Law and religion round-up – 15th May

Not much domestic news this week apart from the continuing saga of the British Bill of Rights, but quite a lot going on elsewhere… 

A British Bill of Rights? Peers say “think again”

On Monday, the EU Justice Sub-Committee of the House of Lords, chaired by Baroness Helena Kennedy QC, published a report on the Government’s proposals to repeal the Human Rights Act and replace it with a new Bill of Rights – and said that there was a forceful case for a Government rethink. It pointed out that:

“The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary.

If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy. As the former Lord Chief Justice Rt Hon Lord Woolf CH told us, the repeal of the Human Rights Act and its replacement by a Bill of Rights would be a constitutional change of the greatest significance” [Summary of Conclusions and Recommendations 2 & 3: our emphasis].

On the wider constitutional issue, it said this:

“The evidence demonstrates that the Scottish Parliament and Northern Ireland Assembly are unlikely to give consent to a Bill of Rights which repealed the Human Rights Act (we did not receive evidence on this point from the National Assembly for Wales). Were the UK Government to proceed without such consent, it would be entering into uncharted constitutional territory.

The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling ‘the constitutional knitting for very little’. If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform. [Summary of Conclusions and Recommendations 29 & 30: emphasis added].

Which is more or less what we’ve been saying ever since we began this blog. For a helpful explainer, see the post on RightsInfo.

Women deacons in the Roman Catholic Church?

In what can only be described as a historic development, Religion News Service reports that Pope Francis has said that he wants to study the possibility of ordaining women as deacons. The permanent diaconate was reestablished in the Roman Catholic Church after the reforms of the 1960s but was restricted to married men over 35. Neither John Paul II nor Benedict XVI was prepared to contemplate female deacons; however, Pope Francis said on 12 May that the matter should be given careful consideration and that he would like to establish an official commission to study the question of women’s ministry and the diaconate in the early Church.

How this will develop remains to be seen. Pope Francis noted that deaconesses played a different role in the early Church from that of deacons; and it is possible that a papal commission could propose the re-establishment of an order of deaconesses whose members were not ordained by the laying-on of hands – which used to be the case in the Anglican Communion. But however it turns out, it is a massive development in the debate about the role of women in the Latin Church. Kate McElwee, co-executive director of the Women’s Ordination Conference, described the move as a “huge step”. Dame Catherine Wybourne makes a sensible comment, as always, on iBenedictines.

EU Special Envoy for freedom of religion or belief outside the EU

On 6 May, President Jean-Claude Juncker announced that he had appointed Mr Ján Figeľ (currently Slovak Deputy Prime Minister and a former Commissioner for Education, Training, Culture and Youth) as the first Special Envoy for the promotion of freedom of religion or belief outside the European Union. He will serve as Special Adviser to the Commissioner for International Cooperation and Development, Neven Mimica. The appointment is initially for one year but is renewable. President Juncker said:

“Freedom of religion or belief is a fundamental right which is part of the foundation of the European Union. The persistent persecution of religious and ethnic minorities makes protecting and promoting this freedom inside and outside the EU all the more essential”.

The European Parliament called for the initiative in its Resolution of 4 February 2016 “on the systematic mass murder of religious minorities by the so-called ‘ISIS/Daesh’”. [With thanks to the Sofia News Agency.]

Italian Parliament backs same-sex civil partnerships

The BBC reports that the Italian Parliament has voted to support the bill to introduce civil partnerships for same-sex couples. This follows the ECtHR’s decision in Oliari & Ors v Italy [2015] ECHR 716, in which the Court held that the absence of any legal protection whatsoever for same-sex partnerships was a violation of Article 8 ECHR. We posted about the case here.

Tania Pagotto explained in an e-mail to us that the Chamber of Deputies definitively approved the law on civil unions after the Government had asked for a vote of confidence because thousands of amendments were slowing the procedure. The General Secretary of the Italian Episcopal Conference, Nunzio Galantino, commented that the vote of confidence was a “defeat for everyone”. She notes two main differences from heterosexual marriage: the absence of any duty of fidelity between the partners and the impossibility of the adoption of a partner’s biological children, which had been originally foreseen by the bill. She comments that the law does not allow registrars to object on grounds of conscience and “it will be interesting to see if the debate is really closed”.

