Law and religion round-up – 14th February

The continuing saga of abortion law in Northern Ireland, bishops in the Lords, street preachers, daft headlines – and more…

Abortion in Northern Ireland

In December we noted that, subsequent to his judgment in Northern Ireland Human Rights Commission, Re Judicial Review [2015] NIQB 96, Horner J had concluded that the current abortion law in Northern Ireland is in breach of Article 8 ECHR (private and family life) and incompatible with the Human Rights Act 1998 because it does not provide adequate protection for the human rights of pregnant women 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.

The BBC reported that the Attorney General for Northern Ireland, John Larkin QC, has written to Jim Allister QC MLA (Traditional Unionist Voice) suggesting that proposed amendments to the Justice (No.2) Bill which would allow for abortion in cases of fatal foetal abnormality might not be compatible with the UN Convention on the Rights of Persons with Disabilities.

The Attorney wrote that “providing for a criminal law exception for ‘fatal foetal abnormality’, as proposed by this amendment, provides unborn children diagnosed with such a disability with much less protection under the law of Northern Ireland than those without such a disability”. He also said that he thought that the proposed conscience provisions in the amendments were inadequate. On Thursday the amendments to allow abortion in cases of fatal foetal abnormality were rejected by the Assembly by 59 votes to 40.

All this leaves open the question as to exactly which international legal obligation takes precedence in a situation where obligations appear to conflict: compliance with the UN Convention on the Rights of Persons with Disabilities (ratified by the UK in 2009) or compliance with the ECHR? We should have thought the latter, not least because its provisions are directly applicable in domestic law – but we’re open to correction on the point.

Bishops in the House of Lords

On Tuesday, the Government replied to an e-petition entitled Remove Church of England Bishops from the House of Lords:

“Changes to the composition of the House of Lords, including Church of England Bishops, are important but, given the very full programme of other constitutional changes, are not a priority at present. The Government has no plans to remove the Church of England Bishops from the House of Lords.

The Government considers that the relationship between the Church and the State in England is an important part of the constitutional framework that has evolved over centuries. As senior members of the established Church of England, 26 bishops are appointed to the House of Lords. Bishops provide an important independent voice and spiritual insight into the work of the Upper House and while they make no claims to direct representation, they seek to be a voice for all people of faiths. The House of Lords also contains a number of other senior faith representatives.

People have a right to conduct their lives in accordance with their faith insofar as this does not unlawfully interfere with the rights of others and it is important to strike a fair balance between religious freedom of expression and the rights of, for example, lesbian, gay and bisexual people not to be discriminated against. Therefore, the law protects the rights of both these groups. The Marriage (Same Sex Couples) Act 2013, which received Royal Assent on 17 July 2013, extends marriage to same sex couples in England and Wales, while protecting and promoting religious freedom.”

Regardless of one’s opinion on the presence of bishops in the House of Lords, the Upper House might benefit were it to adopt legislative constraints similar to those applicable to the Lords Spiritual: a fixed number (unchanged since 1847); equal numbers of men and women within the next 10 years; and mandatory retirement at 70.

The Charity Commission and the Jehovah’s Witnesses

The Watch Tower Bible and Tract Society of Britain has been in court again. On Wednesday it sought permission from the Court of Appeal to challenge the Charity Commission’s statutory inquiry which it describes as an “unlawful investigation”. Following the hearing no decision was reached. A spokesman for the Charity Commission told Civil Society News that the Commission was arguing for the case to be heard by the Charity Tribunal instead of in the High Court, on grounds of cost:

“Watch Tower is appealing this investigation for the fourth time but if they are allowed to win and have the case heard at the High Court, it could be confusing at best for charities and at worst, it could be that charities feel they have to go to the High Court rather than the Charity Tribunal. That would defeat the whole object that the Charity Tibunal is cheaper for charities. A charity like the Jehovah’s Witness can afford the High Court but most charities can’t.”

Religious harassment charges against street preacher dropped

Premier reported that the Crown Prosecution Service has decided to drop charges against Michael Jones, a street preacher arrested in Beverley in December after comments he made about Islam and Islamic State: he faced two charges under the Crime and Disorder Act 1998. In a letter telling him that the charges were being dropped the CPS said that there was insufficient evidence to provide a realistic prospect of conviction.

Readers may recall that in December another street preacher – Michael Overd, from Taunton – successfully appealed against his conviction 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. At Taunton Crown Court, HHJ Ticehurst upheld his appeal, with costs.

