The "margin of appreciation"

.... is a legal term relating to the way in which the laws of the European Union are implemented in individual member countries. We do not hear very much about this concept from those who would rather represent the implementation of European laws in the UK as being "UK law being made in Brussels". It does not usually make its way into the media reporting of EU court judgements on instances of legal determinations that have been the subject of appeal in the European Court of Human Rights, though often the judgement of that European Court is less one that upholds the UK legal decision per se but rather one that says that the UK determination can stand because it lies within that "margin of appreciation". The idea of a "margin of appreciation" allows individual member states to enact legal provisions to implement European Union directives in a manner that reflects their own particular situations. This consideration, for example, can be found in the judgement of the European Court with regard to the Christian registrar who was subject to disciplinary action by Islington Council because she did not feel able to register civil partnerships. One can see the whole of the ECHR judgement, which brought together four different cases of Christians claiming discrimination on the grounds of their religion, here. Whilst is is worth reading the whole (OK, there is a lot of it!), n.106 of the judgement concluded, with regard to the Christian registrar (my italics added):

In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant.

What has prompted this reflection is the controversy currently raging in the news media about a legal provision in the Russian Federation which makes it illegal to provide information about homosexuality to those under the age of 18. Some of the BBC reporting can be found here: Russian Duma passes law banning 'gay propaganda',  Q&A: Gay rights in Russia, Stephen Fry calls for Olympics ban over Russia's anti-gay laws. More recent reporting picks up its implications for sport: Yelena Isinbayeva says anti-gay remarks were 'misunderstood' (and the links to other reporting contained in this report).

I would ask three questions about the controversy with regard to the Russian legislation.

1. The BBC reporting readily identifies the legislation as being an "anti-gay law".  As reported, though, the terms of the law seem to have some comparability to Section 28 which used to apply in this country, a law which would now be characterised by the great and good as "anti-gay" but was actually expressed in terms that forbade the promotion of homosexuality by public bodies. The extent of the promotion of homosexual/LGBT culture in our country since the repeal of Section 28 (see, for example, Nick Clegg's observation with regard to the passing of a law allowing same-sex marriage, that he didn't believe we could have gone so far so quickly) is very telling. Does the characterisation of the Russian law as an "anti-gay law" and the mobilisation of the international gay lobby in the media represent an attempt to bring about exactly the same course of events in Russia as has happened here, that is, a legitimisation of a promotion of the acceptability of LGBT behaviours? If that is the case, does not Russian society have some entitlement to resist the promotion of that acceptability if it wishes to do so? [But note: resisting promotion is not to be equated with a campaign of persecution ... the two are not the same thing.]

2. As Stephen Fry suggests in his letter, there may well be a question to be asked about the purpose of those politicians who have taken the lead in enacting the Russian legislation, and its effect as a convenient scapegoating of a minority in Russian society. And there may also be a question about the effective rule of law in protecting all citizens of Russia, something which I expect has implications in other circumstances as well as that of violence directed against members of the LGBT community. If the passing of the law has legitimised this violence, then that needs to be the subject of media reporting and protest. However, to protest these concerns - and to publish the specific evidence of incidents and people as the human rights movement of the 1970's and 1980's did during Communist times - is one thing. To "picky back" on to that the same promotion of LGBT culture that we have seen in the developed nations of the West is something different. Whereabouts within this consideration does the campaign to move the winter Olympics sit? If it sits as a protest against a violation of the human rights of a section of Russian society, then I have no difficulty - or indeed hesitation - in supporting it. However, the added aspect of the promotion of LGBT culture is one that I will not support.

3. The third question is one I cannot answer without an understanding of the details of the Russian legislation, and I do not have that detailed understanding. If the Russian Federation were a member state of the European Union, would a judgement of the ECHR allow the law to stand as being within the margin of appreciation that would allow it as proportionate for the achievement of a legitimate aim in the particular situation of the Russian Federation?

