Have yourself a multicultural little Christmas

In view of the fact that most Schools are no longer putting on a Nativity Play in order to avoid “giving offence” to other religions the following Nativity Play has been written

THE POLITICALLY CORRECT NATIVITY

(or Have yourself a multicultural little Christmas)

Characters: Mary and an Angel.
(Please note that the role of the Angel is Non Gender specific and therefore the person playing the role must be chosen in accordance with an approved diversity procedure)

(Mary is sitting on the floor crosslegged with her eyes shut and her hands on her knees palms up. She is chanting)

MARY: Ohmm, Ohmm, Ohmm,

(The Angel enters Stage Left (or Stage Right depending on cultural preferences)

ANGEL: Mary

(Mary stands up startled, she adjusts her Hijab to cover her face and speaks)

MARY: Who are you ? You interrupted me when I was allowing my Kharma to flow forth and develop my Krishna Consciousness

ANGEL: I am Ahura Mazda, Lord of Light and a messenger of Allah. I have come to tell you that you are to have a child and in his honour every year children everywhere will be given presents regardless of their race, colour, creed, sexual orientation or transgender inclinations

MARY: But how can this be, I am a good Jewish Girl, though I hasten to add not a member of the international Zionist conspiracy or involved in the suppression of the legitimate aspirations of the Palestinian people

ANGEL: All things are possible to Allah. He has the power to turn Teddy bears into Criminals or Global Warming into snowy blizzards and he allows apparently rational people to believe that Sweden is run by the CIA so this is easy. The child will be born just after the festival of Divalli; farewell Mary and may the force be with you.

MARY: Wait, you have not told me what the name of the baby will be

(The Angel thinks for a minute)

ANGEL: It’s funny you should say that but with everything else that’s going on these days I’ve completely forgotten who the baby is

THE END ?

And to my readers (or for all I know 'my reader')

My best wishes for Christmas and for 2011 Anno Domini.

Irish Abortion case 2

I have had a proper chance to read this decision see earlier Blog below and am even more puzzled than I was before as to what right or jurisdiction the ECHR had to make the decision it did.

The main part of the decision relating to the claimant C was that the Irish Government has not brought in legislation or guidance to allow Doctors to properly advise women who seek an Abortion when their life may be endangered by pregnancy. In the case of A.G. v. X [1992] BAILII:IESC 1 the Irish Supreme Court decided that women in that situation could obtain an Abortion in accordance with the
"and with due regard to the equal right to life of the mother"
wording within article 40.3.3 of the Irish Constitution

Assuming, for the sake of the argument, that the ECHR is correct in deciding that the Irish State has not properly implemented the 'X' case how does that give the ECHR jurisdiction to find a breach of Article 8 of the Convention ? If there is no right to an Abortion under Article 8 then at that stage the jurisdiction of the ECHR ends; the ECHR does not have the jurisdiction to deal with possible breaches of the Irish Constitution

There is also a broader issue arising from the the Judgment which provides a dangerous power for the ECHR to ultimately decide that Abortion is a "Human Right". Paras 233 - 238 read as follows

233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.

234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).

235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.

236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.

237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).

238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.

The notion that the interpretation of the Convention can evolve and can be based on a developing "consensus" within Europe, the idea that the ECHR can say that its power to interpret a Convention that does not once mention Abortion is such that
"Nor is the regulation of abortion rights solely a matter for the Contracting States"
is wholly inimical to the concept of Democracy and the rule of Law. Article 40.3.3 of the Irish Constitution was passed by a referendum of the Irish people following a full debate and yet apparently that referendum result can be overturned by a group of unelected Judges applying their concept of a European consensus.

The rule of law depends on Judges applying legal rules whether they like them or not, once the law is at the whim of Judges then we no longer have the rule of law.

Most of the debate on this case seems to turn on whether the commentators agree or disagree with Abortion but I would suggest that there is another principle at stake and perhaps a more important principle. Are decisions on these fundamental moral questions going to be decided by European nations democratically or are they going to be imposed on Europe by an ECHR which is neither accountable to the peoples of Europe or removable by them

Irish Abortion case

I am just off on a journey so apologies for this rushed Blog.

The European Court of Human Rights has just delivered a Grand Chamber judgment in the case of A. B. and C. v. Ireland. See PRESS RELEASE and JUDGMENT
re the facts in each case. Essentially the 3 women were arguing that the Irish Constitution article 40.3.3

"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right"

violated their rights to a private life under Article 8 of the European Convention on Human Rights
Article 8 - Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Court held that there had been no violation of Article 8 of the European Convention on Human Rights (right to private and family life) in respect of A and B, and unanimously, that there had been a violation of Article 8 in respect of C who was suffering from cancer. The peculiarity of the decision is that the European Court held that C could not access her rights to an Abortion (because her life was in danger) under the Irish Constitution 40.3.3.

The question I pose is
"What gives the European Court of Human Rights the right to adjudicate on the provisions of the Irish Constitution ? Once the Court had decided that the European Convention does not give a right to an Abortion that should have been the end of the matter. Deciding on the interpretation of the Irish Constitution is the job of the Irish Supreme Court not the European Court of Human Rights

Catholic League v San Francisco

The judgment of the US 9th Circuit Court of Appeals in the case of Catholic League v San Francisco makes interesting reading. In this case the Catholic League which is an organisation defending Catholic freedom in the US sued the City of San Francisco over a resolution passed by the Board of Supervisors (in effect the City Council) of San Francisco.

