An interesting week but one without much hard law: abortion in Ireland, assisted dying in Canada, “three-person IVF” – and do the Lords Spiritual exercise illegal “spiritual influence”?
Abortion law (and other things) in Ireland
On Monday the BBC reported that the High Court in Belfast had granted permission for the Northern Ireland Human Rights Commission to proceed with its petition for judicial review of abortion law. The case has been listed for a three-day hearing in June. If there is any written report of the judgment we can’t find it: possibly it was delivered orally without a transcript (but if anyone has managed to lay hands on a text we should very much like to see it).
This is the second time in swift succession that the Northern Ireland Executive has failed in a bid to stop a JR petition.On 8 January, in JR65, Re Judicial Review  NIQB 1, Treacy J refused to interfere with the substantive proceedings for judicial review of the current lifetime ban on blood donations from men who have had sex with other men. The petition is due to be heard in the Court of Appeal which, when it reviewed the case on 2 October, had resolved that the “apparent bias” element of the appeal should be remitted for determination by the High Court; and Treacy J concluded “that the test for apparent bias has been met and that the impugned decision is infected with apparent bias” .
Of interest to students of law and religion, one of the grounds for his conclusion was as follows. The responsible minister, Edwin Poots MLA, had referred to the JR petition during proceedings in the Assembly and had
“… purported to interpret this court’s judgment as an assault on Christian principles and morals. The minister’s case has always been that the impugned decision was taken on purely health grounds. Thus Christian principles and morals formed no part of the legal case justifying the impugned decision. Nor, accordingly, did such considerations form any part of the court’s judgment which was directed solely to the lawfulness of the impugned decision and, inter alia, an analysis of the sole ground put forward by the minister to justify it. If, as the minister claimed, his ‘decision’ (as I held it to be) was based solely on health grounds his reasoning in the [NIA] debate can only mean that he regarded his impugned decision as an expression of his Christian beliefs and morals. Simply put, if his decision was based on purely health grounds why would he be making these comments? If health was, as the minister claimed, the sole basis underpinning the impugned decision, no question of any assault on Christian principles or morals could conceivably arise. Such a criticism could only make any sense if the minister regarded his challenged decision as a manifestation or expression of his religious beliefs” [12(v): emphases in original].
As to the final outcome, watch this space…
Meanwhile in Dublin, on Friday Dáil Éireann debated two private Member’s bills, one of which, the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013, would, if enacted, authorise abortions in a very narrow set of circumstances: where the foetus has a condition which means that it has no chance of being born alive. The division was postponed until immediately after the Order of Business on this coming Tuesday 10 February: in the meantime, you can read the debate here.
On Friday the Supreme Court of Canada handed down judgment allowing the appeal in Carter v Canada (Attorney General) 2015 SCC 5 and issued the following declaration, suspended for 12 months:
“Section 241(b) and s 14 of the Criminal Code unjustifiably infringe s 7 of the Charter [of Rights and Freedoms] and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” .
In short, the Court struck down the blanket ban on physician-assisted death, reversing its previous decision in Rodriguez v British Columbia (Attorney General)  3 SCR 519 that there was no such Charter right. But it’s a long and complex judgment and we hope to post a full note on it in the near future: Neil Foster at Law and Religion Australia has already commented on the case.
Caste discrimination and the Equality Act 2010
On Monday in the House of Lords the Government confirmed that it had no immediate plans to make caste discrimination illegal: a power inserted into the Equality Act 2010 by the Enterprise and Regulatory Reform Act 2013. Baroness Garden of Frognal (LD) argued on behalf of the Government that the issue needed public consultation, “not least because there was no general consensus on even basic concepts, such as a workable definition of caste itself”.
