Law and religion round-up – 10th December

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The usual mix of news that seemed to be important and stuff that simply caught our eye…

Future progress on Brexit

Possibly the most important news of the week – though it impacts on “religion” only tangentially (unless you’re the bishop of four dioceses that straddle the Irish border, in which case it impacts quite strongly) – was the statement on progress in the Brexit negotiations. In brief, the parties have agreed that there will be no hard border between the two parts of Ireland and that the existing rights of EU citizens living in the UK and of UK citizens living in the (rest of) the EU will be respected. Phew!

The Charity Commission on safeguarding

The Charity Commission has issued a new safeguarding strategy. The new strategy makes it crystal clear that trustees must ensure that no-one who comes into contact with their charity suffers distress or harm, as well as safeguarding children and adults at risk. Safeguarding is a key governance priority for all charities, not just those working with groups traditionally considered at risk; and the strategy points out that trustees should ensure that their charity provides a safe environment for staff, volunteers, and anyone who comes into contact with it. It also makes clear that safeguarding goes beyond preventing physical abuse, and includes protecting people from harm generally, including neglect, emotional abuse, exploitation, radicalisation, and the consequences of the misuse of personal data.

Safeguarding is one of the three priority areas of risk identified by the Commission, together with fraud, financial abuse and mismanagement, and extremist and terrorist abuse. The Commission emphasises that trustees always remain responsible for safeguarding, even if some aspects of it are delegated to staff.

Same-sex marriage in Austria

The issue of same- and opposite-sex marriage and civil partnership in Austria came up this week with a rather unexpected result. It was in Schalk and Kopf v Austria [2010] ECHR 1996 that the ECtHR ruled that there was no right under the Convention for same-sex couples to marry and that registered civil partnerships satisfied the requirements of Article 12 ECHR (right to marry and found a family). The Constitutional Court of Austria [Verfassungsgerichtshof] took the opposite view and struck down the existing law against same-sex marriage: we noted the decision here.

Northern Ireland judgments

In future, judgments from the courts of Northern Ireland will be published on the new Northern Ireland Judiciary website instead of being hosted on the NI Courts and Tribunals Service site: the judgments page is here. No doubt they will also continue to be available on BAILII – but they might appear earlier on the Judiciary site.

Is humanism a religion?

“No”, said a US federal district court in Nevada. In Espinosa v Stogner (D NV Dec 4 2017 3:16-cv-00141-RCJ-WGC), in a suit brought by a prisoner, the court held that humanism was not a “religion” for the purposes of the Free Exercise or Establishment Clauses. While the court said that it had no basis on which to doubt the sincerity of the plaintiff’s professed beliefs “and of course has no opinion as to the value of those beliefs”, the plaintiff’s belief system – which he described as “Religious Humanism” – was not a religion for the purposes of the Free Exercise or Establishment Clauses. Jones J quoted with approval an earlier dictum that:

“Few governmental activities could escape censure under a constitutional definition of ‘religion’ which includes any symbol or belief to which an individual ascribes ‘serious or almost-serious’ spiritual significance.” [With thanks to Howard Friedman.]

That said, we cannot help wondering – after Hodkin – what a UK court might decide on similar facts.

Human Rights Day 2017

Today is Human Rights Day, marking the anniversary of the adoption without dissent by the UN General Assembly of the Universal Declaration of Human Rights on 10 December  1948 – though the subsequent record of some of the member states that adopted it tells you more about dictatorial regimes than it does about human rights. Conscious that human rights violations still continue (including, it should be remembered, violations of the freedom of thought, conscience and religion), the EU High Representative, Federica Mogherini, has made a declaration on behalf of the EU, in which she notes that Human Rights Day 2017

“marks the launch of a year-long campaign to celebrate the 70th anniversary in 2018. As we prepare for this anniversary, not only rights and freedoms are still being challenged, but the space for civil society continues to shrink in many countries throughout the world.”

Which underlines the importance of adherence to the – justiciable – ECHR.

AMiE ordinations

The first ordination service of the Anglican Mission in England (AMiE) was held on Thursday 7th December 2017 at the East London Tabernacle Church. This was led by Missionary Bishop Andy Lines, who was consecrated as bishop by the Anglican Church in North America (ACNA) on 30th June 2017: see the Press Release. Perhaps mindful of the 2013 consecration of Gavin Ashenden, which was not announced until this year, AMiE was “keen to be seen not to be hiding: sensitive, but not secret”; attendance at Thursday’s ordinations was open to all, the event was live-streamed on the AMiE website and is now available here. Our post on Thursday, AMiE ordinations, will be updated with a short follow-up next week.

