So that’s the carols and mince pies over for another year, then. Back to work…
… but not before tonight’s Epiphany Carol services, when some choirs will take the opportunity to dust off the Crotch – Lo, Star-Led Chiefs, Assyrian Odours Bring – a sort of Pirates of Penzance meets Messiah. For some, the Christmas season extends until Candlemas; but now that The Low Churchman’s Guide to the Solemn High Mass has ceased its regular postings we will no longer be reminded of the evils of “prolix ritual and ostentatious ceremonial”.
Abortion, blasphemy and the Constitution of Ireland
The common law offences of blasphemy and blasphemous libel were abolished in England and Wales by s 79 of the Criminal Justice and Immigration Act 2008. In Ireland, however, Article 40.6.1°.i of the Constitution [Bunreacht na hÉireann] declares that
“The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law”.
In 1999 the common law offence of blasphemous libel was ruled to be incompatible with the Constitution’s guarantee of religious equality; but after a hiatus a new offence of “publication or utterance of blasphemous matter” was created by the Defamation Act 2009. The argument advanced by the Fianna Fáil Government was that it was necessary to have such an offence in order to fulfil the terms of Article 40.6.1°.i. To describe this as controversial would be a major understatement; and after the last general election, the incoming Fine Gael–Labour Coalition’s programme promised a Constitutional Convention to draft a range of reforms, including “Removing blasphemy from the Constitution”.
Last October, the Minister of State at the Department of Justice and Equality, Aodhán Ó Ríordáin, announced that the Government had accepted the main recommendation in the Sixth Report of the Constitutional Convention and would hold a referendum on removing the offence of blasphemy from the Constitution. But nothing has happened since; and the year ended with complaints by Irish atheists and secularists that the Government has quietly dropped plans for a referendum in the lifetime of the current Dáil.
Another aspect of the Irish Constitution was raised in relation to the perceived lack of clarity in the Republic’s abortion laws, which also remain a matter of controversy. On 26 December the High Court decided that doctors could switch off the life-support machine of a woman who was 18 weeks pregnant and who had been pronounced brain-dead. Her doctors had feared that if they did so without a court order they would be prosecuted for causing the death of her foetus. The judgment was seen by some as a weakening of the Irish Constitution’s provisions on the protection of the unborn child; however, it was later announced that it was not to be appealed.
Non-natural persons and Article 9 ECHR
We noted the judgment in Exmoor Coast Boat Cruises Ltd v Revenue & Customs  UKFTT 1103 (TC) to the effect that there could be circumstances in which a company had human rights as the alter ego of a person (or, potentially, a group of people) and that such a company could be a victim of a breach of Article 9 ECHR. Although the claimant lost because the Tribunal did not accept his plea that electronic filing of VAT returns was contrary to his religious beliefs, the case provides an interesting comparison with Burwell v Hobby Lobby Stores Inc 573 US (2014), in which the US Supreme Court held that a closely-held company could plead the Establishment Clause.
Exmoor and Hobby Lobby prompted Frank to reflect on the relationship between UK and US cases on religion – about which we intend to post later in the week.
Scotland and same-sex marriage
The first same-sex marriages in Scotland took place at 00:01 on 31 December. One of the couples, Joe Schofield and Malcolm Brown, was married in a humanist ceremony at the Trades Hall in Glasgow. Meanwhile, as we noted in December, the Government is still havering about humanist weddings in England and Wales and has asked the Law Commission to carry out “a broader review of the law concerning marriage ceremonies” asap.
The EU and accession to the ECHR
On Saturday BAILII posted Accession of the EU to the ECHR (View of Advocate General Kokott)  EUECJ Avis-2/13 V, which indicated that on 13 June this year, the AG advised that
“the Court should state its Opinion in the following terms:
The draft revised agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms presented in Strasbourg on 10 June 2013 is compatible with the Treaties, provided it is ensured, in such a way as to be binding under international law, that:
– having regard to the possibility that they may request to participate in proceedings as co-respondents pursuant to Article 3(5) of the draft agreement, the European Union and its Member States are systematically and without exception informed of all applications pending before the ECtHR, in so far and as soon as these have been served on the relevant respondent;
– requests by the European Union and its Member States pursuant to Article 3(5) of the draft agreement for leave to become co-respondents are not subjected to any form of plausibility assessment by the ECtHR;
– the prior involvement of the Court of Justice of the European Union pursuant to Article 3(6) of the draft agreement extends to all legal issues relating to the interpretation, in conformity with the ECHR, of EU primary law and EU secondary law;
– the conduct of a prior involvement procedure pursuant to Article 3(6) of the draft agreement may be dispensed with only when it is obvious that the Court of Justice of the European Union has already dealt with the specific legal issue raised by the application pending before the ECtHR;
– the principle of joint responsibility of respondent and co-respondent under Article 3(7) of the draft agreement does not affect any reservations made by contracting parties within the meaning of Article 57 ECHR; and
– the ECtHR may not otherwise, under any circumstances, derogate from the principle, as laid down in Article 3(7) of the draft agreement, of the joint responsibility of respondent and co-respondent for violations of the ECHR found by the ECtHR” .
