ACCOMMODATING RELIGION IN THE LIBERAL STATE
How liberal democracies can accommodate tenaciously-held religious views within the wider framework of human rights legislation and balance the resulting conflicts is a conundrum that confronts governments throughout Europe and was the theme of three major speeches delivered at the end of the period under review.
On 19 January in a speech to the European ParliamentFootnote 1 Baroness Ashton, EU High Representative for Foreign Affairs and Security Policy, emphasised the importance of freedom of conscience, religion and belief as one of the core values that the Union exists to uphold. She stressed the need to resist the transmutation of religion into a source of division and confirmed that she was fully committed to keeping freedom of religion and belief at the top of the EU agenda. On the same day Andrew Stunnell, Parliamentary Under-Secretary of State at the Department for Communities and Local Government, speaking to senior figures from London churches,Footnote 2 reiterated the Government's commitment to social cohesion and said that church leaders were in a unique position to connect people from different faith groups and to involve communities in local action. Finally, in her Sternberg Lecture at Leicester University on 20 JanuaryFootnote 3 Baroness Warsi, Minister without Portfolio and Co-Chairman of the Conservative Party, attacked what she described as ‘the rise of unreasonable, unfounded, irrational bigotry’ and suggested that Islamophobia had ‘crossed the threshold of middle-class respectability’ and ‘passed the dinner-table-test’. Her remedies were firm political leadership and more care in the use of expressions such as ‘moderate Muslims’, a positive response to the Government's social cohesion agenda from the Islamic community and a stronger and more sophisticated defence of faith in general by religious leaders.
Lady Warsi's speech, in particular, did not exactly meet with universal approval. Melanie Phillips described it as a ‘sinister attack on the media’ and asked whether Lady Warsi supported ‘the encroachment of sharia’ or whether, instead, she would uphold ‘secular human rights and one law for all’,Footnote 4 while Lord Tebbit was reported as suggesting that she should be ‘more concerned about anti-Christian sentiments expressed by Muslims’.Footnote 5 Perhaps the strength of some of the reactions merely demonstrates the urgency and importance of finding a solution to the problems that she highlighted.
Not long afterwards, after a previous disagreement between the Italian Foreign Minister and the Commissioner, Lady Ashton, had threatened to scupper the entire enterprise, on 21 February the Foreign Affairs Council reaffirmed ‘the strong commitment of the European Union to the promotion and protection of freedom of religion or belief without any discrimination’ and condemned ‘recent violence and acts of terrorism, in various countries, against Christians and their places of worship, Muslim pilgrims and other religious communities …’.Footnote 6
CHARITY LAW
Charitable Incorporated Organisations
The Scottish Charitable Incorporated Organisations Regulations 2011Footnote 7 made on 26 January come into force on 6 April. The Regulations make provision under the Charities and Trustee Investment (Scotland) Act 2005 for the new form of incorporation for Scottish charities, the Scottish Charitable Incorporated Organisation, and set out in detail how it will work. The parallel Regulations for England and Wales are still in gestation.
Northern Ireland
As noted in the previous report,Footnote 8 the timetable for registration under the Charities Act (Northern Ireland) 2008 was derailed by a technical difficulty in relation to the draft guidance on public benefit issued by the Charity Commission for Northern Ireland. It subsequently came to light that the problem, as some of us had suspected, was with the wording of section 3 of the Act, a hybrid of the analogous English and Scots legislation.
The Attorney General for Northern Ireland had initially advised that the Act should be allowed to stand and could be challenged in the courts if necessary; on reflection, however, the Northern Ireland Executive decided to delay the registration process in anticipation of amending legislation. The Minister for Social Development, Alex Attwood, sought approval for the necessary bill to be given an accelerated passage through the AssemblyFootnote 9 but, in view of the Assembly's impending dissolution it was still uncertain at the time of writing that the bill would be enacted.
In the meantime, the implementation of the principal Act has continued. The Charities (2008 Act) (Commencement No. 3) Order (NI) 2011Footnote 10 brings into operation the regulatory, investigatory and enforcement powers of the Charity Commission for Northern Ireland (CCNI) and all those provisions relating to the Charity Tribunal for Northern Ireland which have not yet been commenced, while the Charities Act 2008 (Transitional Provision) Order (NI) 2011Footnote 11 brings Northern Ireland charities within the jurisdiction of CCNI for the purposes of those provisions of the 2008 Act brought into force by the Commencement No. 3 Order. In the interim, CCNI has begun scrutinising charities currently registered with HMRC.
