Law and religion round-up – 21st November

Excita, quæsumus…

Marriage and Civil Partnership (Minimum Age) Bill

The Marriage and Civil Partnership (Minimum Age) Bill, a private Member’s ballot bill, was published earlier in the week, with the Explanatory Notes, and was given unanimous Second Reading in the Commons on Friday after 90 minutes of debate. The Bill extends to England & Wales only, though it includes an interesting provision about not recognising marriages and civil partnerships of under-18s domiciled in England & Wales which have been contracted in Scotland or Northern Ireland.

Expressing the Government’s support for the Bill, the Parliamentary Under-Secretary of State for Justice, Tom Pursglove, reminded the House that it was considering measures that relate to England and Wales and, though he wanted the UK “to live up to the rhetoric towards which we ask others to work” and that it was “right that directly elected politicians in Northern Ireland and in Scotland reach the decisions that are appropriate for the communities that they serve … what we are dealing with here is a very serious matter that relates to the welfare and wellbeing of young people. I would like to think that the Scottish Government and the Northern Ireland Assembly will want to level up their provisions in the way that we are doing today with this Bill, so that, as one United Kingdom, we have a consistent position”.

He also pointed out that the UN sustainable development goals required all countries to “eliminate all harmful practices, such as child, early and forced marriage and female genital mutilations by 2030” and that the UN Committee on the Rights of the Child had recommended that there should be no legal way for anyone to marry before they turned 18, even if there was parental consent: “The fact that it is currently possible to marry at 16 is setting the wrong example both at home and abroad.”

Russell Sandberg blogs about it here and here.

Age of criminal responsibility

While on the. subject of children, the Scottish Children’s Minister, Clare Haughey, has confirmed that the Age of Criminal Responsibility (Scotland) Act 2019 will be fully in place from 17 December and the age of criminal responsibility in Scotland will increase from eight to twelve next month. Parts of the legislation, including Regulations that mean a child under twelve cannot be considered an “offender”, have already been implemented.

The age of criminal responsibility in England and Wales remains at ten.

Banning conversion therapy in Scotland

The Scottish Government, which has committed to banning the practice of conversion therapy, has announced that it will set up an expert group to advise it on the banning of conversion practices, which aim to change a person’s sexual orientation or gender identity. It will include people with personal experience of conversion practices together with representatives from LGBTI organisations, faith and belief communities, mental health professionals and academics.

It is anticipated that the expert advisory group will begin its work early next year and this, alongside recommendations from the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee and other evidence and research, will inform the Scottish Government’s approach.

Crime in places of worship

The Countryside Alliance has published data obtained under the Freedom of Information Act which suggest that over 4,000 crimes have been committed at churches and religious premises over the last year in England, Northern Ireland and Wales – Police Scotland did not respond to the request for information.

The figures for 2020/21 reveal that some 115 lead thefts were recorded, along with 1336 thefts, 1688 incidents of vandalism and criminal damage – including arson – and 824 incidents of violence, including sexual assault and assault on an officer. 207 incidents were specifically marked as burglary. The worst-hit areas were largely in the south east of England, with Sussex Police recording 367 crimes, Kent 209 and the Metropolitan Police 575.

Re Exhall adoption of a merits-based approach

Whilst the judgment Re St Giles Exhall [2021] EACC 1 is primarily associated with the successful appeal against a decision of the Chancellor of the Diocese of Coventry (in Re St Giles Exhall [2020] ECC Cov 1) in relation to a short inscription in Irish Gaelic on a headstone, (see Churchyard Regulations after Exhall), the Court of Arches also addressed the generalities of what “Churchyard Regulations” are, and how they should be used in decision-making, [11.2] to [11.9]. The Court concluded:

“[11.8] We consider that the right approach is the merits-based one. Clearly, any Regulations in place for the parish or diocese concerned will be part of a matrix of relevant considerations, but we do not think that consideration of a faculty petition should start with a presumption against allowing a memorial outside the parameters of the Regulations, for the reasons articulated in the first instance judgments cited in paragraphs 11.5 and 11.6 above.

[11.9]. When framing Regulations for parishes or dioceses and when determining applications to clergy and faculty petitions to chancellors, it is essential to ensure that the Convention principles of fairness, equality and proportionality are followed. These principles accord with the approach of domestic law, as set out under Ground 1 (of the Appeal).”

This “merits-based approach” on which the Arches Court cited Re St John the Baptist Adel and St Michael Markington [2016] ECC Lee 8, was applied in the recently circulated judgment Re All Saints Darton [2021] ECC Lee 6. In this, the Worshipful Mark Hill QC granted a faculty to authorise kerbs to be placed around a grave. The installation of kerbs was outside the diocesan churchyards regulations, but in this particular case the grave concerned was surrounded by graves with kerbs, such that kerbs “‘appear to be the norm, rather than the exception”.

