Tynwald had its first debate of the Lisvane Review last week, on the 20^th of June 2017. It was a long debate, culminating in a long sequence of formal votes and divisions. The end result is that some Lisvane proposals have been left in abeyance, with others to be considered by a Select Committee tasked to report on changes required for their implementation (Part A); or to give further consideration as to their merits (Part B). The Committee will be reporting back on the Legislative Council by October 2017, and other elements by December 2017. Tynwald has now made the first transcript of the debate available through their invaluable Rolling Hansard, and I had five initial thoughts on rereading the debate.

First, constitution making, or extensive revision, is really, really, difficult. It is a common courtesy for legislators to praise the standard of a debate, but having studied Manx legislative debates back some way, I was struck by the quality of this debate. In particular, there was a marked absence of the deference towards UK models sometimes found in Tynwald debates in the past. Approaches drawn from Westminster to common problems are of interest, but first there needs to be an agreement that the problems are common, and even then a Westminster solution is only one of a number that Tynwald might choose to follow. Some commentators have seen the outcome of the debate as a classic way to kill reform: my view is that this was a sensible way to progress reform, but of course we will have to see what comes out of the debates later in the year.

Second, the idea of having a Nominations Commission with a strong role in the appointment to the Legislative Council in future proved very controversial. It appealed neither to supporters of radical reform such as some form of direct election to the Council, nor to more conservative members who would look for a modest refinement of a system which kept the authority in the hands of the (elected) MHKs. The Nominations Commission was put forward to Part B of the remit of the Select Committee, but  failed to secure a majority in either the Keys or the Council, although it did tie in the Keys. Neither did the idea of such a Commission being under a duty to increase diversity in the Legislative Council make it into Part B. It is of course possible that this part of Lisvane will be returned to, but at the moment it seems unlikely that a Nominations Commission approach to the Council has any real traction. At most, it may end up being considered as a non-exclusive way of bringing more candidates forward for consideration by the Keys.

Third, the place of the Lord Bishop also came into question, with a number of members supporting a voice not a vote, drawing an analogy with the Attorney but not, although it is perhaps more apt, the Dean of Jersey. This is a topic I have a particular interest in, and a guest blog on Law & Religion will be appearing this week.  In formal terms, the outcome of the debate was that a statement that the Bishop should remain in the Council was put into Part A, while a proposal that “the Bishop should not retain his vote” failed to be referred to the Select Committee.  The latter was carried by the Keys by a majority of 15 to 9, but rejected by the Council by a majority of 5 to 2. Given the dominance of the elected Keys in Tynwald, there is a real medium-term possibility of the Bishop remaining on the Legislative Council, but losing his vote.

Fourth, the dominant theme emerging from the debate – with more focus I felt than from Lisvane itself – was the position of the Council. What is it for, how is it composed, how does it interact with the Keys, how does it relate to the executive? In particular, the debate (and indeed recent events in the Island) highlight the important ways that MLCs have power beyond being part of a revising chamber.  It would not be surprising to see this become the centre of gravity of any immediate proposals for reform, with other reforms being consequent to changes or clarifications of the Legislative Council’s place in the Manx Constitution. This is very much a continuance of a national discussion dating back to before 1917.

Finally, the call for Tynwald to address the need to make its membership more diverse was put into Part A by a considerable majority, despite limited discussion. There was recognition of how difficult it was to identify concrete steps towards this desired goal, although a number of members made it clear that they rejected positive discrimination (which was not, interestingly, at any point proposed by Lord Lisvane). Along with some members of Tynwald, I think that diversity is the area where Lord Lisvane had the least to say about means rather than end. The Select Committee could look to measures being discussed in neighbouring islands, but will face the fundamental challenge that some of the mechanisms adopted elsewhere depend upon a party system, a mechanism which has much less traction on the Island.

Oxford Brookes University is pleased to offer a full-time PhD Studentship in the Faculty of Humanities and Social Sciences, starting in September 2017.  Applications are invited for a PhD Studentship in Regulating the financial abuse of religious capital. The supervisory team will be led by Prof Peter Edge. This proposed PhD project seeks to address the application of general criminal and civil law doctrines of fraud, and civil law doctrines of undue influence, to the exercise of religious power.  A full project description will be included in the application pack.

