Pussy Riot and “religious hatred”, cathedral repairs, no-fault divorce, a sinister proposal in Lower Austria – and an own goal by IICSA
In 2012, three members of the punk band Pussy Riot tried to perform one of their songs, Virgin Mary, Drive Putin Away, in Moscow’s Christ the Saviour Cathedral. They were arrested, convicted of “hooliganism motivated by religious hatred” and jailed, the District Court observing that their behaviour “[did] not respect the canons of the Orthodox Church, irrespective of whether it takes place in a cathedral or outside its walls”. The domestic courts also banned access to videos they had subsequently downloaded to the Internet, on the basis of a report by linguistic experts from the Russian Institute for Cultural Research who considered the videos “extremist”.
In Mariya Alekhina and Others v Russia  ECHR 616, the ECtHR held by six votes to one that there had been a violation of Article 3 ECHR (inhuman or degrading treatment) because of the overcrowded conditions of the band members’ transportation to and from the courtroom and because they had had to suffer the humiliation of being permanently exposed in a glass dock during the hearings, surrounded by armed police officers and a guard dog – despite no evident security risk – and, unanimously, that there had been a violation of Article 5 §3 (right to liberty and security) because the domestic courts had only given stereotyped reasons for keeping them in detention for five months pending trial and of Article 6 §1(c) (right to a fair trial / legal assistance of own choosing) because the glass dock and heavy security had prevented them from communicating with their lawyers during their trial without being overheard.
The Court also held by six votes to one that there had been a violation of Article 10 (freedom of expression). A reaction to breaching the rules of conduct in a place of religious worship might have been warranted; however, jailing them for simply wearing brightly coloured clothes, waving their arms, kicking their legs around and using strong language – without analysing the lyrics of their song or the context of their performance – had been exceptionally severe. The Court also agreed, unanimously, that banning access to their video recordings on the Internet had violated Article 10: the domestic courts had not justified the ban but had merely endorsed the overall findings of a linguistic expert report without making their own analysis.
[Members of Pussy Riot invaded the pitch during the second half of the recent World Cup final – this time, they got fifteen days in jail.]
A public hearing on the Peter Ball case study will take place 23 – 27 July 2018 at the Inquiry hearing centre at 18 Pocock Street, London SE1 0BW. During the preliminary hearing on 6 June 2018, counsel to the Inquiry, Fiona Scolding QC, outlined preparations for the July hearing including the current status of witness statements and the themes and issues that will be addressed. Issues specific to the granting of a PTO to Peter Ball were:
- 10. Why Peter Ball was granted permission to officiate in various forms and was permitted to return to ministry, albeit in a partial and incomplete manner after his resignation, given his offending, and to explain and understand the circumstances in which such permission to officiate was granted, [page 28, line 22].
- 12. Whether or not a similar senior figure within the church would be treated in the same manner today and for similar reasons and, if not, why not, [page 29, line 8].
Pertinent to these is the new Policy on Granting Permission to Officiate which was published on Friday 20 July by the Church of England’s House of Bishops Delegation Committee. It is a general policy document concerning the issue of PTOs to clerics (priests and deacons as identified in Canon C8, para. [2.1]), although clearly it is of relevance to the PTO granted to Peter Ball.
At the preliminary hearing, Ms Scolding also referred to the Church’s independent inquiry into the handling of the Ball case by Dame Moira Gibb whose report was published last summer. A copy of the provisional timetable is available on the IICSA web site; Lord Carey of Clifton will give evidence on the morning of Tuesday 24 July, and written evidence from the Prince of Wales will be read on Friday 27 July. A draft of the Prince’s submissions has been carried by The Times (£).
The Supreme Court will be handing down judgment in Owens v Owens on Wednesday 25 July at 9.45 am, on appeal from  EWCA Civ 182. Regular readers may recall that Mrs Tini Owens is seeking to divorce her husband on grounds of irretrievable breakdown but Mr Hugh Owens has thus far defended the petition successfully.
Lousy as we are at predicting outcomes, we’ll just wait and see.
First World War Centenary Cathedral Repairs Fund evaluation
The First World War Centenary Cathedral Repairs Fund was established in 2014 by DCMS to support urgent repairs to listed Church of England and Roman Catholic cathedrals in England to keep them weatherproof, safe and open to the public and to prevent further deterioration. The aim was to ensure that cathedrals would be in an appropriate condition to host First World War commemoration events. The first round of funding was announced in 2014 and totalled £20 million, with a further £20 million announced in March 2016. The largest number of projects (approximately a third) were for roof repairs. Many of the repairs funded also related to external masonry, with other projects covered including guttering, heating, sound system, electrical and window refurbishment.
In December 2017, ERS Ltd was appointed to evaluate the Fund’s outcomes. Its report, First World War Centenary Cathedral Repairs Fund Evaluation: Final Report, July 2018, concludes that, overall, the Fund was successful in achieving its aims and met a funding need that could not be met elsewhere. Many respondents saw it as a success in safeguarding their existing activity while also sparking greater interest from the public in the heritage of the buildings. The key challenge for projects had been the timeframe for delivery, not only in and of itself but because of other issues such as unforeseen problems with repair works and the problems inherent in delivering projects during winter weather.
Kashrut in Lower Austria
The minister in charge of animal welfare in the State Government of Lower Austria, Gottfried Waldhäusl, was reported last week as proposing that kosher meat should be sold under permits that would be issued individually to observant Jews – who would have to register to obtain them. The proposal provoked negative reactions even among some members of his own party, the Österreichische Volkspartei; and Wiener Zeitung now reports that the Federal Government is having none of it. Federal Chancellery Minister Gernot Blümel said that the Government is committed to Austria’s Judaeo-Christian roots and will defend them against interference and attacks in the future: “We see it as a mission and as a given that Jewish life in our country be guaranteed in safety and without restrictions.”