The City of San Francisco has a long record of supporting Gay Rights including same sex marriage and same sex adoption. Following a statement by Cardinal William Levada the head of the Vatican Congregation for the Doctrine of the Faith which condemned same sex adoption and stated that Catholic Adoption Agencies should not co-operate in any way with it the SF Board of Supervisors passed a lengthy resolution (no 168-06 It can be read on p4 of the Judgment). This resolution firmly disagreed with the views of Cardinal Levada and called on him to withdraw and on the present Archbishop of San Francisco, Archbishop Niederauer, to defy the Catholic Churches teaching on same sex adoption

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada;
now, therefore, be it RESOLVED,
That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

The Catholic League argued that this resolution breached the 1st Amendment to the US Constitution which prevents an "establishment of religion". It was argued by the League that just as and, as the 1st Amendment prevents government in the US from endorsing any particular religion or religious group so it also prevents government from criticising any particular religion or religious group.

Much of the case revolved around the question of "standing". Clearly either Archbishop Niederauer or Cardinal Levada could claim that the resolution affected them but the Court had to decide whether the 2 Catholic League members in whose name the case was brought could claim that it affected them in their personal capacity as Catholics. The Court decided, by a bare majority that they did have standing.

The Court also by a majority decided that the resolution did not affect the rights of Catholics under the 1st Amendment. The minority dissenting view was set out in the judgment of Judge Kleinfield (p17 of PDF) who held that
government has no legitimate role under the Establishment Clause in judging the religious beliefs of the people — either by praise or denunciation.

The majority view was set out in the judgment of Judge Silverman (p26 of PDF) who said
Government speech or conduct violates the Establishment Clause’s neutrality-only requirement when it: (1) has a predominantly religious purpose; (2) has a principal or primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglement with religion. .......It [the resolution] was an isolated, non-binding expression of the Board of Supervisors’ opinion on a secular matter, which the plaintiffs have not alleged even potentially interfered with the inner workings of the Catholic Church......We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are

An interesting point for me, as a non US lawyer, was that nobody referred to the right of free expression which is also part of the 1st Amendment since it does seem to me that the SF resolution was an expression of opinion by the SF Board of Supervisors and therefore surely it too was protected by the 1st Amendment on those grounds. I suppose that since the Court held that the establishment clause in the 1st Amendment was not violated they did not need to go on to consider freedom of speech issues.

On a personal basis I agree with the Court on their judgment (no doubt they will be heartily relieved to know that !). Whilst I can understand the annoyance of the Catholic League with what the SF resolution said the fact is that the biggest threat Christianity faces in the west is the restriction on freedom to express unpopular views and therefore supporting freedom of expression is important even when you disagree with what is expressed.

On a second personal point I do take issue with the SF resolution when it refers to the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition
that really is just a nasty attempt to blacken by association. The inquisition ceased to exist in 1908 so why over 100 years later refer to it when dealing with what a modern department has said; nobody refers to Canada (formerly known as British North America) or The Ministry of Defence (formerly known as the War Office). It was a childish remark by the SF Board but, as I have already mentioned, one protected by the 1st Amendment

Oklahoma and Sharia Law Ban

Say what you like about America but its political system does allow the public to get involved in debate and decision making in a way that is very difficult this side of the Atlantic. One of the latest examples of this was the decision by citizens of Oklahoma to amend their State Constitution so as to ban Sharia law.

The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.

PRELIMINARY BALLOT TITLE FOR STATE QUESTION NO. 755

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "

After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.

Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.

The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.

It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.


and th

The Rule of Law or The Rule of Lawyers

I have copied the following report from Life Site News because I feel what Justice Scalia is denouncing in the US legal system is extremely relevant to the misuse of the European Convention on Human Rights and the judicial activism of the European Court of Human Rights which regards the convention as a "living instrument". Though a wonderful idea in liberal theory it is in fact a pernicious attack on democracy and the rule of law because the Convention can be used to mean whatever the Court decides it means.

"RICHMOND, Virginia, November 23, 2010 (LifeSiteNews.com) - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.

Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press. “The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.

The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

(NB for non American readers the 14th Amendment reads as follows
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”

He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words. “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.

Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws. Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.

If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.

US State Department on Religious Freedom in the UK

The US State Department has issued its annual report on Religious Freedom in the world including the UK. It can be read at
http://www.state.gov/g/drl/rls/irf/2010/148995.htm

I was actually contacted by the US Embassy in London earlier this year and asked to comment and add to their existing report so it is nice to see that they have kept in all the parts where I expressed concern about the direction of policy in Britain and the way in which religious freedom is increasingly being restricted by the misuse of Discrimination laws and "hate crimes"

In general however the main value of the report is providing a concise description of the legal and constitutional status, legislation and organisation of religions in the UK and is worth reading for that reason alone
Generally

Freedom of Conscience and Abortion

The Parliamentary Assembly of the Council of Europe has recently been considering the issue of Conscientious Objection in relation to participation in Abortion. Originally the proposals before the Assembly regarded Conscientious Objection not as a fundamental right but as a problem indeed the original title of the proposals before the Assembly was "Women’s access to lawful medical care: the problem of unregulated use of conscientious objection"

but this was amended to read "The right to conscientious objection in lawful medical care" and Para 1 of the Resolution as eventually passed by the Assembly reads
"1. No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason."

The amendments to the original proposals were initiated by two Parliamentarians Senator Ronan Mullen of the Irish Oireachtas (Parliament) and Mr Luca Volonte of the Italian Parliament. I had the good fortune to meet Senator Ronan during my recent visit to Dublin and I was enormously impressed by him.

The Resolution does not of itself have any direct legal force since the Council of Europe is not the European Union and does not make law. However the Council does have the role of defending the European Convention on Human Rights and it administers the European Court of Human Rights. Because of this resolutions by the Council of Europe are considered by the Human Right Court when making decisions concerning the Convention As an example look at the Judgment in the case of Layla Sahin v Turkey paras 66, 68, 69, 136 and para 18 of the dissenting judgment by Judge Tulkens.

