Religion and law round up – 6th April

All the law & religion news and comment that’s fit to print

Blessings and same-sex marriage

Last week, readers may have become aware of the relevance of the following question:

“A couple of the same sex comes to worship in [the] parish.  After a period of attendance, and enthusiastic participation in church life, they enquire if their relationship can be blessed. How can the [incumbent] respond to same sex couples – theologically and pastorally [and within Church law]?”

Followers of BBC 2’s third series of “Rev” will recognize this as the situation portrayed in Episode 2 which was broadcast on 31 March. Members of the Governing Body of the Church in Wales will observe a strong similarity with the question published later last week for consideration at its Governing Body on 23-24 April, discussed here. Perhaps they should be provided with a link to the programme in preparation for the group discussions?  More serious, however, is the fact that marriage between same-sex couples became legal in England and Wales on 29 March; and there is a distinct possibility that such situations will arise, if they have not already done so, before the C of E and the C in W have given the matter further consideration.

Gifts for religious purposes and mental capacity

We reported the difficult Court of Protection case, P, Re (capacity to tithe inheritance) [2014] EWHC B14 (COP)about the capacity of a man, MS, with severe mental health problems to make a gift of ten per cent of a legacy to the Church of Jesus Christ of Latter-day Saints. The court concluded on the balance of the evidence, that though he had an “impairment of, or a disturbance in the functioning of, the mind or brain” [para 89], “His desire to make this gift to his church is part of his religious beliefs but not … part of his delusional belief system” [para 93]. DJ Eldergill therefore decided that MS could make the gift as he wished:

“Even if his choice is founded on a belief that facts exist which do not, it is now his authentic voice and a true expression of his mind and the world within which he moves; and, like everyone, he needs to find peace” [para 125].

St Margaret’s Children and Family Care Society and the EHRC

On 28 March the Equality and Human Rights Commission issued a statement on the successful appeal by St Margaret’s Children and Family Care Society to the Scottish Charities Appeal Panel against the direction of the Office of the Scottish Charities Regulator. The nub of the statement (downloadable from here) is as follows:

“The EHRC notes that OSCR has now decided not to appeal the SCAP decision. The EHRC has no locus to appeal the decision itself, as only OSCR and the relevant charity have a right of appeal. The EHRC has however carefully considered the SCAP decision as it relates to discrimination law. The decision is not easy to follow, but it is the EHRC’s view that SCAP is mistaken in its understanding of the meaning of direct and indirect discrimination.

The Commission has carefully noted SCAP’s finding of fact, based on evidence provided by St Margaret’s Children and Family Care Society during the hearing of the appeal, that: “In principle [St Margaret’s Children and Family Service] would consider an application to be considered as adoptive parents from a couple in a civil partnership.”

The Commission has therefore written to St Margaret’s advising it to ensure that its published policies and practices properly reflect its stated position that adoption applications from couples in civil partnerships will be considered in the same way as those from married couples; and to ensure that such applications are indeed considered equally. This will give gay couples wishing to adopt the confidence that they will be treated without unlawful discrimination”.

The EHRC is obviously entitled to its opinion, though we wonder about the propriety of an agency of Government criticising a judicial decision: separation of powers, anyone? More fundamentally, the statement does prompt us to ask why, if SCAP got the law so wrong, OSCR didn’t appeal. And the only obvious answer that comes to mind is that OSCR is a lot less sure of its ground than the EHRC appears to be.

Sharia-compliant student loans

The intention to develop sharia-compliant student loans was announced by the Prime Minister in 2013; and Universities and Science Minister David Willetts has now launched a consultation on a proposed model for putting this into operation, seeking views on whether it is an acceptable alternative to the conventional system. The consultation closes on 12 June. Willets told a Universities UK Conference on universities and growth that the model will be available to anyone who adopts similar financial principles and that anyone taking the loan would repay the same amount as other borrowers. The system would be overseen by a sharia advisory committee.

St Anthony’s Hospital, Sutton

Last November we reported that Paul Burstow, Lib Dem MP for Sutton and Cheam, had asked the Vatican to intervene to stop a Roman Catholic charity, the Congregation of the Daughters of the Cross of Liège, from selling St Anthony’s Private Hospital in Sutton to a private company. The charity’s trustees – all of whom are members of the Congregation – wished to reduce the scope of the charity’s activities because the Daughters are ageing and need to cut down on their commitments. It has now been announced that the St Anthony’s has been sold to Spire Healthcare. Local objectors were concerned that, because St Anthony’s shares back-office functions with the hospice on the same site, the sale of the hospital could threaten the hospice’s future viability; however, the order says that any extra costs will simply be absorbed by the charity and the hospice is not at risk of closure.

In our earlier post we suggested that the objectors’ apparent ignorance of charity law had not helped that situation; the Charity Commission had been asked to investigate but found no evidence that the trustees had acted in any way contrary to the best interests of the charity.

