Religion and Law round-up – 30th November

The Pope speaks on Europe, the Lords debate religion in public life, the Law Society climbs down on sharia-compliant wills – while the Swiss and the Northern Irish are getting cold feet about human rights…

Not the sharia practice note

On Monday. after howls of disapproval, the Law Society withdrew its practice note on how to draw up a sharia-compliant will in a way that satisfies the law of succession in England and Wales. So any non-specialist solicitor with a Muslim client who wants to leave his or her estate in accordance with Islamic as well as English law will either have to refer the client to a specialist – or just guess.

Lords debate on religion and belief in public life

On Thursday the Lords debated a motion “That this House takes note of the role of religion and belief in British public life”, introduced by Lord Harries of Pentregarth, former Bishop of Oxford. (Presumably that should have read “public life in the United Kingdom” – but almost everyone in politics outside Northern Ireland seems unaware of the distinction.)

In the course of his speech Lord Harries described the ECHR as

“… a benchmark for our society. As we know from recent legal cases, there are occasions when some people feel that this clashes with a fundamental religious belief or right. My own view is that human rights should prevail in areas of dispute but that the law should be formulated and enforced with what the Equality and Human Rights Commission once termed ‘reasonable accommodation’. That seems to be in the spirit of the culture of the United Kingdom as, for example, compared with France. In other words, we accept so far as possible expressions of religious difference. There are certain fundamentals, of course, on which there can be no compromise so that any religiously based view in conflict with them must be overridden by that human right. However, on some issues there ought to be some scope for latitude” [HL Deb 27 November 2014  cc 1007].

Which is very much in line with what Lady Hale was saying in her Annual Human Rights Lecture for the Law Society of Ireland on Freedom of Religion and Belief.

More controversially (well, maybe more controversially) he also raised the issue of relations between the Church of England and other faiths:

“One feature of the Church of England that I would want to affirm is the way in which … it has taken the lead not only in building up good relationships with other faith communities but in exercising its historic position in a hospitable way. In the autumn of 2013, I had to preach at the service marking the beginning of the legal year for the western division in Bristol Cathedral … In Bristol that year, both the High Sheriff and the Mayor were Muslims, the woman High Sheriff being very devout. She asked that a passage from the Qur’an be read, including the key opening passage. The … Bishop of Bristol acceded to her request, and it was arranged that the Qur’an be read in the cathedral when everyone had been seated and welcomed but before the actual Christian service began. It was a brilliant creative act of accommodation that made the Muslim High Sheriff feel, as she said, warmly embraced but did not alienate the core congregation, or indeed Muslims or Christians, by a blurring of boundaries.

That principle of hospitality can and should be reflected in many public ceremonies, including the next coronation service… ” [HL Deb 27 November 2014  cc 1006-7].

You can read some of the predictable reactions here.

Department of Education guidance on British values

On 27 November the Department for Education published guidance on promoting British values in schools “to ensure young people leave school prepared for life in modern Britain” which:

“aims to help both independent and state-maintained schools understand their responsibilities in this area. All have a duty to ‘actively promote’ the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs. These values were first set out by the government in the ‘Prevent’ strategy in 2011”.

The guidance states:

“If schools teach about religious law, particular care should be taken to explore the relationship between state and religious law. Pupils should be made aware of the difference between the law of the land and religious law”

– which the Daily Telegraph interprets as “all pupils must be made aware of the difference between the ‘law of the land’ and moral codes such as Christian canon law and Islamic sharia”. Perhaps Lady Hale’s lecture, referred to above, might be a good point at which to start.

Ashers Bakery and the “gay cake”: update

On Sunday Paul Girvan MLA, of the DUP, announced that he was planning to launch a consultation on introducing a private Member’s bill at Stormont to provide a conscientious opt-out from equality law, in reaction to the threat of legal action against Ashers Bakery for refusing to bake a cake adorned with a slogan in support of gay rights (mentioned in our roundup on 16 November). The BBC quoted him as saying that his proposal would

“… enhance equality legislation. Equality is about ensuring that everybody in society is allowed to live out their lives. We now are heading towards a community where it’s not just about live and let live – people are now saying, ‘you need to affirm my particular lifestyle and if that goes against your conscience, you have to do that’. That’s not equality; that’s intolerance.”

Leaving aside the fact that his assertion is something of an oversimplification of the way equality law has to work, we cannot see his proposal getting much further than the consultation stage. But it does raise a much more fundamental point: who is ultimately responsible for guaranteeing equality and human rights in Northern Ireland – the Northern Ireland Executive or the UK Government?

If a human rights challenge is mounted to some aspect of Northern Ireland law, the NI Executive will not be the respondent state at Strasbourg: that dubious honour will fall to the United Kingdom. In which case, at some future date a UK Government Law Officer may have to go to Strasbourg to defend a situation in Northern Ireland of which HMG thoroughly disapproves. Something very similar has happened before: see the Isle of Man birching case, Tyrer v United Kingdom [1978] ECHR 2.

Sham marriages

Family Law Week reports that Immigration and Security Minister James Brokenshire has announced new powers to curb sham marriages.