Theft and necessity in Italian law

And while we’re in Italy (well, David currently is, though Frank is in Barcelona)…

Roman Ostriakov, a Ukrainian who had been homeless for more than thirty years, stole sausage and cheese to the value of €4.07 from a supermarket in Genoa. He was charged and convicted under Article 626 of the Criminal Code (Theft punishable upon complaint of the injured party), which provides on conviction for imprisonment for up to one year or a fine of up to €206. The Guardian reported that the original trial court in Genoa had sentenced him to six months imprisonment and a €100 fine.

However, Article 626 also provides a series of exceptions, one of which is “if the act is committed in respect of items of small value to provide for a serious and urgent need” [se il fatto è commesso su cose di tenue valore, per provvedere a un grave ed urgente bisogno]. According to the report in Corriere della Sera, Maurizio Fumo, President of the Fifth Section of the Corte di Cassazione, quashed the conviction because

“The condition of the accused and the circumstances in which the theft of the goods took place demonstrate that he took possession of a little food to cope with an immediate and inescapable requirement to feed himself, thus acting out of necessity”.

In his Encyclical Caritas in Veritate in 2009, Pope Benedict XVI wrote this:

“The right to food, like the right to water, has an important place within the pursuit of other rights, beginning with the fundamental right to life. It is therefore necessary to cultivate a public conscience that considers food and access to water as universal rights of all human beings, without distinction or discrimination” [para 27].

Evidently the Corte di Cassazione is of the same opinion. And in any case, was it really worth prosecuting someone for nicking €4.07-worth of cheese and sausage?

Slaughtering goats … also in Italian law

Last week, an appeals court in Genoa overturned their conviction. Judge Mauro Amisano held that animal cruelty charges “presume the lack of any valid motive which renders the cruelty abject and futile”: however, in this case it had a valid motive because it was part of a religious festival and had been carried out according to longstanding tradition: “It cannot be considered illegal because it is a practice which is permitted by the freedom of religious expression.” [With thanks to Howard Friedman.]

Long skirts in France – again

Le Nouvel Observateur reports that another Muslim girl – this time a 16-year-old convert – has been barred from her school for appearing in a long skirt. Every morning she removes her hijab before going into the school. But on this occasion, according to her mother, she turned up in a long black skirt from H & M, a gilet down to her knees and trainers – and was told by the school’s director that, dressed like that, she was prohibited from entering.

It’s French laïcité again: she had fallen foul of the Law of 2004 that states that “le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit“. But according to the report, l’Académie de Créteil has said that a long skirt is in itself no ground for exclusion. And as we noted at the time, when the same thing happened last year in Charleville-Mezieres, a village in the Ardennes, BuzzFeed subsequently reported the Rapporteur Général of the Observatoire de la laïcité in the Prime Minister’s Office, Nicolas Cadene, as saying that wearing a long black skirt to school did not “contravene the law a priori”.

The Conseil d’Etat has not ruled on the issue and the ECtHR has been extremely reluctant to intervene in French religious dress cases. However, as De Gaetano J pointed out in his withering dissent in Ebrahimian v France [2015] ECHR 1041:

“A woman may wear a headscarf not to manifest a religious belief, or any belief for that matter, but for a variety of other reasons. The same can be said of a man wearing a full beard, or a person wearing a cross with a necklace. Requiring a public official to ‘disclose’ whether that item of clothing is a manifestation or otherwise of his or her religious belief does not sit well with the purported benefits enjoyed by public officials…”

Or, for that matter, by schoolgirls.

Judicial overreach?

The members of the Judicial Power Project have produced a list of 50 Problematic Cases in which, they reckon, the judiciary overreached itself. Four of them come within our (admittedly fuzzy) definition of “law & religion”: R (Purdy) v Director of Public ProsecutionsR (Quila) v Secretary of State for the Home DepartmentR (Nicklinson) v Ministry of Justice and Greater Glasgow Health Board v Doogan & Anor. The Project is also very scathing about the ECtHR judgment in the prisoner voting case, Hirst (No 2) v UK.

Almost inevitably, we find ourselves agreeing with some of the Project’s suggestions and rejecting others: for example, we cannot for the life of us imagine how birching a minor on his bare bottom (the complaint in Tyrer v United Kingdom, which is on the Project’s list) could be anything other than a “degrading punishment” contrary to Article 3 ECHR, however you interpret it. On Public Law for Everyone, Mark Elliott gives the whole thing a thorough fisking. But have a look for yourself.

