Law & Religion 2014 and 2015: retrospect and prospect – Part I

It’s that time of year again, when folks wonder where the last twelve months have gone and make New Year resolutions which will last for at least a week – and bloggers write reviews of the past year. So here’s Part One of ours…

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Scotland said, “No, but…”

Much the biggest domestic news of the year was that the Scottish independence referendum on 18 September returned a “No” vote by a margin of 55% to 45%. In its aftermath, the unionist parties looked hard at further devolution to the Scottish Government and Parliament, while the SNP added almost 60,000 new members in the wake of the result. Alex Salmond resigned as leader of the SNP and First Minister and was replaced by his depute, Nicola Sturgeon, while the leader of the Scottish Labour Party, Johann Lamont, also resigned, complaining that Labour at Westminster treated Scotland like a branch office, and was replaced by former Scottish Secretary Jim Murphy.

On 19 September, the Prime Minister announced that Lord Smith of Kelvin would chair a Commission on further devolution and its proposals were published in late November. The intention is to publish legislation by Burns Night 2015, 25 January (which falls on a Sunday).

The CJEU and the ECHR: where next?

The Court of Justice of the European Union threw a very large spanner into the ongoing works of EU accession to the ECHR when it issued a full-court opinion on the draft accession agreement declaring it incompatible with the European Treaties. There have already been several analyses of the decision: for helpful summaries see Michèle Finck on the International Journal of Constitutional Law  blog and David Hart on UKHRB.

Issues of religion or religious belief: Shergill v Khaira

In June the Supreme Court was faced with the knotty problem of the extent to which the courts may legitimately involve themselves in matters of religion and belief. In Shergill & Ors v Khaira & Ors [2014] UKSC 33. There were two questions before the Court: the extent to which it is open to trustees to alter or restrict the terms of the trusts upon which they hold property and the extent to which a court can and should refuse to determine issues of religion or belief in legal proceedings. The Court of Appeal had ruled that the whole dispute was non-justiciable and ordered a permanent stay of the entire proceedings and had not, therefore, dealt with the first issue.

The Supreme Court allowed the appeal and in doing so drew a careful distinction between determining issues of belief and the necessity to enforce private rights in relation to religious trusts:

“… the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust” [45].

The judgment also included a sideswipe at Gray J in Blake v Associated Newspapers Ltd [2003] EWHC 1960 for staying an action for defamation against the Daily Mail, which had described Mr Blake as a “self-styled” or “imitation” bishop. The UKSC felt that Blake raised questions of doctrine and ecclesiology and did not think that the court was correct to conclude that the issue was non-justiciable per se:

“The claim was a civil claim in tort and the court will enter into questions of disputed doctrine if it is necessary to do so in reference to civil interests…” [though] “… The problem that such defamation claims face, which will usually doom them to failure, is that they raise issues of religious opinion on which people may hold opposing views in good faith. The expression of such views without malice is likely to be protected by the defence of honest comment…” [57].

Issues of religion or religious belief: the wider debate

Shergill was handed down against the background of a more general debate about the secularisation of English and Scots law, one symptom of which was the reaction when, in March, the Law Society of England & Wales published a practice note on how to draw up a sharia-compliant will. We should say that it seemed to us (being neither solicitors nor sharia experts) like a sensible way of helping non-specialists meet their clients’ wishes so far as the secular law allows. But it didn’t seem like that to the world at large: there were howls of protest and in November the Law Society withdrew it.

The issue seems to have been rumbling on at least since the ill-judged intervention in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 by Lord Carey of Clifton, via Sir James Munby’s keynote address to the Law Society’s Family Law Conference in October 2013. In our review of 2013 we noted Lord Chief Justice Thomas’s statement at his first press conference that “it is our duty to apply law which is secular law” and concluded, “End of argument. Maybe”. Evidently we weren’t far wrong.

