Law and religion round-up – 5th June

Opposite-sex civil partnerships: update

Readers may recall that, earlier this year, Rebecca Steinfeld and Charles Keidan were unsuccessful in their crowd-funded challenge to the restriction of civil partnerships by s 1 of the Civil Partnership Act 2004 to “two people of the same sex” [disclosure: Frank contributed to their appeal for funds]. We posted about the judgment in Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin) at the time.

The couple have just announced that their appeal will be heard on 2 and 3 November. Presumably, judgment will be handed down at some time early in the New Year: watch this space.

Employment and “philosophical belief”: Harron v Dorset Police

In Harron v Dorset Police (Disability Discrimination) [2016] UKEAT 0234 15 1201 (which we missed: it was handed down in January) the claimant, who worked for the Dorset Police, had a belief (which the Employment Tribunal thought genuine) that “public service was improperly wasteful of money”. He felt compelled to express those views and as a result, he claimed, suffered discrimination on the ground of his philosophical belief.

Langstaff J pointed out that in Grainger plc and Ors v Nicholson [2009] UKEAT 0219 09 0311 Burton J had held [24] that “there must be some limit placed upon the definition of ‘philosophical belief’ for the purpose of the Regulations” and had set out the boundaries as follows

(i) The belief must be genuinely held.

(ii) It must be a belief and not, as in McClintock v Department of Constitutional Affairs [2008] IRLR 29, be an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and Cosans v United Kingdom[1982] 4 EHRR 293 and paragraph 23 of R (Williamson) v S of S for Education and Employment [2005] 2 AC 246).

Langstaff J concluded that the remarks of the Employment Tribunal in respect of the third and fourth criteria were “insufficient” [35]: he  remitted the case to the ET for a fresh decision.

Addleshaw Goddard LLP’s Lexology blog has an excellent note on the case – which saves us the effort of writing one ourselves.

Hijabs and AG Kokott

As we duly noted, Advocate General Juliane Kokott has published her opinion in Achbita & Anor v G4S Secure Solutions NV [2016] CJEU C-157/15 and has advised that prohibiting a female Muslim employee from wearing a hijab at work is not direct religious discrimination within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. It may constitute indirect discrimination based on religion under Article 2(2)(b); but it may be justified if it is to enforce a policy of religious and ideological neutrality pursued by the employer provided the principle of proportionality is observed.

Whether the CJEU itself will come to the same conclusion remains to be seen; but AG Kokott’s opinion led to some very sloppy reporting, of which, perhaps, the choicest example was the headline in The Independent EU’s top judge backs workplace ban on headscarves. The actual text is much less misleading than the header; even so, the sub who wrote it ought to be redeployed reporting dog-shows…

New law officers for Scotland

First Minister Nicola Sturgeon has recommended the appointment of James Wolffe QC, currently Dean of the Faculty of Advocates, and Alison Di Rollo, solicitor and a senior advocate depute, as Lord Advocate and Solicitor General for Scotland respectively, in succession to Frank Mulholland QC and Lesley Thomson. The Lord Advocate is Scotland’s chief prosecutor: roughly equivalent to the DPP in England and Wales except that, unlike the DPP, the Lord Advocate is a minister in the Scottish Government.

Mr Wolffe was admitted to the Faculty of Advocates in 1992 and elected Dean of Faculty in 2014: he is married to Lady Wolffe, who was appointed to the Outer House of the Court of Session in 2014. Ms Di Rollo joined the Crown Office & Procurator Fiscal Service in 1985 as a fiscal, becoming head of the National Sexual Crimes Unit in 2013.

Forthcoming ECtHR judgments

This week will see three potentially interesting judgments from Strasbourg:

  • RBAB & Os v The Netherlands (No. 7211/06), in which the applicant married couple complain that their two daughters would be at risk of being exposed to female genital mutilation if the family was expelled to Sudan;
  • CICAD v Switzerland (No. 17676/09), which concerns a civil judgment against the CICAD association for describing on its website statements by a university professor as anti-Semitic; and
  • Aydemir v Turkey (No. 26012/11), about the applicant’s refusal to perform compulsory military service because of his religious beliefs.

“And he answered, No”?

Anglican Mainstream has followed up its non-news of the week, reported in our last round-up, concerning the alleged participation of an Oxford clergywoman in celebration of same-sex marriage of Mpho Tutu, with the suggestion Did the Acting Bishop of Oxford Jump the Gun?. We expect Bishop Colin’s response would be in the negative, but would not presume to speculate.

Bishop of Oxford

The Diocese of Oxford weekly newsletter for 1 June 2016 reported that the Right Reverend Steven Croft, currently Bishop of Sheffield, will formally become the Bishop of Oxford on 6 July; as a consequence, he will attend General Synod as Bishop of Oxford. He is expected to move to Kidlington during August but his official inauguration will not be until 30 September. Details of the procedures involved, from the announcement of a bishop’s appointment to his or her installation, are given in our post here.

World Environment Day

World Environment Day (WED) is run by the United Nations Environment Programme (UNEP), and takes place on June 5 every year; it has the objective of “raising global awareness to take positive environmental action to protect nature and the planet Earth”. Our contribution to WED is to direct readers to the Paris Agreement Tracker which follows the progress towards the climate change agreement coming into force.

As indicated in our post COP21: the Paris Agreement and the churches, the Agreement represents the text agreed in December 2015 by the delegates in Paris of 195 countries and has been “open for signature and subject to ratification, acceptance or approval by States and regional economic integration organizations that are Parties to the Convention” at UN Headquarters in New York since 22 April 2016. It has been signed by 177 parties, but before it enters into force it must be joined by 55 Parties representing at least 55% of global emissions. To date, it has been ratified or otherwise joined by 17 Parties representing 0.05% of global emissions.

