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, we 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 legislation.gov 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.