Religion and law round-up – 5th October

A positive plethora of news this week – the Conservatives on human rights, assisted suicide in Switzerland, same-sex marriage in South Africa, Scientologists in Russia and more – requiring some separation of the wheat from the chaff whilst retaining a few items of broader interest

A UK Bill of Rights – again

Being (we hope) sensible people with more interesting things to do with our lives, weECtHR copy now tend to give the party conference season a fairly wide berth[1]. However, we can’t ignore one of the major news items of the week: that David Cameron told the Conservatives on Wednesday that if elected with a majority he would repeal the Human Rights Act 1998. This is what he said, according to the Conservative Party press release:

“Of course, it’s not just the European Union that needs sorting out – it’s the European Court of Human Rights. When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong. Rulings to stop us deporting suspected terrorists. The suggestion that you’ve got to apply the human rights convention even on the battlefields of Helmand. And now – they want to give prisoners the vote.

I’m sorry, I just don’t agree. Our Parliament – the British Parliament – decided they shouldn’t have that right. This is the country that wrote Magna Carta … the country that time and again has stood up for human rights … whether liberating Europe from fascism or leading the charge today against sexual violence in war.

Let me put this very clearly: We do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights … to be passed in our Parliamen t… rooted in our values … and as for Labour’s Human Rights Act?  We will scrap it, once and for all.

So that’s what we offer: a Britain that everyone is proud to call home. And a very clear plan to get there.”

So now you know. No further comment necessary.

Assisted suicide in Switzerland: a very strange outcome

Last May we noted the case of Gross v Switzerland [2013] ECHR 429, in which the Court held that Swiss law was not clear enough as to when assisted suicide was permitted and was in violation of Article 8 ECHR (right to respect for private and family life). The applicant, Alda Gross, had wished to end her life but was unable to obtain the Swiss authorities’ permission to be given a lethal dose of sodium pentobarbital in order to commit suicide. She did not have any clinical illness but, being over 80, she was unwilling to continue suffering physical and mental decline. She explained that she was becoming increasingly frail, had difficulties concentrating and was unable to take long walks. The Court held that Swiss law, while providing the possibility of obtaining a lethal dose of a drug on medical prescription, did not provide adequately clear guidelines as to the extent of that right and the uncertainty was likely to have caused Ms Gross a considerable degree of anguish. However, the Court did not take any position as to whether or not she should have been granted the possibility of acquiring a lethal dose of sodium pentobarbital. In October 2013 the ECtHR appeals panel of five judges decided to refer the case to Grand Chamber at the request of the Swiss Government and on Tuesday the GC handed down its judgment: see Gross v Switzerland [2014] ECHR 1008.

Ms Gross had lodged her application with the Court on 10 November 2010 [29]. It turned out, however, that she had then obtained a prescription for sodium pentobarbital and on 10 November 2011 had killed herself with the assistance of EXIT [17] – and the Court had not been made aware of her death until 7 January 2014 [18].

The GC was evidently bewildered at the news. A majority of nine held that, in withholding the information about the sodium pentobarbital from her advisers, Ms Gross had deliberately misled the Court and that the application had been “an abuse of the right of application” within the meaning of Article 35 §3(a) and therefore inadmissible. However, a minority of eight led by Spielmann P took a more lenient view: rather than being declared inadmissible under Article 35 § 3 (a) as an abuse, the application could have been struck out under Article 37 §1 (c) that “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. They felt that to strike out the application for abuse

“… carries a certain stigma. Ms Gross, deceased, was unable to submit her own views regarding the majority’s assessment and her memory is now burdened with the stigmatizing effect of the present judgment” [7]

But no-one seemed at all keen on having another look at the substantive issue of the alleged lack of clarity in the relevant domestic law. So cock-up, perhaps, rather than conspiracy – but all very strange nonetheless.

Blaspheming in Ireland

The offences of blasphemy and blasphemous libel were abolished in the UK by the Criminal Justice and Immigration Act 2008. Readers may possibly recall, however, that amid a certain degree of controversy a new crime of blasphemous libel was introduced in Ireland in 2009. The offence is defined in s 36 of the Defamation Act 2009 as publishing or uttering material which is grossly abusive or insulting regarding matters held sacred by any religion and which intentionally causes outrage to a substantial number of that religion’s adherents. The maximum penalty is a €25,000 fine and there is a statutory defence that a reasonable person would find genuine literary, artistic or other value in the material. In practice, however, there have been no prosecutions under the 2009 Act and the last public prosecution for blasphemy in Ireland appears to have been in 1855.

On Thursday the Minister of State at the Department of Justice and Equality, Aodhán Ó Ríordáin, announced that the Government had accepted the main recommendation in the Sixth Report of the Constitutional Convention and would hold a referendum on removing the offence of blasphemy from the Constitution [Bunreacht na hÉireann]. He told the Dáil that the Convention was in favour of a new constitutional provision against religious hatred but that there had been no clear majority on whether or not to keep some legislative provision for the offence of blasphemy. If legislative provision were retained, however, the Convention favoured replacing the existing offence with detailed legislative provisions against incitement to religious hatred.