Similarly when making arguments in UK Courts it is possible to refer to Resolutions by the Council of Europe or indeed any other other International organisation where those resolutions are relevant to a question before the Court.

I would see this Resolution defending Conscientious Objection as being valuable in protecting Medical staff who may be pressurised to participate in or indirectly assist in Abortion. The resolution specifically refers to the fact that "No person, hospital or institution shall be coerced, held liable or discriminated against"
because of their refusal to "accommodate, assist" with abortion. The fact that the Resolution specifically refers to discrimination could be quite significant in terms of the Anti-Discrimination provisions in The Equality Act 2010

At present most Doctors and Nurses in Great Britain who object to Abortion rely for their protection on section 4 of the Abortion Act 1967 which says
"no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection"

The leading case concerning s4 is Janaway v Salford HA [1988], 3 All ER 1079 HL where a doctor's secretary (Janaway) refused to type a referral letter for an abortion and was unsuccessful when she claimed that she was protected by s4. The House of Lords, in interpreting the word "participate" decided to give the word its "ordinary and natural meaning" which meant that s4 only applied to those who were being required to take part in an Abortion (e.g. the gynaecologist, the anaesthetist, or the assisting nurses) and did not cover ancillary involvement such as signing an Abortion Certificate or referring a patient to another Doctor who would carry out an Abortion. The general effect of the Janaway case has been an assumption that Doctors in particular only have very limited legal rights to object to involvement in the Abortion process. However though Janaway is still good law it is no longer the last word on the subject of conscientious objection.

Sections 10 and 19 of the Equality Act combine to make it unlawful for an employer to
apply a provision, criterion or practice which puts, or would put, persons [ie with a religious or philosophical objection to abortion] at a particular disadvantage when compared with persons [who do not have any religious or philosophical objection to abortion]

The defence to an allegation of indirect discrimination is that the "provision, criterion or practice" is a " proportionate means of achieving a legitimate aim"

It is when Courts are applying the test of proportionality that Resolutions such as that by the Council of Europe come into play to protect Doctors, Nurses, Pharmacists or even Health Service Typists who do not want to assist in Abortion in any capacity. Similarly Religious Hospitals or Organisations which may find themselves being pressurised to agree to Abortion services as a condition for receiving NHS contracts could use the resolution to allege that they were being Discriminated against.

Certainly the resolution will not provide a magic bullet defence to any person or organisation who finds themselves being pressurised with regard to Abortion but it certainly provides a moral and potentially a legal support to those people who recognise that unborn children are human beings too. After all everyone who is reading this Blog was a foetus once.

Equality Act - 1 October 2010

The majority of the provisions in The Equality Act 2010 are due to come into force on 1st October 2010. The details are contained in Statutory Instrument 2010 No. 2317

The relevance to Religion Law issues is that the 2010 Act unifies all Anti-discrimination legislation and therefore replaces the

The Employment Equality (Religion or Belief) Regulations 2003
Part 2 The Equality Act 2006 (Religious Discrimination in Goods & Services)
The Employment Equality (Sexual Orientation) Regulations 2003
Equality Act (Sexual Orientation) Regulations 2007

In theory new Act does not change the law but merely consolidates it into one statute however we shall have to see what happens in practice. In the short term there should be no major changes to how equality law is applied where there is conflict between religious discrimination and same sex discrimination.

In the longer term the fact that marriage and civil partnership is now a "protected characteristic" may lead to additional pressures on religious organisations (ie the vast majority) that do not recognise civil partnerships as equivalent to marriage.

Section 193 of the Act which relates to Charities could have an important and harmful long term effect where it says
(1)A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if—
(a)the person acts in pursuance of a charitable instrument, and
(b)the provision of the benefits is within subsection (2).
(2)The provision of benefits is within this subsection if it is—
(a)a proportionate means of achieving a legitimate aim, or
(b)for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic

As the case of the Catholic Adoption Agencies and the case of Ladelle
have both shown the idea of "proportionality" is a dangerously subjective concept and ithere is a great danger that this clause will can be used to force religious charities to choose between closing down or acting contrary to their religious ethos and principles.

The Government is still consulting on section 202 which will allow Civil Partnerships to be held on religious premises As I Blogged on 23 February
the main concern with this provision is the possibility that once Civil Partnerships become possible on Religious Premises it will subtly become unlawful for any religious premises to refuse to offer them.

The Government has not brought into force Parts 1 (Socio -Economic Inequalities) or Part 11 Chapter 1 (Public-Sector Equality Duty) and is consulting on these provisions. It is quite possible that they will not be brought into force

Iona Institute Talk 24 September 2010

On the 24th September I was one of the speakers at a conference in Dublin organised by The Iona Institute. Below is a copy of the speech I made which reviews the various cases involving religious freedom issues which have come before the British Courts over the past few years. For more details about the conference read HERE and HERE

RELIGIOUS FREEDOM IN THE UNITED KINGDOM

(A talk for the Iona Institute 24 September 2010
by Neil Addison (Barrister), National Director, Thomas More Legal Centre)

The best summary of the current position for Religious believers in Britain was given by Dr Rowan Williams Archbishop of Canterbury when he said in an Interview on 11 December 2009

“The trouble with a lot of Government initiatives about faith is that they assume it is a problem, it’s an eccentricity, it’s practised by oddities, foreigners and minorities"

and a similar comment was made by Catholic Archbishop Peter Smith

"religion is regarded as a legally permissible private eccentricity; allowable behind closed doors once a week, but not in any way to be given expression in public or working life"

The growing secularisation of British life is of course something shared with much of Europe but two specific problems in Britain arise from the 30 year history of the Northern Ireland troubles followed by the September 11 2001 attacks in New York and the July 7 2005 attack in London. In consequence Religion is often subconsciously seen in Britain as not merely a harmless eccentricity but as a potentially dangerous eccentricity.