So that’s all right, then – and we cannot believe for one moment that such a proposal would have survived a challenge under Article 9 ECHR – but where on earth could Herr Waldhäusl have got the idea of registering Jews from in the first place? [On second thoughts, don’t bother to answer that, on a postcard or otherwise.]
On Tuesday 17 July, we posted The State and Marriage III: Objections to the Cutting of the Connection, a further consideration of the involvement of the state in marriage law by Daniel Hill, Senior Lecturer in the Department of Philosophy, University of Liverpool. He observed inter alia “…the discriminatory regime under the Inheritance Tax Act 1984 was challenged by the Burden sisters in the European Court of Human Rights, which ruled that their rights had not been violated in a discriminatory way in their being disadvantaged by being sisters rather than civil partners or spouses”.
By coincidence, on Friday the House of Lords considered the second reading of the Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill [HL], a private member’s bill introduced by Lord Lexden (Con) which intends to “amend the Civil Partnership Act 2004 [CPA] to include sibling couples”. Whilst the private Members’ bill is unlikely to progress further, the House of Lords Library Briefing Note provides a detailed consideration of the issues involved.
The Government has stated that it is committed to further work on civil partnerships and that its plans were set out in the paper, The Future Operation of Civil Partnership: Gathering Further Information; these plans are to be kept “under review in light of the recent Supreme Court judgment [Steinfeld and Keidan v Secretary of State for International Development]” – in which the Court declared s.1 and s.3 CPA (to the extent that they preclude a different sex couple from entering into a civil partnership) incompatible with Article 14 ECHR taken in conjunction with Article 8. We noted Steinfeld here.
BBQs in the churchyard
The BBC reported that a tomb in the churchyard of St John’s, Devizes had been used as a barbeque, and unsurprisingly, opinions on social media were mixed. It was claimed by those involved that “the churchyard was ‘where we live’ and they would be doing it again; pretty much everyone who was down here at the time was homeless; where else are we going to have a barbecue, it don’t burn the graves and no way is it disrespectful because nobody has visited this grave.” Those familiar with funerary architecture will note the irony of the tomb in question being of a “table-top” design.
Dame Catherine Wybourne commented:
“I daresay there are laws that cover what may or may not be done in Anglican churchyards but I doubt whether they explicitly mention BBQs. Part of me has no problem with partying in a graveyard, provided no damage is done and all waste is cleared away; part of me finds the use of a memorial to the dead as nothing more than a convenient table-top for cooking rather repugnant.”
On the first point, we considered the application of ecclesiastical law to the use of Putney Old Burial Ground in south-west London as an area for part of an exercise class, in our post Press-ups between the Purbeck (August 2015); and the answer is whilst such activities may be contrary to the provisions of Canon F 15 Of churches not to be profaned, there are limited sanctions that may be applied and barbeques are unlikely to be regarded as “riotous, violent, or indecent behaviour” under s.2 Ecclesiastical Courts Jurisdiction Act 1860. Whilst there are few remedies within the ecclesiastical law on the activities involved, the Clean Neighbourhoods and Environment Act 2005 remedies some of the lacunae in S87 Environmental Protection Act 1990 and would be applicable to any resultant litter that was created. However, some would argue that a more pastoral approach would be appropriate.
There were media reports of a joint study by the University of Bristol and the University of Tennessee which suggests that secularisation precedes economic development and not the other way around. The researchers conclude that though that does not demonstrate a causal pathway, it does rule out the reverse.
It may, of course, be that the establishment of a liberal democracy is a driver for economic development and that liberal democracies tend to become increasingly secular as they evolve. Or it may be something else entirely.
- Lady Hale PSC, Scottish Public Law Group 2018, Edinburgh: Devolution and The Supreme Court – 20 Years On: “The Supreme Court has just held that abortion law in Northern Ireland is incompatible with the Convention rights in three respects. The fact that this is technically obiter dicta does not affect the essential validity of those conclusions.”
- Catherine Pepinster, The Observer: Humanists campaign for more non-religious NHS ‘chaplains’: notes that Humanists UK is supporting a new MA in existential and humanist pastoral support at the New School of Psychotherapy and Counselling.
- Meg Russell, The Constitution Unit blog: The failed Senate reform in Italy: international lessons on why bicameral reforms so often (but not quite always) fail: “second chambers are difficult to reform – for various reasons, but fundamentally connected to disputes about how these chambers should be constructed and what they should do” – which has obvious implications for the continued presence of bishops in the House of Lords.
On Wednesday, the Information Commissioner’s Office announced that it had fined the Independent Inquiry into Child Sexual Abuse £200,000 after IICSA had sent a bulk e-mail to 90 inquiry participants in February 2017. Owing to a foul-up by an IT company engaged by IICSA, each recipient was able to see the others’ e-mail addresses, thereby identifying them as possible victims of child sexual abuse – and IICSA and the ICO received 22 complaints. When IICSA hired the IT company to manage the mailing list it had relied on the company’s assurance that it would prevent individuals from replying to the entire list; however, in giving the participants’ e-mail addresses to the IT company without their consent, IICSA had breached its own privacy notice.
Because of the date of the breach, it was dealt with under the provisions and maximum penalties of the Data Protection Act 1998 rather than under the 2018 Act which has replaced it. On this occasion, you really couldn’t make it up.