Law & Religion 2015 and 2016: retrospect and prospect

So that was 2015…

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The General Election 2015

Inevitably, the biggest domestic news of 2015 was the outcome of the general election: a Conservative Government with an overall majority, a rout for the Liberal Democrats and a landslide for the SNP, which won 56 out of Scotland’s 59 Westminster seats. The result raised several issues generally relevant to some of what we cover in this blog: the future of the Human Rights Act 1998 and the domestic applicability of the ECHR, the UK’s future (or not) as a member of the EU and law reform generally.

After a Government defeat in the House of Lords following a debate on secondary legislation during which the Lords Spiritual played an important part, Lord Strathclyde was asked in October to consider “how to secure the decisive role of the House of Commons in relation to its primacy on financial matters and secondary legislation”. His recommendations were published in December.

Assisted dying

On Friday 11 September the Assisted Dying (No. 2) Bill, a private Member’s bill introduced by Rob Marris to mirror Lord Falconer’s bill in the House of Lords, was debated on second reading. It was defeated by 330 votes to 118: a majority of 212. That probably settles the matter for the remainder of the present Parliament.

Clergy employment

At the end of 2013 we expressed serious doubts about the judgment in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811, in which Mrs Justice Cox, sitting alone, reviewed the decision of the lower tribunal that the Revd Mark Sharpe, former freehold incumbent of Teme Valley South Benefice in the Diocese of Worcester, could not be a “worker” for the purposes of employment rights and held that it had been flawed. She allowed the appeal and remitted the case to the Employment Tribunal for rehearing “in accordance with the legal principles set out in this judgment” [244]. We predicted that, rather than a fresh hearing before an Employment Tribunal, the case would almost certainly go straight to the Court of Appeal. It did: he lost: see Sharpe v Bishop of Worcester [2015] EWCA Civ 399, on which Russell Sandberg guest-posted a long analysis.

The recent line of judgments in Sharpe, in President of the Methodist Conference v Preston [2013] UKSC 29 and in Macdonald v Free Presbyterian Church of Scotland [2010] UKEAT 0034 09 1002 received unexpected support from the ECtHR in Károly Nagy v Hungary [2015] ECHR 1051. The Supreme Court of Hungary had refused to overturn Mr Nagy’s dismissal as a minister in the Reformed Church after disciplinary proceedings in the church courts because there was no contractual relationship between the parties. The Second Section held by a single vote (and in a very messy series of opinions) that the domestic court’s decision could not be considered arbitrary or manifestly unreasonable.

Given the nature of the Second Section opinions, we would not rule out a successful appeal should Mr Nagy be able to take the case to the Grand Chamber. If nothing else, however, we do hope that the events of the past year have finally laid to rest Lord Templeman’s nonsense in Davies v Presbyterian Church of Wales about a cleric being the “servant of God” and that a better standard of judicial analysis will prevail.

Marriage law in England & Wales

In November the Revd Stephen Trott  tabled a Private Member’s Motion at General Synod, calling for an end to the practice of calling banns as a necessary legal preliminary to marriage in the Church of England. (What would happen to banns in the Church in Wales is not clear.)

Prior to that, the Government had asked the Law Commission to undertake a broad review of the law on marriage ceremonies; it published Getting Married: A Scoping  Paper in December. Where we go from here remains to be seen: the next stage in the process is for Government to respond to the Commission’s recommendations for further work. But we imagine that, having started the process, ministers will want to see it through.

Religious advertisements

Advent is not to be confused with the “silly season”; but it began to feel like it when a major row blew up in November about the refusal of leading cinemas to show a 60-second advertisement based on The Lord’s Prayer as part of the ad reel before Star Wars: The Force Awakens. The refusal by Digital Cinema Media (DCM) caused a media storm and the Church of England complained about the decision to the Equality and Human Rights Commission on grounds of discrimination. The EHRC duly made its own statement on the matter, concluding that “There is nothing in law that prevents Christian organisations promoting their faith through adverts”. True: but we already knew that. The issue is about whether or not an advertiser is obliged to accept any particular category of advertising.

