Religion and law round up – 11th May

Council prayers and food labelling again in the news, the row over bishop’s accommodation settled, and High Court rules against free NI abortions under the NHS

Prayers at council meetings, US-style

On Monday, in Town of Greece v Galloway et al US (2014) 12-696, the US Supreme Court upheld by five votes to four the right of Greece, a small town in New York state, to begin its monthly council meetings with a prayer, ruling that the practice did not violate the US Constitution’s Establishment Clause. The majority disagreed with the Court of Appeals that the Town of Greece had violated the Establishment Clause by inviting predominantly Christian ministers to deliver the invocations, on the grounds that it had “made reasonable efforts to identify all of the congregations located within its borders” and had stated that it would welcome a prayer by any minister or layman who wished to give one. This, thought the majority, was sufficient to counter allegations of Christian bias.

The ruling will be the subject of widespread academic analysis and we claim no particular expertise in First Amendment issues; however, we are inevitably reminded of the decision in R (National Society & Anor) v Bideford Town Council [2012] EWHC 175 (Admin), in which Ousely J held that the Council had no power to hold prayers as part of the formal business transacted at meetings to which all councillors were summoned.

Given the terms of the Establishment Clause, one might have expected that the US decision would go the other way. But the fact that there was a five-four split goes to show how difficult First Amendment issues can be – and, dare one say it, makes us wonder to what extent some of the SCOTUS First Amendment judgments are based on law and to what extent on the Justices’ personal agendas. Not are we alone in our scepticism: Mark L Movsesian summed it up on the Center for Law and Religion Forum as follows:

“Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place”.

Scottish independence and the Establishment Principle?

The Free Church of Scotland has released four papers discussing the place of Christianity in a post-referendum Scotland, to be discussed at its General Assembly in Edinburgh later this month.  The Free Church has already said that it will not be telling its ministers and members how to vote in the independence referendum and opinions are divided in the four papers are divided. The Revd Gordon Matheson, minister at Sleat and Strath, and solicitor and elder Neil D M MacLeod write from a pro-independence perspective while The Revd Professor Donald Macleod, lately Principal of the Free Church College, and The Revd Dr John Ross, a former Moderator and minister at Glenurquhart and Fort Augustus, write in defence of the Union. The papers can be downloaded as follows:

  • Communications Committee report
  • Independence paper one – Dr John Ross;
  • Independence paper two – Professor Macleod);
  • Independence paper three – Mr Matheson;
  • Independence paper four – Mr MacLeod.

Mr Ross expresses concern that a ‘Yes’ vote will lead to Scotland becoming a secular state:

“On the one hand, the Scottish Nationalist administration acts as if there were no establishment principle and no National Church but, on the other, blandly asserts in its so-called White Paper that in an independent Scotland no changes are proposed ‘to the legal status of any religion or of Scotland’s churches’. This is disingenuous, because in an independent Scotland change is inevitable. Abandon the Union and you cut the nation adrift from the establishment principle’s legal basis in the UK’s Act of Accession [?Succession] and Coronation Oath … Despite the fact that a majority of Scottish people consider themselves Christian, in an independent Scotland, as a matter of public policy, and for the first time since the Reformation, Christianity will be deprived of state recognition as Scotland’s national religion”.

Mr Matheson counters that, though it could be argued that a ‘yes’ vote would lead to a secular Scotland, a ‘no’ vote will leave Scotland as part of a secular Britain, while Neil MacLeod points out that neither side in the independence debate has presented any evidence on the place of Christianity in a post-referendum Scotland – and that the Scottish Government’s intention of “no change” in its White Paper should be taken at face value.

The historical and constitutional importance of the principle cannot be overestimated. (For a reasonably even-handed explanation of what the principle means now, see Donald Macleod “The Establishment Principle Today” 25 July 2013.) Thomas Chalmers himself said at the first General Assembly of the new Church in 1843,

“Though we quit a vitiated Establishment, we go out on the Establishment principle; we quit a vitiated Establishment, but would rejoice in returning to a pure one. To express it otherwise, we are the advocates for a national recognition and national support of religion – and we are not Voluntaries”.

Part of the reason why the minority won in the House of Lords in General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515 was because a majority of their Lordships agreed that, in uniting with the voluntarist United Presbyterians, the majority had departed from the Establishment principle and, though that case is over one hundred years old it still appears to be good law.

No promises, but we may return to this in a future post.

