Religion and law round up – 24th August

Retrospect on a quiet week…

FCO and religious freedom

Further to the reply by Lord Wallace of Saltaire on 24 July (HL Deb Vol 755 cols 1324–8) to the debate on Article 18 of the Universal Declaration of Human Rights, Lord Alton of Liverpool asked Her Majesty’s Government how many officials in the Foreign and Commonwealth Office are specifically focused on freedom of religion and for what percentage of their time; and what resources are specifically allocated for the promotion of Article 18 through United Kingdom diplomatic services. In Written Answers of 18 August 2013, the Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con) stated:

“Within the Human Rights and Democracy Department (HRDD), the Foreign and Commonwealth Office (FCO) has one full time Desk Officer wholly dedicated to Freedom of Religion or Belief (FoRB), who works closely with the Team Leader in the Equalities and Non-Discrimination Team, who themselves spend approximately 50% of their time on FoRB.  Additionally, the Head and the Deputy Head of HRDD spend approximately 5% and 20% respectively of their time on FoRB issues; one Human Rights Advisor spends 5% and one HRDD Communications Officer approximately 10%.

As FoRB is one of only six thematic human rights priorities for the FCO, a considerable number of other FCO officials in London and overseas are engaged directly on FoRB as part of their wider human rights work. Given that violations of FoRB can be closely associated with other threats to UK interests around the world, I cannot provide a precise figure for the total number of FCO officials working on FoRB, though the number is high and rising.

This year, seven FoRB projects around the world were approved and received total funding of £307,835”.

Treatment of cremation ashes

Following the publication of the report of the Infant Cremation Commission chaired by Lord Bonomy on infant cremation at Mortonhall, Edinburgh, reviewed here, the Scottish Government published its response in which it announced the establishment of a national investigation team to look into all the families’ allegations. The investigation team is to be headed by the former Lord Advocate, the Rt Hon Dame Elish Angiolini QC DBE, who also led the Mortonhall investigation. Prior to the publication of his report, Lord Bonomy noted emergence of further allegations regarding the joint cremation of babies and adults at Hazlehead Crematorium in Aberdeen. Last year, BBC Scotland revealed that no ashes had been offered to the families of infants cremated in Aberdeen over a five-year period, although the report indicated that an earlier council investigation had found no evidence of wrongdoing. Nevertheless, this week the BBC reported that a senior member of staff at an Aberdeen crematorium who was being investigated over its handling of babies’ ashes has lost his job.

However, these concerns regarding the ashes from the cremation of foetal remains contrast with attitudes towards those from adult cremations.  Another report from the BBC this week told of a single funeral director in Southampton who had the cremated remains of 405 people in its care, some dating back to 1975, which had not been collected by those requesting the respective cremations. The firm has now launched an appeal after “rigorously” searching for family members. However, this is not an uncommon occurrence in the UK, the US and Australia: a spokesperson for National Association of Funeral Directors said that many UK firms had “a large depository of ashes”, some of them dating back to the 1940s.

The disposal of ashes was first addressed in the Cremation Regulations (England and Wales) 1903 SI 286, and is virtually unchanged in the current provisions[1]: Regulation 30, Cremation (England and Wales) Regulations 2008 SI 2841 requires that after a cremation, the cremation authority must give the ashes to the applicant[2] or a person nominated for that purpose by the person applying for the cremation, such as the funeral director. If the applicant does not wish to be given the ashes and has not nominated anyone for that purpose, the cremation authority is required inter alia to retain the ashes prior to arranging for their interment or scattering, although it must give the applicant fourteen days’ notice of its intention to do so.  Many crematoria set a 30-day limit on the length of time they will keep ashes, and it has been suggested that funeral directors should adopt a similar policy.

Two important Scots legislative changes recommended by the Infant Cremation Commission are that there should be a statutory definition of “ashes” and statutory regulation of the cremation of babies of less than 24 weeks’ gestation. We noted earlier the relevance of these recommendations to the remainder of the United Kingdom; and it is significant that the Cremation & Burial Conference & Exhibition 2014 in Stratford upon Avon in July 2014 included “an exclusive video interview” with Lord Bonomy.

