Religion and Law round-up – 25th January

Although the “zombie Parliament” had time to progress some religion law, it’s been a very bad week for the DCLG and a somewhat mixed one for the Archbishop of York

Progress of legislation

The latest claims that the coalition government’s Fixed-term Parliaments Act 2011 had created a “zombie Parliament” came from Baroness Boothroyd, Commons Speaker between 1992 and 2000, who referred to it is as “an act of irresponsibility” that had led to MPs sitting around waiting for the election.  The BBC states that MPs sat for just 44% of weekdays over the past year, and only 11 new bills have been introduced in this Parliamentary session – the second lowest in recent history[1]. During this week, however, there has been progress on a number of items of religion law.

On 16 January the Local Government (Religious etc. Observances) Bill, a private Member’s bill introduced with tacit Government support that aims to put beyond doubt the power of local councils to begin meetings with prayer, had a fairly brief report stage and third reading in the Commons. No amendments were made and it now goes to the Lords.

On 19 January the Lords Spiritual (Women) Bill went through all its Commons stages in one day and was sent to the Lords: the Hansard report of the debate starts here. The Bill is due to have its second reading in the Lords on 12 February.

In the House of Lords, three Church Measures presented for Royal Assent were considered on 22 January – Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure; Ecclesiastical Property Measure; and Church of England Pensions (Amendment) Measure. There were accepted by the House and now proceed to the House of Commons for consideration.

Department of Communities and Local Government

In terms of its stated policy “Bringing people together in strong, united communities”, DCLG has not had a good week. It started badly following the letter sent by Eric Pickles and Lord Ahmad to more than 1,000 Islamic leaders in England, calling upon them to challenge extremism. In addition to objections to its request to “explain and demonstrate how faith in Islam can be part of British identity”, the letter had not been sent to the Muslim Council of Britain, one of the largest Muslim umbrella bodies in the country: the MCB responded, indicating that, in the circumstances, the DCLG letter could have been worded differently and suggested a meeting to discuss how they might work together to combat the threat of radicalization.

Thursday saw the conclusion of the settlement of the dispute between Christian Concern, the Queen Elizabeth II Conference Centre, and the DCLG[2] following the last- minute cancellation of Christian Concern’s conference ‘One Man, One Woman – Making the case for marriage for the good of society’ at QEII, planned for 23 May 2012. An earlier conference venue had also been cancelled by the Law Society for which settlement was reached in June 2013, here.

And just to round things off, the Administrative Court held in Moore & Anor v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) that DCLG’s de facto policy of recovering for ministerial decision the majority, if not all, of appeals relating to planning decisions regarding gypsy or traveller sites on green belt land in England and Wales is defective. The claimants, Mrs Moore and Ms Coates, and the Equality and Human Rights Commission as intervener, had argued that the Secretary of State’s actions constituted unlawful indirect discrimination contrary to s 19 Equality Act 2010 and breached the Public Sector Equality Duty in s 149 [2]. Further, they argued that he was in breach of Articles 6 (fair trial), 8 (private and family life) and 14 (discrimination) ECHR and had acted in abuse of power, irrationally and with bias against them because they were travellers [2]. The EHRC also contended that the Secretary of State had acted contrary to his own declared policy on the recovery of jurisdiction of appeals without giving reasons for doing so, or alternatively had adopted an undisclosed policy that conflicted with his declared policy [2].

Gilbart J was satisfied that the challenges mounted on issues of bias, irrationality and abuse of power failed; however, the challenges for breaches of the Equality Act 2010 and of Article 6 ECHR were successful. Moreover:

“Both are part of the law of England and Wales. These are not to be dismissed as technical breaches. Although the issue of unlawful discrimination was put before the Minister by his officials, no attempt was made by the Minister to follow the steps required of him by statute, nor was the regard required of him by s 149 of the Equality Act 2010 had to the matters set out there” [172: emphasis added].

Nothing whatsoever to do with law and religion – but a salutary reminder that ministers can’t simply pick and choose which bits of statute law to follow.

Manorial rights

On Thursday we reported on the House of Commons Justice Committee publication Manorial Rights. Some readers may be concerned at the Daily Telegraph assertion that

“thousands of homeowners could see property values plummet after a deluge of applications by ‘lords of the manor’ to register ancient rights over their land, a new report warns. New figures disclose a surge of applications to register ‘manorial rights’ following flawed legislation drawn up by the former Labour government in 2002.”