Deputy Ó Ríordáin said that the recommendations would require more detailed legal analysis which would be undertaken by the Minister for Justice and Equality; and the referendum would take place after the necessary further consultations had been completed and the required legislation prepared.

You’re suing us for what??

We noted the report in the Telegraph that the husband of a woman who earlier this year allegedly stayed for “at least three nights” at the house of Kieran Conry, until recently Roman Catholic Bishop of Arundel and Brighton, was threatening to sue the Roman Catholic Church – and we wondered precisely what tort the Roman Catholic Church in England and Wales, corporately, might have committed.

Registration of religious organisations yet again

We also noted the latest registration case before the ECtHR, which looked very much like another instalment in the long-running saga of Russian distrust of any religious group that’s remotely “foreign”. In Church of Scientology of St Petersburg & Ors v Russia [2014] ECHR 1019 the Scientologists won. David Hart, over at UKHRB, reckons that it’s Another Strasbourg judgment which Putin may wish to ignore.

Quidquid latine dictum sit, altum sonatur

One of the unexpected[2] highlights of the Cardiff LLM course was a session on Medieval Canon Law led by Professor Richard Helmholz of the University of Chicago Law School, who guided the group through the Decretum Gratiani C17, q 4, c29 with glossa ordinaria in the original Latin.  It is therefore with a degree of empathy that David read Dr Ed Peters’ recent post Lighter fare: can bad Latin save a papacy?, particularly in view of the fact that this was published whilst he was writing Age-related milestones in the church, q.v..

Dr Peters considered whether Pope Benedict XVI’s resignation was invalid because of mistakes he (allegedly) made in the Latin of his resignation letter: his correspondent claimed that there were two medieval Church laws in support of the claim, one of which he was able to track down. He concluded not: “[b]ecause no canon of the 1983 Code, under which Benedict XVI submitted his resignation (c. 332 § 2), addresses the quality of the Latin used in papal documents, let alone does any canon make the Latinity of papal documents go to their validity”. Phew.

Conversion of civil partnerships to same sex marriage

A report in Pink News indicates that during conversations of Stonewall and the LGBT Consortium with the Equalities Office, it was indicated that Couples converting from civil partnerships will get backdated marriage certificates, an issue taken up by Kelvin Holdsworth in Can you backdate a marriage?  However, no official information is available: the version of the draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014 on is dated 2014-07-03 and no changes are indicated on the Statutory Instruments, &c. List No10 of Friday 12 September 2014.

This SI is subject to the affirmative procedure and both Houses return on 13 October. We will await developments.

Religion and same-sex marriage in South Africa

And while we’re on the subject, Professor Mark Hill QC provided a guest post on a South African case that managed to combine two of our current interests: same-sex marriage and clergy employment. In Ecclesia de Lange v Presiding Bishop of the Methodist Church of Southern Africa [2014] ZASCA 151 the South African Court of Appeal came to very much the same conclusion as our own Supreme Court did in Preston v President of the Methodist Conference [2013] UKSC 29: that the dispute was a matter for the Methodist Church to determine without judicial interference. The Church’s decision to end the Revd Ms de Lange’s service as a minister because, contrary to the Church’s discipline, she had married her same-sex partner was not something that the Court of Appeal was prepared to review.

Westminster Faith Debates

The Westminster Faith Debates are organized by Charles Clarke and LindaWestminster Debates (2) Woodhead and funded by the Arts and Humanities Research Council (AHRC), the Economic and Social Research Council (ESRC) and Lancaster University. A new series of five debates on The Future of the Church of England commences next week with: Parishes – what future for the parochial system? at which speakers will include Revd Dr Andrew Davison, Anna Norman-Walker, Professor Robin Gill and Lord Andrew Mawson.  Other debates in the series are:

All of the debates will be held at St Mary’s University Church, Oxford, from 5:30 pm to 7:00 pm. Entry is free: register with Peta Ainsworth,  or phone 01524 510826.

Anglican soundings

On 30 September we had a definitive “Lambeth Conference cancelled” from George Conger and a subsequent post on Anglican Ink by Jeff Walton suggested “Postponement Spells More Uncertainty For Anglicans”, adding that the outgoing Presiding Bishop of the Episcopal Church in the US, Katharine Jefferts Schori, had told recent recent House of Bishops meeting that money was not being budgeted for an upcoming international bishops’ gathering in 2018 “because it was unlikely to occur”.

Archbishop Justin Welby plans to visit all the provinces of the Anglican Communion within the first 18 months of his term of office and, as yet, he has not met each of the respective primates. Whilst a postponement of the 2018 Lambeth Conference therefore remains an option, in the absence of confirmation from Lambeth Palace, any such reports are purely speculative.

