Law and religion round-up – 10th September

Praying with patients?

Readers will no doubt be familiar with the case of Dr Richard Scott (whom we have mentioned before, here, for example), who was given a warning by the General Medical Council in June 2012 after a patient complained that Dr Scott had abused his position to push his religion upon him.

The BBC reports that in a similar complaint relating to a consultation in 2022 involving a 19-year-old man with a history of Attention Deficit Hyperactivity Disorder, a GMC tribunal sitting in Manchester has found that although the patient had consented to undertaking a spiritual discussion, Dr Scott “then overstepped the boundaries”. However, it concluded that “Dr Scott’s actions did not cross the high threshold required to be considered serious misconduct”.

“Religious” dress in French schools

We have already noted the ban on the abaya in French schools that came into force at the beginning of the new school year. After a motion filed with the Conseil d’État by Action for the Rights of Muslims, the Conseil ruled on Thursday that the ban was legal. Action for the Rights of Muslims had argued that the abaya was a traditional garment, not a religious one, and that the ban was “sexist” because it singles out girls and discriminatory because it “targets Arabs”.

Most French people seem to support the ban. The BBC has a report here.

Article 8 ECHR and legal recognition for same-sex relationships: Koilova 

In Koilova and Babulkova v Bulgaria [2023] ECHR 40209/20 [in French], Ms Koilova and Ms Babulkova had married in England, but the national authorities had refused to record Ms Koilova’s marital status as established by her UK marriage certificate as “married” on her birth record. Bulgarian law did not allow such a change because it did not provide for any form of legally-recognised union for same-sex couples, nor did the Government offer any assurance that it intended to seek to change the current law. The applicants argued that they were barred from enjoying the legal protection to which they were entitled as a married couple under Article 8 ECHR (respect for private and family life).

A same-sex marriage in Bulgaria was treated as no more than a de facto union even when it had been validly contracted abroad, which meant that a married couple could only regulate fundamental aspects of their life, such as property, family matters and inheritance as private individuals entering into contracts rather than as an officially-recognised couples and were not able to rely on the existence of their relationships in dealings with the judicial or administrative authorities or with third parties.

The Court could not consider that the protection afforded to same-sex couples in a stable and committed relationship in Bulgaria satisfied the fundamental needs of those concerned. It had previously found that, in accordance with their positive obligations under Article 8, states parties were required to provide a legal framework giving same‑sex couples adequate recognition and protection for their relationships. Further, the Bulgarian Government had given no precise indication as to which public interest the State had wished to defend by refusing to protect the applicants’ individual interests.

The Court had recently stated that that margin of appreciation was now significantly reduced when it came to affording same-sex couples the possibility of legal recognition and protection and had noted in Fedotova and Others v Russia the European trend towards legal recognition of same-sex couples. In light of the arguments put forward by the Bulgarian Government, the Court’s case-law as clarified and consolidated in the Fedotova, and on the evidence in the present case, it concluded that Bulgaria had exceeded its margin of appreciation and had failed to fulfil its positive obligation to ensure the applicants a specific legal framework providing for the recognition and protection of their union as a same-sex couple. Accordingly, there had been a violation of Article 8.

Caste discrimination

The BBC reports that the California State Legislature has become the first in the US to approve a bill banning caste discrimination. The bill, sponsored by Democratic state senator Aisha Wahab passed by 31-5. Its supporters argue that it will protect people of South Asian descent who allege unfair treatment on the basis of caste. The Governor of California must now decide whether or not to sign the bill into law.

In the UK, the issue was the subject of a consultation by the Equalities Office five years ago. The Government concluded then that rather than amending s.9(5)(c) of the Equality Act 2010 by order “so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances”, it preferred to proceed by the development of the existing law:

“Having given careful and detailed consideration to the findings of the consultation, Government believes that the best way to provide the necessary protection against unlawful discrimination because of caste is by relying on emerging case-law as developed by courts and tribunals. In particular, we feel this is the more proportionate approach given the extremely low numbers of cases involved and the clearly controversial nature of introducing “caste”, as a self-standing element, into British domestic law.”

Commingling of cremation ashes, but not in Hereford

In Re Hereford Cemetery [2023] ECC Her 1 the raison d’être of the Petition was to enable the ashes of the Petitioner’s father to be mingled with those of her mother’s ashes in order to fulfil her stated wishes. Ockleton Ch observed:

“[7]. I have not been able to discover any decided cases on this or similar proposals. That may be because it is obvious that the mingling of remains is not a good reason to allow an exception to the presumption set out above. There is nothing in Christian doctrine suggesting that any spiritual benefit could follow from such treatment of the remains of the dead; on the contrary, the principle of the permanence of the committal of remains to the earth, the requirement to treat such remains with dignity, and the near-universal Christian practice to maintain the separation and identification of remains where possible, all tend against allowing this Petition.

In denying the petition, he noted that her ashes may be buried, with suitable ceremony, next to those of her husband, without disturbing the latter and if that takes place a suitable inscription may be added to the present memorial.

“Under the earth there may be natural mingling of the ashes of husband and wife in the course of time. But whether or not that happens, their two souls are together in the hands of God.”

Abuse of power and spiritual abuse

On 6 September 2023,  the Church of England issued the Press Release, Concerns substantiated in Mike Pilavachi investigation. The internal investigation covered a period spanning 40 years from his time as a youth leader through to the current day and was conducted by the National Safeguarding Team, NST, and the Diocese of St Albans. Having explored the safeguarding concerns the investigation team concluded that they are substantiated.

Now this stage of the process is over, Soul Survivor Watford has commissioned an independent review to be led by Fiona Scolding KC. This is separate and independent of the internal Church of England investigation, with a full report to be published at the end.

You read it here first…

…but at least the Archbishop of York waited until the judgment on St Michael le Belfrey had been delivered before announcing Chancellor approves St Michael le Belfrey building project. In our last roundup, we reported on the detailed judgment in Re St Michael le Belfrey York [2023] ECC Yor 2 handed down on 18 August. Since then, we have posted a detailed analysis of the judgment:  the first part which was posted on 29 August; the second, including extracts from the conclusions to the Duffield questions on 5 September; and the final part, which considers the overall impact of the proposal and the court’s conclusions, on 7 September.

General debate on freedom of religion or belief

A Westminster Hall debate on freedom of religion or belief (FoRB) will take place on Tuesday 19 September 2023 from 9:30-11:00 am. The debate was scheduled by the Backbench Business Committee and will be led by Fiona Bruce MP.

Quick links

Forthcoming lectures of interest

Church Monuments Society: Annual All Hallows Lecture 2023: Tuesday, 31 October 2023 at 17:00. The speaker will be Thomas J Farrow of the University of Liverpool, and his topic will be British Medieval Charnel Traditions. 

This online talk is free to all and will take place on Zoom. Places must be booked via Eventbrite.

Edmund Plowden Trust & the University of Notre Dame: the Annual Richard O’Sullivan Memorial Lecture will be given by John Witte Jr of Emory University on The New Great Awakening of Religious Freedom in America Today, in person on Tuesday 26 September 2023 at 18:00 at The University of Notre Dame (USA) in England, 1-4 Suffolk Street, London SW1Y 4HG.

If you wish to attend, RSVP to


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