Future property sales are dealt with in paragraph 23 of the Report, which states:

“Some of the evidence received also pointed to concerns regarding the impact of manorial rights claims on future property sales and securing loans. However, in the majority of cases this does not appear to have happened in practice. For example, the evidence from The Peasants’ Revolt acknowledges there has not been an adverse impact in this respect to date.[3] Mr Owen indicated that he was aware of issues in this regard, although primarily related to instances when a claim was in the process of being disputed.[4]

The Telegraph article also quoted the chairman of the committee, Sir Alan Beith MP, as saying that “[t]he lack of understanding of such rights, and the way the registration process was carried out and communicated, has led to understandable concerns and anxieties.” Quite so.

Provision for children of divorced parents to attend Christmas mass

The Telegraph reports that HHJ Orrell has ordered a father, as part of a divorce settlement, to take his children to (Roman Catholic) mass when they are resident with him at Christmas even though the father is not a Roman Catholic. The Telegraph claims to have seen the residence and contact order, which states inter alia: “If the children are with their father at Christmas he will undertake that they will attend the Christmas mass”.

Since the case is unreported, and we have not seen the residence and contact order, for the moment that is all we can say on the matter. However, further analysis of the available facts has been made on the suesspiciousminds blog.

Ordinations and publications

The Archbishop of York has been in the news earlier in the week with the publication On Rock or Sand, IMG 0699(2)of his book On Rock or Sand? Firm foundations for Britain’s future, which was well-received in several quarters. However, an article in Christian Today on the arrangements surrounding the consecration of the Revd Libby Lane, and the Revd Philip North as bishops of Stockport in the Diocese of Chester and of Burnley in the Diocese of Blackburn, respectively, necessitated Dr Sentamu issuing a statement clarifying the apparent misconceptions raised by the article.

It stated “[a]ny suggestion that the arrangements proposed for the consecration of the Bishop of Burnley are influenced by a theology of ‘taint’ would be mistaken”, and continues to detail the Archbishops’ absolute discretion permitted in such matters, outlined in GS Misc 1079, Women in the Episcopate; examples earlier consecrations of both women priests and traditionalist bishops conducted by the Archbishop; details of the Fr North’s ordination which had been circulated to the bishops in the northern Province in December; and  the House of Bishops Declaration and the Five Guiding Principles, paragraph 30 of which affirmed:

“the importance of there continuing to be consecrations of bishops within the Church of England to enable such ministry [that is to the minority] to be provided” and said that “the Archbishops will ensure that a suitable supply of bishops continues.

Whilst Dr Sentamu’s statement provides a thorough fisking of allegations made in the article, the tensions within the Church remain.

Non-therapeutic male circumcision and FGM

On 14 January Sir James Munby P handed down an important judgment in the Family Court in Leeds. B and G (Children) (No 2) [2015] EWFC 3 was about care proceedings related to two children of a Muslim family: B, a boy, born in July 2010 and G, a girl, born in July 2011 (not their real initials). In his view, the most important issue before him was whether or not G had been subjected to female genital mutilation (FGM) and, if so, the implications of that in relation to planning for her and her brother’s future [4]. His judgment examines FGM and the opinions of expert witnesses at great length and in stomach-churning detail.

In addition, in the course of his remarks Sir James felt it necessary to explore the differences between FGM and non-therapeutic male circumcision carried out for religious or socio-cultural reasons. He concluded that there was a clear distinction between the two:

“Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, ‘reasonable’ parenting is treated as permitting male circumcision” [72].

For the purposes of this blog that will probably suffice. For a detailed analysis of the case by Rosalind English (who obviously has a much stronger constitution than either of us) see Male circumcision can be part of “reasonable parenting”, but no form of FGM is acceptable – Family Court.

The Scottish Parliament, devolved powers and human rights

On Thursday Lord Pentland handed down judgment in a challenge to an Act of the Scottish Parliament on a devolution issue: In the Petition of the Christian Institute & Ors for Judicial Review of the Children and Young People (Scotland) Act 2014 [2015] ScotCS CSOH 7. Of the seven petitioners, three were individual parents but the first four were a group of charities: the Christian Institute, the Family Education Trust, the Young ME Sufferers (“Tymes”) Trust and CARE (Christian Action Research & Education).

The petitioners took issue with the ‘named person’ provisions in Part 4 of the Act, which will assign a named person in health or education to every child and young person in Scotland of school age or below (including at the pre-birth stage) to make sure that all of them have the right help to support their development and well-being: their contention was that this was beyond the legislative competence of the Scottish Parliament: in the terms of s 29(1) Scotland Act 1998, ‘not law’ [40]. What engaged our interest was that one of the grounds for the challenge was that the ‘named person’ provisions were incompatible with Articles 8 (private and family life), 9 (thought, conscience and religion) and Article 2 of Protocol 1 (education) ECHR; and that because the Scottish Parliament was not empowered to legslate contrary to Convention rights the Act must therefore be ultra vires.