[And, so far as I can tell from the BBC reporting (here and here) and a report on the Telegraph website (here), Yelena Isinbayeva has expressed what Rocco Buttiglione referred to in rather different circumstances as "the principle of non-discrimination" - indicating that the lifestyle choices of individual citizens should not be the subject of public scrutiny. That she has expressed a different view, as her own conviction, than some of her fellow athletes with regard to homosexuality .... why should she not have the freedom to express a different view? As Rocco Buttiglione suggested, the key issue in the public arena for the promotion of equality is that "principle of non-discrimination", not the holding of different views.]

Come Let us Adore Him: Cologne 15 August 2005 - 15th August 2013

Photographs like this one from Rio de Janeiro ...

..... have reminded me of this one from Cologne ....

 

and the respective logos, both of which express something of the Catholic culture of the respective cities:

On 15th August 2005, Zero and I arrived at the main railway station in Cologne to join the events of World Youth Day.

These photos prove that we were there for the Vigil and Mass celebrated by Pope Benedict XVI to conclude that World Youth Day.

 



Today, we are back in Cologne - just for the day - arriving there within an hour or two of exactly eight years since we arrived there for WYD 2005.

 

I have no hesitation in saying what a wonderful thing I believe World Youth Day to be. No hesitations or qualifications whatsoever. The celebrations of the Way of the Cross and Eucharistic Adoration during the evening vigil strike me as being absolute models of how devotions that have a long history in the life of the Church (ie are "traditional" with a small "t") can be re-presented anew, in a way that speaks to the culture of our own times.  This song sung during the Adoration in Rio (H/T Stella Maris) captures everything of this. It would not be a good choice of song to be sung during the Liturgical Celebration of Mass - but it is absolutely right for a time of Adoration. The singer faces Christ in the Eucharist as he sings, kneeling. Everything points towards the Lord .....



A point of view: is democracy overrated?

The title to this post isn't mine - it is taken from the BBC Radio 4 Point of View broadcast to which this post refers. In commenting on it, I do not intend to attack the idea of democracy as an essential component of effective political arrangement. The programme was the second of a series of four by the philosopher/broadcaster Roger Scruton. A text of the programme can be found at the BBC news website: here. Today's events in Egypt reminded me of this programme, part of which I heard on Sunday morning last.

Whilst one might or might not align oneself with Roger Scruton's political perspectives, I do think that his article/broadcast raised some interesting questions.

In the context of the fall of Communism in eastern Europe, Roger Scruton says:

.... if we study the words of Western politicians, we will constantly find that the three ideas - democracy, freedom and human rights - are spoken of in one breath, and assumed in all circumstances to coincide.

One of the things I find intriguing about activists in the gay rights movement, and the politicians who accede to their aims, is precisely that they do not speak a language of human rights. It seems to me that the language of human rights, which was very much the discourse of the 1980's and early 1990's has now been substituted by a language of "equality" or "equal rights". 

Introducing a discussion of the situation in Russia and in Egypt today, the writer suggests that

...... democracy is only made possible by other and more deeply hidden institutions. And while we are willing to accept that democracy goes hand in hand with individual freedom and the protection of human rights, we often fail to realise that these three things are three things, not one, and that it is only under certain conditions that they coincide.

Roger Scruton's examples perhaps also illustrate how legislation for same-sex marriage and equality of treatment for gay people, though attracting a democratic majority in Parliament, at the same time represent a threat to the freedom of others to manifest and express their beliefs. The question raised here is one about the limits that the participants in a democratic process need to maintain in favour of the freedoms of others, and it is a question with a pertinent relevance to our own country.

Commenting on what he has learnt from experience of the former-Communist regimes, Roger Scruton writes:

The totalitarian system, I learned, endures not simply by getting rid of democratic elections and imposing a one-party state. It endures by abolishing the distinction between civil society and the state....

I wonder, too, whether current political developments in our own country are, at least, confusing if not doing away with the distinction between civil society and the state. My own professional field of education seems to exmplify this. On the one hand, I do have difficulty in understanding what the teacher trade unions mean by the term "state education" when they characterise their opposition to Coalition policy in favour of free schools and academies as a "defence of state education". Are they really absolutely identifying ownership of the enterprise of education with its funding? And what are we to make of a Secretary of State who seeks to dictate when and how public examinations are taken?  But, on the other hand, what are we to make of organisations that run chains of academies - are they really mechanisms of civil society or are they more accurately instruments being used by the state to implement their policy? This is also coloured by an influential hostility on the part of some towards any part being allowed to religious faiths being a part of a state funded education system, with all the implications of that for how civil society is understood.