We suspect that the courts – rather than the EHRC – might give us a definitive answer some time in 2016. However, the issue of religious advertising is likely to remain in the media, because DCM further banned an advertisement of the Christmas Starts With Christ campaign; and there was a dispute concerning the alleged “local decision” to remove an image of St John the Evangelist from a proposed art display the new Network Rail station in Rochester, Kent, on the grounds that it was deemed “overtly Christian” and would offend “multi-cultural values”.

Same-sex relationships

To be writing about the subject of same-sex relationships may seem somewhat passé now that the first same-sex marriages have taken place in Great Britain: however, it remained a continuing theme of 2015.

The two jurisdictions in the island of Ireland managed to take completely opposite views. In May, voters in Ireland voted almost two to one in favour of amending the Irish Constitution to permit same-sex marriage: in two votes, however, the Northern Ireland Assembly decided not to have anything to do with it. Moreover, much consternation was caused when DJ Brownlie held in Lee v Ashers Baking Co Ltd & Anor [2015] NICty 2 that the bakery had breached the laws on equal treatment and sexual orientation when it refused to bake Gareth Lee a cake bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. Unsurprisingly, the decision, on which we are still awaiting the appeal judgment, generated enormous controversy in a society that is much more socially conservative than Great Britain – and, as it turned out, more socially conservative than the Irish Republic.

The issue also came before the General Assembly of the Church of Scotland in May. The General Assembly voted to allow congregations to ordain, induct or appoint ministers and deacons in civil partnerships but decided to send down to presbyteries, under the Barrier Act, the matter of extending that permission to ministers and deacons in same-sex marriages. If a majority of presbyteries votes in favour of the move, the issue will be back on the agenda for the General Assembly in 2016: if not, presumably the GA will return to the matter at some future date as yet unspecified – because the issue is unlikely to go away.

In November, the Employment Tribunal found for the respondent in Pemberton v Inwood, Acting Bishop of Southwell and Nottingham [2015] ET 2600962/2014. The 58-page judgment held that Jeremy Pemberton, who was prevented from taking up a new appointment as a senior hospital chaplain by the refusal of the Bishop to give him a licence, was not discriminated against; and a claim for harassment was dismissed. An appeal is in prospect. Subsequently, Canon Jeremy Davies, the retired Precentor of Salisbury Cathedral, was denied Permission to Officiate in the Diocese of Winchester on account of his marriage to his partner, opera singer Simon McEnery. Whilst this does not raise the same legal issues, it again highlights the differences between adjacent dioceses in interpreting the Church’s approach to same sex marriage.

Perhaps the biggest news, however, was the decision of SCOTUS in Obergefell v Hodges 576 US ___ (2015): by five votes to four the Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment oblige all states to provide for same-sex marriage and to recognise same-sex marriages granted in other states. So that’s the end of that, then. Or perhaps not: needless to say, the ruling has been extremely controversial – and Scalia J rounded on the majority with the comment that if he were ever to join in such an opinion “I would hide my head in a bag”. But from this side of the Atlantic one cannot help wondering whether SCOTUS might not now be so hopelessly politicised that it makes decisions on cases such as Obergefell based almost entirely on the a priori prejudices of the Justices rather than on rigorous legal analysis. Otherwise, how come so many high-profile cases are decided 5:4?

Bishops in the Church of England

On 26 January the Revd Libby Lane was consecrated at York Minster as the first female bishop in the Church of England. Subsequently, the Venerable Rachel Treweek was consecrated Bishop of Gloucester, becoming the first female diocesan. She was introduced into the House of Lords on 26 October, pursuant to the provisions of the Lords Spiritual (Women) Act 2015. Ironically, whilst Bishop Rachel is reported as saying “God should not necessarily be seen as a masculine figure … God is not to be seen as male. God is God”, the same cannot be said for her own gender-specific title; replying to a written question, [HL2684], Baroness Stowell of Bestow stated, “Following discussions between the Church of England and the Crown Office, it has been agreed that ‘The Lord Bishop’ will continue to be the appropriate designation for all Bishops in the House of Lords.”