On vesture

We noted the current consultation by the House of Bishops on vesture: about what folk may wear when officiating at services in the Church of England – and not to be confused with the sixteenth century Vestiarian Controversy, which was about what folk may wear when officiating at services in the Church of England. Oh: hang on a moment…

Antonin Gregory Scalia RIP

Yesterday it was announced that Justice Scalia of the US Supreme Court had died at the age of 79. An originalist on the interpretation of the Constitution and probably the Court’s arch-conservative, Nino Scalia was not a man to mince his words. Of the majority opinion in Obergefell v Hodges 576 US ___ (2015) he commented at note 22 to his dissent:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”

The judicial stance of his successor will depend on who gets to make the appointment: will President Obama manage to appoint a liberal Associate Justice before his term of office comes to an end, or will his candidate be blocked by the Senate? But however it turns out, though a court without Scalia will be less overtly political (maybe), it will also be less interesting.

Misleading headline of the week

In view of the forthcoming session “Law, Religion and Media Reporting” at the 2016 Law and Religion Scholars Network (LARSN) Conference to be held on Thursday 5 and Friday 6 May 2016 at Cardiff University, we have been further sensitized to the reporting of religion by the media. Whilst not matching the Christian Today piece in July 2014 which proclaimed “Clergy may ‘dress down’ after CofE relaxes rules on vestments” (which was incorrect on a number of levels), this week’s confused headline comes from the Coventry Reporter’s assessment of Re Coventry Road Cemetery Bedworth: “Incredibly rare ruling means man’s body can be reburied beside his beloved wife at different cemetery”. Whoopiedoo!

Nice one, Kirill

And another one: the meeting between the Pope and the Patriarch of Moscow has given rise to a certain amount of media confusion. The Wall Street Journal, for example, reported it under the headline Pope Francis Moves to End a 1,000-Year Rift: “The leaders of the Catholic and Russian Orthodox Churches took a major step toward ending a 1,000-year split between Catholicism and Eastern Orthodoxy by identifying areas of common ground amid broad challenges for both churches.” Which is absolutely true: but maybe the meeting was not quite so groundbreaking as all that.

The Patriarchate of Moscow and All Russia was not established as a Patriarchate until the late sixteenth century – though, admittedly, prior to the Patriarchate there had been a Metropolitan of Moscow since 1461. But, as most readers will be aware, the senior bishop of Orthodoxy is not Patriarch Kirill but Bartholomew I, “His Most Divine All-Holiness the Archbishop of Constantinople, New Rome and Ecumenical Patriarch”. The First Council of Constantinople declared that “The Bishop of Constantinople shall have the primacy of honour after the Bishop of Rome, because it is New Rome” (Canon iii) and in 451 the Council of Chalcedon established Constantinople as a patriarchate with ecclesiastical jurisdiction over Asia Minor. The first meeting in modern times between a Pope and an Ecumenical Patriarch was in 1964, when Patriarch Athenagoras I met Pope Paul VI in Jerusalem and, in doing so, initiated the gradual thaw in Roman Catholic-Orthodox relations. None of this is to deny the importance of the meeting between Pope Francis and Patriarch Kirill – but it’s by no means as significant as that meeting in Jerusalem some fifty years ago.

Quick links

And finally …

Still on the theme of media reports, Ash Wednesday is the annual signal for a spate of (often slightly nutty) articles reporting on the weirder aspects of the practice. Fr Z’s blog is always a good start, especially if one wishes to know whether it’s OK to eat alligator during one’s Lenten fast; the unambiguous answer is his earlier post Abstinentia de carne lacertina aut crocodrillina is in the affirmative. This explanation is augmented by a helpful information “Muskrat can be eaten on Fridays in some parts of Michigan. I’m told it tastes of dirty dishrag and has the consistency of very old, thick asparagus.”

The Daily Telegraph included a piece describing various practices worldwide and a “count down” timer indicating “how long to the end of Lent?”, to the nearest second – a bit like the Cardiff University system for submitting essays. Of more immediate use might have been “how long to Laetare Sunday?” There was also a comment from the Revd Kate Bottley, who tweeted #ashtag #AshWednesday – “never know when we are ‘allowed’ to wipe it off…it’s a bit itchy”. As any chorister knows, one always wipes off the ash before removing one’s surplice.

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