Tuesday, 4 March 2014

Church of Jesus Christ of Latter-Day Saints v. the United Kingdom

The European Court of Human Rights in Church of Jesus Christ of Latter-daySaints v. the United Kingdom (also in PDF) has unanimously dismissed a case brought by the Church of Jesus Christ of Latter-day Saints (often called the Mormon Church) claiming a breach of Article 9 of the European Convention on Human Rights

The case related to the issue of Rate Relief for one of the two LDS Temples in Britain, namely the one in Preston, Lancashire. A Temple is considered, by the LDS Church to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. According to para 7 of the Judgment the right to enter a Temple is explained by the Church as follows:


You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ...

The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ...


The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations

The specific case concerned the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. Other buildings of the Church such as its various Chapels are open to the public and attract the normal 100% rates relief.

On 5 March 2001 the Church applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The Church appealed unsuccessfully to the Court of Appeal and then appealed to the House of Lords.

In that hearing Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56 the Church argued for the first time that refusal of Rates Relief amounted to a breach of Article 9 but the House of Lords unanimously dismissed the appeal holding, on the basis of an earlier judgment (Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that was open to the general public. (NB: The Henning case had concerned the other LDS Temple in Surrey)

The Government in its arguments to the ECHR did not accept that the LDS Church was in any different position in relation to the 1988 Act than any other religious organisation. The rule was of general application and concerned only the use made of the building; it did not discriminate on the basis of religious belief. Any of the Mormon places of worship, such as chapels and stake centres, that were open to the public, had the benefit of rates the exemption. The Government pointed out as an example that where Church of England churches were run by closed orders or as college chapels which were not open to the public they too did not get rates relief,

The LDS Church put in a very interesting argument summarised in para 21 of the judgment

Temple worship, by its very nature as understood by its believers, required that only those who voluntarily lived by the kinds of commitments made in the temple should be allowed to participate. This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis in Orthodox churches. Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in.

However the argument was unsuccessful the Court fully accepting the reasoning of the House of LordsThe case fell within the margin of appreciation given to individual states and the UK was entitled to decide that tax reliefs should only be given to places of religious worship which were open to the public and so provided "public benefit"

Friday, 28 February 2014

Prosecution in Australia of Unregistered Muslim Marriage

The issue of unregistered Muslim Marriages is something I have Blogged on in the past see http://religionlaw.blogspot.co.uk/2010/02/muslim-marriages-4.html where I give links to my other Blogs on this subject.

I have consistently said that in my view those who perform unregistered Muslim Marriages should be prosecuted under s75 of the Marriage Act 1949 which makes it a criminal offence to solemnise a Marriage in England and Wales otherwise than in accordance with the Act.

There is a similar, though rather more straightforwardly worded provision in s101 of the Australian Marriage Act 1961.  

In Australia it has been reported  that an Imam is to face trial for conducting an unregistered Marriage though in that case the alleged criminality is aggravated by the fact that the "Bride" is reported to have been 12 at the time.

It will be interesting to watch this case and see if it might inspire the English Police to start to enforce our  Marriage Act in the same way as the Australian Police are enforcing theirs

Wednesday, 5 February 2014

St Margaret’s Children and Family Care Society (3) SCAP Judgment

The decision in the case of St Margaret's Children and Family Care Society v Office of the Scottish Charity Regulator has been published on the website of the Scottish Charity Appeal Panel and it makes interesting and at times confusing reading. For the past history of this case and the English Adoption Agencies see HERE and HERE

It is of course a decision at first instance so it is not binding on any other Court or Tribunal however it is a decision which is likely to be highly persuasive in any other Case involving a Religious Charity so it is worth the trouble of reading in detail.

The Judgment emphasises that the case is largely based on the specific facts of the operations of St Margarets and indeed the main criticism it makes of OSCR is that it was applying a blanket approach that assumed St Margarets was breaking the Equality Act and therefore it should be removed from the Charity Register.  One point that is made in the judgment more than once is that there was no complaint made about St Margarets by any prospective adoptive couple either same sex or heterosexual and the investigation by OSCR was based on a purely theoretical complaint from the National Secular Society. In this respect paras 740 - 810 are interesting because they looks at the reason why OSCR was threatening to remove St Margarets from the Register namely because, in the opinion of OSCR, St Margarets was breaching the Equality Act and therefore did not offer "public benefit" which is a requirement of Charity Registration in Scotland (and also in England)

"It appears to The Panel, ......, that [OSCR] simply took the view at an early stage that any type of discrimination which breached The Equality Act amounted to a disbenefit sufficient to fail The Public Benefit Test.
This approach was in The Panel's view erroneous and the Public Benefit Test was incorrectly applied .........