The successful candidate will receive an annual payment of £16,000 as a stipend towards living expenses for a maximum of three years.

Home/EU fees will be covered by the School for a maximum of three years. The studentships are open to both Home/EU and International students. However, owing to the funding available, awards will be funded at the level of Home/EU research degree fees. Therefore International applicants should be aware that they would need to fund the difference between the Home/EU and International research degree fees each year. Please note that all fees rise by approximately 4% each year.

Please see this page for information on current International fees: http://www.brookes.ac.uk/studying-at-brookes/finance/postgraduate-finance—international-students/research-degree-fees-for-international-students/

Information on current Home/EU fees: http://www.brookes.ac.uk/studying-at-brookes/finance/postgraduate-finance—uk-and-eu-students/research-degree-fees/

As a successful applicant, you will join a supportive and research-active Department.  For more information on the School of Law visit http://www.brookes.ac.uk/school-of-law/

 

Eligibility: We are looking to recruit a candidate of the highest quality and who is capable of submitting a Ph.D. thesis within 3 years. Applicants are expected to have completed a relevant Masters degree prior to the Studentship start date. The Studentship holder may also be required to complete supplementary research methods training in their first year of study. Applicants should also be able to demonstrate strong research capabilities and be fluent in spoken and written English.

 

Applicants are strongly encouraged to contact the Director of Studies (pwedge@brookes.ac.uk) prior to making an application.

 

Deadline: The closing date for applications is 13.00 on Tuesday 21^st February 2017.

 

Interview date: Interviews will be held as soon as possible after the deadline.

 

Start date: 18^th September 2017

 

How to apply: To request an application pack, a project description and for further details of how to apply, please contact hss-researchdegrees@brookes.ac.uk

 

Please specify which studentship you are applying for by quoting the following in the subject heading:  HSS001, Edge/Vickers

Turkey’s Prime Minister has today withdrawn legislation which would have pardoned men convicted of sex with underage girls if they married them. The Manx penal code, for at least two hundred and fifty years, took an even more controversial stance.

As in England, Manx customary law defined rape as the ravishment of a female against her will. Rape was felony, and so would have been expected to carry the penalty of death by hanging. The punishment, and the procedure by which punishment was determined, was, however, unique. Where both the offender and the victim were unmarried (Whaltrough (1552) Q.P.), and presumably not barred from marriage by consanguinity,  punishment was chosen by the victim. She was presented by the judge of the court with a sword, a rope, and a ring. These items were passed to her by the state official normally responsible for passing sentence, and with them passed the power to dispose of the felon. She could choose whether to hang him with the rope, cut off his head with the sword, or marry him with the ring (Customary Laws (no.2) 1577 s.15). To gloss slightly, this procedure carried with it two forms of capital punishment, and decapitation was unusual in Manx law. It may be we are seeing a remnant of an execution, castration, marriage choice.

Although the concept of marriage as a punishment for rape can be found in the practice of early English and European courts, and in particular in the Scots Statute of Keneth of 834, the implementation was uniquely Manx. The customary procedure survived very late, until the modernisation of Manx law carried out by the Criminal Code 1817 replaced it with a felony punishment in line with English law.

I am not aware of any instance when the victim chose so that their rapist suffered the normal penalties for felony. Given the small size of the Manx community, the pressure on the victim to spare the life of their attacker must have been very considerable.

Sir Michael Birt gave the 2016 Caroline Weatherill Memorial Lecture in October 2016 (available at http://www.iomlawsociety.co.im/wp-content/uploads/2014/02/2016-Sir-Michael-Birt.pdf). He took as his topic “The power of the UK to legislate for the Crown Dependencies without consent – fact or fiction?”. His fascinating discussion of the position of the Crown Dependences had a centre of gravity in the position of the  Channel Islands, but cautiously extends the themes to the rather different constitutional history of the Isle of Man.