The notice period in England and Wales for marriage and civil partnership will be extended from 15 days to 28 days and all proposed marriages and civil partnerships involving a non-EEA national with limited or no immigration status in the UK are to be referred by registrars to the Home Office. For couples including a non-EEA national who are referred under the scheme, the Home Office will be able to extend the notice period from 28 days to 70 days where it decides to investigate a suspected sham marriage or civil partnership. British couples will have to give 28 days’ notice of their intention to marry or form a civil partnership but will not be subject to the referral and investigation scheme.

The new scheme will be introduced across the UK on 2 March 2015, subject to Parliamentary approval of the required secondary legislation to extend it to Scotland and to Northern Ireland.

Pope Francis addresses European Parliament and Council of Europe

On Tuesday the Pope visited Strasbourg and addressed (separately) the European Parliament and Council of Europe. As one might expect, he had some sensible and measured things to say about human rights and the rule of law: you can read the full text of his EP address here and of his address to the Council of Europe here. His comments on human rights are summarized in our post here, and veteran Vatican commentator John Thavis places the visit in perspective, highlighting the difference in approach from his papal predecessors, Benedict XVI and St John Paul II.

Switzerland and the ECHR

And while we’re on the subject, UK politicians are not the only ones who are expressing doubts about the European Convention on Human Rights. Ueli Maurer, a member of the Swiss Federal Council (ie the Cabinet) and head of the Federal Department of Defence, Civil Protection and Sports, has proposed to the Federal Council that it terminate Switzerland’s adherence to the Convention.

In a post on the Swiss Radio and Television blog, Professor Astrid Epiney of the University of Freiburg points out some of the pitfalls of withdrawal and suggests that adherence to the ECHR has given even the Swiss certain rights they would not otherwise have enjoyed. She cites as an example the situation in some cantons whereby a person could act both as an investigating judge (for which the nearest UK equivalent is probably a procurator fiscal) and as a trial judge at the same time: that practice was changed because adverse judgments from Strasbourg.

Switzerland is something of a special case in European terms because it is not a member either of the EU or of the EEA but it is, uniquely, part of the EEA single market. Whether withdrawal from the ECHR would affect that status we do not know – but the idea of investigators presiding over criminal trials as well should give even the most dedicated opponent of the ECHR pause for thought.

Scotland and the Union

The Smith Commission on further powers for the Scottish Parliament published its report on Thursday. As we noted, some of its recommendations have implications for religious groups as charities and, in addition, it recommended that further consideration should be given to devolving various issues of medical ethics, such as abortion law and embryology.

Quick Links

  • House of Commons Information Office: Progress of Public Bills List Last updated on 21 November 2014.
  • Catholic Bishops’ Conference of England and Wales: Applying Equality Law in Practice – 2014 New guidance document “intended to demystify the complex area of Equality Law for Catholics and Catholic organisations in England and Wales” (and worth reading as a general statement of the current situation even if you aren’t a Roman Catholic)
  • 2014 Oxford Faith Debates: Diversity – What kind of unity is appropriate nationally and internationally, how can diversity become a strength? Podcase of debate on 20th November 2014. The next and final event in this series is Vision – what does the Church of England offer the next generation? on Thursday, 4th December 2014
  • Church of England Research and Statistics department: Cathedral Statistics The number of people attending midweek services at cathedrals has doubled in the past 10 years: One of the factors attributed is the need for a place of peace in increasingly busy lives.
  • Richard III Project Team: Richard III Project News, including latest from Cathedral building work; launch of Leicester Cathedral’s King Richard lll Community Appeal; Ricardians’ early boost for re-interment appeal; and much, much more. . . .

And finally . . . .

Over the past week or so we have been following developments resulting from the publication of the Marriage Pledge, and in our most recent update referred to Mark McCall’s support of the initiative in which he cites Ponorovskaya v Stecklow 2014 NY Slip Op 24140 May 29, Cooper J. Aside from its relevance to the Pledge, the case provides an insight into the so-called “destination/symbolic weddings” that take place in the United States and elsewhere. The judge observed,

“One of the intriguing questions raised by this divorce [the issue in question in Ponorovskaya v Stecklow] is whether the Legislature, when it enacted DRL § 25 [New York State Domestic Relations Law] more than one hundred years ago, could have ever conceived of, let alone intended for, the statute being used to validate a license-less marriage supposedly solemnized in what can only be described as a ‘pseudo-Jewish’ wedding ceremony conducted at a Mexican beach resort by a New York dentist who became a Universal Life Church minister on the internet solely for the purpose of performing weddings for friends and relatives.”

“In this case there appears to be no document of any kind showing that the parties participated in a wedding ceremony, and there is certainly no certificate of marriage signed by either plaintiff, defendant or the wedding officiant. The only record of the wedding is a video, submitted as an exhibit to plaintiff’s opposition papers. Although it vividly depicts the ceremony — with the participants and guests dressed in white, the couple taking their vows, the palm trees swaying, the white sand glistening, and the Black Eyed Peas’ ‘I’ve Got a Feeling’ playing on the soundtrack — one wonders how a video could ever serve as the type of ‘formal record’ that the Surrogate’s Court found to exist in Farraj[1]

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[1] Matter of Farraj 2010 NY Slip Op 03445 [72 AD3d 1082] April 27, 2010 Appellate Division, Second Department.

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