Pope Benedict was quite clear in expressing the view that religious freedom is a fundamental right that makes possible all other rights that are proper to the human person. He also spoke of a "rightful secularity", by which he meant that it was not the place for religious belief to directly exercise a political power in society. At the same time, however, Pope Benedict argued against attempts to remove all religious expression from public life. The Holy Father's address in Westminster Hall in Septemebr 2010 explores precisely this question. The question that Roger Scruton raises about the relationship between civil society and the state has increasingly, in our own country and in countries where Islamist politics are current, a crux around how the question of religion is understood as a legitimate participant in civil society and therefore owed a certain care in legislation enacted by the state.

Five Prophets on the BBC

Since The World at One was extended to 13.45, BBC Radio 4 have been broadcasting 15 minute programmes in the 13.45-14.00 pm time slot.  These vary considerably in subject matter, but are often a series of programmes that run over a week. I sometimes catch these programmes by accident. The current five part series is entitled The Prophets, and I caught the third episode - devoted to the prophet Elijah - this lunch time.

I enjoyed the programme, and found it interesting to listen to. I felt it was sympathetic to the figure of Elijah rather than hostile. It was sufficiently wide in its study of the significance to Elijah to include an account of the founding of the Carmelite's and a snippet from a female rabbi indicating a softening of Elijah's character that might be offered by liberal Judaism.

The five figues being covered in the series are Jonah, Isaiah, Elijah, Miriam and Samuel. As I post, the episodes on Jonah and Isaiah can be listened to by following links from the programme home page: The Prophets. I expect that Elijah will appear shortly, and that the final two episodes will be added as they are broadcast.

Do go and listen yourself. And remember, the pictures are much better on the radio ....

Homosexuality in the media: two very different comments

My eye has this morning been caught by two quite different blog posts, both of them in quite different ways commenting on  the way in which homosexuality has been recently covered in the media.

One is a post (or, more accurately, a re-post) about Pope Francis' remarks during the flight back to Rome from Rio: Gay men and the priesthood: change in content, or difference in style? This post offers an interesting range of suggestions about the way in which the lives of homosexual persons might be understood within the Christian mystery.

The second post, quite different in nature, commented on the reaction of the great and good to the passing of legislation that would allow same-sex couples in the UK to marry: Best Place To Be Gay? It is also worth looking at another post on Alan's blog at the same time: Farewell Freedom of Speech. This post prompted me to reflect that what has been debated in the media and in Parliament in terms of rights for gay people, in terms of "equality" and in terms of "redefining marriage", and which has been presented as almost universally accepted in society at large, is in reality a much more varied and complex phenomenon. Some aspects of this are reflected in Alan Craig's posts. What I wonder about, though, is the real sense of what the person on the Clapham Omnibus believes about same-sex marriage. Not what they would say if they were asked by an activist or by an opinion poll - the "correct" answer has been made far too clear for all but the most courageous to give any other answer, both by the great and good and by the less good, as indicated in Alan's posts. But what would they say if they weren't asked, if they were genuinely left to manifest or express what they believe?

Personal relationship with Christ?

From time to time there is discussion in Catholic blogs about the idea that we are called to an individual relationship with Christ, and so with the life of the Trinity.  This is sometimes flagged as a "Catholicism-lite" when this call made on the part of Catholics is perceived as being a call that is indifferent to doctrinal content; and it has also an affinity to the life of non-ecclesial Christian communities that, despite a Biblical base, do lack real sources of doctrinal belief. There is also a suspicion by Traditionalists of anything that appears evangelical in its origins and impact rather than ecclesial.

