Parliament and the policing of silent prayer

By Liam Gibson   |   19 April 2023

On Saturday 6 May 2023, in an elaborate ceremony harking back to the Middle Ages, Charles III will be crowned in Westminster Abbey as King of Great Britain and Northern Ireland. In an inauspicious start to this new era, the following day, the Abortion Services (Safe Access Zones) (Northern Ireland) Act comes into effect. This Act criminalises all pro-life activity, including silent prayer, within 150 metres of abortion facilities in the Province. For the first time in its history, thought crime will be an offence in the UK’s legal code. 

Last year, the Supreme Court in London examined this legislation and decided that it was compatible with domestic human rights law and the European Convention on Human Rights (ECHR). It concluded that clients and staff of abortion facilities have a right not to “witness silent prayer which is unwanted, unwelcome and intrusive”.¹ It is difficult to imagine how silent prayer could be intrusive but this statement demonstrates that it is the beliefs of pro-life activists that are considered offensive, not their behaviour.

Following the court’s approval of the Act, it became the model for the buffer zone measures in the Public Order Bill, currently awaiting Royal Assent. When urging the Supreme Court to uphold the Northern Ireland legislation, Dorothy Bain, KC, the Scottish Lord Advocate, insisted that silent prayer is more damaging to women seeking abortions than noisy protests. The Lord Advocate is the chief legal advisor of the Scottish government and a similar Bill is expected to be brought before the Holyrood Parliament later this year. Although it is yet to be published the Bill has already won the backing of the new First Minister.

In February, two pro-life advocates, Isabel Vaughan-Spruce, the director of March for Life UK, and Fr Sean Gough, a priest of the Birmingham diocese, were separately arrested, charged and threatened with criminal prosecution for breaching Birmingham Council’s Public Space Protection Order by praying silently near the premises of the British Pregnancy Advisory Service in the city. When the case came to court, prosecutors wisely decided not to present evidence which resulted in their acquittal. 

For many years, the abortion industry and its allies in the media have sought to deny the “oxygen of publicity”² to the pro-life message. But the use of legislation to silence and criminalise peaceful pro-life demonstrations should cause alarm to everyone concerned by the erosion of civil rights. The pro-life movement is now the canary in the coal mine. If allowed to spread, the toxic atmosphere being unleashed by those undermining the rule of law in the name of abortion rights will poison everything of value in society. Once this precedent is accepted, further restrictions are merely a matter of time and political expedience. In Ontario, Canada, for example, the introduction of buffer zones around abortion facilities has now been followed by a Bill to criminalise protests against “drag” shows involving children.³

Britain’s Natural Law Tradition

The continuity of the British political system since the seventeenth-century Civil Wars has meant that, in contrast to most developed nations, the Constitution of the United Kingdom is largely unwritten.⁴ Although the resulting flexibility has helped maintain a reasonable degree of political stability. And, despite the trappings of the monarchy, it has also allowed Parliament to exercise sovereignty in a way other legislatures cannot. No British judge can strike down or declare a piece of legislation as unconstitutional in the way the courts in the US, Poland or Germany might.

When writing about the unlimited legislative power of Parliament, Albert Dicey, one of England’s venerated constitutional experts, summed the matter up in what he called “a grotesque expression”, which he says has become almost proverbial: “It is a fundamental principle with English lawyers, that Parliament can do everything but make a ‘woman a man, and a man a woman’.”⁵

As crude as this expression might be, it recognises that Parliament is bound only by the laws of nature and the fragile thread of its own customs and conventions. Should the time arrive when parliamentarians reject nature, then there is very little to prevent the UK from sinking into the absolute corruption usually associated with unlimited power. 

Despite England’s break with Rome, the medieval roots of the English legal system still reach back into the Natural Law tradition that teaches that justice must conform to pre-legal rights and precepts. Natural law exists in the intersection between morality and promulgated law.⁶ It may be defined as “the light of reason inherent in us by nature, through which we perceive what we ought to do and [what to] avoid”.⁷ Simply put, this theory views law as an appeal to reason — lex ratio. It conveys an obligation, but it is not an act of force. It protects human liberty from criminality and chaos.

Set against this tradition is the idea of law merely as the will of the highest power — lex voluntas. In this context, will denotes passion or irrational appetite. This “legal positivism” places law and liberty in opposition to one another since the sovereign power controls and restricts the actions of the individual. Laws formed on this basis may be entirely arbitrary and devoid of any external moral content. Although the lex voluntas tradition also has its origins in medieval philosophy, the most absolute monarch in the middle ages⁸ could not wield the kind of power exercised by the leaders of today’s nation states. It was the triumph of this approach that gave rise to the totalitarian regimes of the twentieth century.