One we (and several religious commentators) missed

The 2016 Green Ribbon Political Awards were held on Tuesday 3 May on the Terrace of the House of Commons, hosted by Jonathon Porritt. Pope Francis won the Green Ribbon Political Award for the most inspirational figure internationally, for the Papal Encyclical Laudato si’. Details of many of the other awards are more pertinent to David’s column in Environmental Law and Management, although a number of the citations provide an insight to the highly political issues in which many faith-based organizations are now engaged, which extend to the Brexit debate.

Further support for Church Commissioners

On 9 May, the Commissioners issued a further Press Release on the gathering pace of their stakeholder initiatives, as the world’s two leading proxy advisors, ISS and Glass Lewis, declared their support for the shareholder resolution on climate risk disclosure co-filed at ExxonMobil by the Church Commissioners for England and New York State Common Retirement Fund. The resolution is to be put before ExxonMobil’s AGM on 25 May and a similar resolution relating to portfolio resilience has been co-filed at Chevron by Wespath Investment Management and Hermes EOS, again for voting on 25 May.

Suffragan bishops

Further to our post Suffragan bishops: from selection to ordination & consecration we were asked inter alia at what point does a suffragan-designate legally take up the suffragan see – by virtue of consecration, or does s/he need to be subsequently installed? We drew a blank with the standard law texts – Doe, Hill and Moore – and also with C of E sources. However, we managed to find an answer in the Westminster Abbey “Order of Service for The Venerable Karen Marisa Gorham to be Bishop of Sherborne in the Diocese of Salisbury, and The Reverend Canon Michael Robert Harrison to be Bishop of Dunwich in the Diocese of St Edmundsbury and Ipswich”. This indicates that the suffragan bishops designate first take the Oath of Allegiance to The Queen’s Majesty and the Oath of Due Obedience to the Archbishop of Canterbury, after which they become bishops designate of their respective sees, following which they are ordained as bishops.

Military bases: religious buildings

In a written question, [35843] Mrs Madeleine Moon (Bridgend, Lab) asked the Secretary of State for Defence, pursuant to his answer of 14 December 2015 what recent steps his Department has taken fully to implement Parliament’s sanctioning of same-sex marriages. On 9 May, Penny Mordaunt, Minister of State (Ministry of Defence) (Minister for the Armed Forces) stated:

“The Marriage (Same Sex Couples) Act 2013 reflects the Government’s commitment that no religious organization or representative will be forced to conduct or participate in same sex marriages. Recognizing the established position of the Sending Churches which does not allow for the conduct of same-sex marriages within military chapels, I have recently directed that a pilot project is implemented to explore registering Ministry of Defence sites for civil marriages and partnerships; this includes same-sex unions. The timing of the project is being finalized but I anticipate that it will start shortly and run for a number of months”.

And finally…(I)

To prove that Professor Richard Helmholz of the University of Chicago does not have the monopoly on the history of canon law (or even a duopoly with Professor Sir John Baker), last week, David’s church crawling took him to St Giles, Oxford, where Dr Edward Drax Free had been vicar from 1801 to 1809, before moving to All Saints, Sutton, Bedfordshire. At his trial in 1824, it was alleged that he stole the lead off his own church roof to sell for scrap; he impregnated several of his housekeepers; allowed swine to desecrate the graveyard; and had been publicly abusive, both sober and drunk. However, as Lord Chancellor Cottenham explained to the Lords in 1839, in a speech condemning the ineffectiveness of the church courts:

“Doubt and indecision characterized the prosecution of Dr Free from the outset. He was perhaps fortunate in that the ecclesiastical machinery under which he was to be tried was extraordinarily complicated, consisting as it did of a multitude of over-lapping and sometimes competing jurisdictions … besides those superior courts, [i.e. those of the Archbishops and Bishops], nearly 300 other ecclesiastical courts were in existence”. It was also a machine that, at the local level at least, was rusty through lack of use.

By the early nineteenth century, the local ecclesiastical courts, such as those of the Archdeacons met infrequently and conducted a small volume of mostly routine church business. Local officials were clearly uncertain, when highly unusual cases such as Dr Free’s came their way, about the procedures that were involved, in what courts prosecutions could be pursued and what offences could actually be punished.”