Charities and lobbying

For charities and, by extension, for the Churches, surely the most difficult piece of legislation of 2014 in terms of deciding how, if at all, to comply with it received Royal Assent on 30 January. Inter alia, the Transparency of Lobbying, (etc) Act 2014, amends the provisions of the Political Parties, Elections and Referendums Act 2000 on third-party national election campaigns and places additional constraints on “non-party campaigning” in the run-up to future elections and referendums. It came into effective operation on 19 September.

By the end of the year a handful of secular charities had decided to register under the Act and three religious ones: the Salvation Army, Britain Yearly Meeting of the Religious Society of Friends and the Catholic Trust for England and Wales (the legal entity for the Catholic Bishops’ Conference). But more may follow suit because campaigners are obliged to register only by the end of the regulated period, 7 May 2015, the day of the general election.

The Charity Commission and Preston Down

Readers may recall the long-running saga of the Preston Down Trust of the Plymouth Brethren Christian Church (aka the Hales Exclusive Brethren). In January the Charity Commission announced that the appeals against its refusal to register the Trust had been withdrawn and that it would, after all, accept an application for registration. But, as we suggested in our post, the Commission did so with reservations, saying that it would require revision of the PBBC’s practices before accepting a revised governing document and would monitor the Trust’s future compliance in line with its risk framework and its usual practice. A spokeswoman for the Commission said that a review would take place “around a year after the Trust is registered”.

Women in the episcopate and the House of Lords

A vote at General Synod on the afternoon 17 November marked the conclusion of the debates and legislative procedures that will enable women to be ordained as bishops in the Church of England. This was quickly followed by the appointment of the Revd Elizabeth Lane to the Suffragan See of Stockport, who in an interview published by the Church of England said “[t]his door opening will let through any number of not just women, but all sorts of people who will resource and build up the Church and its leadership who are not at the moment”. However, it is not legislation that has been holding back the appointment of openly-gay bishops, a point that has not escaped Changing Attitude.

The Lords Spiritual (Women) Bill was introduced to the House of Commons on 18 December 2014 and will begin its progress through Parliamentary when the House returns from its Christmas recess on 5 January. The intention is that, provided the Bill is granted Royal Assent before Parliament is dissolved on 30 March 2015, the Act will come into force on “the day Parliament first meets following the first parliamentary general election after this Act is passed”. The Bill is designed to achieve the early inclusion of women appointed as diocesan bishops as Lords Spiritual: an examination of the profile of the present bishops in the Lords indicates that if the usual pattern of retirement at 70, or earlier, is followed, women will comprise a significant proportion by the end of the 10-year period, through these provisions and the Bishoprics Act 1878. However, 10 years is an exceptionally long time in politics.

Was 2014 the year in which Strasbourg started losing its nerve?

Decisions by the ECtHR in 2014 seemed to tip the balance further towardsECtHR allowing states parties a fairly wide margin of appreciation in relation to Article 9: a process that probably began with the Grand Chamber judgment in Lautsi & Ors v Italy [2011] ECHR 2412 on the display of crucifixes in classrooms in state schools.

In June the GC refused to overturn the decisions of the domestic courts on the dismissal of a married former Roman Catholic priest from his teaching post in a state high school. In Fernández Martínez v Spain [2014] ECHR 615 Mr Martínez argued that failing to renew his contract after a newspaper had published a photograph of him, his wife and their five children at a meeting of the Movement for Optional Celibacy had violated his rights under Article 8 (private and family life) and that two of the Constitutional Court judges who had dismissed his further appeal by way of recurso de amparo should have recused themselves because their religious beliefs favoured the Church, contrary to Article 6 (fair hearing).

