Law and religion round-up – 3rd March

Opposite sex civil partnership, same sex marriage in Northern Ireland, “best interests”, beards, blasphemy – and more…

Opposite sex civil partnership

On Friday 1 March, the Lords debated the Report stage of the Civil Partnerships, Marriages and Deaths (Registration etc) Bill, one objective of which is to provide that opposite sex couples may enter a civil partnership. Lord Faulkner of Worcester moved  Amendment 1, which would have inserted a new Clause after Clause 1 which removed the exemption for clergy in the Church of England and Church in Wales under the Marriage (Same Sex Couples) Act 2013 and permit the Churches to opt in to the provisions of that Act allowing the solemnization of the marriage of same sex couples.

The Minister of State, Home Office (Baroness Williams of Trafford) (Con), wound up the debate stating:

“my primary reason for objecting to the noble Lords’ amendment is quite simply, as I think the right reverend Prelate the Bishop of Oxford mentioned, that it is unnecessary. The Marriage (Same Sex Couples) Act provides an opt-in system so that same-sex marriages can occur only on religious premises or under religious rites where the governing religious body has expressly consented. There is no requirement for these bodies to give such consent.

The Act does not include a specific mechanism for the Church of England to opt in in the same way, which I know has caused some to believe that the Government are unnecessarily tying the hands of the Church through this. However, the actual reason, as the right reverend Prelate outlined, is primarily that the Church of England already has the ability to opt in using its own devolved legislative powers. It would be inappropriate for the Secretary of State to legislate on a devolved matter.”

The amendment was withdrawn.

Lord Hayward (Con) then moved a New Clause that would oblige the Secretary of State to make Regulations to provide for marriage between same sex couples in Northern Ireland within 10 months of the Act being passed, subject to conditions about the possible re-establishment of the Northern Ireland Executive.

There were serious concerns that Lord Hayward’s New Clause – however well-intentioned – would kill the Bill if agreed to because of the DUP’s opposition to same sex marriage. In the event, the New Clause was withdrawn.

Contested medical treatment and “best interests”

In Manchester University Hospital NHS Foundation Trust v M & Anor [2019] EWHC 468 (Fam), an infant M, aged 13 months, was born with end-stage renal failure [1-3]. The first and primary option for her care is haemodialysis [16]. M will become eligible for a transplant when she reaches a body weight of 10kg but “Even then and with a successful transplant, looking into the future, from the most optimistic perspective, it remains the case that M’s long-term care will continue to require vigilance with ongoing medical care” [18]. However, both M’s parents are opposed to the planned treatment because of their religious beliefs:

“… They have a deep, profound and simple faith. They believe entirely in the power of prayer. They believe that M is a gift from God … I note and respect their beliefs [37].

Both parents sadly suffer from mental health issues which may preclude their capacity fully to understand the choices that arise here. However, I am satisfied that their primary objection is predicated on the strength and vibrancy of their faith. The mother told me ‘This is not only a medical problem, it is also a spiritual problem’ [38: italics in original].

It is crucial that I record in this judgment that M’s mother paid tribute to the medical staff whose professionalism she does not doubt and whose motivation to do their best for M she plainly thought was beyond any question. I agree with her” [39].

Hayden J, while expressing his deep respect for the parents’ views and beliefs, concluded that M’s best interests lay in dialysing her: however. “if the situation changes the case should be returned quickly to court with the overall objective of preventing M’s suffering” [40].

Ritual slaughter in the EU

Last week, the Grand Chamber of the CJEU ruled on the application of the EU’s organic production logo to products derived from animals slaughtered without pre-stunning: unusually, it rejected the earlier Advocate General’s Opinion and concluded that the logo could not be applied to such products. We noted the judgment here.

Beards in The Netherlands

The Guardian reports that a court in The Netherlands has upheld the suspension of a Muslim man’s benefits over his refusal on religious grounds to shave off his beard while training for a job as an asbestos removal officer. He had been offered the job but was subsequently told he would need to be clean-shaven in order to undergo the training course, on the grounds that his beard would reduce the effectiveness of the respiratory mask he would need to wear: basically, a health & safety precaution. When he refused on the basis of his religious convictions, Amersfoort City Council suspended the statutory minimum income payments to him and his wife for a month.

The court accepted that the decision had infringed his right to religious freedom. Because he had refused to participate in the training, however, he had not taken the guaranteed opportunity it offered him to gain access to the labour market and, as a result, he had put undue pressure on public funds to the detriment of other taxpayers. The suspension of the payments was therefore “necessary in the interest of the protection of the rights and freedoms of others”.

Beards in the Catholic Church

Coincidentally, this week The Tablet carried a piece by Charles Coulombe Why clerical beards divide the Eastern and Western Church which traced the history of restrictions placed on the wearing of beards by the clergy. Within the Eastern Church, clergy continue to follow the advice of St Clement of Alexandria (AD 150-215), who “in voluminous advice to converts, counselled against shaving one’s beard, which he condemned as a sign of effeminacy”. The situation in the West was more complex, and although from about AD 500 canon law required priests to be clean-shaven priest, this was not always strictly observed or enforced. In their New Commentary on the Code of Canon Law, Beal et al note:

“the 1917 Code (CIC 136, §1) required that clerics have a simple hair style. The Second Plenary of Baltimore in 1866 had legislated in greater details, forbidding clerics to grow beards. Since this particular legislation was not opposed to the 1917 Code, it remained in effect and could be enforced by the Bishop, according to the decision of the Sacred Congregation of the Council. The 1983 Code says nothing about hair or beards”.