Abortion for women in Northern Ireland

In what some commentators have  described, somewhat prematurely, as a “landmark ruling”, in A & Anor, R (on the application of) v Secretary of State for Health [2014] EWHC 1364 (Admin) (08 May 2014) Mr Justice King held that the claimant, whose ‘ordinary/usual residence’ was in Northern Ireland, was not entitled to access in England abortion services free of charge.  The court dismissed the claim which was based upon the argument that “… the policy adopted and explained by the defendant is unlawful either because it leads to an unlawful exercise of the defendant’s functions under the NHS Act (both before and after April 2013) and/or because the policy is incompatible with the claimant’s Convention rights.” The claimants have stated that they will take the case to the Court of Appeal.

The court considered the basis upon which the provision of “secondary care services” is delivered by the NHS in England to residents of the United Kingdom, and thus has broader application than the termination of pregnancy. We will therefore return to this case in a future post.

Religious slaughter

The religion/ animal welfare/ consumer rights/ economic issues surrounding the labelling of food have again risen to prominence following revelations in the Daily Mail and elsewhere that major supermarkets and fast food chains have been supplying unlabelled halal meats to their customers.  These reports were  followed by calls for “comprehensive labelling” made by “religious leaders”, i.e. a letter to the Daily Telegraph from Henry Grunwald, Chairman, Shechita UK and Dr Shuja Shafi,  Deputy Secretary General, Muslim Council of Britain, a move which was supported by the Rt Revd Nick Bain and the Rt Revd Paul Bayes.

This renewed interest in religious slaughter raises a number of issues.  On 26 March, George Eustice, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs), informed the Commons [our emphasis],

Most halal and kosher meat is already voluntarily labelled in accordance with the requirements of relevant certification bodies. Where any information of this nature is provided it must be accurate and not mislead the consumer.  The Government is firmly of the view that consumers should have the necessary information available to them to make an informed choice about their food”, [HC Hansard 26 Mar 2014 : Column 243W].

However, the reality appears to be that whilst the relevant certification bodies and some supermarkets identify religiously slaughtered meat in order to inform those who wish to purchase halal or kosher meat, the food industry as a whole makes significant use of halal slaughtered meat primarily on commercial grounds, which is not so identified and is purchased unknowingly.

It is surprising that media attention has focussed on halal meat, only 20% of which is not stunned prior to dhabiha slaughter, and little reference made to kosher products: shechita does not involve pre-stunning and the subsequent preparation of kosher products is linked to the non-kosher market, which consumes 70 per cent of shechita-slaughtered meat.

A report in The Grocer in May reviewed the opinions of the food industry and others, the majority of whose comments related to animal welfare.  Likewise the recent e-petition calling for an end to non-stun slaughter has the objective of promoting animal welfare rather than targeting specific religious practices.  In contrast, an Amendment to be moved at next week’s Report Stage Report debate on the Consumer Rights Bill [1]seeks to introduce a new clause such that: “All products containing halal and kosher meat shall be labelled as such at the point of sale by retail and food outlets”, where “a food outlet is anywhere where food is sold to the public,” thereby focussing solely on the religious issues and ignoring the 80% of halal meat that is pre-stunned.

Although the Prime Minister is reported to have indicated that the halal meat labelling could be reviewed “in a few months’ time”, given government’s continued procrastination on labelling throughout its term of office, it seems more likely that this would be introduced as a result of consumer pressure on the supermarkets.

Meaning of Public Authority – Care Bill

The meaning of “public authority” was debated during the process of ping-pong of the Care Bill between the House of Lords and the Commons.  Clause 48 had been inserted by a non-Government amendment during Report stage in the House of Lords, and would have required that providers of care and support are to be taken to be exercising a function of a public nature for the purposes of section 6(3)(b) of the Human Rights Act 1998.  As a consequence, all care and support providers regulated by the Care Quality Commission would be required to act in a way which is compatible with the European Convention on Human Rights.

Through Commons amendment 11, government sought to remove this clause but as a compromise, proposed new Amendment 11B and 11C, whereby the provision of regulated care or support etc would be public function under the Human Rights Act 1998.  These Amendments were carried following a short debate, 7 May 2014 : Vol 753 Col 1476. However, the meaning of “public authority” has not been clarified other than within these restricted criteria of the Care Bill.


Earlier this week we considered the interview given by the Archbishop of Canterbury to BBC Jersey on the establishment of a Commission to examine the relationship between the Anglican Church in the Channel Islands and the Diocese of Winchester.  An important component is the relationship between the Bailiwicks and the Crown, and on 9 May, Senator Philip Ozouf, Treasury and Resources Minister for Jersey, stated :

“The raising of the Jersey Flag in Whitehall on this most important of days for the Island[2] is a significant symbol of Jersey’s strong relations with the United Kingdom, our historic partner and friend. Our relationship with the British Crown has existed for over 800 years and, as such, the Jersey flag flying in London is an important symbol of the unity of our past, present and future. I very much hope that this powerful new tradition will continue.”