Free was finally removed from his living in 1830, and although not as spectacular as the demise of Harold Davidson, Rector of Stiffkey who was eaten by a lion, Dr Free died in 1843 when a cart hit him in a road accident. A very full account is given in the book by R B Outhwaite, “Scandal in the Church: Dr Edward Drax Free, 1764-1843”, (Hambledon Press, London, 1997).

And finally… (II)

The Northern Ireland Court of Appeal has reserved judgment after hearing argument in the Ashers Bakery appeal, aka the “Gay Cake” case. There has been a lot of media interest and reaction this week: however, as befits a pair of boring old academics, we prefer to wait for the Court’s decision before commenting…

11 thoughts on “Law and religion round-up – 15th May

  1. A shorter account of the sins and misdemeanours (and worse) of Dr Edward Drax Free is given by Matthew Parris at pp 109-115 of his book “The Great Unfrocked – 2000 Years of Church Scandal” (Robson Books, London, 1999). ‘The scale of Dr Free’s villainy’ (as Parris puts it) is shown by the long list of the charges against him, set out ‘in impeccable copperplate hand’, on a document measuring 5 feet high by 2 feet wide, now in the Lambeth Palace library. The book includes a photograph (opposite p. 171) of Matthew standing beside it in the library. Parris also gives an account (pp 47-64) of the case against Harold Davidson, Rector of Stiffkey, which ends with an extract from the Stiffkey church guide: “Here in the village he was respected and above all loved by the villagers who relished his sermons, recognised his humanity and forgave him his transgressions. May he rest in peace.” Clearly, a complete contrast to Dr Free. (The subtitle of the book – 2000 years of church scandal – is justified by the inclusion of a chapter about Judas Iscariot.)

    • Thanks for the reminder, David. I do have copies of both books, but was drawn to Outhwaite’s version as it was written in addition to his serious ecclesiastical law texts. As you say, the two cases are quite different.

  2. Pope Francis’ suggestion of forming a Commission to examine the possibility of Women being ordained to the Diaconate ignores the fact that there has already been a Vatican Commission which examined the issue in detail and reported in 2002 rejecting the idea

    I sometimes wonder if Pope Francis actually checks on any facts before he opens his mouth or whether he really understands the implications of a Pope making off the cuff remarks? But there again who am I to judge??

    Oh and as a point of correction to your article on the subject, applicants to the permanent Diaconate do not have to be married. Married men are allowed to be ordained as Deacons but being married is definitely not a requirement

    • First, thanks very much for the comment/correction.

      Secondly, I assume that if the Pope takes the view that the Vatican Commission in 2002 was wrong to reject the possibility of women being ordained to the diaconate, it is entirely within his powers to order a rethink. I’m very far from being any kind of Roman canonist (the only reason why I know anything about the subject at all is because Bob Ombres is such a good teacher); but I should have thought that Canon 331 covers the point: qui ideo vi muneris sui suprema, plena, immediata et universali in Ecclesia gaudet ordinaria potestate

  3. As someone who was present at the Ordination and Consecration of +Karen Goreham and +Mike Harrison in Westminster Abbey on 24 February 2016, I was intrigued by your reference to the Order of Service as providing an answer to the question of when a suffragan bishop-designate “legally takes up the suffragan see. You state: “This indicates that the suffragan bishops designate first take the Oath of Allegiance to The Queen’s Majesty and the Oath of Due Obedience to the Archbishop of Canterbury, after which they become bishops designate of their respective sees, following which they are ordained as bishops.” But surely they were bishops-designate of their respective sees before they took the oaths of allegiance an obedience?

    The note on page 6 of the Order of Service states: “In the Jerusalem Chamber before the service, the Bishops-designate of Sherborne and Dunwich take the Oath of Allegiance to The Queen’s Majesty and the Oath of Due Obedience to the Archbishop of Canterbury, tendered to them by the Principal Registrar.” The taking of these oaths, therefore, (as a matter of convenience, one assumes, in the Jerusalem Chamber before the service), does not change their status: this is merely part, albeit an essential part, of the process by which a suffragan bishop-designate of a particular see becomes the bishop of that see.