New from Bosnia and Herzegovina

This week we published a guest post by Emir Kovačević, legal adviser to the appellant, in a case on the right of public-sector workers to manifest their religion while in uniform. The Constitutional Court held that the requirement in the Border Police Rulebook for police officers in uniform to be clean-shaven was not in accordance with Article II/3.f) of the Constitution of Bosnia and Herzegovina or with Articles 8 (respect for private and family life) and 9 (freedom of thought, conscience and religion) of the ECHR.

Also this week, in Hamidović v Bosnia and Herzegovina [2017] ECHR 1101, the European Court of Human Rights held, by six votes to one, that there had been a violation of Article 9 (thought, conscience and religion) ECHR. In 2012 Mr Hamidović, a witness in a criminal trial, was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap. The ECtHR found that there had been nothing to indicate that Mr Hamidović had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion.

The Court pointed out in particular that Mr Hamidović’s case had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as Mr Hamidović, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority.

We hope to publish a longer analysis later in the week.

And I am right, And you are right, And all is right as right can be!

Brexit:  The post-agreement tweet by the blue-ticked  Conservatives‏@Conservatives, with its background photo of a gavel, boasted “We’ve gained back control of British Laws, with the European Court of Justice no longer making judgements over British Courts”. This was quickly seized upon by The Secret Barrister and other legal commentators who pointed out various errors, which will be clearly apparent to readers of this blog, viz. No such thing as “British law”;  It’s the CJEU, not the ECJ; It’s “judgments”, not “judgements”; Never in the history of UK courts has a gavel been used.

However, since the Lisbon Treaty entered into force on 1 December 2009, under Art 19 §1 TEU, “The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts…”. So whilst we and others tend to use CJEU rather than ECJ for judgments of the Court of Justice, strictly CJEU is a generic rather than a specific term. As explained in Chapter of the House of Lords European Union Committee Fourteenth Report The Workload of the Court of Justice of the European Union [links to references omitted]:

“The CJEU is the collective term for the European Union’s judicial arm, [8] but the single institution consists of three separate courts, each enjoying its own specific jurisdiction. Generally speaking the three courts’ jurisdictions are defined by the types of cases they hear or by the status of the litigant bringing the action and whilst the CJEU does not operate on a formally hierarchical framework like, for example, the UK court structure, it is nevertheless split into three tiers. Forming the upper tier is the Court of Justice (CJ) which was formerly known as the European Court of Justice (ECJ); beneath the CJ is the General Court (GC) which was formerly known as the Court of First Instance (CFI); and the third tier consists of the Civil Service Tribunal (CST), which in the words of the Treaty constitutes the EU’s single “specialised court”.[9] …”

Christmas story: On the basis of research undertaken by OnePoll.com, The Independent proclaimed Christmas 2017: One in five Brits do not know Jesus Christ born on 25 December, study finds “Despite ubiquity of nativity plays and Christian teaching in schools, many still puzzled as to why we celebrate annual holiday”. Unfortunately, the criteria against which this assertion were made did not bear close scrutiny, and were subject to a thorough fisking by the HC Beaker Folk’s Archdruid Eileen in The Non-Existent Donkey, the Stable, the Unknown Birthday and the Extra Apostles or Too Few Disciples – Christmas with the Independent.  

Quick links

And finally… I

The Council of Europe endorsed the UK Government’s proposal to meet the obligation to give prisoners voting rights in accordance with the ECtHR ruling in Hirst (No 2) by allowing  prisoners released on temporary licence and on home detention curfew to vote: a total of something like a hundred prisoners, set against a total prison population of over 80,000 in England and Wales alone. The conclusion of the Ministers’ Deputies was as follows:

“The Deputies

  1. welcomed the presence of the Secretary of State for Justice;
  2. noted with satisfaction the package of administrative measures proposed by the authorities, in particular the change in policy and guidance in relation to prisoners released on temporary licence and on home detention curfew;
  3. considered that, in light of the wide margin of appreciation in this area, these measures respond to the European Court’s judgments in this group of cases; therefore strongly encouraged the authorities to implement the proposed measures as soon as possible;
  4. invited the authorities to keep the Committee and the Secretariat informed of all relevant developments in this regard and to provide an update by 1 September 2018 at the latest.”

Not what we expected.

And finally… II

Bob Spink, a former Conservative – later UKIP – MP, misled voters to get them to sign his nomination forms for his candidacy for the post of the Essex Police and Crime Commissioner in May 2016 and has been convicted at Southwark Crown Court of offences under the Representation of the People Act 1983. His agent, James Parkin, was also convicted. Both were released on bail to await sentence in the New Year.

Sounds like he was admirably qualified: a would-be Police and Crime Commissioner who was aiming to get the job by committing a crime. Oh no, hang on…

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