Close to home, the Church of England’s consideration of human sexuality following the Pilling Report grinds to the commencement of the two years of “facilitated conversations”. An article in the Church Times by Dr Chris Cook, Professor of Spirituality, Theology and Health at Durham University  (and reproduced in Thinking Anglicans) provides a valuable scientific critique of the Pilling report, highlighting problems about its use of science and other evidence. The article is reviewed by Colin Coward on the Changing Attitude site in Resources for the Shared Conversations on which he subsequently posts Shared Conversations – grounds for optimism?:

Same-sex marriage has been further explored in Bishop Alan Wilson’s new book More Perfect Union: Understanding Same-sex Marriage and in his blog Ins and Outs and Same-Sex Marriage, which had attracted widespread attention: the site of his publishers Darton, Longman & Todd carries supportive quotes from Professor Linda Woodhead, Steve Chalke and Dr Jeffrey John. Elsewhere Andrew Symes, Anglican Mainstream has posted, Bishop Alan Wilson: Please stick to the day job!; and Peter Ould has written a guest post for the new Hinton-Scott site, The political purpose of claiming 10% of bishops are gay.  We will comment when we have read the book [or, more accurately, when David has read the book: Amazon UK is currently quoting £6.99 to pre-order the paperback, and £4.79 for the Kindle version for download now].

On Christian Today, Ruth Gledhill reports that Peter Tatchell has threatened to name the “one in ten” Church of England bishops described as “secretly gay” by Alan Wilson: a threat that has echoes of a similar campaign by OutRage! in 1994 in which Tatchell played such a prominent part. Our post “Outing” gay bishops and Article 8 ECHR considers some of the legal issues that such action raises.

Meanwhile, across the Tiber . . .

 . .  there has been a mixed bag of events, from the exorcism of the Oklahoma Civic Center Music Hall to expunge any remaining influences of a “Black Mass”, the redundancy of Guardian Angels (or not), to a parrot which recites the Rosary, (clearly unaware of the Pope’s advice that “Prayer Is Not Simply Saying Words ‘Like a Parrot’”).  However, the significant issue for the next two weeks, 5 to 19 October, will be the Extraordinary Synod in Rome, The Pastoral Challenges of the Family in the Context of Evangelization, where the Church will consider inter alia its teaching regarding reception of the Eucharist by “those living in complex situations”.

John Thavis’ blog considers whether the Synod will dealt with the controversial issue of birth control (suggesting that it won’t), and includes a useful link to the Intrumentum Laboris (working documents) for the Synod.  Fr Z comments “Synods are messy”, so at least there appear to be some degree of commonality with the CofE.

Quick Links

  • Commons Library Standard Note SN 06989: Land: Frequently Asked Questions This provides a general briefing to various aspects of land law, and indicates sources of further. It covers: ownership of registered and unregistered land; aspects of boundary disputes and restrictive covenants; but not Chancel Repair Liability.
  • Commons Library Research paper RP14/50: Scottish Independence Referendum 2014. The Research Paper presents information on the votes cast and the electorate in each referendum counting area and on opinion polls in the lead-up to the referendum.
  • The Guardian: Abortion rights around the world. An interactive resource.
  • Bob Morris, UCL Constitution Unit: Purring – Mr Cameron, the Queen and the British Constitution
  • Camilla Turner, Daily Telegraph: How October 1st will change your life. A review of the new laws coming into effect including:
    • changes to the rules of Intestacy, the first major change since 1925;
    • minor changes to the Patents Act 1977 via the Intellectual Property Act 2014 aimed at simplifying copyright law, cutting red tape and saving money for small businesses;
    • a legal duty of candour for hospitals (which was a key recommendation from the Stafford inquiry);
    • Home Office measures on alcohol licensing, banning pubs and clubs from promoting irresponsible drinking games; and
    • increases in the National Minimum Wage.
  • Church of Ireland Gazette: Interview 53: Archbishop Justin Welby The linked page provides the timings of different issues considered by the Archbishop.

And finally . . .

Whilst Adam Wagner of the UKHR blog has an on-going thread on the misreporting of human rights issues by the UK media, here, here, and elsewhere – a view fully endorsed by L&RUK – we have a more light-hearted approach to the portrayal of religion-law issues in Midsomer Murders, here. One of the sub-plots in last Tuesday’s ancient episode[3] concerned the character Jonah Bloxham one of whose relatives had been “burned as a witch”, and we were surprised that even the knowledgeable DCI seemed content to perpetuate this urban myth[4].

More intriguing, however, was the reference to legal documents, “concerned with the dissolution of the monasteries”, which “could potentially bankrupt the current owners of the farm”. Whilst some avid Midsomer followers (i.e. not us) were puzzled by an apparent “hole in the script” which did not elaborate on the nature of these documents, sharp-eyed readers will observe that the date of the first broadcast fell between the Appeal Court and House of Lords hearings of PCC of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor, hence the necessarily oblique reference.


[1] Although as a lobbyist, David attended both of the major Party Conferences for many years.

[2] Unexpected, that is, by the more recent Cardiff students but not by Frank, who reckons that Dick Helmholtz is never less than interesting and sometimes absolutely riveting. [LLM Note: Frank graduated in 2001 whereas David took his degree twelve year later].

[3] A worm in the bud, first broadcast in the UK on ITV on 23 June 2002.

[4] In England, women found guilty of witchcraft were generally hanged.  See: Caroline Briggs-Harris, ‘Witchcraft: from Crime to Civil Liberty’, (2011) Law and Justice, Trinity/Michaelmas, No 167, 54-75.

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