In this context, it was interesting to read the "Meditation of the Day" in MAGNIFICAT for this coming Thursday, the feast day of St Dominic. The text was taken from Pope Benedict XVI's General Audience address for 8th August 2012.  One thing that vividly emerges from Pope Benedict's presentation of the prayer of St Dominic is the movement from Liturgical prayer to personal meditation "in which prayer acquires an even more intimate, fervent and soothing dimension":

.... personal meditation, in which prayer acquires an even more intimate, fervent and soothing dimension. After reciting the Liturgy of the Hours and after celebrating Mass, St Dominic prolonged his conversation with God without setting any time limit. Sitting quietly, he would pause in recollection in an inner attitude of listening, while reading a book or gazing at the Crucifix. He experienced these moments of closeness to God so intensely that his reactions of joy or of tears were outwardly visible. In this way, through meditation, he absorbed the reality of the faith. Witnesses recounted that at times he entered a kind of ecstasy with his face transfigured, but that immediately afterwards he would humbly resume his daily work, recharged by the power that comes from on High.

St Dominic, in his life of prayer, expresses quite precisely the appropriate mutual relation between Liturgical prayer and personal devotion, between the ecclesial encounter with Christ and the personal encounter with him. We can perhaps add to this Pope Francis' repeated insistence that it is not possible to come to know Christ without the Church.

The language of "personal relationship with Christ" might well be an unfamiliar language for some Catholics; and it is, I suspect, more to be associated with the newer movements and ecclesial communities than with older Catholic organisations. Whilst a vocation to the priesthood or religious life might have always been seen as a way of living a closer personal relationship with God, that the life of lay persons should be seen in the same way has a certain novelty about it. I would suggest, however, that Catholic life has always included ways for lay people to live this closer personal relationship with God - through sodalities and a whole range of pious associations. According to the teaching of the Second Vatican Council, it is the sacraments of baptism and confirmation that call each and every Christian to a vocation in the Church - and the danger for the Catholic is that this where that vocation comes to a stop (the danger for the pentecostal is that it does not reach this point at all). What the newer ecclesial movements explicitly do is articulate the forms of commitment associated with a life lived according to their charisms as a specification to a particular form of the vocation received in a general way through baptism and confirmation.

So, for example, the Marian consecration according to the teaching of St Louis Marie de Montfort promoted by the Legion of Mary and the Foyers of Charity (it is the concluding act of the "fundamental retreat"). The Catholic Charismatic Renewal also understands the gift of "Baptism in the Holy Spirit" in a relation to the sacraments of Baptism and Confirmation, seeing it as an opening out of the grace of those sacraments.  I have posted on this theme here. Fr Cantalamessa wrote of his own experience of Baptism in the Holy Spirit:

For me, baptism in the Spirit was a chance the Lord gave me to ratify and renew my Baptism...

The pastoral implication of all of this is that, if formation programmes in Catholic parishes are limited to the immediate preparation for the sacraments of initiation, then there will be an intrinsic failure to consistently develop the (additional) specification of the grace of those sacraments that constitutes the "living personal relationship with God". The additionality provided by formation to a particular charism in the Church is needed to achieve this - I suspect I am not alone in feeling that those one meets in parish life who have a more-than-average sense of Christian life have almost without exception gained that sense of Christian life from experience of one or other of the new ecclesial movements.

[A development of the them of this post would be to evaluate the Marian character and sense of the evangelical counsels that can be seen in many of the new movements.]

What is "state education"?

My own trade union has begun a discussion with its membership aimed at arriving at a kind of "manifesto for education". If I have understood the intent of this conversation correctly, it is intended to support the union's work in responding to the rampaging policies of the present Coalition Government and to provide a strong document that can be used to challenge the major political parties as they move towards the next General Election in May 2015.

I took part in a seminar earlier today that was part of this conversation. Two things struck me about the seminar. The way in which the question was set for us precluded any discussion of the aims of education (though that might have been more explicitly addressed in other discussion groups). And religion was not mentioned as a factor to be included in a consideration of education.

The context of much of the discussion was the policy of the present Coalition Government in promoting Academies, Free Schools, Studio Schools etc - that is, a range of different types of schools funded from central government through funding agreements and run by bodies that are "private" in the sense that they are not bodies of central or local government. The headline of the teacher unions' campaigning against this policy is that of "defending state education".

