Religion and law round-up – 22nd December

A week in which the Supreme Court considered the right to die, the House of Lords debated Part 2 of the Lobbying Bill, and it became necessary to distinguish between PACS and super-PACs

Abortion law in Northern Ireland

We posted an analysis of the current state of abortion law in Northern Ireland, partly in response to the announcement from David Ford MLA, Minister of Justice and Leader of the Alliance Party, that he is going to consult early in 2014 on changing the law to allow women carrying babies with fatal foetal abnormalities to have a termination and partly triggered by a post on God & Politics by Edward Kendall.

Our analysis was not intended so much as a response as a long comment. The whole issue of abortion law on both sides of the Irish border is complicated by both political and religious considerations. In Dublin the matter was brought to a head by the avoidable death of Savita Halappanavar in October 2012 at University Hospital, Galway. In Belfast the tragic story of Sarah Ewart, who was obliged to travel to England in order to abort a foetus without a developed brain, seems to have been a major factor in the decision to launch the consultation. Whether or not the law in Northern Ireland will be reformed, however, is another matter. There appears to be no majority for reforming the law, either in the Assembly or among the population at large.

Employment and equal treatment

Last week the CJEU ruled in Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 that Article 2(2)(a) of the of the Equal Treatment Directive 2000/78/EC requires that same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses. M Hay had concluded a civil solidarity pact (PACS) with his partner in 2007: the Court ruled that same-sex partners in civil partnerships and similar legal arrangements could not be excluded from employment-related benefits granted to married couples, even where the same-sex partnership legislation of the member state in question was not comprehensively equivalent to marriage, as was the case with the French civil solidarity pact.

Employment and religion

The Daily Mail reported (accurately) that Ms Karen Holland, a Wiccan who claimed that she was sacked by her employers because she had attended a Halloween ceremony, had been awarded over £15,000 by an Employment Tribunal in compensation for unfair dismissal and sex and religious discrimination. Her erstwhile employers announced that they would appeal.

We now have a copy of the ET decision (a snip at ten quid from the Tribunals Service at Bury St Edmunds) and will post an analysis as a Christmas treat for employment lawyers .

Lobbying registers

Attention this week has focused on the Lords’ deliberations on the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which the former bishop of Oxford, Lord Harries of Pentregarth (CB), has suggested [18 Dec 2013 : Column 1278]

“. . . represents an attempt to escape the influence of the super-PACs [Political Action Committees[1]] in this country. It is as though a huge net has been thrown in order to catch some great fish which might swim across the Atlantic, but the only effect of which is to trap smaller fish quite legitimately swimming freely in the waters of democracy.”

European developments in this area have received little attention, but in addition to the publication of the first Annual Report on the Transparency Register, a working group of MEPs has presented its recommendations for future improvements. Unlike the UK, there appears to be a better grasp of what lobbying entails, and possible changes include these:

  • Only organisations on the register of lobbyists should be given access to the European Parliament and Commission: lobbyists who do not comply with the rules should be removed from the database and barred from such access and other advantages of registration.
  • Registered lobbyists should be allowed to give their input to the European Commission and the European Parliament more easily, but the data they disclose should be peer-reviewed with be a better system for outsiders to alert inaccuracies and file complaints.

The European media reactions to the report have been mixed, ranging from “EU lobby register on track to becoming mandatory” to “Mandatory lobbyist register ‘unlikely’ under current law”, the latter picking up on the group’s conclusion that only legal basis for a mandatory register would be Article 352 TFEU which requires unanimous consent from all Member States and approval by national parliaments.

The possibility of a register was first raised by Siim Kallas, Vice-President of the European Commission in 2005, whose speech in Nottingham made reference to the “Open Government” episode of Yes Minister.  However, it was 2011 before a joint Parliament and Commission register was launched. Today in Europe, only Austria, Denmark, France and the Netherlands have mandatory registers, and the US has a mandatory register for lobbying in Washington, DC.

Frank points out (as a professional lobbyist, albeit a semi-retired one) that, currently, no-one has any problem with the existing EU lobbying and transparency rules and that making them entirely mandatory would in practice make very little difference to  commercial lobbyists.

Henry VIII powers to be ousted from Deregulation Bill?

A Report has been produced by the Joint Committee on the Draft Deregulation Bill recommending that the proposed powers in the draft Bill to allow Ministers to make orders to scrap legislation if they consider it “no longer of practical use” should “be removed from the Bill on the grounds that the power is ‘too wide and the safeguards are inadequate’”. The Committee has suggested that as an alternative, the Law Commissions should be encouraged to bring forward an annual Statute Law (Repeals) Bill, in consultation with Government departments, and that this “would provide the flexibility to allow departments to repeal legislation in areas of concern to them with the benefit of the expertise and independence of the Law Commissions”.

Readers will recall the present Administration’s attempt to incorporate extensive Ministerial powers within the Public Bodies Bill 2011; and although the greater excesses of these proposals were voted down, Ministers nevertheless have sweeping powers to abolish, merge, modify constitutional arrangements, modify funding arrangements and modify or transfer functions of NDPBs, (Schedules 1 to 5 respectively), albeit under the super-affirmative procedure.