Sir Michael takes a fairly high view of the importance of constitutional conventions, at times seeming to be part of a strong tradition that sees constitutional conventions as significantly different from mere constitutional understandings or political practices, and mentions Sir Ivor Jennings view that constitutional conventions could crystalise into law. The clear evidence of constitutional conventions hedging around the legislative authority of the UK over the Crown Dependencies, on that view, forms important evidence as to the de jure extent of the authority of the UK – it goes not only to the should question, but the can question of the exercise of Parliamentary authority, especially when that exercise is against the wishes of the authorities within the Crown Dependency. Naturally linked to this is the clear democratic deficit in a situation where the UK Parliament has a power to legislate for the Crown Dependencies when they, or rather their citizens, are unrepresented in that Parliament.

One does not need to accept quite the same view of the importance of constitutional conventions, and of underlying justifications for legal authority, to take from his discussion the power of constitutional silence in the constitutions of the Crown Dependences. If a Crown Dependency such as the Isle of Man had had a clear, formal, legally binding constitution drafted at any time before the 1980s, it would not have allowed anywhere near the same level of legal autonomy as is accepted today. To quote Lord Bach from 2002, “It is unhelpful to the relationship between Her Majesty’s Government and the Islands to speculate about the hypothetical and highly unlikely circumstances in which such intervention might take place”. Such speculation, if given concrete form in an instrument of government, might have acted as a brake on constitutional development in, at least, the Isle of Man.

Sir Michael’s approach to the Manx position in particular is tentative, giving full weight to the historical and so constitutional differences between the Channel Islands and the Isle of Man. He touches briefly on the question of how the Island entered the dominions of the Crown, but I think the case for such entry having been by conquest at the end of the 14^th century is a strong one. Assuming – and in the 21^st century it is much more daring an assumption than it would have been in say the mid-20^th century – that the Imperial law concerning conquered territories applied to the Isle of Man, that puts the Island in a rather different constitutional position from the Channel Islands.  A sharp distinction between the two sets of legal systems, however, is much less justifiable if our focus is on the constitutional relationship to the UK now, and in particular to the democratic deficit in the relationship of the Crown Dependencies to a UK legislature.

Writing in (1988) California Management Review 124, Manuel Velasquez and Gerald Cavanagh focuses on the  1986, book-length,  “letter” by the Catholic Bishops of the US on moral issues, particularly social justice, posed by the economy. It outlines the drafting process for the letter, which began as an explicit balancing of earlier criticism of Marxism with a similar assessment of Capitalism, but evolved into a more pragmatic consideration of the US economy in practice.

One of the factors of the first draft that attracted criticism was the inclusion in the letter of specific policy proposals, with the National Review considering that their inclusion led to the bishops “inflicting severe wounds on the credibility of their Church [and] squandering their spiritual capital”; and conservatives criticising this part of the letter as being outside the competence of the bishops – being economic rather than theological. Velasquez and Cavanagh point out that part of the impact of the letter was a redefining of some issues as “moral issues – and therefore as issues on which the Church has a right to speak – topics (such as employment, world trade, farm policy, poverty and collaboration) that were being discussed in public forums largely as economic issues”.

The Bishops may have attempted this redefinition, but an obvious reaction is to ask whether they made it stick. My own work on the contribution of the Lord Bishop of Sodor and Man to debates in the Manx Tynwald found that the areas of special expertise that the Bishop was seen as contributing were on technical issues of the Anglican Church, and as a spiritual guide on “moral issues”. These were defined fairly narrowly, and other members of Tynwald were quite keen to keep the Bishop within bounds. Another query is whether these categorisations are mutually exclusive – can an issue not be both a moral one and an economic one? One where the voice of the Bishops may reflect a particular specialism, but one which needs to be read, even by adherents, alongside those of economists?

In “Thinking about Australian Religious History” (1989) 15(3) Journal of Religious History 330 Bruce Mansfield argued for a particular understanding of the religious history of Australia. In particular, he argued that the religious history of European Australia began at the end of the desacralisation of the European world, so that Christianity in Australia had a “strongly intellectualised and institutional character”, that it was by and large a success story, and that there was, until very recent times, “the ambition of Christianising Australia”. As someone interested in religion and law, it’s the first and third parts of his argument that interest me.