    By contrast, a diocesan bishop becomes the legal bishop of the diocese on the confirmation of his or her election, even if he or she is not yet in episcopal orders (the current Bishop of St Edmundsbury and Ipswich, +Martin Seeley, being a recent example.)

    I had puzzled over this question when I became aware at the General Synod group of sessions on 15-17 February that the Ven Martin Gorick had replaced Karen Goreham as a member of the House of Clergy representing Oxford Diocese. I say ‘I had puzzled’ as Karen Goreham would not have lost her seat until she became the Bishop of Sherborne the following week. However, a check on the Oxford diocesan website provides the answer with this note: “The Ven. Martin Gorick, Archdeacon of Oxford, has been elected to General Synod in place of the Ven. Karen Gorham who has resigned in the light of her appointment as Bishop of Sherborne.” How many other suffragan bishops, I wonder, who were elected members of the House of Clergy of the General Synod, have resigned their seat in anticipation of their consecration as bishop, rather than waiting to vacate the seat upon consecration?

  4. Dear Frank

    You make Canon Law seem like an Irish EU Referendum, if you get the wrong result demand another Vote.

    On a more serious response what Pope Francis said did not indicate any disagreement with the earlier Commission, it indicated complete ignorance of the existence of that earlier Commission.

    • Neil

      Not being a Roman Catholic, I’m in danger of getting into something that’s way beyond my competence: but surely the whole point of a Supreme Pontiff under your canon law is that he’s Supreme and has prerogative powers? Presumably the Pope can’t change the magisterium; but does the question of whether or not a woman can be ordained to the diaconate go to the substance of the faith, or is it merely a matter of church order? I ask the question not knowing the answer.

      As to whether or not the Pope knew about the conclusions of the earlier Commission, it would be impertinent of me to express a view!

      • I’ll try and answer but remember I’m not a theologian, merely a poor but honest lawyer (well poor anyway)

        The authority of the Pope appears on the outside to be that of a supreme and absolute ruler; however Papal Authority has an element of circular argument in it. The Pope is Supreme by virtue of the law, tradition and teachings of the Church, which means that the Pope cannot do anything contrary to the law, tradition or teachings of the Church without thereby immediately calling into question his own power and authority so to act. Therefore, the authority of a Pope is somewhat more constrained than many people, Catholic and Non-Catholic, realise.

        In 1994 Pope (now Saint) John Paul 11, declared in ORDINATIO SACERDOTALIS that the Church had no power to ordain women to the priesthood and in making that decision he relied, in part, on the declaration INTER INSIGNIORES issued by the Congregation for the Doctrine of the Faith with the approval and confirmation of Pope Paul VI.

        So from a Church Law position, Pope Francis cannot authorise or permit the ordination of women: it is a matter which goes to the substance of the faith since two previous Popes have declared that the Church does not have the authority to do so.

        Clearly Pope Francis has the right and the power to appoint a commission on the question of the ordination of women deacons; but since a Commission considered that same question as recently as 2002 it seems a pointless exercise and I strongly suspect he did not know about the earlier commission when he made his “suggestion”.

        • Thanks, Neil: that’s very clear and helpful.

          Incidentally, if what you state is indeed the case, then non-Roman Catholic Churches that ordain women may as well pack in ecumenical discussions with the Vatican forthwith, because they aren’t going to change their views on ordination and, evidently, neither will the Latin and sui iuris Eastern Churches. So it looks like a stalemate.


          • Depends what one means by Ecumenical discussions. So far as organisational unity ie creating one united Church reuniting the Protestant and Catholic Churches is concerned then yes for those Churches that have ordained Women organisational unity is a non-starter.

            However I think that idea of reuniting the Churches died a while ago and Ecumenism today means developing and/or maintaining friendlyand mutually respectful relationships between the Catholic Protestant and Eastern Churches and in my view it is important that those aspects of Ecumenism continue.

            However, I fear that we may be heading for a rather less Ecumenical future. Once the Church of England begins to bless and recognise same-sex marriages (only a matter of time in my view) then that, combined with the Ordination of Women creates a very different “idea” of what being Christian really means and we could see a far greater and more obvious “difference” between the Catholic and Protestant Churches; and that could eventually lead to the Women’s Ordination, Gay-friendly Protestant Churches seeing and speaking of the Catholic Church as “wrong” and “bad” in an almost Ian Paisley-like way

            I hope I’m wrong on that.

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