Law and religion round-up – 13th December

Marriage law, pay inequality, street preaching, charity funding, Trinity Western again – and a little jazz… 

Marriage Registration Certificates

On Monday there was a Westminster Hall debate on marriage certification introduced by Mrs Caroline Spelman (Meriden) (Con), the Second Church Estates Commissioner. In brief, she was arguing for reform of the law in England and Wales to include mothers’ names on marriage certificates and for the adoption of the marriage schedule system currently used for marriage and civil partnership registration in Scotland and Northern Ireland, with a single electronic register instead of the current marriage register books. Replying, Home Office minister Richard Harrington (Parliamentary Under-Secretary of State for Refugees) conceded that the system needed reform but thought that piecemeal amendment was not enough: it was a complex issue and the Government wanted a comprehensive solution. We noted the debate here.

“Sham marriage” and the burden of proof

And while we’re on the subject of marriage, the Court of Appeal has reiterated that the burden of proof as to whether or not a marriage is a sham for the purposes of immigration law rests with the Home Office. [Thanks to Free Movement.]

In Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 Underhill LJ said this:

“What it comes down to is that, as a matter of principle, a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse’s passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing ‘reasonable suspicion’. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised … [T]hat approach seems to me to be correct – as does the UT’s statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35” [13: emphasis added].

Under-age marriage and Article 8 ECHR

And another one … Ms ZH and Mr RH are Afghan nationals born in 1996 and 1992 respectively. They entered Switzerland via Italy and, presenting themselves to the authorities as a married couple, applied for asylum in September 2011. According to the couple they had married in a religious ceremony in Iran in 2010 when Ms ZH was fourteen and Mr RH eighteen. Their asylum request was rejected: the migration authorities concluded that, under EU law (the “Dublin II Regulation”), because it was the first EU state they had entered Italy, not Switzerland, had been responsible for examining their asylum claim. Their subsequent appeal was dismissed: they had failed to submit a marriage certificate and their religious marriage could not in any event be recognised in Switzerland because the law in Afghanistan prohibited marriage for women under fifteen. Furthermore, the marriage was contrary to Swiss law on grounds of public policy because sexual intercourse with a child under the age of 16 was a crime. So Ms ZH was not a member of Mr RH’s family under EU law, nor could the couple assert a right to family life under Article 8 ECHR.

In ZH and RH v Switzerland [2015] ECHR 1075 the claimants asserted that expulsion of Mr RH to Italy in 2012 had violated Article 8. The Third Section held, unanimously, that Article 8 could not be interpreted as imposing on states parties an obligation to recognise a marriage, religious or otherwise, contracted by a 14-year-old child and noted that Article 12 (right to marry) expressly provided for regulation of marriage by national law. Application dismissed.

Prison chaplains, pay progression and inequality

In Naeem v The Secretary of State for Justice [2015] EWCA Civ 1264 Mr Naeem, the Muslim chaplain at HMP Bullingdon, sued for indirect religious or, alternatively, racial discrimination, arguing that, because the MoJ has a long pay ladder for chaplains with slow progression, Muslim chaplains (who were first appointed only in 2002) were unfairly discriminated against in comparison to Anglicans.

The Court of Appeal dismissed the appeal from the judgment of the EAT because the essential point was that the shorter average length of service of Muslim chaplains was because there had been no need to appoint any until the proportion of Muslim prisoners had made it necessary – which did not operate to the disadvantage of Muslims. Underhill LJ added that, while some practices might prove on examination to be to a greater or lesser extent unfair,  “the correction of unfair pay practices is not the business of the 2010 Act and respondents ought not to have to defend them unless there is in truth an element of discrimination…” [24-25]. We posted a longer note on the decision here.

Street preaching and public order

On Friday a street preacher from Taunton, Mr Mike Overd, won his appeal against his conviction in March under the Public Order Act 1986 for reading part of a passage from Leviticus 20 that condemns same-sex relationships. He had been fined £200 and ordered to pay £1200 in costs and compensation. Sitting at Taunton Crown Court, HHJ Ticehurst upheld the appeal, with costs.

The original conviction had managed to attract the condemnation both of Christian Concern, which supported his case, and of the National Secular Society, whose communications officer, Benjamin Jones, declared “Je suis Michael Overd” and said that Overd was “a canary for free speech”.

Gift Aid Small Donations Scheme uprating

The House of Commons has approved the Draft Small Charitable Donations Act (Amendment) Order 2015, which will increase the limit for claims under the Gift Aid Small Donations Scheme (aka GASDS) from £5,000 to £8,000 per charity per year. GASDS is of particular interest to church congregations – for whom, in effect, it was originally designed. In its first year, 2013-14, 8,100 charities claimed a total of £6 million: in 2014-15 19,300 charities claimed a total of £21 million. The draft Order is not subject to proceedings in the House of Lords: but it should be noted that the uprating will come into force on 6 April 2016 and not before.

Commission on Religion and Belief in British Public Life

Next year, the Law and Religion Scholars Network (LARSN) Costool of repentancenference will include a session on “Law, Religion and Media Reporting”; and last week’s publication of the CORAB report Living with Difference: community, diversity and the common good has provided an ample amount of material for inclusion. Its length (104 pages) afforded an opportunity for campaigning organizations to “cherry pick” items of interest to their agenda; but the sloppy reporting of many media outlets resulted in a long queue for the Stool of Repentance.

Here at L&RUK, Frank has written a factual summary, The CORAB report: Living with Difference, which concludes that “no report that the commission could possibly have produced was ever going to please everyone; and at least it represents a serious attempt to get to grips with some of the major issues” – and suggests that people read it for themselves.

