A week dominated by the Scottish independence referendum – but that was by no means everything… 

Scotland said “No”

The Scots looked over the edge of the cliff but decided not to jump. In what was generally regarded as a decisive result – 55% for “No” to 45% for “Yes” – the independence option was rejected in favour of “devo max”, even though that option was not on the ballot.

In the wake of the result, Alex Salmond announced his resignation as First Minister and Leader of the SNP. Which must be sad news whatever one’s view of the merits or otherwise of independence, simply because he’s head and shoulders above most of his Scots political contemporaries and he’d managed to get most of what he wanted out of the campaign – in fact, almost everything bar a “Yes” vote. However, the three Unionist parties already seem to be in a state of some disagreement as to precisely what they have promised Scotland by way of “devo max”: St Andrew’s Day promises to be interesting.

Assisting suicide still a crime

On Monday the Crown Prosecution Service announced that a woman called Milly Caller had been charged under s 2(1) Suicide Act 1961. Emma Crossman died on 15 January 2014 having taken her own life using equipment that had allegedly been bought for her by Ms Caller. Prosecutions under s 2(1) are rare; but the CPS has decided that there is sufficient evidence to provide a realistic prospect of conviction.

Chancel repair liability –  maybe not as dead as we thought

Also on Monday, Matthew Chinery of Winckworth Sherwood tweeted “Had a concerning #chancelrepair thought at work today. Leaseholders buying post October 2013 might be at more risk than they think…”.

Which is a very good point indeed. The effect of the requirement on PCCs to register chancel repair liabilities on or before 31 October 2013 (or lose the right) relates only to new owners after that date: the liability continues to attach to existing freeholders. So because where an existing freeholder has an existing chancel repair liability that liability continues to subsist, presumably any new leaseholder in those circumstances will have to carry a due proportion of any future claim by a PCC (depending on the precise drafting of the lease in question). Moreover, because some charity property, in particular, has remained in the same ownership for several hundred years that liability may continue pretty well indefinitely throughout successive leases. It’s very unlikely, for example, that the Oxford and Cambridge colleges or the National Trust are intending to sell their land-holdings any time soon.

Judges and religion again: R v Brown

The Lawyers’ Secular Society website has posted an interesting article by Peter Bowen-Walker of LSE on R v Brown: twenty four years on, a critical secular perspective:it’s in two parts: here and here.

For those readers who’ve never heard of the case (and there must be a few of you out there) what culminated in R v Brown [1993] 2 All ER 75 was the prosecution and conviction, arising out of the oddly-named “Operation Spanner”, of a group of sadomasochist gay men who over a 10-year period from 1978 willingly participated in committing acts of violence against each other. They were charged with assault occasioning actual bodily harm contrary to s 47 Offences Against the Person Act 1861 and unlawful wounding contrary to s 20. The House of Lords dismissed their appeal by three votes (L Templeman, L Jauncey of Tullichettle & L Lowry) to two (L Mustill & L Slynn of Hadley). A further appeal to Strasbourg was unsuccessful: see Laskey & Ors v United Kingdom [1997] ECHR 4.

The majority judgments are a classic example of judges’ personal views on morality getting across their judicial objectivity and the rule of law and have been widely criticised on those grounds: the Ladies’ Directory case – Shaw v DPP  [1961] UKHL 1] [1962] AC 220 – was another example. Read the article and find out why.

Sharia-compliant wills

The Law Society’s practice note for solicitors on the use of sharia succession rules when drawing up wills, on which we posted in March, has surfaced again. Southall Black Sisters have put into the public domain an opinion from Karon Monaghan QC in which she concludes, inter alia, that:

“there are good prospects of succeeding in a claim in judicial review against the Law Society (i) that the Practice Note was issued in violation of the Public Sector Equality Duty (‘PSED’) under section 149, Equality Act 2010, and (ii) that in failing to withdraw the Practice Note, the Law Society is in continuing breach of the PSED under section 149, Equality Act 2010”.

One to watch…

Two “religion” cases at Strasbourg

The ECtHR handed down two judgments  of interest this week. In Mansur Yalçın & Ors v Turkey [2014] ECHR 938 [in French] the Turkish Ministry of Education was given something of a kicking over the syllabus of its mandatory course on religious culture and ethics for schoolchildren. As we noted, the Second Section concluded that the syllabus gave more importance to Sunni Islam over various minority interpretations and over other religions and philosophies and therefore breached the principles of pluralism and objectivity; and Turkey should therefore introduce a system for exempting pupils from religion and ethics classes without their parents having to disclose their own religious or philosophical convictions. Whether it will do anything of the sort remains to be seen.

In Rozalia Avram v Romania [2014] ECHR 945 [in French], which we did not report separately, the religious element was a by-product of the activities of the Ceaușescu regime, which in 1975 had expropriated a building in Arad that had belonged to the Roman Catholic Diocese of Oradea. (Both the Roman Catholics and the Greek Catholics suffered many expropriations under the Ceaușescus.) The building was divided into apartments and during 1997 the Government sold them on to the tenants, including Ms Avram. In 1998 the Bishop of Oradea asked the trial court in Arad to return the property. After various hearings title was returned to the Romanian Government; and the Bishop’s request for return of the property to the Diocese is still pending.

