Religion and law round up – 17th November

A week marked by the death of composer John Tavener, the 300th anniversary of the death of Fabian Stedman, pioneer of change ringing, and attempts by the Tory Party and the Holy See to restrict access to speeches and interviews


We noted progress on the Lords Committee stage of the Anti-social Behaviour, Crime and Policing Bill. The Bill, inter alia, replaces Anti-social Behaviour Orders with (civil) Injunctions to Prevent Nuisance and Annoyance; and Lord Macdonald QC, a former DPP who sits in the Lords as a Lib Dem, was reported by the Daily Telegraph as suggesting that the new IPNAs would be a gross state interference with basic freedoms that could drive Christian preachers, buskers and peaceful protesters off the streets.

As to annoying street preachers, a quick Google search thew up an alternative method of dealing with them. As it turned out, neither the preacher nor the girl who employed shock tactics was convicted of anything; but whether it would be entirely legal in England and Wales is another matter…

Secretary General of the Council of Europe says “no” to ban on religious male circumcision – and a view from the US

Further to our post on 11 November, on the same day the Secretary General of the Council of Europe, Thorbjørn Jagland, made a speech at the dinner of the Plenary Convention of the Conference of European Rabbis in Berlin during which he declared:

“In no way does the Council of Europe want to ban the practice of male circumcision. Female genital mutilation violates human rights. Male circumcision does not. That is my position. That is the position of the Council of Europe”.

Which might be an end of the matter. Or, there again, it might not.

In which connexion, Jewish Week reported on 12 November that when Supreme Court Justice Antonin Scalia was asked how would he have ruled had a 2011 attempt to criminalize circumcision in San Francisco succeeded and eventually made its way to the Supreme Court, he replied:

“If the practice is something that society does not want, and it’s not intended to discriminate against Jews in particular, I think the law is perfectly valid”.

In view of the perception of Scalia as “[a] hero to many in the Orthodox community on matters relating to the separation of church and state”, his audience was reported to be “somewhat mystified by how incongruous the remark seemed in the context of [his] other church-state comments”.

Returning asylum-seekers to face persecution: the CJEU says “no”

Last week the Fourth Chamber of the CJEU delivered a preliminary ruling on the interpretation of Article 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees. In  X, Y and Z v Minister voor Immigratie, Integratie en Asiel [2013] EUECJ C-199/12 the Court held that:

“… the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment … [for homosexual activity] must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

“When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation” [para 79].

And EU law, it should be remembered, is binding on states parties, including the UK (unlike rulings of the ECtHR, of which the UK courts are only obliged to “take account”).

The ruling in X, Y and Z is reminiscent of the the Supreme Court’s judgment in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, in which the late Lord Rodger of Earlsferry memorably upheld the right to remain of gay asylum-seekers threatened with deportation to countries where they would be persecuted because of their sexual orientation, on the grounds that they should not to have to hide their sexuality to avoid persecution and “… be free to enjoy themselves going to Kylie concerts, drinking exotically-coloured cocktails and talking about boys with their straight female mates” [para 78].

The judgment in X, Y and Z is not quite central enough to the concerns of a blog devoted to “law and religion” to merit a post of its own – but it does lead us to wonder whether similar considerations might apply in the case of someone who, if returned to a country which persecuted adherents of a particular faith-group, would be obliged to conceal his or her religion in order to avoid persecution. The courts now appear to accept that one’s sexuality is a central factor in one’s self-identity: would they take a similar view about one’s faith (or lack of it)?

Recent House of Commons Library standard notes

“Common law marriage” and Cohabitation: On 11 November, the House of Commons Library issued Standard Note SN03372 which gives general information about the number of cohabiting couples, how the law applies to cohabitants and about the Law Commission’s proposals for reform.  Although there is a short summary of the position in Scotland, the law in England and Wales is the primary focus of the document.

Regulation of fireworks Standard Note SN05704 on the regulation of fireworks was issued on 5 November, too late for MPs purchasing firework for Diwali (31 October to 2 November[1]) but in time for Bonfire Night (15 October to 10 November), New Year (26 to 31 December) and Chinese New Year (28 to 30 January).  This contains a useful summary of most the legislation concerning their manufacture, sale and use, including “other relevant legislation”: Animal Welfare Act 2006; Part III Environmental Protection Act 1990, statutory nuisance; and Health and Safety Act 1974.  Surprisingly, there is no mention of air quality legislation, but although a range of chemicals is used to produce their various colours, it is the bonfires that are the greater hazard. A 2007 report from Environmental Protection UK[2] indicated that deposits from fireworks do not pose a risk to soil or water, but the source of between 5 and 14 per cent of the UK’s annual emissions of dioxins is the bonfires on 5th.

VAT and Churches: SN 01051 examines how construction work for churches is treated for VAT in the UK, the proposals for reform in this area, and the government’s decision to amend the VAT liability of alteration work on listed buildings. It also gives details of the current grant scheme for church repairs

Reuse of graves: Updated on 29 October, Standard Note SN04060 on the reuse of graves concludes with a section “What does the present Government intend to do?”, the answer to which (in our view) appears to be that

“earlier administrations have demonstrated that, on account of its sensitivity and complexity, this is clearly a NIMTOO issue [3]. Using Admiral Lord Nelson (“I see no ships”) as our role model, we will continue to sit on our hands and leave local authorities to sort out the mess”.

