Religion and law round-up – 2nd November

Bishops in the House of Lords, naked ramblers and Heathrow beauticians – but not at the same time…

Bishops in the House of Lords

Much the greatest traffic on the site this week was generated by David’s post on the Future composition of the Lords Spiritual: a speculation on how fast-tracking of women bishops into the Lords is to be accomplished and what form positive discrimination will take. It’s a very knotty problem and, coincidentally, the BBC reported that Ed Miliband told a conference in Blackpool on Saturday that if Labour wins the General Election in May 2015 it will legislate to abolish the House of Lords and replace it with an elected Senate.

Labour’s reformed Upper House would be made up of senators elected regionally from Scotland, Wales, Northern Ireland and the English regions instead of from individual constituencies. Miliband said that the current system “fails to represent large parts of the UK” and pointed out that “London has more members in the House of Lords than the east Midlands, west Midlands, Wales, Northern Ireland, the north east and Yorkshire and Humber added together”. He concluded that the answer was “a senate of the nations and regions”.

If that were to happen, the issue of how to organise the representation of the Lords Spiritual would simply evaporate, because it is inconceivable that there could be any place for bishops in an elected Upper House. But there’s a long way to go: first, the Labour Party has got to win the next election, next, it has to convince its supporters that a democratically-elected Upper House will not threaten the supremacy of the Commons, and then it has got to get the necessary legislation through Parliament.

We have been here several times before; and reforming the House of Lords seems to draw out some deeply conservative instincts from the most surprising places. We still haven’t forgotten how Lords reform was scuppered in the 1960s by the unlikely combination of  Enoch Powell and Michael Foot.

For an interesting and witty analysis of some of the issues and contradictions, see Baroness Hayman’s recent public lecture at the University of East Anglia.

Discrimination in (non-) employment

Some of the reactions the judgment in Halawi v WDFG UK Ltd (t/a World Duty Free [2014] EWCA Civ 1387 seemed to us to be slightly off-beam. The Court of Appeal held that Mrs Halawi, who sold cosmetics airside at Heathrow, was not employed by the respondent because she provided her services through a company, Nohad Ltd, which she herself had established and controlled. Given that there was no employment relationship, there could be no question of unfair dismissal or discrimination, religious or otherwise – because you only have employment rights if you are, in fact, employed.

But the case raises a much more fundamental issue than whether or not Mrs Halawi had in fact met with discrimination because she happened to be a Christian – a suspicion evidently shared by Langstaff J in the EAT and Arden LJ in the Court of Appeal but not pursued precisely because she was not a worker or employee. The real mischief, it seems to us, is the ability of businesses to erect complex webs of service and supply contracts so that they can carry on business without actually employing people directly. That way, businesses duck out of the legal obligations that go with being an employer in the formal sense. It’s a perfectly legal way to behave: but should it be?

The seal of the confessional

We noted the continuing discussion around possible modifications to the seal of the confessional in the Church of England and that the Archbishops’ Council had commissioned further theological and legal work on the purpose and effect of the unrepealed proviso to Canon 113 of the Code of 1603 obliging a confessor

“that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same), under pain of irregularity.”

Presumably the section in brackets is no longer of any practical effect, given that capital punishment was finally abolished in the UK in 1998.

The research has been commissioned by the Archbishops’ Council so that it can review the matter in consultation with the House of Bishops. The Council will consider the terms of the review in November, the House of Bishops will look at them in December and, presumably, Synod will be asked to take a view on the matter at some point in 2014.

Public nudity

We also noted the outcome of Gough v United Kingdom [2014] ECHR 1156, in which Stephen Gough, aka The Naked Rambler, lost his appeal to Strasbourg against one of his convictions in Scotland for being naked in public. Our interest was aroused by the fact that Gough had originally argued that public nakedness was a right protected by Article 9 (inter alia) ECHR.

On Barrister Blogger Matthew Scott points out that Gough has spent most of the last eight years in custody and that when he is released after serving half his latest sentence “he will have served the equivalent of virtually a twenty-year prison sentence”. He also points out that prison places are very expensive and suggests that the string of prosecutions is pointless: we are inclined to agree.

Canon Jeremy Pemberton

Thinking Anglicans reports that the following announcement was issued on Friday on behalf of Canon Pemberton:

“Following a preliminary hearing held on 30th October 2014, the Employment Tribunal case between the Revd Canon Jeremy Pemberton (Claimant), the Right Revd Richard Inwood, the Acting Bishop of Southwell & Nottingham (1st Respondent) and the Most Revd Dr John Sentamu, the Archbishop of York (2nd Respondent) will be proceeding to a full hearing and has been listed for June 2015. Neither Jeremy Pemberton nor his husband, Laurence Cunnington, will be making any comments on the case at this stage.”

Quick Links

And finally (x 2) . . .

The CofE Daily Digest picked up the following exchange from the Ephraim Hardcastle column in the Daily Mail:

“Visiting the Foreign Office while William Hague was in charge, the Archbishop of Canterbury, the Most Rev Justin Welby, said he’d walked over from Lambeth Palace. ‘So you walked across the river?’ mused Hague. Welby: ‘I usually do, but my staff say it’s showing off.’ Coming soon – The Archbishop, Live at the Apollo!”

On a completely different topic, this week’s episode of Grantchester concluded with Sidney Chambers baptising Inspector Keating’s baby son with water “In the name of the Father, and of the Son, and of the Holy Ghost”. The scene involved a real baby, which led Frank (but he’s a Quaker, so what would he know?) to wonder whether, in fact, what took place could have been a valid baptism in reality, not just on film. If the baby had already been baptised, a further baptism would obviously be of no effect even if otherwise valid – but what if the baby had not?

Cathy Caridi discusses the issue of validity of baptism from a Roman Catholic perspective in Canon Law Made Easy; and one of the necessary elements she identifies is that the person performing the baptism should have the correct intention. Presumably, on her analysis, a baptism in the course of a television drama could hardly ever be valid because there would be no intention to baptise: but are there any possible circumstances in which it might be? If, perhaps, the actor in question had conceived an interior intention to baptise the baby without disclosing that fact to anyone?

(Incidentally, the star of Grantchester, James Norton, was educated at Ampleforth and read Theology at Cambridge, so presumably he knows considerably more about Roman Catholic sacramental theology than Frank ever will.)

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