On 16 January 2016, Bishop Rachel will be joined as a Lord Spiritual by the Rt Revd Christine Hardman, Lord Bishop of Newcastle, who was consecrated on 30 November. Consecrated as Suffragan Bishops during 2015 have been: Libby Lane, Bishop of Stockport; Alison White, Bishop of Hull; Sarah Mullally, Bishop of Crediton; Ruth Worsley, Bishop of Taunton; and Anne Hollinghurst, Bishop of Aston. Karen Gorham is Bishop-designate of Sherborne and will be consecrated on 24 February 2016.

Safeguarding

Safeguarding issues continued to be a major concern of the Churches during 2015. Perhaps the most high-profile case was that of Peter Ball, former Bishop of Lewes and Bishop of Gloucester, who was sentenced to 32 months’ imprisonment for a series of historic sexual offences and for the common law offence of misconduct in public office – to which he finally pleaded guilty. The year ended with a statement from the Church of England following the release by the CPS of a number of letters written in support of Bishop Ball from January to March 1993.

In late October the Church of England issued a statement about the settlement of a historic claim against George Bell, Bishop of Chichester from 1929 until his death in October 1958, involving sexual offences against someone who was then a young child. The allegations date from the late 1940s and early 1950s. According to the survivor’s solicitor, Tracey Emmott, who was quoted in the C of E statement, when the police investigated the claim in 2013 they concluded that, had Bell still been alive, the information from their enquiries would have justified his arrest and interview on suspicion of serious sexual offences, followed by release on bail, further enquiries and a report to the CPS. In December the Church settled another historic claim: this time against Garth Moore, who died in 1990 and is still a name to conjure with in the world of English ecclesiastical law – or was until a month ago.

In August the Catholic Bishops’ Conference of Scotland published the Report of the McLellan Commission, A Review of the Current Safeguarding Policies, Procedures and Practice within the Catholic Church in Scotland. The Commission, which was chaired by a former Moderator of the General Assembly of the Church of Scotland, was given the remit “to review all aspects of Safeguarding policy, procedure and practice within the Catholic Church in Scotland, and to make recommendations for improvement that will assist the church in being a safe place for all”. We posted a summary here.

The Churches and the environment

The COP21/CMP 11 meeting of the United Nations Climate Change Conference in Paris from 30 November to 11 December 2015 provided the focus for faith groups and others to set our their views on climate change with a view to persuading world leaders to reduce emissions to avoid average temperatures rising beyond 2⁰C, widely considered to be the threshold above which it is considered that the impacts of climate change will be most severe. On 17 June, the Church of England published a revised Lambeth Declaration on Climate Change, immediately prior to the launch of the Pope’s encyclical Laudato si’ which was described as being “aimed at influencing the debate ahead of UNFCCC talks in Paris in December and [calling] for changes in lifestyles and energy consumption to avert the destruction of the ecosystem before the end of the century, [for which] failure to act would have grave consequences for humanity”. Contrary to media reports that the encyclical was critical of carbon trading – an important mechanism for the reduction of carbon emissions, we suggested that Laudato si’ was supportive of the principle of carbon trading and the reasons behind these misapprehensions appeared to stem from one unfortunately-worded section in the Encyclical, [para.171], (which was even less clear in the subsequent Latin version).

The CofE organized the Pilgrimage2Paris to encourage those taking part in the Paris talks “to reach fair, accountable and firm commitments which will change the way we act and move us towards a low carbon economy.” The Church Commissioners continued their proactive engagement with their investment portfolio, but the Roman Catholic Church has shown no great enthusiasm in this area; it has been suggested that the Vatican’s hesitancy to act may reflect internal divisions about whether investment decisions by the Institute for Religious Works (IOR), and the role of the climate change denier Cardinal George Pell, who acts as the pope’s chief economic minister.