Annual Human Rights Lecture – Law Society of Ireland

This year’s Annual Lecture, “Freedom of Religion and Belief”, will be delivered by The Right Hon the Baroness Hale of Richmond, Deputy President of the UK Supreme Court, on Friday, 13th June, at 6pm in the President’s Hall of the Law Society, Blackhall Place, Dublin 7.  There is no registration fee for this event which attracts 1 CPD Hour (by Group Study), and will be followed by a wine reception. Further details and arrangements for booking for the event are to be found on the Law Society’s website, here.

Housing the Bishop of Bath and Wells

We noted the decision of the Committee of the Archbishops’ Council appointed under the Ecclesiastical Offices (Terms of Service) Regulations 2009 to set aside the decision of the Church Commissioners to house the new Bishop of Bath and Wells at the Old Rectory, Croscombe, rather than in the historic Palace at Wells. This was the first time that the procedure under the Regulations had been invoked; and though it may appear at first sight that it was a quasi-legal, internal procedure, it was in fact conducted under a statutory provision – and a slightly curious one at that.

Housing Roman Catholic Bishops

There might well have been “Joy in Wells as decision to move bishop is reversed”, as the Church Times’ headline put it, but perceptions of how churches in general provide accommodation for their senior clergy stretch far wider than a local MP and a handful of protesters.  An opinion on how the Roman Catholic Church addresses the issue was put forward by Christopher Lamb, Assistant Editor (Home News) of The Tablet, in his post “Spare us the faux outrage over bishops’ houses”.  The RC Church faces similar issues: historic, opulent residences; restrictions on their disposal; range of non-residential uses, from office accommodation to meeting venue; as well as the personal example set by Pope Francis.  Lamb concludes[3]

“As Pope Francis puts it, bishops should be ‘pastors not princes’ and how they live should reflect that. But the simplistic notion that every bishop who owns a large house should sell it and live in a poky flat is misguided.”

Whether this view receives support in the public square remains to be seen.

More Bishops

Following the announcement in last week’s round-up of the appointment of four new Suffragan bishops in the Dioceses of York and Chelmsford, during the past few days Number 10 has announced that the Queen has approved the nomination of the Right Reverend Paul Bayes, Suffragan Bishop of Hertford, for election as Bishop of Liverpool, and the Reverend Canon David Eric Court, Vicar of Cromer and Rural Dean of Repps to the Suffragan See of Grimsby in the Diocese of Lincoln.  In addition, the Revd Canon Dr Robert Innes, Senior Chaplain and Chancellor of the Pro-Cathedral of Holy Trinity Brussels has been appointed as Bishop of Gibraltar in Europe[4].

And finally…

In the margins of the dispute about where to house the new Bishop of Bath and Wells The Spectator ran an interview with the oldest surviving former occupant of the see, John Bickersteth. It began as follows:

“The bishopric of Bath and Wells comes with more bear-traps than most. For one thing, there’s the baby-eating. Ever since Blackadder told Baldrick he was being chased for a debt by the ‘baby-eating Bishop of Bath and Wells’, the image has stuck. When the last incumbent, Peter Price, made his first visit to the House of Lords, accompanied by his five-week-old granddaughter, the Bishop of Southwark remarked: ‘I see the bishop has brought his own lunch'”.

David Cameron clearly had the same thought when, in reply to a question from Tessa Munt, Lib Dem Member for Wells, in January, he said that he would go away and look into the issue of the Bishop of Bath and Wells, and

“I shall try to put the image of Blackadder out of my mind and to come up with the right answer” [HC Deb 29 Jan 2014 c 860]. 

[1] Amendment NC 13, to be moved on 13 May 2014,

[2] Liberation Day: On  9 May every year Jersey celebrates the anniversary of the Liberation of the Island from the German occupation forces of World War II.

 [3] Christopher Lamb’s post was written before the decision of the Archbishops’ Council Committee, and in general he is supportive of the proposition that [CofE] bishops’ palaces are ”not simply bishops’ residences but part of the Church and nation’s patrimony”.

[4] This appointment was made by the Archbishop of Canterbury, the Bishop of London and the Archbishop of Lokoja, a representative appointed by the Standing Committee of the Anglican Consultative Council and the Primates’ Meeting, in consultation with representatives elected by the diocese and the Central Members of the Crown Nominations Commission.