Saturday, 27 February 2010

court of appeal allows hindu cremations

A friend of mine Rambert (aka 'Ramby') de Mello was counsel in an important case decided in the Court of Appeal a couple of weeks ago brought by a Mr Ghai against Newcastle City Council :
The case decided that Hindus can have open air cremations. Forget the alarmist vista painted by some. It does not mean that we will be seeing dead bodies burning on land all over the country. What the case actually decides is that it is ok to have a cremation in a building with a roof which is open to permit the sun to shine on the pyre.

The legal history is interesting. The first case brought by Mr Ghai, an orthodox Hindu, was under the Human Rights Act. At that stage he did indeed try to assert the right to be cremated on an open pyre and not in a crematorium in accordance . The court took the view that whilst this right was part of his genuine religious belief and therefore fell within Article 9 of the Act, the prohibition was justified to protect public morals and he therefore lost the case. But in his second case Mr Ghai produced evidence that his belief would be satisfied if his cremation took place within a structure provided that it was by traditional fire and sunlight could shine directly on his body whilst it was being cremated. This second case turned on the meaning of the word 'building' in the context of the Cremation Act 1902 section 2 . The Secretary of State intervening in the case argued that a building has to be 'an enclosure of brick or stone covered by a roof' but Rambi said the natural and ordinary meaning of the word building was a construction which was relatively permanent and substantial and that a building could have gaps in the walls. If a cremation was conducted in such a building it would still be shielded from public gaze. The court agreed this time.
In a way the case is an example of how British law can adapt to new faiths and cultures. It is perhaps as much about our law as about the good old British compromise, reflected in our developing legal process. Mr Ghai amended his case and the judges were prepared then to find a way to meet it.

Wednesday, 17 February 2010

MP expenses, the Bill of Rights and getting rid of the Rump Parliament

You may have heard that some of the 5 MPs charged with offences under Theft Act 1968 relating to fiddling their parliamentary expenses have claimed the protection of the Bill of Rights 1689 in an effort to exempt themselves from facing trial. The attempt has caused some furore due to the highly charged nature of the issue, but as ever with such issues some of the comments on either side have generated more heat than light on the law.

The Bill of Rights was passed in December 1689 as part of the settlement inviting the Dutch Prince William of Orange and his wife Mary to the throne. It's background was an effort to consolidate the fledgling development of a constitutional monarchy and by enshrining certain parliamentary and civil liberties making sure that the country did not lapse again into the tyranny of the 'Divine Right of Kings' characterised by the Stuart era. (it is actually the nearest thing we have to a constitution at all, although some of its provisions served a much more political purpose: it barred Catholics from any succession to the throne).

So amongst other things the Bill stated that 'the freedom of speech and debates or proceedings in Parliament' ought not to be impeached or questioned in any court'. MPs are not immune from the law. Certainly if an MP committed an assault in the precincts of Parliament he could not escape prosecution - he could not claim 'sanctuary' as people could do in medieval times once they had got inside a church. Perhaps it is arguable that expenses rules and MP correspondence with the Commons Fees Office comes into a different category, more akin to 'proceedings' as envisaged in the Bill , but I doubt it since the essence is still a criminal charge. I also suspect that the MPs of 1689 would turn in their graves if they thought the Bill would ever be used in this way.

But to put the point about non avoidance of trial beyond any doubt one needs to turn to the words 'in any court' contained in the Bill. There seems to reason why the 5 MPs could not be 'tried' by their peers in Parliament if not in court although this rather limits the sentence to expulsion (and/or possibly a fine?) and they are probably all standing down at next election anyway. Also this route is unlikely to assuage public anger. More realistically, Parliament could waive any immunity to trial as it belongs to parliament as a whole not to individual MPs. The government could also pass a new law overriding the Bill of Rights for the very reason that we do not have an inalienable constitution. However it is doubtful that any law should have retrospective effect and so catch the 5.

'You have sat too long for any good you have been doing lately ... Depart, I say; and let us have done with you. In the name of God, go!'

This is what Oliver Cromwell said about another corrupted parliament, known as the Rump Parliament, in 1653 (pictured above).

Stretching and misinterpreting rules (in however absurd a way) is one thing. Claiming for reimbursement of a fictitious mortgage quite another. This parliament reminds us of the Rump Parliament. Many of its members will disappear at the next election, but a few need to pay a higher penalty and face the full rigours of the law.