Religion and law round up – 20th July

A week bookended by two important debates, one almost concluded but the other in its very early stages

Reactions to votes for women in the C of E episcopate

Media comment on Monday’s vote in favour of women in the C of E episcopate has, on the whole, been positive and is comprehensively summarized in the Church’s Daily Digest of 15 July, Thinking Anglicans, here and here, Anglican Mainstream, here, and elsewhere. Predictably, the response from across the Tiber has been less than enthusiastic, the statement of the Roman Catholic Church in England and Wales noting that

“The Catholic Church remains fully committed to its dialogue with the Church of England and the Anglican Communion. For the Catholic Church, the goal of ecumenical dialogue continues to be full visible ecclesial communion.

Such full ecclesial communion embraces full communion in the episcopal office. The decision of the Church of England to admit women to the episcopate therefore sadly places a further obstacle on the path to this unity between us. Nevertheless we are committed to continuing our ecumenical dialogue, seeking deeper mutual understanding and practical cooperation wherever possible.”

Perhaps the tweet from Liam Beadle that “Women’s Anglican orders are clearly more absolutely null and more utterly void than men’s Anglican orders” nailed the absurdity of it all. Predictably, Fr Z suggests that Anglicans are “on the course of self-destruction” and “as soon as they start with the women, they ought also to issue their document Romanorum coetibus” – a supposed response to Benedict XVI’s Anglicanorum coetibus, “whereby our Anglican sisters and brothers will make provisions for disaffected Catholics”.  It is clearly unlikely that Archbishop Welby would engage in such blatant marketing, although Msgr. Keith Newton, head of the Personal Ordinariate of Our Lady of Walsingham was quick off the mark after Monday’s vote by inviting those who are “considering their future” to learn more about the Ordinariate.

Next steps towards women in the C of E episcopate

In his response to Helen Goodman (Bishop Auckland) (Lab) who asked “[w]hat the next steps are on the women bishops measure following the General Synod, The Second Church Estates Commissioner (Sir Tony Baldry) stated “[t]he next step is for the Ecclesiastical Committee to meet on Tuesday, when I hope it will pass the measure that was agreed by General Synod on Monday. That will at last enable women to become bishops in the Church of England”, [HC Hansard 17 July 2014, Vol Column 1010].  Readers will be aware that General Synod voted on a range of different legal instruments, with different legal effects and routes for adoption, and tomorrow we will publish a post describing these in more detail.

Assisted suicide

This week we posted a summary of the legal issues associated with Lord Falconer’s Assisted Dying Bill [HL Bill 6, 2014-15] which received its first reading in the House of Lords on 5 June [HL Hansard 5 Jun 2014 Vol  754 Column 21], followed by some extracts from speakers representing both sides of the argument in the Friday’s second reading.  We noted that it was impossible to do full justice to the debate lasting just short of ten hours that was both serious and measured, and links to individual contributions, which were necessarily time-limited in view of the number of speakers, are available here.

In his post on God and Politics Gillan Scott noted that the findings of Friday’s ComRes poll that found that although 73 per cent of the public back assisted dying in principle, this dwindles to 43% when presented with (mostly empirical) arguments against it, perhaps echoing the thoughts of Dame Catherine Wybourne who suggested that “many who have argued in favour of the bill do not seem to have read through its clauses or thought about its implications”. From our part, we both see so many problems in any legislation that might be put in place that we wouldn’t like to see it on the statute book and would rather it was left to the DPP’s guidelines.

Transsexuals, marriage and the Grand Chamber

We noted the judgment of the Grand Chamber in Hämäläinen v Finland [2014] ECHR 787, about a male-to-female transsexual who wanted her identity number changed to indicate her female gender in her official documents. She had been told that this was not possible unless her wife consented to the marriage being turned into a civil partnership (which she refused to do) or unless the couple divorced. By fourteen votes to three the GC rejected her submission that this had violated her Article 8 rights, concluding that, though it was “regrettable” that she was inconvenienced by the incorrect identity number, she could solve the problem by converting her marriage into a registered partnership with the consent of her spouse.

Along with the three judges who dissented, we felt that the majority underestimated the impact of the present situation on Ms Hämäläinen and cannot help wondering if the margin of appreciation given to states parties in cases involving matters such as sexuality and religious belief (which was a minor factor in the case) is becoming over-generous.

