GOVERNMENT, EQUALITY, RELIGION AND BELIEF
The period under review began with a speech by Communities Secretary Eric Pickles to the Cinnamon Network, a faith-based charities group, in which he emphasised the Government's continued financial support and commitment to faith groups, while acknowledging with more than a touch of frustration that they can face barriers in terms of securing funding from local authorities:
In the eyes of some, being religious is seen as being ‘weird’. They don't want public discussion about faith and don't want faith to have a role in our communities. Everyone – whether religious or secular – loses out from that kind of attitude.Footnote 1
In short, as Baroness Warsi argued in her Sternberg Lecture in January,Footnote 2 it appears that the present Government does do God.
Shortly afterwards, research commissioned by the Equality and Human Rights Commission from Professor Paul Weller's team at the University of Derby suggested that there were differing perceptions about the legal protections for religion or belief and about the level of discrimination against different religions.Footnote 3 To the surprise of some, in the accompanying press release the Commission's Chair, Trevor Phillips, was quoted as saying that:
Our business is defending the believer. The law we're here to implement recognises that a religious or belief identity is, for the majority of people in Britain, an essential element of being a fulfilled human being and plays an important part in our societyFootnote 4
to which the British Humanist Association's Chief Executive, Andrew Copson, retorted that Phillips
is the head of a commission which is responsible for the legal rights and interests not just of religious people but of non-religious people too. When he suggests that having religious belief is essential in order to be fulfilled as a human being, he is belittling them.Footnote 5
The suspicion is that non-departmental public bodies are having to come to terms with the Coalition Government's shift in emphasis on matters of religion and society – and are sometimes finding that the transition is not an easy one.
CHARITY LAW
England and Wales
The Charities Bill published on 4 March, which consolidates the Recreational Charities Act 1958, the Charities Acts 1992, 1993 and 2006 and much more besides, continued its fairly stately progress through Parliament. The expectation was that it would receive Royal Assent before the end of 2011 in time for the forthcoming review of the 2006 Act.
In August the Charity Commission published its guidance for charities that have a restricted range of beneficiaries: a summary, Supporting Specific Beneficiary Groups,Footnote 6 and more detailed guidance on the charities' exception in Restricting Who Can Benefit from Charities.Footnote 7 Further guidance was to be published later in 2011, partly to take account of any feedback and partly to reflect any relevant points arising from the outcome of the latest appeal by the charity Catholic Care.
The Commission also updated its guidance on Changes to the Regulation of Excepted and Exempt Charities,Footnote 8 which explains the changes that began to take effect in 2009 and that are still in train. All excepted and exempt charities should take careful note of the updated guidance, but of particular interest to religious charities will be the sections on registered places of worship, the Excepted Church Charity Programme, other groups of churches that have not previously registered and Local Ecumenical Partnerships.
Scotland
In August the Office of the Scottish Charity Regulator (OSCR) updated its briefing-note on Constitutions of Bodies Established Under English Law Applying for Charitable Status in Scotland.Footnote 9 Whether or not an organisation that is a charity in England and Wales also needs to register in Scotland depends on the extent of its presence in Scotland: Seeking Charitable Status in Scotland,Footnote 10 OSCR's guidance on registration for England and Wales charities, gives full details.
CIVIL PARTNERSHIP AND RELIGIOUS PREMISES
England and Wales
Section 202 of the Equality Act 2010 amended the Civil Partnership Act 2004 in respect of England and Wales to give the Secretary of State power to approve the registration of civil partnerships on religious premises; but it also inserted a new subsection into the 2004 Act to the effect that ‘For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so’.
The implementation of section 202 was the subject of a consultation that closed in June; at the time of writing the Government was still considering its formal response. However, towards the close of the period under consideration, Lynne Featherstone, Minister for Equalities, announced at the Liberal Democrat party conference that current laws were ‘not fair’ and committed the Government to changing the law in England and Wales to allow same-sex civil marriage by 2015: ‘in March, this Government will begin a formal consultation on how to implement equal civil marriage for same-sex couples’.Footnote 11 Subsequently, an announcement was posted on the Home Office website emphasising that the consultation would cover ‘civil marriage for same-sex couples only – not religious marriage or opposite-sex civil partnerships’.Footnote 12
It remains to be seen how this will be taken forward. Quite apart from the fact that the proposal for same-sex civil marriage is likely to be very controversial in some quarters, the refusal to contemplate opposite-sex civil partnerships may prove contentious because a few heterosexual couples have already applied unsuccessfully to register civil partnerships and stated their intention of challenging the refusal on human rights grounds.Footnote 13 However, recent developments in Scotland may give some pointers.
Scotland
On 2 September the Scottish Government published a consultation on registration of civil partnerships, same-sex marriage and related issues.Footnote 14 The Deputy First Minister, Nicola Sturgeon, states in the Ministerial Foreword that it is the Government's initial view
… that religious ceremonies for civil partnerships should no longer be prohibited and that same sex marriage should be introduced so that same sex couples have the option of getting married if that is how they wish to demonstrate their commitment to each other. We also believe that no religious body or its celebrants should be required to carry out same sex marriages or civil partnership ceremonies.