COMMUNITY INFRASTRUCTURE LEVY
In the previous issueFootnote 12 it was noted that the Coalition Government was minded to tear up the Community Infrastructure Levy provisions of the Planning Act 2008 and start again. In the event, however, it was decided to retain both the Levy and – crucially – the charitable exemption set out in section 210 of the 2008 Act. Clauses 94 and 95 of the Localism Bill introduced into the House of Commons on 13 December 2010 propose modifications to the Levy rather than major reform or repeal.
CONSTITUTIONAL REFORM
In reply to a written question from Gavin Shuker (Labour, Luton South) the Parliamentary Under-Secretary of State at the Cabinet Office, Mark Harper, confirmed in December that the cross-party Committee chaired by Deputy Prime Minister Nick Clegg was to come forward with proposals for a wholly- or mainly-elected second chamber – with obvious implications for the position of the Lords Spiritual – and that the Government would publish a draft Bill ‘early in 2011’ which would then be subject to pre-legislative scrutiny.Footnote 13 However, the timetable appears to have slipped. On 18 January Clegg referred to the matter during oral questions;Footnote 14 but at the time of writing neither the report nor the draft Bill had surfaced.
Possibly of more general constitutional interest – though to a rather longer time-scale – was an exchange in the House of Lords that passed almost unnoticed. Readers will recall that on a previous occasion when the possible amendment of the Act of Settlement 1700/01 was raised, the then Lord Chancellor, Jack Straw, said in the House of Commons that because any amendment would require the assent of the Commonwealth, pursuant to the Statute of Westminster 1931, the matter would be raised at the next Commonwealth Heads of Government meeting.Footnote 15 The 2010 general election intervened and nothing more was heard until Lord Dubs asked whether the present Government had any proposals ‘to amend the Act to afford equal rights to the Throne for daughters of the Sovereign and Roman Catholics’Footnote 16 – to which the Minister of State at the Ministry of Justice, Lord McNally, replied that ‘… the previous Administration initiated discussions among Commonwealth countries. Those discussions are proceeding under the chairmanship of the New Zealand Government and we will continue to keep the matter under consideration’.Footnote 17
DEFAULT RETIREMENT AGE
As foreshadowed in the previous report,Footnote 18 the Government confirmed in January that it would phase out the Default Retirement Age (DRA) by 1 October 2011. From 6 April employers will not be able to issue notifications for compulsory retirement using the DRA procedure and between 6 April and 1 October only those who were notified before 6 April and whose retirement date is before 1 October can be compulsorily retired under the DRA. After 1 October employers will not be able to use the DRA compulsorily to retire employees. Once the DRA has gone there will be no reason to retain the employee's ‘right to request’ working beyond retirement or the minimum of six months' notice of retirement.
Although the Government is removing the DRA it will still be possible for individual employers to operate a compulsory retirement age provided that they can justify it objectively. Both the Advisory, Conciliation and Arbitration ServiceFootnote 19 and Business LinkFootnote 20 have published comprehensive guidance for employers on the change.
ECCLESIASTICAL OFFICES (TERMS OF SERVICE)
Common tenure for Church of England clergy was ushered in by various amendments and additions to the 2009 legislation on terms of service that came into force during January 2011.
The Ecclesiastical Offices (Terms of Service) (Amendment) Regulations 2010 (SI/2010/2407) make a series of amendments to the Ecclesiastical Offices (Terms of Service) Regulations 2009, of which the most important are as follows:
i. Regulation 2 amends Regulation 3(5)(g)(iv) of the 2009 Regulations so as to require the statement of initial particulars of office given to office holders to include particulars of permitted time off work to care for dependants.
ii. Regulation 4 amends Regulation 27 of the 2009 Regulations so that the person nominated to receive a report of the absence of an office holder because of illness, or a medical certificate, need not (as at present) be the person nominated under Regulation 3 of the 2009 Regulations to give office holders statements of particulars of office.
iii. Regulation 5 enables either archbishop to direct that the other archbishop shall undergo a medical examination if he has reasonable grounds for concern about that archbishop's physical or mental health.
iv. Regulation 6 enables an appointment of an office holder to be limited to a fixed term or on the occurrence of a specified event if he or she does not have the right of abode in the United Kingdom or unlimited leave to enter or remain, or if the post is held by an assistant curate and designated as a Locally Supported Ministry Post.
v. Regulation 8 enables a capability procedure to be instigated where the office holder is a diocesan bishop or an archbishop.