LEGISLATION

Because the legal position relating to religion in the UK differs in detail between the four nations which form the Union I shall primarily concentrate on the position in England and on the principle English cases. The main legal provisions which are relevant are

The Human Rights Act 1998
The Employment Equality (Religion or Belief) Regulations 2003
Part 2 The Equality Act 2006 (Religious Discrimination in Goods & Services)

The Human Rights Act incorporated into UK Law the European Convention on Human Rights including Article 9 of the Convention which says

9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others

As I hope to demonstrate in this talk almost any restriction on freedom to manifest religion can be justified under the caveats in 9.2

ARTICLE 9

The first major test of Article 9 came with the case of Begum where schoolgirl Shabina Begum wanted to wear the Islamic Jilbab in school, the Jilbab being contrary to the School rules. The Judicial Committee of the House of Lords (now the UK Supreme Court) held that the rules of the School were justified under 9.2. The most important words in the Begum judgment came in the judgment of Lord Hoffman where he said at para 51

“Article 9 does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing”

That phrase, which was quite understandable in its context, has since been repeated in virtually every case where religious believers have tried to rely upon Article 9 and in has made Article 9 of little practical value

RELIGIOUS AND GAY RIGHTS IN EMPLOYMENT

Though there have been some other attempts to utilise Article 9.2 the main legal thrust since Begum has been under the 2003 Regulations and the 2006 Act and the main challenge involving these legislative provisions is that they were passed in association with

The Employment Equality (Sexual Orientation) Regulations 2003
Equality Act (Sexual Orientation) Regulations 2007

which has made discrimination on the grounds of sexual orientation illegal in both employment and the delivery of goods and services.

The main case involving a clash between the principle of freedom of religious belief and non discrimination on grounds of sexual orientation was the case of Ladelle. Lillian Ladelle was a Registrar of Marriages employed by Islington Council in London and when the Civil Partnership Act 2004 came into force she was also designated as a Registrar of Civil Partnerships. As a Christian she disapproved of same sex partnerships and so arranged to swap Civil Partnership ceremonies with colleagues who were willing to perform them. It is important to note that it was accepted throughout all the legal proceedings that no same sex couple were ever deprived of a partnership ceremony and the registrar service in Islington was not affected or reduced.

Unlike the position in Ireland it is not a criminal offence in England for a registrar to refuse to perform a marriage or a civil partnership ceremony however 2 gay members of staff in Islington complained to Islington Council about Lilian's practice of arranging that she would not perform same sex partnerships and she was ordered to perform such ceremonies. She claimed religious discrimination and the case went to an Employment Tribunal where she won her case, the ET said

"This is a case where there is a direct conflict between the legislative protection afforded to religion and belief and the legislative protection afforded to sexual orientation .... One set of rights cannot overrule the other set of rights"

The idea that Courts seek to balance conflicting rights is an old one in Law and it was therefore surprising that both the Employment Appeal Tribunal and the Court of Appeal overturned the Tribunal decision. The Master of the Rolls (The Senior English Civil Judge) said

“Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.”

The idea that a Civil Court could or should decide what is or is not a “core part” of a religion is startling and disturbing because on that basis one can almost ignore every form of Religious Discrimination on the basis that the belief is not a “core” part of the religion. In addition the remark that Ladelle was still free to worship, in her own time, is extraordinary in the context of a claim about religious discrimination in the workplace. The point is that she was faced with a choice of either leaving the job she had done without criticism for many years or acting contrary to her conscience.

Another phrase by the Master of the Rolls in Ladelle demonstrated complete inability to get to grips with the real issues in the case when he said

“It would have been no more acceptable for someone with Ms Ladele's views to refuse to perform civil partnerships than it would have been for a militant gay registrar to refuse to perform marriages between people who, for religious reasons, objected to homosexual relationships or civil partnerships.”

The real difficulty with this remark was that it fails to distinguish between dislike of the individual and moral complicity in a wrongful act. The Court also failed to really grapple with the idea of an employer making reasonable accommodations for an employees religious beliefs where such accommodation would not prejudice the work of the employer

The Ladelle case was firmly followed in the case of McFarlane v Relate where a Christian relationship counsellor asked not to have to counsel same sex couples re their sexual problems. In an attempt to appeal the decision Lord Carey (a former Archbishop of Canterbury) put in an Affidavit asking for understanding for Christian objection in these situations. This led to an extraordinary response from Lord Justice Lords who said that giving any legal protection to manifestations of religious belief would lead to a “Theocracy”. A Theocracy, of course, imposes its beliefs on others and it is in my view arguable that what the courts have done in Ladelle and Mcfarlane is much closer to the spirit of a Theocracy than the requests by these Claimants that their freedom of conscience should be respected.

