Religion and law round up – 23rd February

A surprisingly busy week, given that neither Parliament nor the General Synod was in session

ASBO on Muslim street preacher

The Guardian reported that a Muslim convert who targeted members of the public as part of a campaign for a sharia state in the UK has been made the subject of an ASBO. In what the item described as a “legal first”, Jordan Horner, from Waltham Forest, has been ordered to stop preaching in public. The ASBO will run for five years and be effective throughout London. The Metropolitan Police said that Horner was thought to have distributed leaflets and posters advertising a “sharia controlled zone” in Waltham Forest.

Whether or not this is, in fact, a “legal first” we have no way of knowing for certain. We hope, however, that the story will give some reassurance to those Churches who expressed concern that the provisions of the Anti-social Behaviour, Crime and Policing Bill, currently in its final parliamentary stages, would interfere with activities such as street preaching and open-air services. The Salvation Army is particularly concerned about this, for obvious reasons – but if the Horner ASBO is a first, then it’s a very long way from advocating “sharia controlled zones” to open-air hymns and band music.

Is “doctrine” justiciable?

On Wednesday and Thursday the Supreme Court heard oral argument in the appeal from Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983. The case concerns the powers to appoint and remove trustees of two Sikh gurdwaras and hinges on a matter of what might be termed “ecclesiastical succession”. The principal question before the Court, was this: “whether the proceedings unavoidably raise non-justiciable issues of religious belief, doctrine and practice”.

There is a long line of decided cases suggesting that the courts will not adjudicate matters of doctrine, so the judgment is going to be extremely important whichever way it goes. Watch this space…

Niqabs in court – again

Late last week a report surfaced of a judgment by the Upper Tribunal (Immigration and Asylum Chamber) in an asylum case, AN v Secretary of State for the Home Department [2014] UKAITUR DA013242013, which was handed down on 15 January and published on 11 February. (Either it was late appearing BAILII or we simply missed it.) In coming to its decision the FtT had, in effect, ignored the evidence of a witness who was wearing the niqab and, as we noted, the Upper Tribunal was quite hard on the FtT’s determination, holding that its failure to deal adequately with a veiled witness vitiated its determination. The UT’s full determination is well worth reading.

Tougher sanctions against clergy who marry their same-sex partner?

Following some of the reaction to the House of Bishops’ Statement of Pastoral Guidance on Same Sex Marriage, this week’s Question of the Week in the Church Times is

Should there be tougher sanctions against clergy who marry their same-sex partner?

on which we have posted our comments.  It may be interesting to see the results of this CT question, but although earlier questions have revealed definitive opinions[2] within the readership, these are based on relatively few responses compared with its circulation of 34,000:

Would you alter your lifestyle to fight against climate change? – Total: 98   Yes: 85.7%   No: 14.3%

Do you trust the leadership of the General Synod? – Total: 117   Yes: 33.3%   No: 66.7%

Is numerical growth a priority in your church? – Total: 166   Yes: 64.5%   No: 35.5%

Progress on the Marriage (Same-Sex Couples) Act 2013

In our December post Same-Sex Marriage from 29th March 2014? we examined the progress towards the implementation of the Marriage (Same Sex Couples) Act 2013. Today’s Thinking Anglicans post Progress on implementing the Marriage (Same Sex Couples) Act provides an update with links to a second Commencement Order and a raft of secondary legislation laid before the House on 23 January, the two under the negative resolution procedure having been approved and four under the affirmative resolution procedure to be discussed in the near future.  Other provisions are still “in the pipeline”.

The knock-on effects of changing the legal concept of marriage within the 2013 Act are evident in: 56 consequential amendments to subordinate legislation and the 9 consequential amendments to Welsh subordinate legislation,  Schedules 1 and 2, of The Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014 SI 107, now approved; and the 36 items of primary legislation within Schedule 1 to the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014, to be considered by the Delegated Legislation Committee on Tuesday.

Regency and the Monarch

As the anniversary of Pope Benedict XVI’s resignation approaches[1], Bob Morris considers the issues surrounding another position for which resignation seems highly unlikely.  His post The UK Monarchy: Moving to a Regency that dare not speak its name? reviews the increasing role being taken by the Prince of Wales and the “movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner”. Readers are recommended to read the full post which examines the legal and constitutional implications. He concludes

“It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.”

Recent Consistory Court judgment

Situated 7km to the west of Swindon, St Mary, Purton is one of only three parish churches that has both a central tower and spire and a western tower, here. The petition considered in Re St Mary Purton [2013] Bristol Const Ct, Justin Gau Ch. comprised two parts, permission for the installation of a replacement sound system, and for a projector screen in the Grade I church. The former was less contentious once the family of the benefactors of the existing system had been assured that parts would be incorporated in the new arrangements. The latter concerned a boom-mounted projector screen on and behind the front north pillar at the tower crossing, which when not in use would be rolled up and swung back behind the pillar “out of sight”. When in use the projector screen “would act as a barrier, visually and physically, cutting off the High Altar and choir from the rest of the church”. Objections were raised by the Society for the Protection of Ancient Buildings (SPAB) and the Church Buildings Council (CBC). English Heritage chose not to comment.

The Chancellor applied Re St Alkmund, Duffield (2012) 14 Ecc LJ 461-461 and addressed the five questions seriatim:

  • #1: “yes”: “the introduction of this screen is, frankly, jarring in such a lovely interior”;
  • #2: the answer to #1 being “yes”, #2 did not apply;
  • #3: the harm would be “small”;
  • #4: the Chancellor was “just persuaded that there is a justification for carrying out the proposals”; a conclusion supported by
  • #5: “that the public benefit in granting an amount of lawful liturgical freedom, the pastoral wellbeing and the opportunities for growth and mission outweigh the harm that will be done”.

Both parts of the faculty were granted.

Latest Standard Notes from the House of Commons Library

As part of its role in providing impartial information and research services for Members of Parliament and their staff in support of their parliamentary duties, the House of Commons Library produces a range of publicly-available Briefing Papers: Research papers which provide in-depth and impartial analysis of all major pieces of legislation, as well as many areas of policy; and Standard Notes which cover frequently asked questions and topical issues.  Recent publications include:

And finally, posthumous marriage…

Did you know that in France Article 171 of the Code Civile makes it possible in certain circumstances to marry your dead fiancé(e)? Neither did we; but in a speech to the Northern Ireland Medico-Legal Society last week, Lord Wilson JSC explained that, when President de Gaulle visited Fréjus in 1959 after a devastating flood, a girl pleaded with him to be allowed to marry her drowned fiancé and he was so touched that he persuaded the Assemblée Nationale to pass a law to enable her to do so. Apparently about 20 posthumous marriages take place in France every year on the basis that the applicant was genuinely engaged to the deceased and that the deceased’s parents still approve of the marriage.

But Lord Wilson’s lecture is well worth reading for much more important reasons than that: his elegant and learned exposition of the history of the formation of marriage in the UK and abroad and his explanation of why marriage as a socio-legal construct has changed over time.


[1] Although the Pontiff announced that he would be stepping down on the morning of 11th February 2013, his actual resignation was effective from 20:00 CET 28th February 2013

[2] To prevent multiple voting, readers must be logged in, an essential precaution given the number of respondees.

1 thought on “Religion and law round up – 23rd February

  1. Pingback: Same-Sex Marriage – Update | Law & Religion UK

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