Statement from ONS on marriage and divorce statistics consultation

On 12 December, the Office of National Statistics issued the following statement in relation to its consultation on marriage and divorce statistics, which has just closed:

“ONS would like to thank all users who have contributed so far to the consultation ‘User requirements for marriage, divorce and civil partnership statistics given the introduction of marriage of same sex couples‘. ONS would like to clarify that it is not proposing to produce only total figures for marriages where the distinction between same sex and opposite sex couples is not available. ONS do intend to publish marriage and divorce statistics in the future where figures for opposite sex and same sex couples are shown separately. ONS are consulting on the characteristics of these marriages/divorces which are of particular interest so that published statistics meet user requirements.”

The Coalition for Marriage claims that this to be a climb-down in response to the concerns it raised to ONS. Whilst some of the questions in the consultation might lead one to agree with its assertion that

“ONS had proposed merging official figures for same-sex and traditional marriage with “no differentiation possible”. The move would have airbrushed true marriage from official data,”

the explanatory information to the Consultation clearly states:

“When marriages of same sex couples begin to be registered, ONS intends to continue to publish: marriage statistics for the UK and England and Wales including marriages of opposite sex and same sex couples; civil partnership formation statistics for the UK and England and Wales; civil partnership dissolution statistics for the UK and England and Wales; statistics on the number of civil partnerships converted into marriage in England and Wales; and divorce statistics for the UK and England and Wales.”

Nevertheless, as the Church of England has found on a number of occasions this year, the need to issue a “clarification” tends to put an organization on the back foot with regard to its credibility and also the control of its agenda, and in terms of public perception the ONS statement will regarded in many quarters as C4M 1: ONS 0.

Votes for prisoners?

The Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill has concluded that (as any fule kno) the UK is under a binding obligation in international law to comply with judgment of the ECtHR in Hirst v United Kingdom (No. 2) [2005] ECHR 681. It recommends that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections and that six months before their scheduled release, prisoners should be entitled to apply to be registered to vote in the constituency into which they are due to be released.

Adam Wagner observes on UKHRB that it would be completely unprecedented for any state that has ratified the ECHR to enact legislation in defiance of a binding ruling of the European Court of Human Rights. That said, however, you never can tell…

Ritual circumcision: yet another update

At the beginning of the month we noted what was (to two secular English lawyers) a rather unusual report in Haaretz  that Israel’s Supreme Rabbinical Court of Appeals had upheld the ruling of a lower rabbinical court imposing a daily fine of 500 shekels (£86) on a woman in dispute with her husband who had refused to have her son circumcised. The Jerusalem Post now reports that the High Court of Justice has issued an interlocutory injunction freezing the order and has, in turn, ordered the Netanya Rabbinical Court and the Supreme Rabbinical Court to provide a response to the mother’s petition by 9 January.

Recent consistory court judgments

The replacement of lead roofing with alternative materials following its removal by theft is a growing concern of the Church of England.  Repairs using matching materials may come within an archdeacon’s jurisdiction under Rule 7.2 of and Schedule 2 to the Faculty Jurisdiction Rules 2013, effective from 1 January 2014, and further clarification may be introduced through List B of the proposed Draft Care of Churches and Ecclesiastical Jurisdiction (Amendment Measure, GS 1919X, considered by the November 2013 General Synod.  However, problems arise when different replacement materials are proposed, and in Re St. Peter Church Lawford [2013] Coventry Consist Ct, Stephen Eyre Ch, a petition to allow the replacement of lead roofing with zinc was refused. In this case, the Chancellor determined that it was premature to replace the entire roof, which had an estimated life of a further 10 to 15 years, and that a more appropriate course of action would be to undertake repairs.  A more general consideration of replacement roofing materials will form the basis of a future post. Likewise, the disposal of vestments in Re St. Mary Bourne Street London [2013] London Const. Ct, Justin Gau Dep. Ch bears further consideration. Although a faculty was granted, the disapproval of the acting Deputy Chancellor on the stewardship of parish resources was readily apparent.

The last reported judgement of the year is Re Selmeston Parish Church [2013] Chichester Const. Ct, Mark Hill Ch, in which a faculty was granted for the removal of a pew platform and four pews from the west end of the church, the Chancellor being satisfied that there were “compelling justifications on the basis of liturgical freedom, pastoral well-being and putting the church to other viable uses consistent with its sacred character.”

And finally . . . . . . . . .

“Tension, politics, terrorists, crowds, parties, drunks and crooks, in a huge confusion of unknown people in your small borough … the first rule for keeping security in Bethlehem was: no kings, no mention of kings, no mention of David. Anyone who shows up talking about David or kings was on their way … [t]he second rule of keeping order was to keep the shepherds sober and on the hills, looking after their sheep by night, or day, or any other time”.

Extracts from Justin Welby’s sermon at the Metropolitan Police carol service at St Margaret’s Church, Westminster, on 17 December, in which he relates the Christmas story from the point of view of “a Bethlehem Borough Commander”.


[1] defines super PACs as: Technically known as independent expenditure-only committees, Super PACs may raise unlimited sums of money from corporations, unions, associations and individuals, then spend unlimited sums to overtly advocate for or against political candidates.”

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