The GC held by nine votes to eight that there had been no violation of Article 8 and by fourteen votes to three that there was no need separately to examine the other complaints. The majority took the view that, though enforcement by the public authorities of his Bishop’s non-renewal decision was indeed an interference with the applicant’s Article 8 rights [paras 115-116], that interference was in accordance with domestic secular law [para 119] and

“… had a legal basis in the relevant provisions of the 1979 Agreement between Spain and the Holy See, supplemented by the Ministerial Order of 11 October 1982, and that these provisions satisfied the “lawfulness” requirements established in its case-law” [para 120].

To which one might respond, “But hang on: it was a state school, not a religious one” – but that was also the case in Lautsi.

In July, the Grand Chamber judgment in SAS v France [2014] ECHR 695, on the French ban on face-covering in public, attracted considerable adverse comment: not least from Frank, here. Ronan McCrea was inclined to give the majority the benefit of the doubt, while Joshua Rozenberg concluded that the Grand Chamber had simply been prudent: “Sure, this is a cop-out. But it’s one that shows the Strasbourg court now has a well developed sense of self-preservation”. But the weight of opinion seemed to be on the side of the minority. Lucy Vickers, for example, described the majority judgment as “something of a let-down”. She could not understand why, “after such a careful and well evidenced demolition of the standard arguments in favour of banning the veil”, the majority had found for the Government. And no more can we.

So has Strasbourg simply lost the stomach for taking on Governments over Article 9? Compare and contrast the GC’s conclusion in SAS with the recent decision of the Belgian Raad van State/Conseil d’Etat which, in effect, struck down a ban on students and staff in state schools in Flanders wearing religious symbols, precisely on the grounds that the ban was not “necessary in a democratic society” within the meaning of Article 9 §2.

And perhaps the ECtHR’s latest judgments are already beginning to have effects in member states. Germany’s Federal Constitutional Court [Bundesverfassungsgericht] recently reversed a judgment of the Federal Labour Court declaring unlawful the dismissal of a senior doctor in a Roman Catholic hospital after his remarriage without a prior annulment. After looking at the ECtHR case law it decided that there was no reason to modify the interpretation of German constitutional law on the matter. We cannot help wondering if it felt that the Grand Chamber decision in Fernández Martínez had rendered a decision in favour of the hospital safe from challenge.

Blogging through 2014

On Christmas morning we managed to pass 250,000 page views (a figure we would never have dreamed of when we started in 2012) and we now have 191 e-mail subscribers and well over 600 followers on Twitter. The post that received most hits during the year was Sharia and the English legal system: the Government’s view, published in April 2013 – which suggests that the debate has not moved on very far in the last eighteen months or so. We are getting substantially more traffic than ever before, and although we have slipped down the Tead (formerly Ebuzzing) rankings for “Law” and “Religion and Belief”, our overall performance according to Alexa has improved.

But regardless of rankings, we continue to think that it’s well worth the effort. If nothing else, it keeps us reading the cases; and because we each tend to concentrate on particular areas, writing the blog and commenting on each others’ drafts is a continual process of mutual education (and exchanges on really anoraky points).

Part II tomorrow

8 thoughts on “Law & Religion 2014 and 2015: retrospect and prospect – Part I

  1. “… we now have 191 e-mail subscribers and well over 600 followers on Twitter.”. Are those who subscribe to your RSS feed included anywhere?
    Many thanks for pointing to and explaining matters as you do. May you continue and prosper in 2015.

    • I’m afraid I don’t know and I’ve no way of finding out, but I assume so. If not, then maybe we’ve got more subscribers than we thought!

      Thanks for your good wishes and a happy and prosperous New Year to you too.

        • Its current reckoning is that we have 107 feed subscribers – which is over 50 per cent more subscribers than we thought we had! 😉

          • Thanks & noted. Well deserved. To the email subscribers, ‘Do try RSS. I find it makes life simpler’.
            N.R.E.O.R. (No reply expected or required)

  2. Pingback: Law & Religion 2014 and 2015: retrospect and prospect – Part II | Law & Religion UK

  3. Pingback: Blogging, campaigning and the General Election | Law & Religion UK

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