The Panel is of the view that it is not as simple to say that if The Equality Act is breached then the Public Benefit Test is not met and any guidelines contrary to that view should be revised by [OSCR]...... The contribution to society of an adoption service is part of the activities of The Appellant which does provide a Public Benefit in the charity law sense of that phrase and had the test been properly applied The Respondent would have quite correctly considered there to have been Public Benefit in those activities."

This may be of help to any Charity which is accused in the future of breaching the Equality Act. Any such breach does not mean that the Charity should automatically cease to be a Charity. If there are breaches of the Equality Act then such breaches should be dealt with in accordance with the regulatory provisions of the Equality Act and not by refusing or removing Charitable status.

Of a more general application is the fact that SCAP found that St Margarets was a "Religious Organisation" for the purpose of Schedule 23 of the Equality Act (which provides exemptions for Religious Organisations) and was also a "manifestation" of Religion for the purposes of Article 9 of the European Convention of Human Rights. It was argued by OSCR that St Margarets was simply an Adoption Agency and therefore was not "religious" Paras 470 - 490 are fascinating in this respect

"The Catholic Church understands charity as a fundamental aspect of the life of the Church. It is not something that the Church does, but something that the Church is, and which defines the Church's nature. Charitable activity within and for the wider community is seen to be an essential part of the religious mission, witness and outreach of the Catholic Church (Benedict XVI Encyclical Deus Caritas Est (2005))."

"Catholic laity have the right under Canon Law (Canon 1030 of the Code of Canon Law) to form charitable agencies under the auspice of the Catholic church. Such Catholic charities are required as a matter of Catholic Canon Law to follow Catholic principles in their activity and they may not accept commitments which could in any way affect the observance of those principles. (Benedict XVI " Apostolic Letter "On the Service of Charity"

Whilst in Para 1000 referring to the evidence given by a Director of St Margarets

"the Catholic Faith was a lifestyle more than the mechanics of attending a church and part of that lifestyle was the importance of stable family relationships found within married couples. He [the witness] referred to Matthew 25 from the New Testament as his pointer and what he considered The Appellant's organisation was all about. ('Lord, when did we see you hungry and feed you, or thirsty and give you a drink? When did we see you as a stranger and welcome you, or naked and give you clothes to wear? When did we see you sick or in prison and visit you?' "Then the king will reply to them, 'I assure you that when you have done it for one of the least of these brothers and sisters of mine, you have done it for me.)

and Para 1090 

"The Panel does not agree with The Respondent that The Appellant is
merely an Adoption Agency or a non-religious charity simply because its main purpose appears not to be to conduct worship services. There are other religious charities for example who do not worship a deity but are
entitled to be charities and The Act does not define religion and belief as exclusively for worship, hymn singing, services and sacraments. Differing religions and differing charities whose principal purpose is the advancement of religion carry out these activities to a greater or lesser extent.
The Panel is of the view that The Appellant is a Religious Charity and there are the essential characteristics to make it so. As a Religious Charity it is able to rely on Article 9 on its own behalf and on behalf of its members.

How the future will lie for St Margarets is difficult to say.  it is likely that OSCR will decide not to Appeal because the Panels decision on the very narrow point of "public Interest" was, legally speaking, the crucial point in relation to the powers and the actions of OSCR and the Panels decision on that point seems unassailable.  St Margarets may however be faced with further legal action from the Equality and Human Rights Commission and no doubt from the troublemakers of the National Secular Society.  What really gets to me is that the NSS don't do anything themselves to help Children or indeed to help anyone they simply criticise and try to change the good works done by others.

Saturday, 1 February 2014

St Margaret’s Children and Family Care Society (2) VICTORY

The Scottish Catholic Adoption Agency St Margaret’s Children and Family Care Society has won its case against the Office of the Scottish Charity Regulator (OSCR), the Scottish Charity Appeals Panel has decided that St Margaret's was acting lawfully in restricting prospective adoptive parents to heterosexual married couples.  

Unfortunately the Panel has not put the decision on its website which is frustrating so I will have to comment in detail once I get hold of a copy of the decision itself however the background to the case and my views on it can be read in my earlier Blog 23 June 2013 where I contrasted the legal route taken by St Margaret's with the, ultimately unsuccessful, legal route taken by the English Catholic Adoption agencies which I blogged about 2 November 2012 with links in there to earlier Blogs on this legal saga. 