But the question I asked was: what exactly does the union mean when it uses that term "state education" in the articulation of its policy against Academies, Free Schools etc.? Does "state funding" define a state ownership of the educational enterprise, in which case the funding defines the enterprise as a state enterprise? Or, which would be more in line with Catholic teaching, does the state funding enable parents, and the schools who are their collaborators in the provision of education for their children, to fulfil their responsibilities (subsidiarity and all that)? In this latter case, the ownership of the educational enterprise rests more at a level of civil society, shared between the parents/legal guardians. And, of course, there is rather less of a problem in principle with funding mechanisms that allow state funds to support private bodies - ie civil society - in the provision of this education. [There might well still be other grounds for opposing government policy in this area, but the in principle "no to privatisation" does not quite work, because on this model the state does not have ownership of the enterprise anyway.] And when I suggested ever so gently that learning and coming to know what was true was a part of the purpose of education ... I felt I was a rather lonely voice.

The absence of consideration of the part to be played by religion or religious communities in the provision of education prompted me to go back to the UN UNiversal Declaration of Human Rights, which contains clear provision with regard to the rights of parents/legal guardians with respect to the education of their children. Article 26 reads as follows:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.  

(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.  

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

The principle underlying state funding of an education service is that it enables a UN member state to fulfil its obligations under paragraphs (1) and (3) of this article, paragraph (3) additionally requiring a degree of plurality in the types of educational provision that are funded. Paragraph (2) provides a basis for a state to require certain standards of the education that is provided using its funding.

These provisions are further supported in a United Nations Educational, Scientific and Cultural Organisation Convention against Discrimination in Education from 1960. What is interesting here are the provisions of Article 2, which clearly recognise a place for considerations of religion in an educational system.

Article 1

1. For the purposes of this Convention, the term `discrimination' includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular:

(a) Of depriving any person or group of persons of access to education of any type or at any level;

(b) Of limiting any person or group of persons to education of an inferior standard;

(c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or

(d) Of inflicting on any person or group of persons conditions which are in-compatible with the dignity of man.

2. For the purposes of this Convention, the term `education' refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given.

Article 2

When permitted in a State, the following situations shall not be deemed to constitute discrimination, within the meaning of Article 1 of this Convention:

(a) The establishment or maintenance of separate educational systems or in-stitutions for pupils of the two sexes, if these systems or institutions offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study;

(b) The establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil's parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level ;

(c) The establishment or maintenance of private educational institutions, if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities, if the institutions are conducted in accordance with that object, and if the education provided conforms with such standards as may be laid down or approved by the competent authorities, in particular for education of the same level.

Article 3

In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake:

(a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education;

(b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions;

(c) Not to allow any differences of treatment by the public authorities between nationals, except on the basis of merit or need, in the matter of school fees and the grant of scholarships or other forms of assistance to pupils and necessary permits and facilities for the pursuit of studies in foreign countries ;

(d) Not to allow, in any form of assistance granted by the public authorities to educational institutions, any restrictions or preference based solely on the ground that pupils belong to a particular group;

(e) To give foreign nationals resident within their territory the same access to education as that given to their own nationals.

Article 4

The States Parties to this Convention undertake furthermore to formulate, develop and apply a national policy which, by methods appropriate to the circumstances and to national usage, will tend to promote equality of opportunity and of treatment in the matter of education and in particular:

(a) To make primary education free and compulsory; make secondary education in its different forms generally available and accessible to all; make higher education equally accessible to all on the basis of individual capacity; assure compliance by all with the obligation to attend school prescribed by law;

(b) To ensure that the standards of education are equivalent in all public educational institutions of the same level, and that the conditions relating to the quality of the education provided are also equivalent;

(c) To encourage and intensify by appropriate methods the education of persons who have not received any primary education or who have not completed the entire primary education course and the continuation of their education on the basis of individual capacity;

(d) To provide training for the teaching profession without discrimination.

What interests me, or perhaps, more accurately, concerns me in the context of the discussion that has been initiated in my own trade union is a failure to look back to documents such as these from the United Nations that can provide a principled basis informing that discussion.