Religion and law round-up – 26th October

Not a lot of black-letter law this week but quite a lot of comment…

Bar Council statement on the role of the Lord Chancellor

Following the Lord Chancellor’s evidence on 15 October to the House of Lords Committee on the Constitution, the Bar Council issued a press statement as follows:

“Justice is not a service that governments can choose to provide or not. It is a vital part of our constitutional arrangements. It needs to be defended and promoted to make the separation of powers a continuing reality and thereby to safeguard our democratic way of life for the future. The Lord Chancellor must be a champion of the justice system as well as guardian of the constitution. He swears an oath that he will: ‘… respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.’ His role is therefore different from that of the Secretaries of State for other departments.  He is entrusted with lead responsibility in government to maintain the delicate balance between, on the one hand, upholding the rule of law and protecting the independence of the judiciary and, on the other hand, respecting the interests of the executive. Legal expertise is essential to fulfil such a unique role. The Lord Chancellor should be a very senior lawyer.”

Or, indeed, unlike the present incumbent, any kind of lawyer – even a fairly junior one…

Sexual abuse and the seal of the confessional

The report of the independent inquiry commissioned by the Archbishop of York and chaired by HHJ Sally Cahill QC into the Church of England’s handling of reports of alleged sexual abuse by the late Robert Waddington, formerly Dean of Manchester, was published on Thursday. Thinking Anglicans explains that the report will not be made available on-line but in hard copy only, in response to the request of some of those interviewed by the inquiry. Copies are available from Church House Bookshop.

In a statement subsequent to the report’s publication, the Archbishop of York raised the more general question of the seal of the confessional, as follows:

 “… one of those who reported abuse to the Inquiry has since asked me specifically to raise the question of The Confessional. His view is that disclosures made in the context of a formal Confession which give rise to safeguarding concerns should not enjoy absolute confidentiality.

I have every sympathy with this view, and therefore welcome the fact that the Archbishops’ Council has decided to commission theological and legal work with a view to exploring whether the current position in relation to admissions of abuse in the context of a formal Confession should be changed. That work and any recommendations arising from it will need to be discussed with the House of Bishops before any proposals for change are brought before the General Synod.”

On the afternoon of 17 November, General Synod is to debate a motion to take note of the draft Guidelines for the Professional Conduct of the Clergy, (GS 1970), which include a section summarizing the current legal position in relation to the ministry of absolution, (i.e. confession) arising from the unrepealed proviso to Canon 113 of the Code of 1603/04; it also notes the Archbishops’ Council decision in September 2014, supra. Further details are included in an attached paper GS Misc 1085, the Annex to which sets out the background to the revision process.

For a general discussion of what we understand to be the relevant law, see CofE to axe seal of confessional? and Are communications between clergy and penitents privileged?

Burqas and niqabs in Canberra

On Monday the BBC reported that the Australian Government had reversed a decision which would have restricted access to the federal Parliament in Canberra for women wearing full-face veils. Earlier this month, in a move widely seen as aimed at burqas and niqabs, it was decided that anyone visiting the building with the face covered would have to sit in a separate area of the public gallery. According to the BBC report, the President of the Senate said the initial ruling had been made because of rumours that a group was planning to attend Prime Minister’s questions on 2 October wearing veils and stage a protest in the public gallery.

After accusations of discrimination, the Department of Parliamentary Services said that visitors would now have to show their faces briefly to security and would then be free to replace their veils and move about freely in the public spaces of the building, including all chamber galleries. Reportedly, Prime Minister Tony Abbott had asked the Speaker of the House of Representatives to reconsider the matter.

[We didn’t hear of the ban in the first place: still, better late than never.]

Pussy Riot: the dénoument (or maybe not)

Russia’s Constitutional Court has rejected a challenge by a member of Pussy Riot  to her 2012 conviction for “hooliganism” after the band’s protest performance at Christ the Saviour Cathedral in Moscow. Nadezhda Tolokonnikova (who was released from prison in 1013 in an amnesty) argued that Article 213 of Chapter 24 (Crimes Against Public Security) of the Russian Criminal Code was an unconstitutional restriction on her freedom of expression, classified violations of religious rules as a violation of public order and criminalised actions based only on the perception of a majority of the public. The Constitutional Court concluded that the Law on Freedom of Conscience and Religious Associations 1997 required it to respect the internal rules of religious denominations. Next stop Strasbourg?

[With thanks to Howard Friedman at Religion Clause.]