Whilst I have had no direct involvement in the St Margaret's case I feel personally vindicated by their victory.  I have always said that the English Agencies were going down the wrong legal route.  The English Agency was trying to amend its Charitable Constitution to say 

 "The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"

and I always argued that this attempt was doomed to failure.  I advised that the Agency should instead amend its Constitution to say that ALL its services were to be provided 
"in accordance with the teachings of the Catholic Church." 

Well hey presto what does the Charitable Objects of St Margaret's say ?

The Society is established to promote (irrespective of creed) the welfare of children, whose interests are paramount, to foster the stability of family relationships and to assess the suitability of applicants as adoptive parents, all in accordance with the teachings of the Catholic Church.

This is exactly in accordance with the form of words I have been advising since 2007.  St Margaret's is the only Catholic Agency which has acted in accordance with my legal opinion and it is also the only Agency that has won a case so forgive me if I seem a little smug this morning.  

I now hope that OSCR will leave St Margaret's alone and let it get on with its job of helping Children which it has done successfully and compassionately for years

Tuesday, 28 January 2014

On the Buses - Get Over it !

The case of  Core Issues Trust v Transport for London [2014] EWCA Civ 34  shows once again how incapable our Courts seem to be about understanding the concept of freedom of speech.

The case itself involved a the Christian Charity "Core Issues Trust" which wanted to run a series of Ads on London Buses promoting a Gay Cure Therapy.  This would have involved the words 
    www.anglican-mainstream.net www.core-issues.org"

which was a response to the adverts previously run on London Buses by the Gay Rights Charity Stonewall which read 

Both ads were clearly using confrontational language though the Core Issues Trust could at least claim to be responding to the confrontational language of Stonewall.

In an earlier hearing Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) the Core Issues Trust had lost an application for Judicial Review but got that decision overturned in the Court of Appeal because they were able to prove that the decision by TfL to refuse the Ad was influenced by the Mayor of London Boris Johnson when the original evidence to the High Court was that Boris Johnson was not involved in the decision.

However the Victory in the Court of Appeal may well prove pointless since the Court of Appeal agreed that TfL did have the right to ban the ads on the basis that 

84:......... The restrictions are justified in view of the prominence of the advertisements and the fact that they would be seen by, and cause offence to, large numbers of the public in central London. Moreover, for those who are gay, the advertisements would be liable to interfere with the right to respect for their private life under article 8(1).

85: Secondly, I agree with the judge that the advertisement is liable to encourage homophobic views and homophobia places gays at risk. 

So the Court  accepted that it is legitimate to ban adverts because some people "might" be offended by them.  So much for free speech.

Sunday, 26 January 2014

Ecclesiastical Bouncers

 This is a copy of an Article I had published in the January 10th 2014 issue of The Catholic Herald

The recent incident in which a naked woman from the protest group Femen interrupted Midnight Mass in Cologne Cathedral, by rushing on to the Altar with the words “I am God” written across her torso, is only the most recent example of an increasing tendency for “protesters” of various types to use churches as the setting for their provocations. 

Femen have been involved in a number of protests in churches in Europe and on their website they have threatened retaliation the Catholic Church if the “protester” is prosecuted under the German criminal code, which makes it a criminal offence to disrupt a religious service.

The “protester” in Cologne was, quite rightly, arrested and is facing prosecution. This highlights the double standards of many in western Europe who criticised the prison sentences passed on the Russian Pussy Riot group while ignoring the fact that the group’s actions would have been illegal in any civilised country. 

So far no Catholic church in Britain has experienced a Femen or Pussy Riot style disruption but reality would suggest that such an incident is only a matter of time. When same-sex marriage is legalised later this year it is likely that some gay rights activists will decide to organise a protest against the fact that such marriages will not be taking place in Catholic Churches. Disruption of a marriage
service in a church is a distinct possibility. 

Besides protesters, churches may have to deal with other types of disruption. A little-reported incident took place in September 2013 when St Elizabeth and St Helens church in Coventry was invaded by a group which demanded that the worshippers leave because the church was being closed down under a court order. The “court” in question is the so-called “International Tribunal for Crimes of Church and State” which has absolutely no legal standing either nationally or internationally and which is the creation of a former United Church of Canada minister Kevin Annett. 

