Religion and law round-up – 8th December

Inevitably, the  Pilling Report gave way to the passing of Nelson Mandela as the major news of the week 

Nelson Rolihlahla Mandela OMNelson_Mandela-2008_(edit)

Even a techie blog like ours cannot leave unremarked the death of one of the greatest men of our lifetime. Those of us who were fortunate enough to hear him address both Houses of Parliament in Westminster Hall in 1993 were (and remain) conscious that they were in the presence of an extraordinary human being.

Unfortunately for students of law and religion, Nelson Mandela led the struggle against a system that exemplified some of the worst aspects of the link between the two. There was a very strong and utterly reprehensible relationship between politics and religion in apartheid South Africa; and Howard Friedman suggests that Mandela’s death is an appropriate time to look back on the role of religious groups under the apartheid regime. Friedman reminds us that In 1998, the University of Cape Town’s Research Institute on Christianity In South Africa prepared a report for the Truth and Reconciliation Commission, Faith Communities and Apartheid, as follows:

Ultimately, the Truth and Reconciliation Commission came to this conclusion in Volume 5 of its own report, at pp 251-52:

Faith communities: The Commission finds that Christianity, as the dominant religion in South Africa, promoted the ideology of Apartheid in a range of different ways that included Biblical and theological teaching in support of Apartheid; ecclesiastical Apartheid by appointing ministers to congregations based on race, and the payment of unequal stipends; a failure to support dissident clergy who found themselves in confrontation with the state; and a failure to provide economic support to those most severely affected by Apartheid”.

In short, there is nothing (or so it seems to us) that cannot be perverted for evil ends, even religious belief.

[With thanks to Religion Clause]

Sexuality and the Pilling Report 

We produced a long summary and analysis of the final Report of the Working Group on Human Sexuality. Inevitably, there has been a vast amount of media comment: the best place to find it is at Thinking Anglicans, here.

Assisted suicide

On Thursday the House of Lords held a short debate on assisted dying. Lord Judge, freed from the constraints of judicial office, said that whether or not the criminal offence of assisting suicide should continue on the statute book was far too important to be resolved by judges and the DPP and called for a free vote in Parliament on the issue. On reading all the speeches it appeared that the overall sentiment was for a change in the law to legalise assisted suicide in certain circumstances; however, both Baroness Wheeler for Labour and Lord Ahmad for the Government took a stance of studied neutrality. Lord Ahmad reiterated that

“… the DPP’s policy has not changed the law … Nor does the policy mean that cases of encouraging or assisting a suicide will not be prosecuted in England and Wales … As with all criminal offences, allegations of encouraging or assisting suicide will be reviewed individually on the basis of their particular facts and circumstances and against the criteria of the offence-specific policy and of the general Code for Crown Prosecutors, with its two-part test of sufficient evidence and public interest”.

Employment and religion

We posted the promised analysis of Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811 in which Cox J held that the decision of the lower tribunal that the Revd Mark Sharpe, former incumbent of Teme Valley South Benefice in the Diocese of Worcester, could not be a “worker” within the terms of the Employment Rights Act 1996, as amended, was flawed and remitted the case for a fresh hearing. We suspect that her decision will be appealed.

The other employment news of the week was the decision by the Court of Appeal in Mba v London Borough of Merton [2013] EWCA Civ 1562 to dismiss Ms Celestine Mba’s appeal against the EAT’s decision that the requirement for her to work on Sundays as a care assistant at a children’s home run by Merton LBC, contrary to her views as a devout Christian on the sanctity of the Sabbath, had not amounted to constructive unfair dismissal and indirect religious discrimination. We shall publish an analysis later this week.

Religious symbols

From France came the news that the Cour d’Appel of Paris had upheld the dismissal of Fatima Afif in 2008 from her post as a nursery worker at the Baby-Loup crèche after she had refused to remove her veil at work. In doing so, the Cour d’Appel adopted a contrary position to that of the Cour de Cassation, which had ruled in March that the nursery was a private institution and that Ms Afif’s dismissal constituted “discrimination on grounds of religious belief”. Lurking behind all this is the forthcoming hearing at the ECtHR in SAS v France, in which a 23-year-old Muslim woman is challenging the blanket ban on face-coverings in public places – on which we shall report in due course.

Coincidentally, the latest issue of the Journal of Catholic Legal Studies consists of a series of papers on religious symbols. Contributors include Silvio Ferrari and Mark L Movsesian and the articles are available as free pdf downloads. Well worth a look.

Recent consistory court judgments

In contrast to the Coalition Government’s apparent inability to perceive an impending crisis in the availability of burial space, here, at a practical level this is already becoming a consideration of the consistory courts, as reported last week in Re Wandsworth Cemetery and a Petition by Magdalen Rees [2013] Southwark Const CtPhilip Petchey Ch, the week before in Re The Churchyard of Wick St. Lawrence and this week in Re All Saints Heathfield [2013] Chichester Const Ct, Mark Hill Ch.

In this latest case a faculty was refused for the reservation of a grave space for the petitioner’s mother who was neither a parishioner nor on the electoral role of All Saints, Heathfield, and therefore had no right to burial in the churchyard. Chancellor Hill noted that “there is no analogous ‘qualifying connection’ in respect of burial as was introduced for marriage under the provisions of the Church of England Marriage Measure 2008″ – but then burial is not subject to the same corporate initiatives as is marriage. This case illustrates some of the problems that are currently being encountered; and a fuller analysis will be posted in the near future.

Scientology in the Supreme Court: watch this space

On Wednesday the Supreme Court will be handing down its judgment in R(Hodkin) v Registrar-General of Births, Deaths and Marriages. Ms Hodkin is appealing against the refusal of the Registrar-General to register the central London chapel of the Church of Scientology as a place of religious worship under the Places of Worship Registration Act 1855, with the result that she and her fiancé cannot have a religious wedding there. She alleges, inter alia, a violation of her rights under Article 9 ECHR.

And  finally … L&RUK goes mobile

This week, after over an hour spent struggling with the instructions, we launched a mobile version of the website, partly because it seemed like a good idea at the time and partly because our service-provider, FatCow, was doing an extremely cheap Black Friday deal. You can find it at http://m.lawandreligionuk.org and it’s far easier to use on a smartphone than the standard version – but you can still get the full website on your phone if that’s what you prefer.

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