Ministers of religion and the National Minimum Wage

In Chandra v Arya Samaj Vedic Mission (West Midlands) [2014] Birmingham County Court (unreported), Dr Harish Chandra was recruited from India and employed by the Executive Committee of Arya Samaj Vedic Mission to work at its temple in March 2011. He was given a 12-month contract at £500 per month with a one-bedroom apartment and an arrangement that allowed him to receive commission based on those attending his courses. In the event, however, he found that he was expected to spend a very large amount of his available time working and was provided only with a small single room. In March 2012, he was awarded a new three-year contract under the same terms and conditions; but in July 2012 the Executive Committee members stood down and were replaced by new members and, shortly afterwards, Dr Chandra’s 3-year contract was terminated early.

It was argued successfully that since there was no clause in Dr Chandra’s contract specifying the number of hours to be worked, his payment was therefore for “unmeasured work” rather than a salary (and, in fact, he had ended up working a 65-hour week). As a result, the Executive Committee had failed to pay him the National Minimum Wage rate, even taking into account the statutory accommodation offset rate of £34.37 per week currently prescribed by the National Minimum Wage Regulations. HHJ Purle QC awarded Dr Chandra just over £62,500 in damages.

The case is reminiscent of Singh v Management Committee of the Bristol Sikh Temple & Ors [2012] UKEAT 0429 11 1402 in which the issue was also what constituted “employment” of church personnel for the purposes of s 54(3)(b) National Minimum Wage Act 1998 (and in which the claimant also won).

The facts are taken from reports by the Birmingham Post  and SimpsonMillar LLP, who acted for the claimant.

The Charity Commission and the (Exclusive) Brethren

On Wednesday the Charity Commission for England & Wales registered as charities five Gospel Hall Trusts of the Plymouth Brethren Christian Church (aka the Exclusive Brethren): Bridgefoot, Coventry, Heathwood, Loughborough and Sussex Vale. Readers will recall that two linked appeals to the First-tier Tribunal (Charity) were set down against the Commission’s original refusal to register the Preston Down Trust of the PBCC, on the grounds that its activities did not demonstrate public benefit. The appeals were set down for hearing from 22–28 March 2013 but stayed until 6 January 2014, pending negotiations between the parties; finally, the Commission announced that the appeals had been withdrawn and that it would accept an application for registration. This latest development appears to mark the end of the saga. You can follow the story herehere, and here.

So it’s “Goodbye” to Dominic Grieve, then – alas

Media commentary on the Government reshuffle has tended to concentrate on the new faces in the policy Departments and the departure of one or two of the old ones, such as Ken Clarke. The legal blogosphere, however, has been rather more concerned with the sacking of Dominic Grieve as Attorney General. Shami Chakrabarti describes him as “one of the finest Attorneys General of modern times. Fittingly for the country’s most senior law officer, he always put legal principles first and party politics second”. Mark Elliott comments in Public Law for Everyone that Grieve displayed a strong commitment to the rule of law and “was clear that the UK was bound by its international obligations under the Convention”, while Carl Gardner at Head of Legal suggests that Grieve’s problem might have been that the Conservative Party had simply moved away to the Right during his time in Parliament and in office.

Grieve himself observed in a speech in 2011 that

“… there is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention … It is inconceivable that the United Kingdom could speak with any authority in the world about the need for the rights and freedoms that we hold dear and expect to be listened to if we withdrew from the Convention”.

Not a popular view in some parts of the Conservative Party: and he reiterated it in an interview with The Guardian after his sacking, throwing in for good measure the opinion that “It’s difficult to see how the UK can be a member of the EU if it’s not adherent to the principles set out in the Convention”.

We look forward to him delivering the 10th Lyndwood Lecture on Religion, Law and the Common Good to the Ecclesiastical Law Society and the Canon Law Society of Great Britain and Ireland on 11 December. And we share Shami Chakrabarti’s regret that the UK has lost a stout defender of human rights and the rule of law at a time when the debate on both has become increasingly febrile. Not to say downright silly: remember Mrs May and the cat? All part of what Adam Wagner describes as The Tory human rights “car crash”.

And finally . . . . . .

In the wake of Monday’s vote, the C of E Daily Digest of 18 July carries a story from The Times Diary column (£) which suggests that the Archbishop of Canterbury, who has resigned his membership of the Travellers Club after it voted against admitting women members, should try the neighbouring Athenaeum which has long attracted men (and, since 2002, women) of the cloth. Perhaps the Royal Over-Seas League might be a sounder option, having been open to men and women on equal terms since it was founded in 1910, i.e. well in advance of the Equal Franchise Act 1928. Whilst the Athenaeum may be convenient for the Institute of Directors, the ROSL has royal patronage, strong links with the Commonwealth and an additional club-house on Princes Street, Edinburgh.

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