Mansfield argues that we need to recognise that the Christianity that was taken to Australia was one where the Reformation, Counter-Reformation and Enlightenment had already happened. The resulting Christianity was “doctrinal, scriptural, individual, institutional”, and so perhaps particularly ill-equipped to engage with Aboriginal religion. It was also one where the denomination was a fact of religious, and public, life. This was the case even for the Anglican Church, which by the mid 1860s had emerged as a voluntary religious society and, to quote Cable, “a state or national church no longer”. So although Mansfield makes the case for a “Christian Australia” being key, it is a Christian Australia made up of Christian denominations.

This emphasis on the denomination is thought provoking. Are we seeing (or have we seen?) an “Australianisation” of church/state in the UK? How far are arguments around religion and law constructing the Church of England as a voluntary religious society, rather than a special state church, albeit in a state with a very high degree of toleration of other religious groups? Thinking about the development of same-sex marriage in the UK, the special position of the Church of England was framed as a technical problem about the status of Church law, with the rights of “the community” to decide where it stood on the issue taken for granted.

The focus on a particular type of religious experience is also interesting. I have a fairly longstanding concern that the legal understanding of “the religious” in UK and European law tends to be too neatly congruous with socially and demographically dominant paradigms. Mansfield doesn’t explore the implications of his point about the texture of Australian Christanity very far in this article, being more concerned to defend it from critics who may not recognise his description. He describes settlement during the time of traditional Christianity as “against historical sense”. But it’s an intriguing counterfactual. If the Christianity of the European settlers had been closer to what he sees as traditional, folk, Christianity tied to place and community, what would their relationship with Aboriginal religions have looked like?

In “Gender and religious work”, (2000) 61(4) Sociology of Religion  467, Zoey A Heyer-Gray begins her consideration with a wry note of surprise that she is still studying the sociology of religion having come into it as a side-road, doing field work on other peoples’ projects. She realised that her challenge would be to bring her primary concerns of gender and inequality to bear on “the very particular and unique context” of religion.  In exploring the religious work of women, she identifies as part of a broader tradition seeking to expand the concept of work beyond paid employment, and to make visible “invisible work”: that is work which may not be recognised as such, even by those who actually do the work. By doing so, feminist writers in this tradition seek to garner acknowledgement and respect for the work done by women, and lead to a more equitable division of tasks.

The core of this note is her framework for research, but she does report on qualitiative fieldwork carried out in three Christian sites in the US. She found that in across the three – a Catholic church, an independent Christian church, and a Southern Baptist church – women performed a similar array of tasks outside of the formal Sunday worship. In the formal Sunday worship, however, women were much more visible in the Catholic church than in the other two, with Heyer-Grey reporting that “Women did not perform any ‘public’ roles in these churches other than singing and/or playing an instrument”. She concludes with a call for more work:

“[T]he way in which something divine or sacred is in fact accomplished or captured by such a seemingly mundane process as “work” – and how this process is in turn gendered – remains to be explored”.

Indeed!

In “The arbitration of religious practice grievances” (1984) 39(2) Arbitration Journal 3, IB Helburn and John R Hill the authors reviewed 31 arbitration awards where arbitrators had to consider management responses to employee religious practices. I remember being disappointed that this was effectively a consideration of an aspect of employment law, rather than the difficult area of arbitration by religious organisations and individuals working within a religious framework. My mistake rather than the authors!

The cases reviewed largely fall into the categories of clashes between work obligations and manifestation of religion that you would expect – as the authors note, discrimination because of beliefs held simpliciter is not usually at issue. The exception to this was a quite substantial number of cases the authors categorise as “Unauthorised leaves of absence for ministers”. in one of the cases noted, the employee was suspended for excessive absences when he preached at funerals of members of his church. This  got me thinking about how far we should give added weight to a religious “officials” interests over that of other members of their community. We could see the individual burden on a minister as being greater, but also see it as a burden on the (non-employee) religious community. Should this be given weight in assessing the proportionality or reasonableness of the restriction?

