Religion and law round up – 27th April

Inevitably a fairly quiet week, dominated by the PM’s views on cultural Christianity and complaints about the lousy soundtrack on Jamaica Inn

A Christian country?

We have studiously avoided posting on the recent dispute about whether or not the United Kingdom (or, as people who should know better nevertheless insist on calling it, “Britain”) is a Christian country. We’ve kept quiet partly on the grounds that if it is a law & religion issue it’s a fairly marginal one, partly because it’s a matter of debate rather than fact, partly because some of the key documents are behind various paywalls – and partly because we’ve no reason to suppose that anyone would be interested in our views on the matter anyway. Following, however, is what we hope is a useful (and balanced) selection of links to some of the main contributions to the discussion:

But for a dispassionate judicial view we cannot do better than to refer readers to the speech by Sir James Munby P on Law, Morality and Religion in the Family Courts. In light of the above it bears re-reading.

Foodbanks, human rights and the PM

Further to the debate on Foodbanks and the Trussell Trust’s recent statistics on the increased use of Foodbanks over the past year, the organization Just Fair has published its report Going Hungry? The Human Right to Food in the UK and an accompanying Common Statement. The report “analyses state action and assesses the UK’s compliance with the duty to secure the human right to adequate food … outlining the key elements of the human right to food as defined under international human rights law … [and examining] whether the UK is in compliance with its duties in terms of that right”. It concludes that “the UK is in breach of a range of obligations imposed by the international human right to food”.

The international human rights referred to in Just Fair’s report are those within the UN International Covenant on Economic, Social and Cultural Rights, (ICESCR), which addresses issues of the rights to food in Article 11. The UK ratified the Covenant on 20 May 1976 but correctly notes that ICESCR rights, including the right to food, are ”mere declaratory principles and programmatic objectives rather than legal obligations[1]”. The Report recommends that “the Government formulate a national right to food strategy and action plan designed to ensure the right to food for everyone in the UK. The strategy should be based on a comprehensive analysis of the state of enjoyment of the right to food in the UK and the causes of any identified gaps in the fulfilment of the right.”

A further twist to the views of the DWP/Trussell Trust/Prime Minister on Foodbanks occurred when the Bishop of Oxford and the Revd Dr Keith Hebden attempted to present a letter against hunger in the UK to the Prime Minister’s constituency office in Witney on Wednesday 16 April. It was reported that the police had been alerted and Bishop John was prevented from delivering the letter –an incident which happened to coincide with the Church Times article Cameron affirms partnership with Church.

On a broader front, but nevertheless still linked to food costs, was the previous day’s agreement of the European Parliament on amendments to the Markets in Financial Instruments Directive and Regulation (MIFID and MIFIR) to enable authorities to limit the size of the financial risk that a firm can have in relation to the so-called ‘commodity derivatives’, including agricultural commodities such as wheat, corn, soybean or sugar.

The deal was welcomed by Oxfam, whose EU Policy advisor Marc Olivier said: “[t]oday’s decision marks a good start in tackling ‘gambling’ on food prices which are a matter of life and death to millions in the developing world. The agreement introduces limits on speculating in spite of attempts by the UK and other governments to block any meaningful reform…“.  However, he continued “[t]he deal is far from perfect. Unjustified exemptions were granted to powerful lobbies and limits will be set nationally, rather than at the European level. There is a real risk, particularly in the UK, of ineffective sky high limits triggering a regulatory race to the bottom between European countries.”

The directive and regulation (MIFID and MIFIR) now need to be formally approved by the Council, and will enter into force 20 days after their publication in the EU Official Journal.

Abortion in Northern Ireland

Enquirers have been coming to our site looking for information about the current state of abortion law in Northern Ireland – which reminded us that on 8 December David Ford MLA, Minister of Justice and Leader of the Alliance Party, announced that he was going to consult on changing the law to allow women carrying babies with fatal foetal abnormalities to have a termination. The intention was to hold a joint consultation with the Department of Health, Social Services and Public Safety; and Ford said that he hoped to start the process by Easter 2014.

Easter having passed – and thinking we might have missed the consultation – we checked: absolutely nothing official has been heard since December.

“Church Treasures”[2]

This week we posted an analysis of the judgment in Re St Lawrence Oakley with Wootton St Lawrence [2014] Court of Arches, which the Church Times headlined as “Parish is too well off to sell armour, court decides”. What the court actually said inter alia was “financial need” falling short of “financial emergency” will seldom on its own outweigh the strong presumption against sale and

“… qualitative weight, including the cumulative weight of individual factors, some or all of which may not be specially rare, is all that has to be identified; and the requisite weight is that which is sufficient to outweigh the strong presumption against disposal by sale.”

However, we would not quibble with the CT’s legal summary of the case, or the two photographs (courtesy of Thomas Del Mar) of the Wootton Helmet, the 15th century Flemish Armet in question. Other churches considering the sale of their “treasures” should read this important judgment in detail .

Circumcision and the Council of Europe

We have become aware that on 24 March the Council of Europe’s Committee of Ministers adopted a reply to Recommendation 2023 (2013) of the Parliamentary Assembly on Children’s right to physical integrity, on which we have posted previously. Nowhere does the text of the Recommendation mention religious circumcision explicitly; but the associated Resolution 1952 (2013) (which does not require a formal reply from the Committee) certainly does so and in terms of disapproval – and the Committee’s reply engages with the Resolution’s criticism of the practice.

