Religion and law round-up – 4th October

Scottish charities, caste, mental capacity, incense not a “legal high”, a new initiative on freedom of religion & belief – and the pitfalls of machine translation

Consultation on guidance for Scottish charity trustees

The Office of the Scottish Charity Regulator (the OSCR, better-known as “Oscar”) has announced a full revision of its Guidance for Charity Trustees, which has been updated in light of OSCR’s experience of regulating the sector over the past nine years. Key features of the updated guidance include a less formal tone, illustrative examples and web-based sections that allow users to navigate between areas of particular interest to their own organisations. The Guidance was last updated in September 2010: since then, OSCR has conducted over 2,000 inquiries into charity governance and produced Who’s in Charge, a guidance document summarising issues of independence and control in charities. The updated guidance has also been informed by OSCR’s high-profile governance reviews.

The consultation runs from 28 September to 18 December. Its relevance to religious organisations in Scotland (and, for that matter, to denominations like the Methodists, the Quakers, the URC and the Salvation Army that operate across Great Britain or the entire UK) should hardly need mentioning – but it’s surprising how easy it is to miss these things.

Caste discrimination – or maybe not

We noted the judgment in Tirkey v Chandhok & Anor [2015] ET 3400174/2013 (or maybe “Chandok: there seems to be some disagreement over the spelling) on the substance of Ms Tirkey’s case against her employers. We concluded that, though she won on several grounds, the issue as to whether or not discrimination on grounds of caste contravened the provisions of the Equality Act 2010 was not really addressed.

Public reaction to the judgment has been mixed: the National Council of Hindu Temples UK described it as “a straightforward Employment Tribunal case, a particularly grave case, but a case of terrible abuse by an employer of a vulnerable employee” while the National Secular Society reported Lord Lester QC as saying that the case has “no value as a precedent” and that the Government should not be allowed to duck the issue of outlawing caste discrimination. On balance, we are inclined to agree with Lord Lester – certainly on the precedent point; however, Prakash Shah argues strongly against any such move: see What’s caste got to do with it? Deception and the law on caste discrimination.

Incense in worship not caught by Psychoactive Substances Bill

This week we reported that, following Frank’s memorandum on behalf of the Churches’ Legislation Advisory Service to the Commons Home Affairs Committee, the Minister has responded with an assurance that it is not the Government’s intention to criminalise the use of incense in worship. Similar concerns had been expressed to the Committee by the Association of English Cathedrals. The Psychoactive Substances Bill is about to begin its Commons stages and the Minister has indicated his willingness to reiterate the point on the record.

Mental capacity and consent to treatment

We noted the difficult case of Wye Valley NHS Trust v B [2015] EWCOP 60, a best interest decision. Mr B lacks capacity because of delusional schizophrenia; and the issue was whether doctors should be allowed to amputate Mr B’s foot against his wishes or whether his wish to die without the operation should be respected. Peter Jackson J took the view that Articles 2, 3 & 9 ECHR were engaged; and in dismissing the NHS Trust’s application he declared in no uncertain terms that “a conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms” [11].

Turbans in the workplace

We noted a change in the law to permit turban-wearing Sikhs to choose not to wear head protection and to exempt them from legal requirements to wear a safety helmet in the majority of workplaces. Ss 6 & 7 of the Deregulation Act 2015 came into force on 1 October; they extended the existing exemption in the Employment Act to all workplaces, with a saving for the emergency response services and the military where they are operating in hazardous operational situations. However, should an individual suffer injuries as a consequence of not wearing head protection, employers will be legally protected through the extension of limited liability.

Commonwealth Initiative for Freedom of Religion or Belief

The week saw the launch of the Commonwealth Initiative for Freedom of Religion or Belief (CIFoRB), which seeks to address the question: “How can parliamentarians be effectively equipped to make a significant contribution to reversing the global decline in freedom of religion or belief?” The Initiative is led jointly by Baroness Berridge, Co-Chair of the All Party Parliamentary Group on International Freedom of Religion or Belief, and Andrew Davies, Reader in the Public Understanding of Religion and Head of the Department of Theology & Religion at the University of Birmingham. It is supported by an Advisory Board chaired by Professor Malcolm Evans of Bristol Law School, who will be too well-known to readers of this blog to require an introduction.

CIFoRB intends to approach its task through research (two journal publications in political science and policy and an edited volume in religion, the development and dissemination of an annotated bibliographic database and publication of two white papers designed to support parliamentary advocacy and facilitate academic and parliamentary partnership in this area); through networking, training, mentoring and development events for experienced parliamentarians and emerging leaders; and through the establishment of a Commonwealth Commission for FoRB which will work in strategically-significant nations to support and encourage parliamentary activity and help parliamentarians to maximise their opportunities to speak out authoritatively.

Quick links

  • British Religion in Numbers (BRIN): Sunday Trading and other news, the latter including: Extra-terrestrial life; perceptions of Jesus; Evangelicals; Religion and sex; General Synod candidates; Mosque statistics; and Jewish statistics.
  • Atheist, Northern Ireland: Tehmina Kazi on Pastor McConnell and freedom of expression: The Director of British Muslims for Secular Democracy explains why, in her view, “the law should not be used as a blunt instrument to stymie freedom of expression, unless there is direct incitement to violence or hatred against individuals”.

And finally …

… the perils of a reliance on Google Translate (not to say it isn’t extremely useful). A recent exchange on the Canon Law Facebook pages sought a translation from the recent article (in Portuguese) Existe “Divórcio” Católico? (1). The phrase:

“O primeiro caso a ser analisado é o do matrimônio rato (ratificado) e não consumado. Por rato entende-se um matrimônio válido ratificado por Deus, isto é, sacramental (ou seja, entre batizados)”

was translated as:

“The first case to be analyzed is the mouse marriage (ratified) and unconsummated. By mouse means a valid marriage ratified by God, that is, sacramental (i.e. between baptized).”

Whilst the error clearly relates from the translation of Canon 1141 and 1142 CIC from Latin into Portuguese and then to English, in the future it will be difficult to consider ratum sed non consummatum without associating the term with “mouse marriage”.

[Insatiably curious, Frank asked a Portuguese colleague for a correct translation: she replied with ““The first case to be analysed is that of the ratified and unconsummated marriage. By ratified we understand a valid marriage approved by God…”]

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