Blasphemy in Switzerland

The Local reports that the Swiss Government has rejected a proposal to remove the offence of blasphemy from the Swiss Penal Code. Under the article in question, any person who “publicly and maliciously insults or mocks the religious convictions of others, and in particularly their belief in God”, who “maliciously prevents, disrupts or publicly mocks an act of worship” or who “maliciously desecrates a place or object that is intended for a religious ceremony or an act of worship” is liable to a fine. Green Liberal MP Beat Flach had proposed a motion in the Federal Parliament, as follows:

The Federal Council is instructed to delete Article 261 (Disturbance of freedom of belief and religion) from the Swiss Penal Code. Article 261bis (Racial discrimination) should be adopted as a new Article 261 and fully retained” [original text here].

He argued that Article 261 meant that religious belief could not be criticised to the same degree as other world views and that the right to free exercise of religion was in any case guaranteed by other Swiss legislation, including provisions outlawing incitement to racial hatred or discrimination.

Nine Tailors meets the Environment Agency

The Environment Agency has reported that the bells of St Paul’s church, Starcross, Devon, will ring an SOS in the event of a flood warning if all usual forms of communications fail. Community fundraisers and a £10k grant from the Environment Agency enabled the restoration of the bells and surrounding masonry,  and the bells were returned to their tower on Tuesday 19 February 2019 after an absence of 4 months. Whilst some reports suggest that the church would “ring a peal” in the event of an emergency, this would be rather difficult since the church has only two bells. The churchwarden said, “I shall be ringing the bells at a set pattern of rings just to alert them to look at their mobile phones, look at the news, listen to the radio to find out what is going on … I suspect we will do a certain number of rings on one bell, a certain number of rings on the other bell continuously for as long as it takes, basically.” (According to Steve Coleman’s Ringing in History Companion, one traditional way of warning of an emergency was to ring back rounds – but you can’t ring back rounds on only two bells.)

Quick links to ChurchCare guidance notes

At the end of February 2019, the former ChurchCare website closed down following the end of the current hosting contract; all the ChurchCare content has been rewritten, updated and transferred to a new section of the CofE’s central website. Users of the revised CofE site will be familiar with the format, with its proliferation of photographs, large font and use of “find out more” links. Shortly after the changeover to the new site in 2017, we posted “quick links” to pages of possible interest to L&RUK readers: Part I, law and policy; Part II, Clergy and General Synod; and Part III – Legal Opinions and other guidance. With regard to the new ChurchCare web presence, a post is in preparation which will include more direct links for those wishing to access the Guidance Notes more directly.

Ecclesiastical court judgments

This week we posted the consistory court judgments which had been circulated in February; these included Re St Peter & St Paul Burton Pidsea [2019] ECC Yor 4 which concerned the assignment of the licence for a telecommunications installation in the church to a company called Shared Access (“SA”), which would in future deal with the telecommunications operators and manage their licences. The court was informed that there were said to be some of advantages in this arrangement as a result of the passing of the Digital Economy Act 2017 and the coming into operation of the Electronic Communications Code on 28 December 2017. However, the Chancellor noted that until the Lands Chamber has made decisions about interpretation of the Act, it is uncertain what the extent of those advantages will be [17]. He therefore authorised the assignment to SA, subject to a condition that an undertaking in writing by SA would be given to the consistory court, that it would not register so as to be in a position to apply for Code Rights under the Electronic Communications Code [25].

The issue also arose in a question in the Commons on 21 February from Sir Desmond Swayne (New Forest West) (Con) to the Leader of the House, who was answering on behalf of the Church Commissioners.

And the best and worst ECtHR judgments of 2018 are…

In January, Strasbourg Observers launched its annual vote for best and worst ECtHR judgment of the year, and on 25 February announced the winners. In the category of best judgment of 2018, the winner is Magyar Jeti Zrt v Hungary [2018] ECHR 990. In a ruling that was welcome to commentators on the blogosphere, the Court granted strong Convention protection to journalists against defamation claims when hyperlinking to possibly-controversial online content. Strasbourg Observers comments that “[b]y demonstrating a clear understanding of the importance of hyperlinks on the internet, it seems as if the Court has now finally entered the Digital Era”.

Frank sent a write-in vote via the “Other” option for ES v Austria [2018] ECHR 891 (which wasn’t on the list of nominations and which we noted here) as the worst judgment of 2018: despite it not having been listed, several readers agreed with him and it got 5.5 per cent of the vote.

Quick links

And finally…

Our web host appears to be having server problems and we must apologise for any resulting inconvenience to readers. Sorry – it’s bloody annoying for us as well.


One thought on “Law and religion round-up – 3rd March

  1. my solution to the identity wars conundrum of life in present-day Britain wld be to permit all adults to contract at any one time one civil partnership with a person of their choice including blood relatives.

    this wld confer the right to avoid inheritance tax in respect of that relationship and wld clearly have no presumed or compulsory sexual element – as is currently the case with single-sex unions and unlike heterosexual marriage where non-consummation remains grounds for dissolution.

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