‘Mum, Dad & Kids’ update

On 21 October we posted on the launch of a new European Citizens’ Initiative (ECI) for EU legislation to impose traditional view of marriage. The College of Commissioners has now agreed on the registration of this and another new ECI; “it considered that both initiatives fall within the conditions set out in the ECI Regulation”. These require that the proposed action does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act, that it is not manifestly abusive, frivolous or vexatious and that it is not manifestly contrary to the values of the Union.

At this stage, the College has only discussed the legal admissibility of the ECIs, not their substance. The ECI, ‘Mum, Dad & Kids’, calls for a horizontally applicable EU Regulation that defines the meaning of marriage for the purpose of the application of EU legislation, and it will be officially registered by 15 December 2015. From the date of registration, the organisers have twelve months to seek statements of support from citizens for their ECIs. Provided that the ECI reaches one million statements of support from citizens from at least 7 Member States within one year, it will be referred to the College for a discussion on substance. In this case, the Commission can then decide either to follow the request or not follow the request and in both instances would be required to explain its reasoning. These decisions bring the total number of ECIs submitted to the Commission to 57, of which 37 have met the legal criteria for registration, here.

As we noted in our earlier post, MUM, DAD & KIDS, raises a number of problematic issues, not least of which is the effect of the proposed Article 4 on repealing: Article 2 (2) of Directive 2004/38/EC [on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States]; and Article (2)(1)(b) of Directive 2012/29/EU [establishing minimum standards on the rights, support and protection of victims of crime], which would remove the rights currently held by some of those currently defined as “family members”.  Furthermore, the current draft legislative proposal keeps open the option for further extending these repeals to other Directives containing references to “family” and “marriage”.

Trinity Western Law School: round three concluded

As we have mentioned before, Trinity Western University, British Columbia, is an overtly-confessional, Christian institution which requires its students to agree to comply with a code of conduct, the “Community Covenant”, which inter alia bans all sexual intimacy outside marriage between a man and woman; and it is in the process of establishing a law school. Thus far, the Law Societies of Alberta, Saskatchewan, New Brunswick, Prince Edward Island and Yukon have approved TWU’s accreditation, while the Law Society of Upper Canada (ie Ontario), the Nova Scotia Barristers’ Society and the Law Society of British Columbia have refused to do so. On 28 January 2015, in Trinity Western University & Anor v Nova Scotia Barristers’ Society & Ors 2015 NSSC 25, the Nova Scotia Supreme Court held that the NSBS had acted ultra vires by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federation of Canadian Law Societies. On 2 July, however, in Trinity Western University v The Law Society of Upper Canada 2015 ONSC 4250 the Divisional Court of Ontario dismissed the application for judicial review of the Society’s decision not to accredit TWU’s law school.

Now, in Trinity Western University v Law Society of British Columbia 2015 BCSC 2326 Hinkson CJ has reinstated the April 2014 vote by the Benchers of the Law Society of British Columbia (which they rescinded in October 2014) to approve TWU’s law graduates for entry into the Society’s bar admissions programme.

“There is no basis upon which a conclusion could be drawn … that the LSBC’s membership considered, let alone balanced, the petitioners’ Charter rights against the competing rights of the LGBTQ community…. While the Benchers clearly weighed the competing Charter rights of freedom of religion and equality before voting on the April Motion, the record does not permit such a conclusion to be reached with respect to the Benchers’ vote of October 31 2014. As the respondent had bound itself to accept the referendum results of its members, I am unable to find that the vote of the LSBC’s members or the impugned decision considered, let alone balanced, the two implicated Charter rights. Further support for this conclusion comes from the fact that opposite results were reached by the Benchers’ votes of April 11 and October 31 2014, despite the October 31 2014 vote being conducted without any substantive discussion or debate” [150 & 151].

So the score is currently TWU 2: Provincial Law Societies 1 – but presumably the Supreme Court of Canada will have the final say.

[Thanks to Howard Friedman]

Quick links

  • Ecclesiastical Law Society: Gospel and Law: Advent edition, including a killer put-down about the Synod Report on Public Perceptions of Jesus: that there wasn’t much law in it “although there might be something to be reflected on as regards Jesus’ impact on public perceptions of lawyers”.
  • Church of England: Week in Westminster 7th-11th December 2015. This week bishops in the House of Lords tabled and spoke to amendments to the Government’s Welfare Reform and Work Bill and spoke in debates on the Scotland Bill, the Online Safety Bill and on residential care. Bishops also asked questions on flooding in Cumbria, adoption, delays in settling Syrian refugees and acute oak decline. In the House of Commons the Second Church Estates Commissioner led a debate on reform of marriage registration certificates, including the addition of mothers’ names, (see above).
  • Church of England Press Release: Church of England welcomes COP21 agreement The Rt Rev Nicholas Holtam, Bishop of Salisbury, welcomed Saturday’s agreement at the UN Climate Change Summit in Paris; after two weeks of talks, participants committed to hold the increase in global temperatures to ‘well below’ 2-degrees above pre-industrial levels, alongside clear rules on transparency and reviews of carbon emissions every five years.

And finally – I …

ITV reported that “Gloucestershire food sculptor creates BRIE-lliant Nativity scene entirely from cheese, which will certainly bring a new meaning to William Crotch’s “Lo! star-led chiefs Assyrian odours bring” from his 1818 oratorio Palestine. Or perhaps, Quelle est cette odeur desagréable?

And finally – II …

The back end of this blog is powered by WordPress: and the latest release is “Clifford”. It’s so named for the great Clifford Brown, one of the finest jazz trumpeters who ever blew and who died aged 25 as a passenger in a car crash. If you want to know why, listen to the long version of Joy Spring: his own composition and 50 years old but still one of the most brilliant trumpet solos of all time.

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