Wymondham Benefice Directions from Bishop of Norwich

On All Saints Day 2021, the Bishop of Norwich issued his Wymondham Directions to the Vicar and Churchwardens of Wymondham which arose from the Visitation of the Benefice of Wymondham with Silfield and Spooner Row, and the Commissaries’ Report, 22 June 2021. In addition to the on-going issue of complaints relating to Clergy Discipline, on which we will not comment at this stage, the Direction required the DAC and the Archdeacon to undertake a thorough review of the abbey church to assess the level of compliance with existing faculty conditions and to report this to the Chancellor; the Visitation Report noted that a number of works appeared to had been carried out without the benefit of a faculty. A future post will address the Direction in more detail.

Vaccine passports for churches and cathedrals

In July 2021, we posted Vaccine passports and places of worshipin which we noted the Church of England’s position as follows:

“While the Church is, in principle, opposed to making use of ‘vaccine passports’, it should adopt a flexible approach to their limited wider use with the important caveats that such use ought to be demonstrably beneficial to society as a whole, protective of the vulnerable in particular, non-discriminatory in nature and proportionate in use.”

This replicates the Conclusion to the Church’s response to the Government consultation. Some commentators have noted that for some services over the Advent/Christmas period, Durham Cathedral has issued the requirement that, inter alia:

“Upon entry to the cathedral, all visitors over the age of 18 must be prepared to show their NHS COVID Pass as proof of vaccination, a negative PCR or lateral flow test taken up to 48 hours before the event, or a positive PCR test from within the last 6 months.”

However, this is not an entirely new requirement in Durham, since it applied over a month ago to a concert in the cathedral given by The Sixteen on 15 October 2021, when these and additional COVID-19 safety measures were in place; the group stated, inter alia [emboldening in original]:

“In order for our audiences to continue to feel confident and safe when attending our Choral Pilgrimage concerts this autumn, we will be providing a mix of standard and socially distanced seating. Half of the seating in the venue will incorporate an element of social distancing (1 empty seat between bubbles) and half of the venue will be at full capacity. Each performance will last one hour with no interval. Face coverings will also be encouraged throughout all performances.”

In addition to aspects of COVID-19 safety, attendance at divine service at churches and cathedrals has implications in ecclesiastical law, on which we have posted on a number of occasions. Will Police Constable 433A be of any assistance? Or will decisions be made on the basis of the Government’s daily UK Summary of local infection rates? Postcode-based information is available and at the time of writing, Durham is substantially below the national average.

Oaths of office in Ireland

In Shortall and Others v Ireland (dec.) [2021] ECHR 50272/18, the seven applicants were politicians, three of whom were members of the lower and upper houses of the Oireachtas. Under the Constitution, persons taking up office as President or as members of the Council of State must take an oath “In the presence of Almighty God… May God direct and sustain me” before they can do so. They believed that, due to their political prominence, they had a realistic prospect of either being appointed to the Council or of being elected as President, but that the religious elements of the declarations required by the Constitution would either prevent them from taking up those offices or require them to make a religious declaration against their conscience.

The Court held that in order for the applicants to be “victims” within the meaning of Article 34 (Individual applications), under which the Court might receive applications from any person “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”, they would have had to offer “reasonable and convincing evidence” that they were “at real risk” of being directly affected by the impugned provision, had a real intention of seeking the Presidency and had some realistic prospect of success. None of the applicants, however, had sought to establish that they had a realistic prospect of successfully seeking the Presidency “with reference to their own particular political circumstances and the constitutional requirements to be nominated”.

Applicants could not complain about a provision of national law simply because they considered – without being directly affected by it – that it might contravene the Convention. “In the absence of reasonable and convincing evidence that the applicants were at real risk of being directly affected by the impugned requirement of the Constitution”, therefore, their complaints were rejected as inadmissible.

“Christianity and nurses”

In reply to a rather strange written question in the Commons from Jim Shannon (Strangford, DUP), the Minister of State for Health, Edward Argar, played a commendably straight bat:

“The Government and NHS England and NHS Improvement have made no assessment about the equity of Christian nurses facing discrimination on grounds of religion.

Discrimination in any form is not in line with National Health Service (NHS) values. The fair treatment of staff is directly linked to better clinical outcomes and better experience of care for patients. This is enforced by the requirement for public sector organisations including the Department, NHS England and NHS organisations to comply with the Public Sector Equality Duty. This requires them to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between different groups when carrying out their activities. The duty applies to the nine protected characteristics, including people’s religion or belief (which includes a lack of belief).”

Law and History Network webinar – change of date

Please note that the Law and History Network webinar featuring Professor Rebecca Probert talking about her new book on the history of marriage law will now take place on 8 December. To book your place, sign up here. The webinars are free to attend, run on Zoom and are open to all.

Quick links

And finally…

From Tuesday’s Guardian:

And are you sure there was a faculty for the sale?

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