In his rejection of Lord Careys concerns about the trend of anti-religious, and specifically anti-Christian decisions by Courts dealing with religious freedom cases Lord Justice Lords said

“Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots”

However only 2 months later in a decision in the Supreme Court HJ (Iran) regarding the rights of gay asylum seekers Lord Hope referred to

“The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”

WEARING A CROSS

The next major issue in religious freedom involved the wearing of a cross by an Employee of British Airways Nadia Eweida BA claimed that this cross was in breach of its uniform policy though it accepted that it permitted Muslims to wear Hijabs and Sikhs to wear Turbans and Kara bracelets. The Court decided that Eweida was not discriminated against because

“visible display of the cross [was not] a requirement of the Christian faith”

This decision is particularly hard to square with another decision where a school was told that it must allow a Sikh schoolgirl Sakira Singh to wear a Kara bracelet even though the court in that case accepted

“the claimant is not obliged by her religion to wear a Kara, it is clearly in her case [an] extremely important indication of her faith"

The logic of the decision in Eweida was followed in the case of Chaplin v Exeter NHS Trust where the Employment Tribunal said

“there is no mandatory requirement of the Christian faith that a Christian should wear a crucifix"

As with the case of Ladelle the Courts were assuming that they had the right to allocate levels of seriousness to religious belief and practice

FREEDOM OF RELIGIOUS ORGANISATIONS

Serious though these cases were a far more fundamental issue has arisen as to the extent to which religious organisations are going to be allowed to exercise freedom in their internal structures. The most serious example of this was the case of R v JFS School. Formerly known as the Jewish Free School JFS selected pupils who were designated as Jewish according to principles laid down by the Chief Rabbi in accordance with millennia old Jewish law under which a person is Jew either through conversion or through matrilineal descent.

The child 'R' in the case who had a Jewish father and non Jewish mother was therefore not classified as a Jew and so he was not eligible to go to JFS. His mother had actually converted to Judaism but via a reformed rather than an orthodox Synagogue and therefore her conversion was not recognised as valid by the Chief Rabbi who is Orthodox. The Supreme Court by a majority of 5-4 held that the rules applied by the Chief Rabbi were racist and therefore illegal.

Lady Hale in the main majority judgment said in para. 66
"Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic."

whilst Lord Rogers put the alternative view
“Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices”

Whatever the legal merits of the decision in terms of theoretical law the principle behind the JFS decision is astonishing. What the Supreme Court in effect said was that it had the right to overrule the Chief Rabbi and to say that someone was a Jew when the Chief Rabbi said that he was not. I rhetorically asked in the Catholic Herald “what next. Will the Courts say that someone is a Catholic or indeed a Catholic Priest even though the Pope says they are not” The right of a religion (or indeed any organisation) to determine its own membership is fundamental to the survival of a free society and yet that fundamental principle seems to be being ignored by Court interpretations of Equality legislation

Another case involved the application of the Sexual Orientation Regulations (SOR's) to Catholic Adoption Agencies. There were over 20 Catholic charitable agencies attached to various Diocese many of which had operated for over 100 years providing a variety of social services including adoption services. They did not themselves arrange adoptions which remain the responsibility of local authorities but they were employed by local authorities to find prospective adoptive parents. They were particularly successful in finding parents for children who were hard to adopt often because of disability or for other reasons.

The problem for the agencies was that adoption services were covered by the SOR's and therefore the agencies would be obliged to accept same sex couples as potential adoptive parents contrary to Catholic teaching. Most of the agencies caved in to this and separated from the Church however two tried to carry on by amending their constitution to specifically state that adoption services would only be provided to heterosexual couples. Having such a clause would allow them to take advantage of a specific provision in the SOR's which permits Charities to discriminate if that is set out in their constitution
(NB This exemption is standard in all UK anti-discrimination legislation and, for example, permits charities to be formed which provide services only for women, people from a particular country or persons suffering from a specific disability).

The Charity Commission regulates charities and has to approve changes to their constitutions and it refused to allow the adoption agencies to change their constitution because “Discrimination on the ground of sexual orientation is a serious matter “ What was of no importance was the religious nature of the Charity and no respect was shown to the fact that it had been formed by the Catholic Church which naturally wanted its own charity to act in accordance with Catholic teaching. No regard was paid to the idea of an organisation having the right to its own identity

THE FUTURE

How the future will develop for religious freedom in the UK in the future is difficult to tell. We are constantly being told that we are a secular society and at the same time that we are a multi-faith society and the conflict between those two positions has not yet been truly faced up to let alone resolved.

One new factor is the economic crisis which has already caused our new coalition government to look to charities and voluntary groups as having an increasingly important social role under the government policy of “the big society”. A fact that some government ministers are beginning to articulate is that the majority of charities and voluntary organisations have a religious basis or backing and there is a real question as to how far government is prepared to allow religious groups their own freedom of action.

In his speech in Westminster Hall on 17 September 2010 the Pope set out this challenge to Government when he said

“I am convinced that, within this country too, there are many areas in which the Church and the public authorities can work together for the good of citizens, in harmony with Britain’s long-standing tradition. For such cooperation to be possible, religious bodies – including institutions linked to the Catholic Church – need to be free to act in accordance with their own principles and specific convictions based upon the faith and the official teaching of the Church. In this way, such basic rights as religious freedom, freedom of conscience and freedom of association are guaranteed”

Whether government and courts will allow religious organisations this level of freedom remains an open question but the omens are not good

And the Queen Wore Blue

On 8th September 2010 Geoffrey Robertson published in The Independent a section from his Book "The Case Against the Pope".

I had answered most of his points earlier in my Blogs on 9 April and 26 July but I noticed one quote from his book which is worthy of comment

He [ie Pope Benedict]will, it is said, emerge at Edinburgh from the papal plane resplendent in his red satin "head of state" robes ("trimmed with fur on top of a rochet, and wearing the embroidered papal stole") for his meeting with a fellow head of state – Queen Elizabeth II (who must wear black – only Catholic queens can meet the Pope in white)

Looking at the TV and Newspapers I notice that the Queen is not wearing Black she is in fact wearing a very fetching shade of light Blue. Speaking as a Barrister I can say that the rest of the book is as incorrect about the facts and the law as it is about the Queens wardrobe

For those who might want a second legal opinion similar to my own can I recommend the Blog of the European Journal of International Law

Finally one point specifically worthy of comment in Robertsons article where he says that Child Abuse by a Priest is WORSE than Child Abuse by parents which is a weird and frankly rather repellant opinion.