Faculty Jurisdiction – I

Prompted by the judgment in Re St Mary Mildenhall [2016] ECC SEI 1, on Friday we posted a summary of the risks faced clergy, laity and contractors who disregard the faculty jurisdiction. The issue is covered in Charles Mynors’ new book Changing Churches – A practical guide to the faculty system which, coincidentally, was published on the previous day. Our post follows an earlier consideration in Ignorance of the Faculty Jurisdiction Rules is no excuse… ; and Chapter 11 of the book considers the legal issues associated with various scenarios in relation to “Unauthorized Works”.

In Re St Mary Mildenhall Etherington, Ch. concluded with the statement:

“55. One thing needs to be clear beyond any doubt whatsoever. This is never to happen again, either in this church or anywhere else”.

However, unless there is far greater awareness within the Church of this aspect of ecclesiastical legislation, the possibility of a recurrence remains – “Of that there is no manner of doubt; No probable, possible shadow of doubt; No possible doubt whatever”.

Faculty Jurisdiction – II

This week we published our round-up of the consistory court judgments & other determinations reported in May. Although there were fewer judgments this month in comparison to April, they covered a wider range of issues. In addition to Re St Mary Mildenhall, above, there are others of particular interest which we have considered in more detail in separate posts: Re Quoc Tru Tran, deceased , concerning non-Christians mistakenly buried in consecrated ground, again; and Re St Philip Scholes where there was an examination of the law relating to the disposal of fonts. A future post will consider Re St. Mary the Virgin Burghfield [2011] Oxford Const Ct, Rupert Bursell Ch..

Most of the decisions reached at the 12 May meeting of the Cathedrals Fabric Commission for England (CFCE) have now been reported, and the CofE has also published the findings of a disciplinary tribunal under the Clergy Discipline Measure (CDM).

Quick links

  • Letters to the Church Magazine: June 2016 Some home-truths about church jumble-sales, bellringers, and much, much more.
  • Philip Jones, Ecclesiastical Law: What did the Ornaments Rubric Mean? Note: “with regard to the furnishings of the church, the term ornaments is confined to those things which are used in or about the services of the church. Thus the holy table, the font, the Communion vessels, the bell, the Bible and the Prayer Book, are all ornaments,” [Moore’s Introduction to English Canon Law, 4th edition, Timothy Briden, at page 137].

And finally…

A number of media outlets have included the story, reported on Sky News as Lace And Lycra: Clergy Clothing ‘For Curves’ in which the limited outfit options for her ordination have inspired Rev Sandra Sykes to create the new business to “accommodate women’s curves”. Under the label Collared she is marketing “a line in clergy couture [which] is creating a stir by offering females in the Anglican church daring designs featuring colourful lycra and lace alongside the traditional dog collar”. [But I thought they already had lace – what about all those idiotic cottas? FC]

As a chorister, David restricts his (liturgical) lycra-wearing to Nike running tights for warmth beneath his cassock when the occasion demands it, [TMI?] such as the Palm Sunday procession or carol singing in the Market Place, when a supplementary hip flask of Bowmore is often necessary. [With thanks to Rachael Pocklington for the lead]

6 thoughts on “Law and religion round-up – 5th June

  1. I am not sure if you post related links from other blogs, but I offered some detailed comment and statistical analysis on the ministry figures last week.

    One of the most notable issues (missed in all other reports) is the distribution of older clergy across dioceses. Clergy over 60 varies from 9% in Bristol to 41% in Canterbury. The dioceses with the large figures are going to face some serious challenges in the next 5 to 10 years.

    • Thanks for your comments, Ian. Yes we do post related links to other blogs; however we also have cross-posted items appearing on other sites, with appropriate acknowledgements: for example, there are a number of Bob Morris’ articles which also appear on the UCL Constitutional Unit web page.
      We would be more than willing to cross-post your article, providing this is acceptable to you and Peter Ould. As Frank points out, this is a problem faced by most if not all of the traditional Churches: the Kirk certainly has a problem – there are only about 20 ordinands in training at the moment – and their clergy retire at 65.

  2. Re Harron

    The Court of Appeal suggests that establishing a philosophical belief may be pointless.

    In Maistry v BBC a belief in BBC Values was found to be a philosophical belief (EJ Pauline Hughes 29 March 2011, Birmingham 1313142/2010). However, Lord Justice Underhill in finally disposing of the matter (Maistry v BBC [2014] EWCA Civ 1116 (9 July 2014) found that for discrimination to be possible mere knowledge of the belief does not suffice. The alleged discriminator must be aware that such a belief is held by the claimant as a philosophical belief. Until a philosophical belief is established under cross-examination by a tribunal any alleged discriminator can simply claim to be unaware of the existence of a philosophical belief. Quite impossibly claimants will have to prove that the alleged discriminator knew the claimant held a philosophical belief at the relevant time.

    Here is the crucial passage from the judgment.
    “13. The Applicant’s essential answer, as I have said, is that it was impossible that the individuals in question could have been unaware of his belief in BBC values given that they are pervasive in the BBC, and perhaps also because he had, in the case of the disputes which gave rise to the acts of complaint or acts complained of, referred to those values, as the Tribunal acknowledged in the passage that I have read. But I am afraid to say that I do not believe that it is arguable that a generalised assumption that senior management employees will subscribe to BBC values can be equated with the knowledge that a particular employee has a philosophical belief in those values. That is not the same thing. The fact that to the applicant those values constituted a belief with similar status and cogency to a religious belief does not mean that will be so in every case. To others it might indeed be no more than their employer’s mission statement about the values that they were expected to observe at work.”

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