Lex voluntas can be summed up in the phrase “might makes right”. Lex ratio, on the other hand, recognises our dignity as rational creatures and that both the strong and the weak are equal before the law. From a Christian perspective, it also prefigures Divine law since “[v]iolence is incompatible with the nature of God and the nature of the soul.”⁹

The Scottish Parliament’s passage of the Gender Recognition Reform Bill aimed at giving legal force to transgender self-identification shows that there is already a significant section of British political opinion that believes that legislation is capable of changing men into women and vice versa. So far, Westminster’s unprecedented decision to prevent the Bill from becoming law has largely been presented in terms of a dispute over devolution rather than a difference in the understanding of human nature and the limited power of legislators.¹⁰ In Robert Bolt’s play “A Man for All Seasons”, Sir Thomas More mocks this kind of hubris when he observes: 

“Some men think the Earth is round, others think it flat, it is a matter capable of question. But if it is flat, will the king’s command make it round?And if it is round will the king’s command flatten it?”¹¹

Secular Power

In 1080, Pope Gregory VII reminded William the Conqueror, that God had appointed two authorities greater than all others to rule the world, the apostolic and the royal. He stressed the King’s duty of obedience to papal authority, saying that, as Pope, he would have to account for him to God on the day of judgement. Despite this, Gregory was under no illusions regarding the nature of secular power. In a letter to the Bishop of Metz dated 1081, he writes:

“Who does not know that kings and generals had their origin from those who, ignorant of God, through pride, robbery, treachery, murder, and lastly by almost all crimes, inciting the prince of the world, the devil, to rule over their equals, that is, men, were affected by blind desire and intolerable presumption.”¹²

The recognition of human dignity found in natural law provides the underpinning of human rights law, including the freedom of thought protected by Article 9 of the ECHR. The first paragraph of this article states:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

Despite the assertions of the Supreme Court, the first paragraph of Article 9 is absolute — no government, no legislature and no monarchy can legitimately attempt to extend its reach into the minds of their subjects. That Westminster has enacted legislation that seeks to police the thoughts of those it perceives to be its ideological enemies is an exercise in raw political power and an “intolerable presumption”. It also represents an ominous development for the rule of law in the UK with grave implications that will cast a heavy shadow far beyond the pro-life movement. 

Notes

1. Reference by the Attorney General for Northern Ireland — Abortion Services (Safe Access Zones) (Northern Ireland) Bill, [2022] UKSC 32, 7 December 2022, para 84.
2. On 15 July 1985, Prime Minister, Margaret Thatcher, delivered the opening address to a meeting of the American Bar Association in London. She told her audience that the media provided terrorists with the “oxygen of publicity”. On 19 October 1988, Home Secretary, Douglas Hurd, issued a directive under section 29:3, of the Broadcasting Act, 1981 banning the broadcast of the spoken words of anyone representing any of eleven republican or loyalist paramilitary or political organisations from Northern Ireland. See, Gary Edgerton, “Quelling the ‘Oxygen of Publicity’: British Broadcasting and ‘The Troubles’ During the Thatcher Years”, (1996) J Pop Cult, 30, 1. pp 115–31.
3. Allison Jones, “Ontario NDP urges legal protections for drag shows” 4 April 2023, CBC News.
4. New Zealand and Israel are in a similar position. Some commentators point to historic documents, such as Magna Carta, 1215 and the Parliament Act 1911, which fulfil some of the functions of a written constitution, others argue that the European Convention on Human Rights should be considered part of the UK Constitution. See Jeremy Waldron, The Law, (Routledge, 2002) pp 56–87 for a detailed discussion of the issue.
5. A V Dicey, Introduction to The Study of the Law of the Constitution (Macmillan, 1979) p 43.
6. “The notion of natural law partakes at the same time of a legal and of a moral character. Perhaps the best description of natural law is that it provides a name for the point of intersection between law and morals.” — A P d’Entreves, Natural Law, (Hutchenson Uni Library, 1972) p 111.
7. Viktor Catherein, SJ quoted by Heinrich Rommen, in The Natural Law (Liberty Fund, 1998) p 160.
8. Duns Scotus (d cir 1308) and William of Occam (d cir 1349) advocated this view.
9. Controversy VII, 2 c: Khoury, pp 142–143; Förstel, vol I, VII Dialog 1.5, pp 240-241 cited by Pope Benedict XVI in Faith, Reason and the University, Memories and Reflections, a Lecture at the University of Regensburg, Germany, 12 September 2006.
10. There are, however, indications that the London Government is preparing to act on concerns that parents could be kept in the dark regarding children seeking gender reassignment treatment. See Emma Soteriou, “Schools ‘must tell parents if children start using different gender identity’ under new guidance” LBC, 16 April 2023.
11. Robert Bolt, A Man for All Seasons, Act II. p 79 in the 1986 reprint by Heinemann. 
12. A J Carlyle, A History of Medieval Political Theory vol III (Blackwood, 1928) pp 94–6.