Robertson also makes some allegations based on alleged Catholic views of masturbation. I could reply to those points but I am happy to accept that Robertson is better qualified than myself to comment on that subject

American Atheists Inc v Utah Highway Patrol Association

The US 10th Circuit Court of Appeals has made a decision in the case of American Atheists, Inc v Utah Highway Patrol Association which overrules an earlier decision by a US District Court in 2007. The Appeals Court decision relies heavily on the US Supreme Court decision in the case of Pleasant Grove City v. Summum.

The case involved the "No Establishment Clause" in the Ist Amendment to the US Constitution and concerned memorial crosses erected by the Utah Highway Patrol Association [ a private Charity] in memory of Utah Highway Patrol Officers who have been killed on duty. In the earlier District Court hearing the Court had held that the cross was not an exclusively religious symbol and it depended on the circumstances in which it was used. (An interesting sideline mentioned in the judgment was the fact that in Utah the majority Christian faith is Mormonism and the Mormon Church does not use the Cross as part of its religious symbols or worship)

The Court of Appeals however decided that the Cross was an exclusively religious symbol and as such violated the No Establishment clause. They also held that the American Atheists had standing to bring the claim because
"Here, the individual named plaintiffs allege to have had “direct personal and unwelcome contact with the crosses.” Mr. Andrews, one of the named plaintiffs, also stated that he has “occasionally altered [his] travel route or [has] not stopped at a particular rest stop to avoid contact with the crosses.”
which provides an interesting variation on the usual suggestion that it is religious people who are oversensitive. The oversensitivity of the American Atheists in Utah seems to uncannily parallel the oversensitivity of the Atheist Italian in the European Court of Human Rights case of Lautsi v Italy

What I found peculiar in the 10th Circuits reasoning was that they found
"None of these families [ie the families of the deceased Highway Patrolmen] have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, because the UHPA exists to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family."

It seems to me that on any rational understanding of the Non Establishment clause the fact that other Non Christian symbols were available to any family that wanted it destroys the suggestion that the memorial crosses constitute an establishment of religion. If the family of a deceased Highway Patrol officer want his (or her) sacrifice to be memorialised by a cross what right does anyone else have to object ?

Catholic Care An attack on the idea of Charity Itself

The decision by the Charity Commission to refuse permission for the Leeds based Catholic Care Charity to amend its objects was depressingly predictable but what seems to have been overlooked in the acres of comment on the decision is the fact that the decision attacks the independence of the notion of charity itself

For those who have not followed the story closely back in 2007 Parliament passed the Sexual Orientation Regulations which prohibited discrimination against homosexuals/lesbians in the supply of goods and services, a Hotel for example cannot refuse to provide a double room to a same sex couple. However the SOR's apply to Charities and voluntary organisations as well as to businesses and therefore under the SOR's Catholic ,and other religious, Charities which dealt with finding adoptive parents were going to be legally obliged to deal with Same Sex couples who wanted to adopt.

Since Catholic belief is that same sex relationships are sinful ( a view shared by all mainstream Christian denominations alongside Jews, Muslims, Buddhists and Sikhs ) this faced the Catholic Adoption Agencies with a moral dilemma. However the obvious solution lay in the use of reg 18 of the SOR's which does allow Charities to discriminate.
Reg 18 says
(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if
(a)he acts in pursuance of a charitable instrument, and.
(b)the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument

It should be noted at the outset that Reg 18 is not a "legal loophole" nor is it something specifically added to the SOR's so as to disadvantage homosexuals, the same provision applies in all the other varieties of Anti-discrimination law and allows Charities to obtain exemptions from those laws. This is is based on the recognition that people can set up Charities for a wide range of reasons.

For example lets say a successfull Black businessman wanted to set up a fund to give scholarships to poor black youths or a Scottish businessman wanted to set up a charity to help homeless Scots in London; such Charities would be racially discriminatory but that discrimination would be allowed under Race Discrimination legislation. Similarly a Charity helping battered women would discriminate on the grounds of sex and a Charity helping the deaf would discriminate on the grounds of disablity but in both cases that discrimination would be legal.

Catholic Care therefore decided to amend its Charitable objects to add the following clause

"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals will 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."

I have commented on other occasions that in my opinion the drafting of this clause was fundamentally flawed because it was explicitly and obviously discriminatory and it only dealt with adoption services. In my view the Charity should have applied to amend its constitution to read something like the following

"The Charity shall provide its services 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."

That said the proposed change was, in my view, within the ambit of reg 18

The Charity Commission rejected the proposed amendment on 18th November 2008
The Charity appealed to the Charity Tribunal which rejected the appeal on 1st June 2009
The Charity appealed to the High Court which in decision [2010] EWHC 520 (Ch) dated 17 March 2010 ordered the Charity Commission to reconsider its decision
The Charity Commission reconsidered and on the 21st July 2010 issued its decision which was formally announced on 18th August namely that it had reached exactly the same decision it made before

The Charity Commission made its decision knowing that the consequence was that Catholic Care would stop offering its adoption services and as such is notable for its lack of consistency of logic when it says
"The interests of children are paramount - the courts have found that it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible.
Local authority evidence suggests that even if the charity were to close its adoption service, children who would have been placed through the charity are likely to be placed through other agencies"

Clearly if the closure of Catholic Care adoption services would not reduce the pool of adoptive parents then its retention would not either so what exactly was the harm in permitting Catholic Care to continue , where is the sense of proportionality which was the main thrust of the High Court decision. More importantly by saying that it cannot allow Catholic Care to "discriminate" the Charity Commission has in effect rendered reg 18 meaningless and made its views about discrimination take precedence over the law as passed by Parliament.