In a long and complex judgment the Lord Ordinary held that the petitioners’ case failed on all points; moreover, the first to fourth petitioners did not have sufficient standing to bring the proceedings [98].

When is a case not a case?

Short answer for our purposes: when it’s settled before it comes to trial. However, there was an interesting press report about a Sikh defence solicitor who sued the MoJ for religious discrimination after being refused admission to HMP Belmarsh because his turban was held together with pins. The MoJ settled; guest blogger Maria Strauss muses about the incident here.

Naturist weddings – or not

On 13 January the Daily Mail ran a story And the bride wore… nothing! Nude weddings may be legalised in rethink of marriage laws that could also allow couples to marry in their own home which claimed: “A wedding law review is to start this week ordered by ministers; paper published by Justice Secretary Chris Grayling said naturists could qualify to conduct weddings if rules were changed; Reforms could also allow people to get married jumping out of aeroplanes”.

Frank duly scoured the system for a copy of the paper referred to in the Mail, completely without success. Although the story was taken up elsewhere, in view of the Government response on Marriages by non-religious belief organisations, reviewed here, we decided it was not worth pursuing. This appears to have been the correct call, for on BBC One’s Sunday Politics on 18 January, Grayling told presenter Andrew Neil: “[a rethink of the marriage laws] hasn’t been ordered by me, I can tell you that”. He stressed there was “a difference between somebody expressing an interest and it actually happening. At the moment we are looking at the issue of humanist marriage, but it’s something that’s being reviewed by the marriage law commission … No nude marriage right now as far as I’m concerned.”

So what was the source of the Mail’s original story? The consultation response was published by the MoJ on 18 December 2014: did one of the Mail journos see it at the time, misunderstand its significance then come back to it last week, or is there a subsequent unpublished paper floating around? Whatever, the silly season seems to have started early this year.

RELIGARE comes to a close [Warning: this is a shameless piece of self-advertisement]

RELIGARE has been an EU-funded project, coordinated by Katholieke Universiteit Leuven, about religion, belief and secularism. It has been examining the legal rules protecting or constraining the experiences of religious or other belief-based communities and exploring “adequate policy responses seeking meeting-points between the realities and expectations of communities and the protection of human rights in terms of equality and freedom of thought, conscience and religion”.

After producing a series of reports, the central project came to an end with the publication of the Summary Report in summer 2013. However, the project has also given rise to a series of books published by Ashgate: Cultural Diversity and Law in Association with RELIGARE. Frank has contributed chapters to two of them: the next (and possibly the last) in the series will be published in March.

Evensong in Oxford on 31 January

Anyone in Oxford wishing to attend Evensong at 18:00 on 31 January has a difficult choice to make: Brasenose College [5] or Christ Church, [6] a.k.a. Oxford Cathedral? At the latter, four clergy who serve in the Oxford Diocese will be installed as Honorary Canons in recognition of the distinguished service they have given the diocese: in addition, the Superintendent Minister of the Oxford Methodist Circuit will be made an Ecumenical Canon and Sir Tony Baldry, MP for Banbury and Second Church Estates Commissioner, will become a Lay Canon. However, L&RUK will be represented at Brasenose where SS Peter & Paul, Wantage, will be singing. [Which looks like another shameless bit of advertising!] 

And finally … Ashers Bakery in reverse?

AP today reports on a complaint against bakery owner Marjorie Silva by an aggrieved customer, one Bill Jack. She agreed to bake him a Bible-shaped cake but refused to decorate it with a message condemning same-sex marriage and two men holding hands with an X over them. Mr Jack has filed a complaint with the Colorado Civil Rights Division. Which reminds us of…

[With thanks to Howard Friedman for the lead.]

[1] For an alternative assessment see House of Commons Political and Constitutional Reform Committee Report Fixed-term Parliaments: the final year of a Parliament. HC 976.

[2] The QEII Conference Centre is an executive agency of DCLG.

[3] The Peasants’ Revolt (MAR0023)

[4] Albert Owen MP (MAR0007)

[5] Responses: Rose; Canticles: Stanford in Bb; Motet: Wood, O Thou the Central Orb; Benediction: De Severac, Tantum Ergo.

[6] Responses: Reading; Canticles: Murrill in E; Motet: Eccard, When to the Temple Mary went.

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