But, as we know, in its judgement on 18 December the CJEU disagreed, concluding that the draft revised agreement would neither preserve the specific characteristics of the EU and EU law nor ensure that accession would not affect EU competences or the powers of its institutions.
Consistory courts catch-up
The year closed with the release of a large number of consistory court judgments. David posted summaries of the new ones, together with what we hope is a helpful list of all the judgments that we have noted since we started the blog. Mark Hill notes “[t]he burgeoning corpus of judgments issued by consistory courts of the Church of England is being helpfully gathered by the Ecclesiastical Law Association over recent years” – and it is these that we summarize/provide links to as they become available. For a more comprehensive collection dating back much further, reference should be made to the Middle Temple Library. For illustrative purposes, a complete set of judgments from Chichester Consistory Court since 2000 may be found here.
Manorial rights: update
In response to the large number of representations it received calling for the abolition of manorial rights (which were retained by lords of the manor when land became freehold, including rights to mines and some minerals, sporting rights such as hunting, shooting and fishing, and rights to hold fairs and markets) the House of Commons Justice Committee began an inquiry in June 2014 which included recent incidence of manorial rights being exercised and the arguments for and against abolishing such rights. The Committee held its final evidence session on 25 November and is expected to report in early 2015.
- House of Lords Library Note LLN 2014/045, Size of the House of Lords, 19 December. Information and statistics on the changing membership of the House of Lords; includes discussions and debates on size of the House and briefly outlines the changes made by the House of Lords Reform Act 2014.
- House of Commons Library Standard Note: Land: registration of manorial rights, SN07072. Information about manorial rights over land in England and Wales, including Chancel Repair Liability, and recent changes that have affected the ability of individuals to exercise these rights. The note also provides links to guidance for affected property owners provided by the Land Registry.
- Dr Jonathan Rowson, Royal Society for the Encouragement of Arts: Spiritualise: Revitalising spirituality to address 21st century challenges, A report by the Director of the RSA’s Social Brain Centre which “examines how many of society’s problems risk going unaddressed as we struggle to ‘do depth’ in public – it is historically sidestepped by governments and deferred to religions. But at a time of political alienation and democratic stress, it is no surprise that politicians and the public are now seeking to reconnect with their forgotten spiritual roots”. A review by the Church Times is here.
- Savi Hensman, Ekklesia: Better understanding of international church conflicts over sexuality. “In various denominations, debates on sexual ethics and treatment of minorities have sparked heated international controversy. This is sometimes seen as a conflict between a ‘liberal’ west and ‘conservative’ south. But the reality is more complicated. This research essay by Ekklesia associate and noted commentator Savitri Hensman explores the issues and looks at ways forward in response and understanding.” See also here.
- Kelvin Holdsworth: The Straight Civil Partnerships Question. The Provost of St Mary’s Glasgow considers the question: If civil partnership is opened to straight couples then would someone in such a partnership be eligible to be considered for ordination [in the Scottish Episcopal Church]? In E&W, we await further information on the potential judicial review of the decision of the registrar at Chelsea Old Town Hall to allow Rebecca Steinfeld and Charles Keidan to register a civil partnership.
Readers will no doubt remember her tireless campaign for clarity in the DPP’s guidelines on prosecution for assisting suicide, which culminated in R (Purdy) v DPP  UKHL 45, in which the House of Lords allowed her appeal and required the DPP to promulgate an offence-specific policy identifying the facts and circumstances that he would take into account in deciding “in a case such as that which Ms Purdy’s case exemplifies” whether or not to consent to a prosecution under s 2(1) of the Suicide Act 1961.
In October 2014 the DPP clarified the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide in light of the recent comments of the Supreme Court in the case of Nicklinson and Ors.