Also the Commission has dealt a blow to the idea of Charity itself which is the free giving by individuals and organisations to help others. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to organisations that arrange adoption services only for heterosexuals, or only for homosexuals, or disabled people or black people or white people what right does the government have to interfere with that choice ?

The provision of adoption services is a good thing in itself and a charitable purpose and for that reason alone should surely have been permitted even if the Commission felt that the services were provided on too limited a basis. The Commission seems to have regarded Charitable status as a favour granted by itself rather than as a good thing to be encouraged. This decision by the Charity Commission has, quite rightly been criticised as an attack on religious freedom but I would go further it is an attack on freedom itself. If individuals, churches and organisations do not even have the right to choose how to give away their own money then freedom itself ceases to exist.

We are increasingly hearing the phrase "soft totalitarianism" and this decision is an example of that totalitarianism because it has no respect for the independence of charities or the independent role of private organisations as part of civil society. Since when has it been the role or right of government to say that "we will not allow you to use you own money to do good unless you use it in a way we agree with".

Doe v Holy See - Update

My earlier Blog Doe v Holy See - Not as Important as it appears has been supported by the decision today to withdraw three Civil Claims against the Holy See brought in Kentucky. As I mentioned the main point of the Doe case was that it rejected the idea that Catholic Diocese or Orders were "agents or instrumentalities" of the Holy See and it also explicitly accepted that because the Holy See is recognised as Foreign State by the US Government it therefore is a Foreign State under US Law.

Though the News Stories mention that the Oregon claims are still proceeding I suspect that the lawyers in that case will recognise that they will have an insurmountable problem trying to prove that Priests in America are "employees" of the Vatican. Incidentally the American Doe case does demonstrate that Geoffrey Robinson was talking legal rubbish when he suggested that the Vatican was not a State in International Law which is what I said at the time

A WORLD-WIDE CRIMINAL CONSPIRACY ?

1. It has been suggested in various Newspaper Articles, Media interviews, Blogs etc that documents revealed during the Catholic Church child abuse scandal have implicated the Church in general and Pope Benedict in particular in a criminal conspiracy to facilitate child abuse or alternatively to obstruct justice by failing to report allegations of child abuse to public authorities.

2. In looking at these allegations I shall principally rely on broad legal principles drawing on examples within English Common or statute law and international law. Though every country has its own particular laws and legal system and the details differ from country to country it is the case that legal broad principles are generally the same across civilised legal systems. In addition by definition if something done by the Church could be held to constitute a crime within one country only by reason of the specific wording of the law of that country then by definition it can hardly constitute an international criminal conspiracy spread across several countries.

3. The Church Documents I shall deal with are “Crimen Solicitonis” issued to all Bishops of the Church in 1962 and “De Delictis Gravioribus” also issued to all Bishops of the Church in 2001 and signed by the then Cardinal Ratzinger; this document was accompanied by a covering letter Sacramentorum Sanctitatis Tutela signed by Pope John Paul II. I shall refer to these documents as the “1962 letter” and the “2001 letter”. As a side point I note that the 2001 letter was published in the 2001 issue of the Vatican Year Book Acta Apostolicae Sedis for 2001 which is a document that has always been publicly available and not secret, and the 2001 letter specifically refers to the 1961 letter

CONSPIRACY etc

4. In English Statute Law the crime of conspiracy requires two or more persons to agree to carry out a course of conduct which “will necessarily amount to or involve the commission of any offence” ( Section 1(1) of the Criminal Law Act 1977) whilst the Common Law definition of conspiracy accepted by the US Supreme Court in Iannelli v. United States, 420 U.S. 770, 777 (1975), United States v. Shabani, 513 U.S. 10 (1994) involves “an agreement to commit an unlawful act” and a21 of the Canadian Criminal Code requires “an intention in common to carry out an unlawful purpose”

5. In his Guardian Article suggesting that the Pope should be arrested when he visits Britain Geoffrey Robinson QC accused the Pope and the Church of “aiding and abetting sex with minors.”. Under English Law “aiding and abetting” requires the accused person to perform “an act capable of encouraging or assisting the commission of an offence” either “intending” or “believing” that the act will “encourage or assist its commission” (ss44 - 46 Serious Crime Act 2007) similar provisions apply in the criminal laws of Canada Australia and the USA.

6. Therefore in order to have the basis for a criminal prosecution either of conspiracy or aiding and abetting it is necessary to prove that the defendant (in this case the Pope and/or other Church officials) did acts (actus reus) which helped sex offenders to commit their crimes and/or to evade justice and that the intention (mens rea) of the Church was to assist in the commission of those crimes or the evasion of justice. In order for there to be a conviction for criminal conspiracy or aiding and abetting, under English law,there must be a deliberate intention that a crime should be committed (Callow v Tillstone (1900) 83 LT 411) and my understanding of the law in USA Australia and Canada is that the principle is the same in those jurisdictions.

7. The importance of intention to assist in a breaking of the law (mens rea) was emphasised in the House of Lords case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where the House of Lords held that supplying contraceptive advise to under 16 year old girls did not constitute the criminal offence of aiding and abetting unlawful sexual intercourse even though (from a lay point of view) that would be the natural and inevitable consequence of the doctors actions

8. Therefore in order to prosecute the Pope or the Church on the basis of the 1962 or 2001 letters it is necessary to show that the intention behind the letters was to assist crime and careful reading of both letters show that they were in fact mainly aimed at dealing with acts which were not criminal

1962 & 2001 LETTERS

9. When examining the two letters it is important to bear in mind that they apply to the Church throughout the world and as such attempts to apply consistent internal Church rules to countries with a range of different legal rules and cultures. In the 2001 letter for example the age of a minor is set as up to 18 whilst across the world the legal age of consent for sexual intercourse can range from 13 in Spain or Nigeria to 18 in Swaziland or Idaho; similarly whilst consensual homosexual sex between adults is now legal in most countries it is still illegal in many countries and indeed was illegal in England until 1967

10. More importantly the two letters only deal with the internal procedures to be adopted by the Church in deciding whether a Priest accused of acts (which might or might not be criminal in the country in which they occur) should be disciplined by the Church and possibly removed from the priesthood. Nowhere in the letters is there any instruction that the civil authorities (Police) should not be told about allegations of criminal behaviour.