Ms Avram complained of a violation of the principle of legal certainty. Because the Timisoara Court of Appeal, by its final judgment of 25 October 2006, had cancelled the contract for her purchase of her apartment without good reason it had brought into question the authority of its own final judgment delivered on 17 December 1999 which had dismissed the action of the Bishop. In short, the matter had been res judicata; and the reversal had violated her rights under Article 6 ECHR (fair trial). The Government contended that she was not a “victim” within the meaning of Article 34 because she was not a party to the original proceedings before the domestic courts as finalised by the 1999 judgment  – so she could not claim any breach of legal certainty.

The Third Section pointed out that the principle of legal certainty was one of the fundamental aspects of the rule of law and that, under that principle, a party or a state authority could not seek review of a final and binding decision for the sole purpose of obtaining a new decision unless there were substantial and compelling reasons for reopening the matter. Absent any new facts, the Court of Appeal had therefore violated that principle when it reversed its own decision on the legality of the transfer of the disputed property and in doing so had violated Article 6 § 1 of the Convention. However, the issue of just satisfaction under Article 41 was not ready for decision.

The crux of the problem in this case, in practical terms, is clashing rights: the right of the Roman Catholic Diocese of Oradea to have its expropriated property returned, set against the right of Ms Avram not to lose the flat which she (presumably) purchased in good faith. But, that said, for a court to reverse its own decision without compelling grounds for doing so is an inexcusable violation of the rule of law.  However, enough of preaching…

And meanwhile on the internet…

We note that two of the blogs we follow – God and Politics in the UK and Archbishop Cranmer – have joined forces. Their old sites are closing and their new WordPress site is here. We wish Gillan Scott and “Archbishop Cranmer” (aka Adrian Hilton) all the best for the new site: however, we would like to dispel any rumours that we are about to amalgamate with Fr Z or Cathy Caridi’s Canon Law Made Easy. Nevertheless, we are always open to suggestions for guest posts, whether from the other side of the Tiber (which is outwith our areas of expertise) or on any topic of current interest in the broad field of “law and religion”.

More generally, of relevance to all material on the internet was the preliminary ruling of the European Court in May 2014 on case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, with regard “the right to be forgotten”.   A Spanish citizen had complained to the European Court that Google’s links to an auction notice of his repossessed home infringed his privacy and demanded that search result, but not the web page the notice itself, should be taken down.  The Court ruled in favour of the complainant on the ground that the passage of time had made the search results “irrelevant”, and added: others had a similar right to have search results deleted “unless there are particular reasons, such as the role played by the data subject in public life” that would justify keeping the links online; and if search engines refused to comply, it would be up to local regulatory authorities – such as the Information Commissioner’s Office in the UK – to force their hand.

As a consequence, Google’s European sites are required to process thousands of data removal requests that the company has received since its web form went live on 30 May. However, the judgment has been criticised by campaigners for freedom of expression, as well as by the House of Lords EU Sub-Committee on Home Affairs, Health and Education. This week, the House of Commons Library published the Standard Note SN06983: “The right to be forgotten”, which summarizes the present position.  It also onserves that the ruling in case C-131/12 is based on the 1995 Data Protection Directive, which is subject to protracted negotiations over its replacement with a new Regulation incorporating a “right to be forgotten”. As a Regulation (rather than a Directive), Member States would have no freedom in its interpretation. The UK Government opposes this proposal, the details of which are summarized in Library Note SN6669, The Draft EU Data Protection Framework.

Quick Links

• House of Commons, Political and Constitutional Reform Committee, Future of devolution after the referendum inquiry announced: The Political and Constitutional Reform Committee has agreed to hold an inquiry looking at the future of devolution in the United Kingdom, in the light of the referendum result. Detailed terms of reference for the inquiry will be issued shortly.

• House of Commons Library Standard Note SN00819, Finances of the Monarchy: Published 17 September 2014: background information about the Royal finances, figures for the income and expenditure of the Queen as Head of State and of the Prince of Wales. 
• Ecclesiastical Law Association, Re Christ Church Brixton Road [201/4] Southwark Cons Ct, Morag Ellis Dep Ch: A petition was granted for the extensive re-ordering at the (liturgical) west end of the church, where a considerable amount of re-ordering had taken place in the 1980s and 1990s. We will include an analysis of this case in a future issue.
• In the light of the law (Dr Edward Peters), Bp Tobin’s thoughtful column deserves some thoughtful replies: Comments on Bp Thomas Tobin’s column on the debate surrounding the admission of divorced and remarried Roman Catholics to Holy Communion.
• Beaker Folk of Husborne Crawley, Archdruid Eileen, A-Z Guide to Church of England Terminology. A short guide to the CofE.

And finally…

The principal characters in Tuesday’s (ancient) episode of Midsomer Murders[1] were the local ringers of Midsomer Wellow and an aged, irascible churchwarden who hated them. He decided to get rid of them by the nifty wheeze of offering his considerable savings to the PCC for the church’s restoration on condition that the remaining money for the restoration be raised by the sale of the bells.

Watching it after a long, fairly trying day, Frank’s immediate internal reaction was “But hang on: they couldn’t do that without a faculty.” Next thought: “Should have got a decent canon law adviser.” Final thought: “Get a life, Cranmer.”

Postscript

After quite a relaxing day on holiday in Yorkshire, David independently went through the same thought process. And as for Lady Mary’s wedding in series 3 of Downton Abbey…

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[1] Ring out your dead, first broadcast in the UK on ITV on 15th September 2002.