The document notes that the amendment to the Civil Partnership Act 2004 for England and Wales does not remove the prohibition on holding a religious service while a civil partnership is being registered.Footnote 15 The Scottish Government feels that this approach is not necessarily appropriate for Scotland because the proposals for England and Wales focus on the concept of ‘approved premises’, whereas in Scotland the focus is on who should be an ‘approved celebrant’ or ‘authorised registrar’.Footnote 16 Moreover, the English approach does not allow same-sex couples to have a religious service, ‘even if a religious body and celebrant are content to carry out the service’.Footnote 17 Interestingly, the document also notes that were same-sex marriage to be introduced,
… there would be no need in law for transgender people to divorce before obtaining the full gender recognition certificate. The marriage could just continue. Transgender people and their spouses would still be able to divorce, if they wished to do so, and the issue of an interim certificate under the Gender Recognition Act would still be a ground for divorce.
As to the future of civil partnerships, the document envisages that ‘some people may be happy to enter into a civil partnership to gain responsibilities and rights but may not wish to enter into marriage’Footnote 18 and implies that this is an argument for their continued availability; however, there appears to be no mention of the possibility of opposite-sex civil partnerships.
The closing date for responses was 9 December and it is unlikely that the Government will publish its reaction to the consultation much earlier than the second quarter of 2012. However, in view of the subsequent announcement by the Home Office noted earlier, it is possible that reform in England and Wales and in Scotland might proceed along fairly similar lines, leaving Northern Ireland as the outlier.
CONSTITUTIONAL AFFAIRS
Fixed-term Parliaments
The Fixed-term Parliaments Act 2011 received Royal Assent on 15 September. The Act provides in principle for five-year fixed Parliamentary terms and fixes the date of the next General Election as 7 May 2015 – though section 2 provides a mechanism under which an early election can be secured by a vote in the House of Commons.
The West Lothian question
At least some readers will recall that during debates on the abortive proposal for Scottish devolution in the 1970s Tam Dalyell repeatedly raised the West Lothian question – why, as a Scots MP, he would in future be able to ask parliamentary questions about what was happening in West Bromwich but not about what was happening in West Lothian – to which he never received a satisfactory answer.
The Coalition's Programme for Government committed ministers to establish a Commission on the West Lothian question; details of how the Commission was to proceed were published in September. The Government believes that the Commission should be a small group of independent, non-partisan experts with constitutional, legal and parliamentary expertise. Its primary task will be to examine how Parliament as a whole can deal most effectively with business that affects England wholly or primarily – including, presumably, business relating to the Church of England. What it will not be examining is finance and the balance of parliamentary representation. Formal proposals, including the Commission's terms of reference, were to be brought forward in the weeks after the House returned in October.Footnote 19
DEFAULT RETIREMENT AGE
As previously foreshadowed, the Default Retirement Age was finally abolished on 1 October 2011.
OFFENSIVE BEHAVIOUR AND THREATENING COMMUNICATIONS (SCOTLAND) BILL
In June the Scottish Government published the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill,Footnote 20 which would create a statutory offence of expressing or inciting religious, racial or other forms of hatred likely to cause public disorder at or on the way to a ‘regulated football match’ – league and international matches involving Scottish teams – including sectarian and other offensive chanting. The second limb creates a separate statutory offence of communicating threatening material. The primary purpose of the Bill is to tackle offensive sectarian behaviour at football matches; the Scottish Government has been at pains to reassure critics that the new offences will not affect peaceful preaching or proselytising, or restrict the right to criticise or comment on religion or non-religious beliefs. Nor will it criminalise jokes about religion.
The original intention was to have the Act on the statute book by 23 July, in time for the start of the new football season; however, various groups – including the Church of ScotlandFootnote 21 and the Roman Catholic bishops – spoke against legislating in haste, arguing that a wider programme of work was needed if sectarianism was to be tackled successfully and expressing concern about the possible impact of the legislation on freedom of expression. After a meeting between Alex Salmond and the Bishop of Paisley, the First Minister announced that the Government ‘would place an explicit freedom of expression clause in the second part of the Bill. This legislation was never meant to stop freedom of expression in Scotland – it is about bearing down on sectarianism and other offensive behaviour’.Footnote 22 The current intention is that the Bill should be passed by the end of 2011.Footnote 23
TAXATION
The VAT Cost Sharing Exemption contained in Article 132(1)(f) of the Principal VAT Directive is a mandatory exemption that allows businesses and organisations making VAT-exempt and/or non-business supplies to form groups to achieve cost savings and economies of scale. Once formed, the groups are relieved of a VAT charge on their supplies if all the conditions of the exemption are met. Though mandatory under European Union law, the exemption has never been transposed into domestic tax law.
The present VAT rules militate against charities and similar bodies sharing services, and the voluntary sector has long been pressing successive governments for action. In June, therefore, HMRC announced a consultation on the cost-sharing exemption,Footnote 24 which ended on 30 September. Given the complexity of the issue it is very unlikely that any scheme for exemption will be enacted before 2013; however, there are already examples of religious charities that share services – and sharing might become more widespread if VAT ceases to be a problem.