Despite having no legal status the tribunal has solemnly sentenced Benedict XVI to 25 years imprisonment and ordered the closure and sequestration of the Catholic Church internationally.  It has also “sentenced” Queen Elizabeth II and the Canadian prime minister to imprisonment and announced the dissolution of the government of Canada. Even though this “tribunal” is clearly operating at the furthest limits of lunacy some people were sufficiently influenced by it to cause disruption to the worshippers in St Elizabeth church, resulting in the police being called to deal with a group claiming to be international law enforcement officers executing a court order.

These and similar incidents are likely to increase in the future and it would be sensible if dioceses and individual parishes started thinking now how they would deal with such situations. The first point is to be quite clear that disruption of church services is a criminal offence under Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860. In addition, it is likely to constitute a religiously aggravated public order offence. Any incidents should be reported to the police with a view to prosecutions being brought. People who disrupt churches are trespassers who can be physically removed from church buildings using reasonable force.   

That said, churches need to think about the practical way such situations are dealt with and to have some form of contingency plan that avoids an undignified and possibly dangerous struggle on the altar between a priest and an enraged  protester shouting at the top of their lungs and possibly willing to accuse anyone who touches them of indecent assault.  

It may be sensible for local priests to speak to their local police commanders or community officers to discuss the possibility of such situations arising and to get their advice. Many parishes will have parishioners who have had experience in the Armed Forces or police who might be willing to be the “designated person” to remove disrupters in the most efficient manner should that ever become necessary. Female parishioners who have Forces or police experience could be particularly useful “ecclesiastical bouncers” to deal with disruptive females.

After all, Christ did use physical force to drive out those who were disrupting the holiness of the Temple in Jerusalem and perhaps we could do with a restoration of the idea of muscular Christianity as an antidote to the notion of “gentle Jesus meek and mild” which has so emasculated Christians in the last few decades.  

In any event, dioceses should start thinking about the possibility of disruptions now cathedrals are particularly liable to be the targets for protests because of their public and media profile, and it makes no sense for a bishop or priest to wait until a naked protester is hurtling across the altar before thinking: “How should I deal with this situation?”

Guide to Religious Freedom and the Law

In January 2014 the Catholic Truth Society published a booklet “Guide to ReligiousFreedom and the Law” written by me. 

It is described as “an attempt to provide information on aspects of the law relating to Religious Freedom and Discrimination which are of specific interest to Catholic Institutions and individual Catholics in particular the Human Rights Act 1998 and the Equality Act 2010.”

The CTS booklet is not of course my first book on the subject however the CTS booklet is far more specific and targeted than most law books. “There are a large number of Books and official guidance covering Discrimination and Human Rights Law but the specific exemptions in the law which apply to religious organisations are often covered in a cursory way or relegated to footnotes. In this CTS book by contrast the exemptions and how they apply is the main area of interest”

By concentrating on what are the specific legal issues applying to the Catholic Church, Catholic Organisations and individual Catholics I hope that the booklet will be easier for non lawyers to understand.  In any law book there is a balance to be struck, cover everything and the book becomes unreadable except to the professionals, do not cover everything and someone is bound to complain that you have ignored an issue that they consider important. I can only hope I have struck the right balance with this Guide.

One of the areas of Equality Law I am very conscious I did not cover is Disability Discrimination. This is not because the subject is unimportant but because of the need to keep the booklet focused. I have however provided weblinks to organisations representing Blind and Deaf Catholics who can provide help and guidance in this area

Though the booklet is aimed primarily at a Catholic Audience I hope that it will also be of assistance to members of other religions and Churches since many of the legal questions are common across religious boundaries. 

Though the booklet is designed to give legal advice it is not my intention to encourage litigation or 'I know my rights' confrontations. Recourse to the law and to litigation should be the very last resort of any individual. If at all possible disputes are best resolved through patient discussion away from the glare of publicity.

I take the opportunity provided by the Booklet to to explode one persistent legal myth. Despite frequent assertions to the contrary there is absolutely NO legal rule which prevents a Roman Catholic becoming Prime Minister or indeed any form of Government Minister. There are of course legal restrictions preventing the Monarch from being, or being married to, a Roman Catholic but there are no other restrictions preventing Catholics playing their full part in Society.  I refer those who are interested to my earlier posts on the subject A Catholic Monarch ? The Act of Settlement 1701 and Myths about Catholics and the Monarchy

The booklet deals with the legal situation in England, Wales and Scotland but not Northern Ireland which, for historical reasons, has its own legislation dealing with Religious Discrimination. It is available from CTS priced £2.50