As in previous versions of the SN, the official version is
“we have not yet reached the stage where the position is critical or requires Government intervention” …[we] did not consider that introducing a policy of reusing graves was critical at that time, [the adjournment debate, 5 September 2012]. The matter would be kept under review”.

Sir Humphrey Appleby couldn’t have phrased it better.  We note that the 2015 Residential Conference of the Ecclesiastical Law Society will be on funerals and burial law. Might we suggest that Leicester (or York) would be a timely venue, assuming Richard III’s remains have finally been re-interred, and a government minister should be invited to speak on “Government Plans for 2035 when we estimate burial space will be no longer available”?

Is there a human right not to be crowned by the C of E?

The Guardian and The Sunday Times both reported at the weekend that the National Secular Society is seeking to challenge the Christian coronation of future monarchs. The Guardian quoted its Executive Director, Keith Porteous Wood, as saying that:

“The country has changed out of all recognition since the last coronation and we should now be devising an investiture ceremony for the next head of state everyone can feel part of. A non-religious ceremony allows everybody to feel equally valued, and there is no reason that it should lack pomp or colourful ceremony simply because it is not religious, as with the ceremonies that take place in France or the US. It is no longer appropriate to install the head of state in a religious service of one Christian denomination which – on a normal Sunday – less than 2% of the population attend”.

The NSS expects the challenge to focus on Article 9 ECHR (freedom of thought, conscience and religion) taken with Article 14 (discrimination), on the grounds that allowing the Church of England to perform the ceremony limits the rights of conscience of the many people who do not subscribe to its beliefs.

Interesting: but we wonder how far it will get.

  • First, the provisions of the Human Rights Act 1998 apply only to the actings of public authorities – which the C of E is not: see s 6(1): “It is unlawful for a public authority to act in a way which is incompatible with a Convention right” [our emphasis] and PCC of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor [2003] UKHL 37
  • Secondly, if anyone’s human rights are engaged surely they are the rights of the new Monarch, not the rights of the members of the NSS – and no-one seems to be suggesting that the Heir Apparent is complaining about the prospect of being crowned in the Abbey.
  • Thirdly, we very much doubt that the personal decisions of the Monarch (in this case, whether to be crowned at Westminster Abbey or at the National Exhibition Centre in Birmingham) are reviewable by the courts at all – and someone better-versed in constitutional law than we are will no doubt tell us if we’re wrong.
  • Fourthly, the Coronation Service is just that: a religious service. The new Monarch assumes office immediately on the death of his or her predecessor – Edward VIII, for example, was never crowned but he was certainly King – and it is difficult to see exactly what effect the Coronation has in law.
  • Finally, does the NSS (or anyone else, for that matter) have standing to seek judicial review anyway?

Or is the argument that the Monarch acts on advice and that the advice to hold a Coronation in the Abbey (which is presumably given by the Prime Minister or the full Cabinet) must therefore be reviewable?

In short, though we can readily sympathise with the desire of the NSS (and, we suspect, not just of the NSS) to see a more inclusive Coronation, is any of this the kind of activity which engages Convention rights?

See also Neil Addison’s analysis on the Religion Law Blog.

Nothing to do with us, Guv

Last month the BBC ran with a story “Farndon Parish Council orders Sudoku grave to be removed“. This was followed up with a piece in the Church Times which suggested that the widow is now considering legal action after officials at Farndon Parish Council ordered that a Sudoku puzzle and mathematical equation engraved on the stone be removed, since they are contrary to their guidelines. It is unlikely that our readers will mistake the Farndon Parish Council, who wrote the guidelines for this municipal cemetery, for the PCC of St Chad’s, Farndon, who didn’t.  However, others apparently have done so, to the extent that it has been necessary for the church website to include a disclaimer:

:“Please note that St Chad’s Church Farndon is not responsible for the burial plots in the parish burial ground. It is Farndon Parish Council and not St Chad’s who run the site. Mr Robinson was not buried in St Chad’s churchyard as was incorrectly reported in the press. Please direct any comments or enquiries to Farndon Parish Council. Thank you and God bless”.

However, we “faculty anoraks” are bound to ask “would this be allowed in a churchyard?”. The relevant parts of the Churchyard Regulations of the Diocese of Chester state:

“Inscriptions: The wording of inscriptions should be simple reverent and respectful. The wording must first be approved in writing by the minister.

Photographs: Photographs, portraits, engravings and other representations of the deceased on a memorial are not permitted without the authority of a Faculty which is unlikely to be granted save in exceptional circumstances”.

A Sudoku puzzle and mathematical equation seem to fall between these two criteria, but since the minister’s prior approval is required, augmented by the advice of the Diocesan Registrar, the situation shouldn’t arise.  From the photographs we saw, the inscription looked quite tasteful and would not create the same problems as QR Codes, discussed here, where the information available via the Code could be changed and was not under the control of the church concerned.

And finally…

Nothing whatsoever to do with law & religion, but heartiest congratulations to Dame Catherine Wybourne, of iBenedictines, and Gillan Scott, of God and Politics UK, the winner and runner-up in the Blogger of the Year category of the Christian New Media Awards 2013.

[1] i.e. the three days preceding Diwali, which in 2013 is celebrated 3 to 7 November).  The Chinese New Year in 2014, (the Year of the Horse) is celebrated on 31 January.

[2] These are the latest data available, and in view of subsequent reductions in dioxins from industrial sources, the proportion from bonfires is likely to have increased.  See also George Monbiot’s 5th November post, “We can still celebrate bonfire night without burning toxic waste”.

[3] Not In My Term Of Office.

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