But there is more to it than that. The overriding duty of charity trustees is to act in the interests of their charity and within its charitable objects; so if the trustees concluded, after considering all the relevant facts, that it was in the charity’s best interests to sell the hospital, that is what they had to do. Acting in the interests of he trust is not simply a matter of choice but a legal obligation. The fact that the Congregation of the Daughters of the Cross of Liège is a religious charity was not relevant to the grounds on which the decision had to be made.

Sharing bedrooms – again

In the course of the day-job Frank was asked whether the organisers of a Church conference (denomination unspecified) could refuse on moral/doctrinal grounds  to let a double room to an unmarried couple in spite of the fact that the woman said that she was the man’s carer.

The EHRC Guidance on Exceptions: charities and religion or belief organisations (published by the EHRC as commentary on the Equality Act 2010)  states that:

“Religion or belief organisations can, in certain circumstances, discriminate because of some protected characteristics in the way they operate. Unlike charities, they do not need a charitable instrument or to meet particular tests to be able to restrict their services. In some situations, religion or belief organisations and people acting on their authority can restrict or refuse:

  • membership of the organisation
  • participation in its activities
  • the use of any goods, facilities or services that it provides, and
  • the use of its premises

because of a person’s religion or belief or their sexual orientation”.

The particular problem, of course, is the clash of rights: the religious rights of the organisation as against the rights of a disabled person not to be discriminated against. After talking it through, Frank and the inquirer agreed that, even though religion and belief is a protected characteristic under the Act, if the man needed (eg) round-the-clock attention, even intermittently, not to let the couple share a double room might fall foul of the law on disability discrimination. So given the uncertainty as to the outcome of any legal challenge, on balance the prudent course would be not to refuse.

On Bull & Anor v Hall & Anor [2013] UKSC 73 being mentioned as an illustration of the courts’ current thinking, the inquirer (who as a non-lawyer had been unaware of the case) suggested that the reason for that particular decision must have been that same-sex orientation is a protected characteristic under the 2010 Act – to which Frank replied that heterosexuality is also a sexual orientation protected under the Act. In its helpful guide to sexual orientation discrimination ACAS states categorically that “It is as unlawful to discriminate against heterosexual people as it is to discriminate against lesbians, gay men and bisexual people”. Absolutely: and it’s something people tend to overlook.

FCO Advisory Group on Freedom of Religion or Belief

Last week saw the first meeting of the Foreign & Commonwealth Office Advisory Group on Freedom of Religion or Belief, chaired by Senior Minister of State, Baroness Warsi. The new group, which is a sub-group of the Foreign Secretary’s Human Rights Advisory Group, is intended to advise FCO Ministers and staff on how to promote and protect the right to freedom of religion or belief worldwide. The membership is as follows:

  • Kate Allen (UK Director, Amnesty International)
  • Waqar Azmi (Chairman, Remembering Srebrenica)
  • Mashood Baderin (Professor of Law, SOAS)
  • Shami Chakrabarti (Director, Liberty)
  • Andrew Copson  (Chief Executive, British Humanist Association)
  • Joel Edwards (International Director, Micah Challenge)
  • Malcolm Evans (Professor of Public International Law, Bristol)
  • Tom Gallagher (Professor of Ethnic Conflict & Peace, Bradford)
  • Ed Husain (Senior Fellow for Middle Eastern Studies Council on Foreign Relations)
  • Edward Kessler (Executive Director, Woolf Institute)
  • David Mepham (UK Director, Human Rights Watch)
  • Trevor Pears (Executive Chairman, Pears Family Charitable Foundation)
  • Tariq Ramadan (Professor of Contemporary Islamic Studies, Oxford)
  • Mervyn Thomas (Chief Executive, Christian Solidarity Worldwide)

The Front National and religious tolerance

Perhaps the FCO’s new Advisory Group could start by turning its attention to France. Radio France Internationale reports that Marine Le Pen has declared that schools in the areas of the 11 town councils won by the Front National in last week’s local elections will no longer make any accommodation for Jewish and Muslim pupils when pork is on the menu. She told RTL Radio that FN-run councils would ban school canteens from providing alternatives when food that contravenes Muslim and Jewish dietary restrictions is served, on the grounds that the move contravenes the constitutional principle of laïcité.

“We will not accept any religious requirements on school menus. There is no reason for religion to enter into the public sphere, that’s the law.”

Comment is superfluous.

[With thanks to Religion Clause for the lead.]

Busking and religion

The Church Times carried the story “Buskers get holy to avoid ban” which concerned action by the Keep Streets Live Campaign to circumvent Camden London Borough Council’s provisions which require the licensing of street entertainment, (“busking”), brought in under the London Local Authorities Act 2000. The action followed the failure of the judicial review in Keep Streets Live Campaign Ltd v London Borough of Camden [2014] EWHC 607 (Admin) in which all of the Campaign’s claims[1] were dismissed.  However, the Council’s policy includes an exemption for “music performed as part of a religious meeting, procession or service” and the group has therefore created a “religion” in the belief that they can rely upon their “religious freedom” to continue busking.