In short, the Committee’s answer on the issue is a firm “No”. While pointing out that female genital mutilation is clearly prohibited under Article 3 ECHR and the Council’s Convention on preventing and combating violence against women and domestic violence CETS No.: 210, the Committee concludes that FGM “can, in no way, be put on an equal footing with practices such as the circumcision of young boys for religious reasons, the practice of which is not the subject of similar legal provisions”.

Non-discrimination in provision of services

Neil J Foster of the University of Newcastle, New South Wales, provided a fascinating and detailed guest post on a recent judgment of the Victorian Court of Appeal, Christian Youth Camps Limited & Ors v Cobaw Community Health Service Limited & Ors [2014] VSCA 75 (16 April 2014), on appeal from a decision fining a Christian youth camping organisation and one of its officers for declining a booking from a homosexual support group. The case has considerable resonance with recent decisions of the courts in England and Wales, especially the Supreme Court’s judgment in Bull & Anor v Hall & Anor [2013] UKSC 73. Opinions were divided, however, and the reasoning complex – and it remains to be seen whether it will go to the High Court of Australia.

Senior CofE Clergy

No sooner had we posted our thoughts on the impact of the appointment of women to the episcopate on the Composition of the Lords Spiritual than the CofE issued its Press Release Plan to double number of UK Minority Ethnic clergy in senior positions, describing the launch of its initiative to address the imbalance in UK Minority Ethnic (ME) clergy in senior positions with a plan to double numbers within 10 years. (Currently, “fewer than 10 UK minority ethnic people holding senior positions, including the Archbishop of York, one dean and three archdeacons”.)

Bishops: Does size matter?

Following the creation of the new Diocese of Leeds last weekend, Thinking Anglicans queries its claims to be the largest diocese in England (in terms of area) and using data from  the CofE’s Statistics For Mission 2012 suggests that those Lincoln, York, Exeter and Carlisle cover greater areas.  As we have pointed out, the question of size and the associated commitments of the ordinary raises the question of the present relevance of the criteria within the Bishoprics Act 1878 relating to the composition of the Lords Spiritual.  This may or may not be an issue if disestablishment were a possibility in the medium term – on which there have been widely differing accounts of the Deputy Prime Minister’s views – “[it has] long been Liberal Democrat policy, it would not be happening any time soon, nor would it be an issue the party campaigned on” (Church Times); “A call … for there to be a separation between the Church of England and the state is picked up by Friday’s newspapers” (BBC).

Abolishing corroboration in Scots criminal trials – or possibly not

Two weeks ago we mentioned the proposal in Lord Carloway’s recent review of Scots criminal law and practice to abolish the requirement for corroboration in criminal trials. We suggested that, far from abolishing it in Scotland, introducing a requirement for corroboration in the rest of the United Kingdom might have a beneficial effect on the incidence of miscarriages of justice.

On 22 April the Scottish Justice Secretary, Kenny MacAskill, backed down. In the face of claims that abolition might lead to mistrials and mistaken convictions, MacAskill had announced that a review group under Lord Bonomy would seek safeguards to strengthen criminal procedure but was adamant that, in the meantime, the Criminal Justice (Scotland) Bill was to continue its progress through Parliament. On Tuesday however, in reply to a question from Annabel Goldie, former Leader of the Scottish Conservatives, he announced that stage 2 of the bill will not now be taken until after Lord Bonomy has reported. Since the report is not expected until April 2015, that implies a delay of at least a year.

Whether Lord Bonomy will prove any more enthusiastic about the proposal than his former judicial colleagues are (all of them, with the exception of Lord Carloway, are thought to be opposed to it) remains to be seen.

New e-book on human rights

The Oxford Human Rights Hub has just published an anthology of posts from the first 18 months of the OHRH blog as a free e-book, Global Perspectives on Human Rights, It includes a section on religion and human rights with contributions by Julie Maher, Claire Overman, Karl Laird, Ilias Trispiotis, Benedict Rogers, Brian J Grim, Ronan McCrea and Ayesha Malik. Well worth a look.

And finally … religious diversity and economic growth?

The Weekly Number has posted an analysis of a new report on global religious diversity from the Pew Research Center which points out that the twelve countries identified in the Pew study as having very high religious diversity each outpaced the world’s economic growth between 2008 and 2012. China is the ninth most religiously-diverse country in the study and at the top of the list for growth in GDP over the period in question.

Interesting, but not conclusive. The Weekly Number is careful to state that it “does not attribute economic success directly to religious diversity” but it does suggest that it is “undeniable that had the Cultural Revolution’s draconian restrictions on religion and all segments of society continued, China’s economic progress would not have been possible”. Possibly the restrictions on society generally hampered economic growth, but why those on religion in particular except insofar as they were symptomatic of more general repression? Post hoc, propter hoc can be very dangerous: for example, if you draw a graph of the number of people in the UK going on skiing holidays over a twelve-month period and superimpose a graph of the price of fresh home-grown vegetables over the same time-frame, the two curves look remarkably similar…


[1] CESCR, Concluding observations of the CESCR: United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies and the Overseas Dependent Territories, 2009, p. 3, available at: http://tinyurl.com/nkag223 .

[2] For an examination of the Church’s Treasures, see C J Peter, “The Church’s Treasures, (Thesauri Ecclesiae): Then and Now”, [1986] 47 Theological Studies 251.

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