11. There is, of course, the criticism that neither letter gives direct and clear instructions that the civil authorities must be informed however that ignores the fact, already mentioned, that many allegations may be criminal in one jurisdiction but not criminal in another and many of the acts mentioned in the 1962 and 2001 letters are not criminal in any jurisdiction. For example a Priest who has sex with a 14 year old girl in Spain does not commit a crime but would in England, a Priest who has an adulterous heterosexual relationship would not commit a crime in England but would commit a crime in Iran which could lead to him and the woman being stoned to death, similarly with homosexual behaviour by a Priest. All of those would be regarded by the Church as offences contrary to the two letters but would be regarded in entirely different lights by law enforcement officials in different countries.

12. It is also important to remember that the 1962 letter was issued in 1962, when consensual interacial sex was illegal in much of the United States as well as in South Africa, when Communism ruled much of the world and when a person who attended Church could lose their job if the Communist authorities became aware. 1962 was only 4 years before the start of the Cultural Revolution in China when Churches were attacked and Priests killed, only 6 years after the crushing of the Hungarian uprising and 6 years before the crushing of the Prague Spring. In those circumstances it is hardly surprising if Church instructions did not require that all State authorities be automatically informed of any allegations made against a priest.

13. In addition it should be remembered that the 1962 letter was a reissue of an earlier letter issued in 1922 and that year must also be seen in its historical context. The Bolsheviks had just finalised their grip on power and persecution of the Church and Church authorities was intense. In Mexico Anti-clerical violence and state sanctioned murder of priests was beginning (dramatised in The Power and the Glory by Graham Green)and China was in chaos being ruled either by Warlords or Japanese occupation. Once again it is unrealistic to expect that an instruction to the Church throughout the world would give instructions that in every country the civil authorities should automatically be informed that a criminal allegation had been made. After all how does a Bishop report a crime to the Police when being a Bishop is itself a crime ?

Criminal Conspiracy

14. Though the main attention on the 1962 letter has concentrated on the issue of Child Abuse any suggestion that it is intended to assist in a conspiracy of child abuse has to take account of the fact that the 1962 letter primarily deals with “Solicitation in the Confessional” which would not constitute a criminal offence in most legal systems. The letter then mentions in para 71 Homosexual relationships, and deals in para 73 with sexual relationships with minors or with animals and applies the same rules to those offences as it has applied to the (non criminal) practice of solicitation in the confessional.

15. Therefore if the 1962 letter is to be regarded as evidence of a criminal conspiracy that is inconsistent with the fact that its primary focus is on an activity which is not criminal because if the primary focus is on an activity which (though reprehensible) is legal then there is no evidence that the intention of the document or the drafters of the document was to aid unlawful acts.

16. This particular analysis is strengthened by the 2001 letter which besides the offences listed in the 1962 letter also deals with such non-criminal acts as “the taking or retaining for a sacrilegious purpose, or the throwing away of the consecrated species (Host)” (Art 2 1.1 “consecration for a sacrilegious purpose of one matter (ie bread or wine) without the other in a Eucharistic celebration “ Art 2.2. In simple terms it is impossible to establish a case of criminal conspiracy based on a document which is primarily focused on dealing with acts which are not in themselves criminal.

Secrecy

17. An important part of the allegations involving the 1962 and 2001 letters involve the “oath of Secrecy” required of those who give evidence or participate in one of the Churches own Courts dealing with allegations against a Priest. As a lawyer in the Anglo Saxon Common Law tradition I can understand that criticism however once again it is important to remember that both letters apply throughout the world and therefore to countries with vastly different legal traditions. In Portugal for example Article 86 of the Portuguese penal code imposes “Judicial Secrecy” on all witnesses in a criminal investigation, a legal rule which seemed incomprehensible to the British Media during the Madeleine McCann case

18. Similarly in England prior to a trial there are extensive legal restrictions on what the media can report but no such restrictions apply in the United States

19. More pertinently perhaps it must be remembered that in general Church Tribunals have no legal standing within their individual countries and without a promise of secrecy it may be difficult if not impossible for them to operate. If, for example, a Priest was facing an allegation of sexual abuse which, for whatever reason, was not being prosecuted in the state courts then witnesses who gave evidence could potentially be sued by him for slander or, in some countries, possibly even prosecuted for criminal libel. In other jurisdictions the party making the complaint could possibly face execution (if the allegation related to an adulterous or homosexual relationship) or social ostracism. Requiring an oath of secrecy can therefore be justified as providing both witnesses and also the accused with some protection for their reputation and, in some countries, their personal safety.

20. In England Police Disciplinary Tribunals sit in secret (Reg 32(1) Police (Conduct) Regulations 2008). In April 2010 it was discovered that 12 years previously a Police Constable had been convicted of assaulting a suspect but had not been dismissed, he subsequently went on to seriously assault a 19 year old female suspect. Though there was criticism of the Police there was no suggestion that the decision by the (secret) Disciplinary Tribunal was in any way illegal

Summary

21. Church authorities in individual countries can be criticised for responding inadequately to allegations of child abuse and those situations have to be dealt with country by country but the main allegation being made against the Church and the Pope is an allegation of criminal conduct and that allegation is not justified by any proper analysis of the facts, the evidence or the law.