Religion and law round up – 10th August

The sort of quiet week you’d expect in early August – apart from a minor political bombshell… 

So it’s “Goodbye, then, Sayeeda”

On Tuesday Baroness Warsi, Senior Minister of State at the FCO and Minister for Faith and Communities at DCLG, tendered her resignation  evidently out of the blue. The avowed reason for her departure was her unease with the failure of the Government to say anything critical of the Israeli Government’s recent actions in Gaza:

“… our policy in relation to the Middle East Peace Process generally but more recently our approach and language during the current crisis in Gaza is morally indefensible, is not in Britain’s national interest and will have a long term detrimental impact on our reputation internationally and domestically”.

The Independent carried the text of her resignation letter in full. The Government later announced that the Faith brief would be taken on by Eric Pickles, Secretary of State for Communities and Local Government, in person. How this will turn out in practice, given his other responsibilities, remains to be seen.

C of E clergy and same-sex marriage

On Sunday the BBC reported that Canon Jeremy Pemberton, who married his partner Laurence Cunnington in April and who currently works as an NHS chaplain in the Diocese of Lincoln, has had the offer of the post of Chaplaincy and Bereavement Manager for Sherwood Forest Hospitals NHS Foundation Trust withdrawn. The new post is in the Diocese of Southwell and Nottingham; and in June the Acting Bishop, the Rt Revd Richard Inwood, revoked Mr Pemberton’s Permission to Officiate in his diocese and wrote to the Trust in July saying that he would not give Mr Pemberton a licence for the new post.

In The Guardian Andrew Brown suggests that the refusal may be the subject of legal challenge, quoting Mr Pemberton as saying that if the refusal was not challenged

“it will send a message to all chaplains of whom a considerable number are gay and lesbian. This is an area of law that has not been tested and needs to be”.

One might have thought that, given the judiciary’s reluctance to get involved in matters of internal church discipline, the likelihood of such a challenge succeeding was not very great. But the issues of clergy employment and clergy discipline in relation to secular law are notoriously complex and it would be foolhardy to predict the outcome.

The Tricycle Theatre and the Jewish Film Festival

On Tuesday it emerged that the Tricycle Theatre in Kilburn had refused to host the UK Jewish Film Festival for the first time in eight years. The Tricycle’s director said that the theatre was not prepared to let the festival use the venue so long as the event was partly funded by the Israeli Embassy because “given the current conflict in Israel and Gaza, we feel it is inappropriate to accept financial support from any government agency involved”. The Embassy had contributed £1,400 annually, which the Tricycle had offered to make up.

We take no view on the moral rights or wrongs of the decision – but was the Tricycle’s action legal in terms of discrimination law? On UKHRB Adam Wagner analyses the decision and makes a convincing case that it might well have constituted unjustifiable indirect discrimination.

Without fear or favour…?

In United States v Odeh (ED MI, July 31, 2014) a Michigan federal district court judge, Paul Borman, refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the US and applying for citizenship. She had not disclosed the fact that she had been convicted of taking part in two terrorist bombings in Jerusalem and had served ten years in prison. In the Motion to Recuse it was argued that  Borman J might be biased because of his long history of support and fund-raising for the Detroit Jewish Federation and organizing trips to Israel. It was also argued that his Israeli connexions might have given him extra-judicial information relevant to the defendant’s claim that she had been beaten and raped while in Israeli custody.

Sharp-eyed readers may have already spotted a similarity to Helow v Secretary of State for the Home Department & Anor [2008] UKHL 62in which the House of Lords unanimously upheld the decision of the Inner House of the Court of Session that the fact that Lady Cosgrove was a member of the International Association of Jewish Lawyers and Jurists [IAJLJ] did not give rise to any real possibility that she might have been biased in determining the application of a Palestinian petitioner for leave to appeal against the adverse decision of an Immigration Tribunal. Lord Rodger of Earlsferry expressed the general view when he pointed out that

“Lady Cosgrove was a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartially. While these factors do not, of course, guarantee impartiality, they are undoubtedly relevant when considering whether there is a real possibility that the decision of a professional judge was biased” [para 23].

As to Borman J back in Michigan, in rejecting the Motion to Recuse he declared that:

“… I swore an oath to ‘administer justice without respect to persons, and [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon me [] under the Constitution and laws of the United States’ … I have honored this oath every day, and will continue to do so, as I preside over this case and all cases in this Court” [page 10].

