hardly be overstated:

“… The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed” [para 14: our emphasis].

So in the case before him,

“… even if the Human Rights Act were to be repealed, with the result that article 8 of the European Convention on Human Rights was no longer directly incorporated into domestic law, an identical right would continue to exist under the Charter of Fundamental Rights of the European Union, and this right is, according to the Court in Luxembourg, enforceable domestically” [para 15].

Except to point out that we have been saying much the same since the inception of this blog, further comment is superfluous: but for a full analysis see Adam Wagner’s post on UKHRB.

Judicial review – the Government’s proposals

We have largely ignored the simmering row about the Government’s (or, at any rate, Lord Chancellor Grayling’s) proposal to restrict the scope of judicial review in England and Wales. Perhaps we were wrong to do so, given that JR has been employed quite frequently in disputes about the right to manifest under Article 9 ECHR. However, in an attempt to repair the omission we would direct followers to the response by the Equality and Human Rights Commission to the Government’s consultation, available at this link. The EHRC is not at all happy: in short, it concludes that the MoJ’s proposals

“… will have a substantial adverse impact on the ability of individuals and organisations to hold the state to account.  They will also restrict access to justice for cases involving rights under the ECHR, protected by the Human Rights Act 1998 (HRA) and for certain cases that involve rights under the Equality Act 2010, including the public sector equality duty (PSED) under section 149 of that Act”.

Oaths in court – and in Ireland

We have previously reported the proposal at the AGM of the Magistrates Association to abolish the religious oath for witnesses and defendants – and that the Association threw out the proposal. Now comes an extemely interesting post by David Allan on Halsbury’s Law Exchange explaining why, in his opinion, the Association was wrong to reject the proposal. There is also a very interesting post by Alison Mawhinney on Human Rights in Ireland about the latest developments in the consideration by the Constitutional Convention of the question of religious oaths for public office holders in Ireland.

Important milestone – same-sex marriage

An important milestone in same-sex marriage in the UK was passed on 31 October when the Marriage (Same Sex Couples) Act 2013 (Commencement No. 1) Order 2013 came into force [1].  Until then, the only parts of the Marriage (Same Sex Couples) Act 2013 in force were: section 21, (Short title and commencement); section 15, (Review of civil partnership), and section 16, (Survivor benefits under occupational pension schemes). The Commencement Order brings into force certain provisions conferring power to make subordinate legislation (art. 2) as well as other provisions within the Act (art. 3). An earlier post discussed consultations relating to some of the proposed secondary legislation.

On a similar theme we noted the judgment in Vallianatos & Ors v Greece [2013] ECHR (GC) 1110 in which the Grand Chamber held that the restriction to opposite-sex couples of the “civil unions” introduced by Law no. 3719/2008 infringed the right of same-sex couples to respect for their private and family life, contrary to Article 8 ECHR, and amounted to unjustified discrimination contrary to Article 14. We wondered whether, should it ever be contested at Strasbourg, the UK’s restriction of civil partnerships to same-sex couples might suffer the same fate.

Recent consistory court judgment

All Hallows, Allerton is one of the increasing number of churches that includes a virtual tour on its web site which, with the excellent-value iPhone App of Betjeman’s Best British Churches, provides useful background information to “church crawlers” and ecclesiastical lawyers alike. With 14 of its 15 windows designed by Edmund Burne-Jones and made by William Morris and company, the Grade 1 church is said to possess “one of the finest collections of stained glass in the country”.

Re All Hallows Allerton [2013] Liverpool Const Ct, Sir Mark Hedley Ch concerned two uncontroversial petitions relating to reordering and the introduction of a circular votive candle stand, respectively, and the interest lies in the Chancellor’s consideration of the different aspects of the former, and his treatment of the possible doctrinal issues of the latter. The two petitions involved five different issues: the removal of the pews; the covering of the floors; the installation of screens and projectors; proposals in respect of the sound system; and the introduction of a votive candle stand. The Chancellor noted [para. 5] that although there was significant overlap, this did not relieve the court of the obligation to consider each aspect separately.

With regard to the reordering, the Chancellor was effectively bound by Re Duffield: St Alkmund [2013] 2 WLR 854 and concluded [para. 15] that although the proposed works would have an impact on the significance of the church, this could not properly be characterized as harm: “[t]he greater glories of this church, in particular its internal architecture, decoration and design along with its stained glass are wholly unaffected by these proposals, save in respect of the effect of the screens when in use during the service”.  Having given careful consideration to the issue in relation to the votive candle stand, he stated that “this is properly to be regarded as merely an aid to prayer and not as a central liturgical feature in the church” and its introduction was authorized “for the purposes of assisting prayer”.

A faculty was granted in respect of each petition.

“Your dark lantern seize” [2]

Guy Fawkes' Lantern_edited-1Having an aversion to blogs that commence “I’m not a lawyer, but surely…”, we felt that a post based upon the historical and religious issues associated with 5th November was probably best approached with caution. As usual, Dame Catherine Wybourne gives us cause for thought; and her post 5 November for Catholics concludes by noting “at the heart of today’s commemoration is a painful paradox. Each of us has many loyalties that, to outsiders, may seem competing but which in an individual are resolved and unified. 5 November is a reminder of this complexity and a challenge to any simplistic categorisation of others.”

It was inevitable that the Lewes Bonfires came into the picture; but few would have been impressed by the weasel words of the District Council

“The event is a Lewes tradition going back many years and allows the residents of the town to celebrate the ancient tradition of bonfire.”

Further information is given by the websites of some of the Lewes Bonfire Societies, which indicate that in addition to marking the “Gunpowder Plot” the event is linked with the burning at the stake of seventeen Protestants from the town during the reign of Mary Tudor, hence the seventeen flaming crosses carried in  the procession. Clearly, these sentiments are in direct contradiction to Leanda de Lisle’s pro-Mary I article in the Catholic Herald, but this, too, is beyond the scope of “law and religion”.

In the Church of England 5th November is not now marked; but the Gunpowder Treason Prayer of Thanksgiving in the 1662 Book of Common Prayer continued to be included until 1859, long after the first measure of Roman Catholic relief (the Papists Act 1778 (18 George III c 60)) or indeed the Roman Catholic Relief Act 1829. The prayer was “to be used yearly upon the Fifth Day of November for the happy Deliverance of King James the First, and the Three Estates of England, from the most traiterous and bloody-intended Massacre by Gunpowder.”  Later versions included And also for the happy Arrival of His Majesty King William on this Day, for the Deliverance of our Church and Nation”. To emphasize the point, the service required that

“The Minster of every Parish shall give warning to his Parishioners publickly in the Church at Morning Prayer, the Sunday before, for the due observation of the said Day. And after Morning Prayer, or preaching, upon the said Fifth Day of November, shall read publickly, distinctly, and plainly, the Act of Parliament [3][ made in the third Year of King James the First, for the observation of it.”

[When, aeons ago, Frank was a postgraduate in Durham, weekday Evensong in his College chapel was sung by each of the postgraduate students in turn. One 5th November the officiant sang the 1662 Collect for the day. The Principal (the late, great John Fenton) was not at all amused…]

[1] The Order was made on 30th October 2013, and came into force the day after the day on which it was made.

[2] Readers may wish to know that the dark lantern carried by Guido Fawkes at the time of his arrest is now in the Ashmolean Museum, Oxford.

[3] Observance of 5th November Act 1605 (3 Ja. I, c. 1), aka the “Thanksgiving Act”.