Mitochondrial donation – aka “three-person IVF”
On Tuesday the Commons voted in favour of the creation of babies with DNA from two women and one man. In a free vote they approved the draft Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 by 382 to 128. Both the Church of England and the Roman Catholic Church had expressed reservations about the procedure and the draft Regulations. A statement on “Where the Church [of England] really stands”, by The Rt Revd Dr Lee Rayfield, Bishop of Swindon and member of HFEA (and formerly an immunologist), and The Revd Dr Brendan McCarthy, the Church’s national adviser for medical ethics and health and social policy, is available here. We summarized the legal issues in our post Three-person IVF and the law.
The offence of “spiritual influence”?
On Wednesday The Times carried a report (£) by Dominic Kennedy on the Election Court hearing of the challenge to the re-election of Lutfur Rahman, the Mayor of the London Borough of Tower Hamlets. Rahman is accused, inter alia, of securing re-election last year by telling Muslims that it was their religious duty to vote for him; and the report says that Richard Mawrey QC, an election commissioner, had said that priests and imams could be committing the 19th-century offence of “spiritual influence” if they told their supporters that it was forbidden to vote for a certain candidate.
The offence of “spiritual injury” is one aspect of “undue influence” now included in section 115(2) Representation of the People Act 1983; whereas The Times headline read “Imams and priests warned not to influence voters”, in the 19th century cases were most frequently brought in Ireland, where the influence of the clergy was held to be stronger: see Dalton v Fulham, (1892) 4 O’M & H 130.
The article led the Archbishop Cranmer blog to ask, not unreasonably, ‘If Imams may not influence Voters, why should Priests or Bishops?‘ In particular, “If it should be illegal for religious leaders to guide or ever-so-subtly coerce others in how they might vote, why are the 26 Lords Spiritual in the Upper Chamber of Parliament?”
A good question requiring further exploration – and one which leads us neatly to …
The Lord Bishop of Leeds
Thursday’s Lords Hansard records that:
“Nicholas, Lord Bishop of Leeds, was introduced and took the oath, supported by the Archbishop of York and the Bishop of Carlisle, and signed an undertaking to abide by the Code of Conduct”: 5 Feb 2015 Vol 759 (99) col 775
Reader will recall that on Easter Day 2014, under the provisions of the Bishoprics Act 1878, the then Bishop of Ripon and Leeds and Bishop of Wakefield both ceased to be members of the House of Lords on the formation of the new Church of England Diocese of West Yorkshire and the Dales. It is purely fortuitous timing that the bishop heading the Church’s largest diocese now becomes a Lord Spiritual.
The Bishop of Salisbury, the Rt Rev Nick Holtam, is to be introduced to the House of Lords on 9 February. Whether or not he is the last male bishop to be appointed under the “Buggin’s turn” rule of the 1878 Act will be dependent upon the date on which the Lords Spiritual (Women) Bill receives Royal Assent; the unexpected retirement of one of the present Lords Spiritual; and the date of the appointment of a woman to one of the vacant diocesan Sees. The Lords second reading of the Lords Spiritual (Women) Bill is scheduled for 12 February; a summary of the progress to date is included in the House of Lords Library Note LLN 2015/002: Lords Spiritual (Women) Bill (HL Bill 87 of 2014–15) which was published on 2 February.
- The Catholic Weekly in Australia carries an interesting paper by Mark Hill, delivered recently at the University of Notre Dame Australia: ‘Religious Liberty in the United Kingdom and European Union’.
- The Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE) has published Guidelines on the Legal Personality of Religious or Belief Communities.
- This week, the Court of Appeal will hear oral argument in the appeal from the EAT judgment in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor  UKEAT 0243 12 2811 – which we noted here.
 The new Diocese is the largest by area with 656 Anglican churches serving its population of 2.3 million people and including the cities of Leeds, Bradford and Wakefield as well as North Yorkshire towns such as Skipton, Catterick, Harrogate and Settle. The new diocese is the first to be created in England for over 85 years: it comprises five smaller Episcopal Areas – Bradford, Huddersfield, Leeds, Ripon and Wakefield – each with its own Area Bishop and Archdeacon, responsible for local decision making.