But as Lord Walker of Gestingthorpe noted in Helow, though he had reached the same conclusion as his colleagues he did so with rather less enthusiasm, suggesting that membership of an association such as the IAJLJ could not be equated with subscribing to a daily or weekly newspaper and, moreover, that

“… the fair-minded and informed observer would be tending towards complacency if he treated the fact of having taken the judicial oath as a panacea” [para 27].

it will be well worth watching out for an appeal. Wonder if they’ve heard of Helow over there?

With thanks to Religion Clause for the lead. 

Is attending 1662 Holy Communion a “core belief”?

Courtesy of Gavin Drake, we noted the recent case of Hodson v Secretary of State for Work and Pensions [2014] UT CJSA/3466/2013, in which the claimant, Mr Graham Hodson, argued unsuccessfully that it had been unreasonable to deny him Jobseekers’ Allowance on the grounds that he wanted to attend 1662 Holy Communion at Chester Cathedral rather than an interview with one of the Jobcentre personal advisers. Our own conclusion is that the Jobcentre could have been more accommodating but that, in law, the decision of the Upper Tribunal was correct.

And finally… racist rhododendrons?

A minor storm (well, it is August after all) erupted over an interview on Thinking Allowed with Ben Pitcher, a sociologist at the University of Westminster, about the ways in which racial meaning is produced in everyday acts of consumption. The Daily Mail reported that he had suggested that talk of “native” and “non-native” species on Gardeners’ Question Time provided a covert means by which white people could talk about white identity without appearing to be racist. He responded in The Guardian that he had done no such thing: his intention was much more subtle than that:

“I suggest that a defence of British nature – expressed, for example, when the “native” red squirrel is described as being ‘driven out by the relentless northern march of the greys‘ – can become the site of displaced nationalist sentiments. The uprooting of invasive ‘non-natives’ such as the Japanese knotweed is of course not necessarily motivated by racist intent”.

Silly season or not, however, this is not simply an artificial row: don’t forget the various discussions about the extent to which “Britain” (or as it’s more accurately known, “the United Kingdom”) is a “Christian country”. Some of the discussions seem quite legitimate: some have verged on the downright sinister. But that said, Gardeners’ Question Time as a hotbed of racist sentiment seems a pretty far-fetched notion. (And the folk on the Sleat peninsula in Skye, which is absolutely plagued with Japanese knotweed, would be grateful for an effective solution to the problem.)

Postscript

After a week “out of the loop”, enjoying the generous hospitality of the Benedictine nuns at the Hôtellerie Monastique, La Joie Saint Benoît, Bayeux, there is little to add to Frank’s summary of the week, other than a couple of observations from the environmental archive.  For legal anoraks, the removal of Japanese knotweed presents an interesting case in the demonstration of causation[1], (under the Wildlife and Countryside Act 1981, the offence (E, W) is “planting or otherwise causing to grow in the wild, any plant which is included in Part II of Schedule 9”), whilst this week has witnessed the last phase in the culling of a “non-native species” whose only fault is to be American, over-sexed, over here and with a preference for blondes –  i.e. the ruddy duck, (Oxyura jamaicensis)[2].  A report in The Guardian observes that overall the cull has cost about £800 per bird, but the great difficulty of chasing the last few has tripled the cost.  According to Defra, a European wildlife treaty binds the UK to eradicating the ruddy duck by the end of 2015, and although about 40 ruddy ducks are left, the effort is being focussed on the 10 females.  What would the listeners to Gardeners’ Question Time make of that?

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[1] D N Pocklington, ‘Polygonium cuspidatum – A knotty problem of causation?’ Environmental Law, 1997, 11, 9.

[2] D N Pocklington, “Industry Soundings: Ruddy Ducks”, (2008) 20 Environmental Law and Management, (3), 157. The blond in question is the rare white-headed duck, (Oxyura leucocephala), which is native to Spain.

2 thoughts on “Religion and law round up – 10th August

  1. Canon Pemberton will find considerable difficulty in convincing any court to overturn the decision of the bishop concerned. Section 45 of Schedule 7 of the Marriage (Same Sex Couples) Act amends the Equality Act 2010 precisely to enable a religious organisation to require its ministers not to be married to a person of the same sex.

  2. Pingback: Asociación para la Defensa de la Libertad Religiosa » Titulares Internacionales de Libertad Religiosa del 11 Agosto 2014

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