There was mixed reaction to the text of the final document – the Paris Agreement, which we analysed here. Over the period 22 April 2016 to 21 April 2017 it will be open for ratification, acceptance or approval by the Parties to the Convention. The Agreement provides a “bottom-up” mechanism for reducing the emissions of greenhouse gases, and is an undoubtedly a triumph for French diplomacy. However, it does not include commitments to legally-binding levels of carbon reduction and is couched mainly in non-mandatory language; and George Monbiot captured the views of many environmentalists in his post “Grand promises of Paris climate deal undermined by squalid retrenchments”, concluding that “By comparison to what it could have been, it’s a miracle. By comparison to what it should have been, it’s a disaster”.

With regard to post-COP21/CMP11 initiatives, the Church of England continues to be proactive with its programme of reducing carbon emissions through the targets set in Shrinking the Footprint and through its property portfolio. In his piece COP21 – The Dawn of a New Era, Edward Mason, Head of Responsible Investment, Church Commissioners for England, identified the role that all must play in reducing carbon emissions: companies, investors and individuals, and for the churches this means a threefold targeting of their own carbon footprint and that of their followers, continued advocacy at national and international level, and influencing others. On 16 December the Church Commissions announced that the ‘Aiming for A’ investor coalition of which they are a part, had confirmed that it is calling for the major mining companies to make a step change in their disclosure to investors about their response to the challenges posed to their businesses by the global drive to mitigate climate change.

There is no doubt that the publication of Laudato si’ played an important persuasive role in the run-up to the Paris talks, and the importance of a successful outcome has been one of Pope Francis’ major themes for the year – it is even is rumoured that during the talks, he had to phone the president of Nicaragua to make a personal plea to ensure support. Now the text of the Agreement has been agreed, there are “corporate” institutional issues for the Roman Catholic Church to address on minimising its own greenhouse gas emissions and persuade others to do so.

Living with Difference

The year ended not with a whimper but a bang, when the (self-appointed) Commission on Religion and Belief in British Public Life chaired by Baroness Butler-Sloss published Living with Difference: community, diversity and the common good. Its authors begin from the proposition that “Religion and belief are driving forces today” and that, though society is not going to return to a past when religion and religious authorities dominated, religion is nevertheless here to stay.

Reactions were mixed: Ruth Gledhill dismissed it as ‘The worst report I’ve ever read‘, while Andrea Minichiello Williams concluded her response with the accusation that “Those who are most vocal in calling for further pursuit of the failed experiment of pluralism are usually those who really see it as a vehicle for robbing us of the benefit of our Christian heritage. The Church of England gave the report a cautious welcome and the British Humanist Association’s reaction was also broadly welcoming, while the National Secular Society criticised the report as completely at odds with the religious indifference that permeates British society‘.

The responses themselves raise some interesting questions. Just whose “Christian heritage” is at stake? What about Muslims, Jews, Hindus and Sikhs and, for that matter, agnostics and atheists: are they not part of “society” as well? And what alternative is on offer to “the failed experiment of pluralism”: repeal of the Toleration Acts? On the other hand, is British society completely permeated by religious indifference? And is there any longer such a thing as a collective “British society” anyway, as opposed to a series of regional communities and nations? We suspect that, whatever one’s own reaction, the report has triggered a debate that will run for most of 2016, and maybe beyond.

 And for 2016?

  • Will the Attorney-General for Northern Ireland appeal the first-instance judgment in Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 96? Following it Horner J made a declaration of incompatibility with the Human Rights Act 1998 in respect of the non-availability of abortion where there is a serious malformation of the foetus or a fatal foetal abnormality or where the pregnancy is the result of rape or incest.
  • What will be the outcome of Jeremy Pemberton’s likely appeal?
  • Ashers Baking Company’s appeal against the ruling in Lee [above] is to be heard in February 2016: with what result?
  • Two references to the CJEU on religious dress: Bougnaoui [Case C-188/15] and Achbita [Case C-157/15].

And the big ones…

  • Will the EU in/out referendum be held in the summer of 2016? And if it is, what will be the outcome?
  • Will the Government publish its proposed “British Bill of Rights”?

Until then…

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And a very happy New Year to all!

FC & DP 

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