The Offences Against The Persons
Act 1861
28. Section 36 of the Offences Against the Persons
Act 1861 makes it an offence to, amongst other things, use "threats
or force, obstruct or prevent or endeavour to obstruct or prevent,
any clergyman or other minister in or from celebrating divine
service or otherwise officiating in any church, chapel, meeting
house, or other place of divine worship". There is ample
authority for the proposition that the phrase "divine worship"
extends beyond the services conducted by the Church of England
and, given the Segerdal test noted in para 55 in relation
to the 1860 Act, it may probably be argued that the phrase extends
to all theistic, including probably polytheistic, religions. However
the phrase seems to exclude from the protection of the Act both
non-theistic religions where there is no worship of the divine
and also religions, such as the Religious Society of Friends,
that do have divine worship but do not have persons who are, or
who are analogous to, clergymen or ministers. The exclusion of
non-theistic religions may be problematic following the implementation
of the Human Rights Act 1998. Granting special protection to clergymen
and ministers but not to those, such as people attending a Quaker
meeting, who are engaged in ministering without being formally
designated as ministers, may not be acceptable under the 1998
Act.
The Burial Laws Amendment Act 1880
29. Section 7 of the Burial Laws Amendment Act
1880 falls into two parts. First the section makes it an offence
to indulge in "riotous, violent, or indecent behaviour"
at any burial under the Act. The section also makes it an offence
to obstruct a burial. This part of the section applies specifically
to both religious and non-religious burials. The second part of
the section makes it an offence to "bring into contempt or
obloquy the Christian religion, or the belief or worship of any
church or denomination of Christians, or the members or any minister
of any such church or denomination, or any other person".
The meaning of the final phrase in this part of the section, "any
other person", is somewhat obscure and might be interpreted
to mean that it is an offence to bring into contempt or obloquy
any person at a burial. However, leaving aside this argument,
which does not seem to have been the subject of debate within
the courts, the main import of this part of the section seems
to be to create an offence that provides specific protection for
the Christian faith. There are thus potential objections to the
section under the provisions of the Human Rights Act 1998.
30. From this point onwards the report will reflect
different possible approaches to the three main issues. On these
the members of the Committee were not unanimous in their views;
in any case we all agreed that, on matters of this complexity
and controversy, recommendations by a Select Committee of the
House would be unlikely to carry such weight as to oust further
discussion and that it must be for Parliament as a whole
to make the choices. We thus set out options for the next stage
in the debate.
20 "Offences Against Religion and Public Worship"
(Law Commission Working Paper No. 79, 1981) para. 6.1. Back
21
"Offences against Religion and Public Worship" (Report:
LAW COM. No. 145) para 2.57 Back
22
Volume II, pages 24 and 31 Back
23
Volume III pages 63-66 Back
24
Volume II, Q631 on page 220 Back
25
Volume III, page 52 Back
26
Volume II, on page 28 Back
27
Volume III, page 73 Back