Sham marriage: collapse of stout party

Last month we posted about the prosecution of a south London vicar, the Revd Nathan Ntege, for allegedly conducting what was described as a “conveyor-belt” operation for sham marriages. On Thursday, however, at Inner London Crown Court HHJ Madge threw out the case after ruling there had been “bad faith” and “serious misconduct” on the part of the investigating immigration officers. He concluded that immigration officer Maggie Harkins and her superior, disclosure officer John Bradbourne, had lied under oath and concealed evidence that would have harmed their case. The Daily Mail reported his conclusions as follows:

“I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath. That bad faith and misconduct started on 4 June 2011, when two of the principal defendants were arrested, and has continued throughout the course of this trial. In my judgment, it has tainted the whole case. It has tainted the prosecution against all seven defendants … I am satisfied that this is an exceptional case in which it would be unfair for the defendants to continue to be tried. I am satisfied that a stay is necessary to protect the integrity of the criminal justice system. If the trial were to be permitted to continue there is a real risk that public faith in the criminal justice system would be undermined. It is a case in which the prosecution should not be allowed to benefit from the serious misbehaviour of the officer in the case or the disclosure officer”.

The Independent subsequently reported that the Crown Prosecution Service is “carefully considering the judge’s comments in relation to our handling of this case, which has clearly fallen below the high standards that we would expect”. We await with interest the outcome of the likely prosecution for perjury.

Update: HHJ Madge’s ruling is now available on BAILII: see Ntege & Ors, R v [2014] EW Misc 51 (CrownC)

Women in the episcopate: Royal Assent and November Synod

On Thursday 23 October, both Houses of Parliament were notified that Her Majesty had signified her Royal Assent to the Bishops and Priests (Consecration and Ordination of Women) Measure 2014, here and here. This has allowed the Church of England to finalize its Agenda and Papers for the General Synod on 17-18 November, the major items of which are summarized in its Press Release.

Church blessings after same-sex marriages in England

Anglican Mainstream reports that the website of a south London Church advertises that it is offering blessings for same-sex married couples, viz.

“You are welcome to marry or to have a service of blessing for your marriage at St John’s, if you live in the parish or have a strong connection with Waterloo.

[…]

Unfortunately, the Church of England is not at present allowed to carry out same-sex marriages. But we are very happy to offer services of blessing to those who are having a civil marriage.”

AM indicates it has known for some time that “clergy have been offering services of blessing for same-sex couples, in some cases in a public service approximating to marriage … in clear defiance of the Bishops and the teaching of Scripture” and poses some rhetorical questions:

“a) This innovation has been brought to the attention of the Bishop of Southwark. Will he take any action?

b) The advertisement is no doubt designed as part of St John’s evangelistic and outreach programme, along with their classical concerts and political lectures. Will it result in church growth? Will the reputation of the Church of England be enhanced? Will the Lord Jesus be glorified?”

However, the action that can be taken in such circumstances is limited. As has been noted[1]:

“If pressed, clergy in both cases [blessings after civil partnership registration and failure to wear vestments at Holy Communion] are able to present reasonably cogent arguments to defend their positions based on the high degree of legal flexibility present in the laws of the Church – but in reality they are not pressed to do so, as the disciplinary processes are unlikely to be invoked against them, and their consciences are untroubled as the Oath of Canonical Obedience is so poorly understood by all concerned.”

Quick Links

And finally … Jedis and religion

In an earlier post this week on Paganism, religion and human rights Frank suggested that under Lord Toulson’s recent working definition of “religion” almost any reasonably systematic belief-system would qualify – though he was fairly doubtful about the Pastafarians and the Jedi. On the same day, however, the BBC posted on the UK’s Church of Jediism: Have Jedis created a new ‘religion’? [Memo to self from FC: don’t be too ready to scoff.]

Tom de Castella reports that Beth Singler of the Cambridge Divinity Faculty reckons there are about 2,000 people in the UK who are serious about being Jedis: roughly the same number as in the Church of Scientology.

“Jediism is not a joke for them but an inspiration. They don’t believe in ‘A long time ago in a galaxy far, far away’ says Singler, quoting the opening text that fills the screen of Star Wars. It’s somewhere between metaphor and literal truth.”

The report quotes the Bishop of Manchester, the Rt Revd David Walker, as suggesting that Jediism is another way for people to look to give meaning to their lives – but as a “code for living” rather than a metaphysical belief-system. He suspects that Jediism, like a lot of codes for living, aims for people to live happier, more fulfilling lives and also contains an element of altruism.

But is it yet a “religion” for legal purposes? As Jen Smith pointed out in a comment on Frank’s post, adherents of religions have rights (including the right to get married in accordance with their beliefs) that adherents to philosophies do not.

 

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[1]  G Foster, Clerical Disobedience of Canon Law in the Church of England, A dissertation submitted in partial fulfilment of the requirements for the degree of LLM (Canon Law), Cardiff University, 2012.

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