It is reported that “[t]he Church of the Holy Kazoo is not big on dogma. Adherents simply believe that busking is sacred and that every piece of music ever written belongs in its hymn book”. From the legal point of view, we wonder which would be the greater hurdle to overcome: proving that a “church”, formed to circumvent the implementation of statutory legislation fell within the ambit of a “religion”; or if charitable status were sought, whether “busking” could be regarded as for the public benefit.

[Note by FC: For an even more bizarre example of music as “religion”, see the website of the St John Coltrane African Orthodox Church in San Francisco. “Four hours of the music of Saint John Coltrane is played every Tuesday from 12-4 PM”.]

Forthcoming conference

The Oxford Journal of Law and Religion is hosting its second annual Summer Academy in Law and Religion on “Versions of Secularism – Comparative and International Legal and Foreign Policy Perspectives on International Religious Freedom” from 23–27 June at St Hugh’s College, Oxford. Further details here.

And finally … help the police, dehydrate yourself?

In September 2011 John Craven, a street preacher, was approached by two gay teenagers who asked him what he thought of homosexuals – to which, reports the BBC, he replied by quoting what he regarded as the Bible’s view of homosexuality but also said that “whilst God hates sin He loves the sinner”. The teenagers told a police officer that they felt insulted by Mr Craven’s comments and he was arrested for a public order offence. Once in custody he was not offered food or water until almost 15 hours had passed and he also said that he was denied medication for his rheumatoid arthritis. He was finally given a bowl of cereal and a microwaved meal after a friend complained about his treatment.

The outcome is that in an out-of-court settlement Greater Manchester Police has agreed to pay Mr Craven £13,000 compensation for wrongful arrest, false imprisonment and breach of his human rights. According to the Christian Institute, which supported his claim, the total cost to the police, including both parties’ legal bills, will be over £50,000. Superintendent Alan Greene said that though he could not go into the circumstances in detail, “we can acknowledge that we did make mistakes and, in particular, kept the claimant in custody for too long”.

He can say that again. Quite apart from the Article 9 issue of Mr Craven’s right to manifest, there is a much more fundamental issue here. No-one, but no-one, should be held without food or water for 15 hours, whatever the charge. If we purport to be a civilised society, then one of the tests in support of that claim must be how we treat people detained against their will. And anyway, it’s a public relations own goal for the police – so what possessed them to do it?

[1] The definition of busking in the policy is too wide; the policy has been adopted on an unlawful basis; the policy breaches the Human Rights Act 1998.

3 thoughts on “Religion and law round up – 6th April

  1. With reference to the Church of the Holy Kazoo, they are are not the first to tread the path of “if you say it’s for religious reasons you can get away with anything”.

    It was tried, and then tried, in the USA in the ’60s – United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968).

    Of course, now that we have Hodkin (with a definition of religion) and Grainger v Nicholson (philosophical beliefs), we have some nice, tidy criteria for deciding whether a person’s (or a group’s) beliefs get the protection of ‘religious or philosophical belief’.

    Since a major problem is going to be that of convincing the court that they are sincere in their beliefs, one can’t help thinking that calling it something a bit more serious-sounding than the ‘Church of the Holy Kazoo’ would have been better (e.g. “The Church of the Holy Trumpets” or “The Temple of the Sacred Cymbals”); there is nothing more likely to get you smacked down than making it obvious you’re trying to do an end-run around the rules. I have wondered how Koch might have been decided if the ‘Church’ involved hadn’t so obviously been simply an attempt to circumvent the law.

    Given the definitions involved, the Church of the Holy Kazoo might be better off going for ‘philosophical belief’ than either religion or charity, given the definition in Grainger:

    (i) The belief must be genuinely held.
    (ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
    (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
    (iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
    (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

    A belief in the rightness of free availability of live music could quite easily satisfy these criteria, I think. As for ‘seriousness and importance’ – who doesn’t ever listen to music? And who hasn’t been just a little bit happier after hearing live music?

  2. Indeed. My favourite (but it’s only an ET ruling) is Maistry v BBC [2011] ET 1313142/2010 (29 March 2011), in which it was held that the belief that public service broadcasting and the BBC Charter had the higher purpose of promoting cultural interchange and social cohesion could constitute a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. The ET followed Grainger. Lord Reith would no doubt have been delighted.

    (As an afterthought, I’m afraid I’ve never much liked Coltrane – much prefer Zoot Sims and Stan Getz.)

  3. I heard about Maistry. But, lest anyone try to get too creative, there is always R (on the application of Brown) v Canal River Trust [2012] EWHC 3133, in which living on a boat was deemed not to be a philosophical belief, but just a lifestyle choice, and therefore did not attract the protections accorded to philosophical beliefs and religions.

    (You’ve reminded me how much I used to love jazz sax. Two bars, and my brain sort of melts into a puddle in the bottom of my skull. I’ll have to download some to get me through the LPC next year.)

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