Same sex marriage

Earlier in the week the Office of National Statistics released the first provisional statistics for same sex marriage in England and Wales up until 30 June 2014: a total of 1,409 marriages of which 56 per cent were female couples (796 marriages) and 44 per cent male couples (613 marriages). The average (mean) age at marriage for women was 37.0 years and for men 38.6.

As to the process of converting civil partnerships into marriages, we noted the Government’s determination to meet the targeted start date of 10 December 2014. If only a fraction of the couples currently in civil partnerships wish to convert these to marriages[3], register offices are likely to experience a significant increase in the demand for their services, even with the basic administrative conversion procedure initially envisaged in the draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014, here.

Canada and the Oath of Allegiance

We noted the recent judgment in McAteer v. Canada (Attorney General), 2014 ONCA 578, in which the appellants challenged the constitutional validity of the Oath of Allegiance which is obligatory for those over the age of 14 who wish to become Canadian citizens. The Ontario Court of Appeal dismissed the appeal and allowed a cross-appeal. However, that is not the end of the story because challenge to the religious requirements for the office of Queen of Canada has been scheduled to be argued before the court during August 2014. We have serious doubts as to its prospects of success; but we are keenly interested in the outcome, whichever way it goes.

Recent Consistory Court Judgments

On Thursday, we posted summaries of four recent consistory court judgments, which related to reordering, extensions and building works, which considered: the extent of a consistory court’s jurisdiction in relation to unconsecrated land situated wholly outside the boundary of a churchyard; the building of an extension over buried remains; the installation of glass doors in a porch to prevent draughts and the accumulation of leaves; and whether an unwanted font should be buried.

Quick links

And finally … Satanism and replevin???

“The forms of action we have buried,” said FW Maitland “but still they rule us from their graves.” Whether or not that is still true for the law of England and Wales (given that the process of modernisation began with the Judicature Acts 1873–5) is something we aren’t qualified to judge – but it seems that it is certainly so for the State of Oklahoma, where Archbishop Coakley, Roman Catholic Archbishop of Oklahoma City, has filed a Petition for Replevin of consecrated wafers which, he claims, are the property of the Church and which has been misappropriated by a group of Satanists who intend to use them to celebrate a “Black Mass”. (Replevin, for those readers who had a tendency to fall asleep during legal history lectures, is defined in Jowitt as “a personal action to recover possession in specie of goods unlawfully taken”: ie, an action for the recovery of the goods themselves rather than damages for their loss.)

You will not be at all surprised to learn that it’s a complicated story. The Archbishop contends that the Church owns all consecrated wafers and distributes them for specific purposes – consumption by communicants in good standing with the Church  –  and that the wafers in question were therefore stolen. However, according to the Aleteia website Adam Daniels, one of the Satanist leaders, has claimed that

“One of my priests in a foreign country is also a Catholic priest and he is the one who consecrated it himself and mailed it to me, and I’m not going to reveal his name and I’m not going to reveal what country he’s from”.

If that is in fact the case, then presumably the priest in question is not under the jurisdiction of Archbishop Coakley. And if he bought the wafers in an ecclesiastical outfitters with his own money and consecrated them himself, then it’s difficult to see how they could then become the property of Abp Coakley as representative of the Archdiocese. However, we shall never know because, according to another reportDaniels caved in. He handed over the disputed wafers to his lawyer pending resolution of the dispute and, though he thought he would win, on Thursday he agreed to give them up to the Archdiocese in exchange for the action being discontinued.

Eugene Volokh, of the UCLA School of Law, explores the matter further here. Enjoy.

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[1] In Scotland, cremation is regulated under the Cremation (Scotland) Regulations 1935.

[2] Generally an executor of the deceased person or a near relative who has attained the age of 16.

[3] At the end of 2012, there were 60,454 civil partnerships, (ONS data).

1 thought on “Religion and law round up – 24th August

  1. Pingback: Asociación para la Defensa de la Libertad Religiosa » Titulares Internacionales de Libertad Religiosa del 26 Agosto 2014

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