The willingness of US journals to publish only slightly amended versions of colloquia provided space for scholars to float ideas, or deal with fairly low-key points, before the development of the blog. The contribution by Michael S Greve, in (1992/3) Annual Survey of American Law 563, would make a rather good – if long – blog post today.

Greve’s central point is that advocates of hate crime in the US are rank hypocrites. Greve, with very broad strokes, sees “them” as being soft on crime, except when it comes to hate crime; intending to target beliefs or attitudes, while denying that the law does this; and much less vigilant on the dangers of hate crime than they are of other state measures. On the last point Greve is concerned that racial hate crimes will be applied disproportionately to different racial groups, and that they will encourage prosecutors to “dig around in defendants’ personal lives for evidence of bigotry” (at 565). The risks of this sort of investigation, Greve argues, would be of enormous concern to the ACLU in any other context.

Having lambasted supporters of hate crime for their hypocrisy, Greve suggests that a much more intellectually serious way to support hate crime would be to accept that it implicates First Amendment rights, but that the state has a compelling interest in restricting them. This approach does not appeal to supporters of hate crime laws because they are too invested in a particular perspective on the First Amendment – and I would add a particularly US perspective on the rights involved – to be able to take that approach. He ends with a call for a different debate:

“A plain admission that we will regulate and punish speech that is fundamentally evil would at least focus our collective attention on important and interesting questions – what it takes to run a free country, and what kind of people we want to be” (at 568)

I differ very substantially from Greve on the substance of his discussion; but his call for striking at the central questions, even when uncomfortable to do so, does resonate. The UK is, once again, reflecting on how to deal with religious capital that is used for ends which are contrary to the national interest (however, and by whoever, that is to be defined). It is tempting to try to reframe this as not involving religious interests and religious rights. How about a plain admission that it does, and a consideration of when and how far we should?

In this article, which appeared in (1997) 33(1) Gonzaga Law Review 241, Credence Fogo-Schensul does not just argue for allowing holocaust denial laws, which is something of a challenge in the US context, but for an international law requirement that states have such laws. In part, Fogo-Schensul bases this on a reading of UN documents starting with the Charter, which leads to the conclusion that “the Holocaust is a juridical fact, under both treaty and customary international law” (at 255). The emphasis that the US gave – and gives – to freedom of expression does not take account of this, and to what Credence sees as the exclusion of Holocaust denial from international law’s freedom of expression norms.

Fogo-Schensul covers a lot of ground, and much of the discussion is really about inciting racial and religious hatred – an area where, it must be agreed, the US is something of an outlier. A case for Holocaust denial being – distinctively and in itself regardless of the motive of the denier – criminal is not really made.  There are flickers, for instance a discussion of the idea of mental harm to minorities, but these are not sustained. Fogo-Schensul also seems more relaxed with the idea of “juridical facts” determining historical content, and punishing people for disagreement with these juridical facts, than I could ever be. This to me is the difficulty with laws criminalising holocaust denial. Perhaps holocaust denial is intended as a place-holder for extreme hatred of those groups who suffered during the holocaust, but others may deny the holocaust with a different motive. Consider Bertrand Russell’s “Five Minute Hypothesis” – which for the absolute avoidance of doubt I should stress he found neither a convincing description of reality, nor interesting:

“There is no logical impossibility in the hypothesis that the world sprang into being five minutes ago, exactly as it then was, with a population that “remembered” a wholly unreal past. There is no logically necessary connection between events at different times; therefore nothing that is happening now or will happen in the future can disprove the hypothesis that the world began five minutes ago”.

The “five minute hypothesis” is an extreme, but some religious groups have argued, and continue to argue, for the creation of the world by a divine being which has included signs of much greater age. Readers who know of an extreme young-Earth community who teach that the world was created after 1945 should get in touch. And what of those groups who teach that the material world is illusory?

I am being mischievous – supporters of holocaust denial laws would argue that they require a much more specific sort of denial than I posit above. But I remain nervous of law being used to stifle disagreement with “juridical facts”.