The Ecclesiastical Offices (Terms of Service) (Consequential and Transitional Provisions) Order 2010 (SI/2010/2847) makes transitional provision and amends previous enactments consequential on the provisions of the Ecclesiastical Offices (Terms of Service) Measure 2009, of Amending Canon 29 and of the Ecclesiastical Offices (Terms of Service) Regulations 2009 (SI/2009/2108), as amended by the Ecclesiastical Offices (Terms of Service) (Amendment) Regulations 2010. It disapplies the application of Common Tenure to certain statutory provisions and, in particular, those of the Pluralities Act 1838 which relate to the residence of incumbents in their benefices and, in respect of other provisions, is designed to ensure a smooth transition to the new Common Tenure regime.
The Ecclesiastical Offices (Terms of Service) (Amendment) (No 2) Regulations 2010 (SI/2848/2010) further amend the Ecclesiastical Offices (Terms of Service) Regulations 2009 so as to disapply those Regulations in respect of an office held by an office holder in pursuance of a contract of employment. The Regulations will, however, continue to apply in respect of any other office held by the office holder.
The Ecclesiastical Offices (Terms of Service) Directions 2010 (SI/2010/1923) provide for maternity, paternity, parental and adoption leave for office holders subject to Common Tenure and for the conditions under which such leave is to be taken. The periods and conditions of leave are the same as those to which an employee is entitled under the Employment Rights Act 1996.
END OF LIFE ASSISTANCE (SCOTLAND) BILL
The End of Life Assistance (Scotland) Bill introduced into the Scottish Parliament on 21 January 2010 by Margo Macdonald MSP has itself come to the end of its life. The Committee considering the Bill recommended that it should not be further proceeded with and on 1 December the Bill was defeated in the Plenary by 16 votes to 85 with two abstentions.
EQUALITY ACT 2010
In September the Charity Commission produced its long-awaited guidance for charity trusteesFootnote 21 about the charity exemption in the Equality Act 2010 that permits a charity to limit the group of people whom it helps.
The Act forbids discrimination in respect of certain ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (which includes nationality), religion or belief, sex or sexual orientation. The guidance states that where an existing or proposed restriction to a particular group of people is not based on the needs or disadvantages experienced by that group, charities will need a strong justification to continue with or include that restriction. If, for example, the correct tests are met, a charity may discriminate on the basis of ethnicity but not of colour. There are, however, exceptions to this – including the charities exemption which the guidance covers.
More detailed guidance was to be published by the end of 2010 on particular issues that might affect a small number of charities; and it was intended that the expanded version should include more examples and detail about areas such as the relationship between the public benefit test and the tests in the exemption and how the tests in the exemption might work in relation to charities with restricted funds.Footnote 22 However, the detailed guidance has now been delayed, partly because the Commission wishes to devote more time to it in order to cover in detail the issues and questions identified in the evaluation of the summary guidance, but partly, also, because the Commission wants to take account of any relevant points that might arise from the second appeal by Catholic Care (arising from the refusal of the Charity Commission to allow it to change the objects clause in its Memorandum of Association) which had been listed for hearing in March 2011.Footnote 23
Finally, in November the Home Secretary announced her intention to repeal the socio-economic duty in section 1 of the Act, which had not been commenced, describing it as ‘just another bureaucratic box to be ticked’.Footnote 24
LISTED PLACES OF WORSHIP GRANT SCHEME
In October 2010 the Department for Culture, Media and Sport (DCMS) announced that the Listed Places of Worship grant scheme, which was due to end on 31 March 2011, would be amended to exclude works on clocks, pews, bells, organs and – perhaps most important – professional services such as architects' fees. The excluded items had been added to the original Scheme in the 2006 Budget; and their removal was intended to reduce pressure on DCMS's resources. It was confirmed shortly afterwards that Scheme would continue for a further four years from April 2011 and that VAT would be refunded at the 20 per cent rate that came into effect on 4 January 2011. However, the temporary restrictions have been made permanent and there will be a cap on total on expenditure of just over £12 million in 2011–12, rising to just over £13 million in 2014–15.
