A week of complex legislative issues: assisted dying, genome editing, canonical marriage annulment, and “Purdah” and the European referendum

Assisted Dying (No. 2) Bill

The big news of the week was that Rob Marris’ Private Member’s Bill – the Assisted Dying (No. 2) Bill – was heavily defeated on second reading, by 330 votes to 118 – a majority of 212: you can read the debate here. Reactions were inevitably mixed: the Church of England issued a statement in which the Bishop of Carlisle, lead bishop on health care issues, said that the Church was “heartened” that MPs had decided not to change the law. The British Humanist Association, on the other hand, recalling that the Supreme Court had declared that it was willing to consider whether the lack of a right to die breached the European Convention on Human Rights but thought that Parliament should first have the opportunity to legislate on the matter, said that “the fight on assisted dying must now return to the courts”.

European Referendum Bill

The other major parliamentary news was the House of Commons report and third reading stages of the European Referendum Bill on Monday 7 September 2015. Mark D’Arcy, the BBC’s Political Correspondent, noted that “anti-EU Tories have been organising furiously to ensure that their forces are marshalled. And in an amendment paper of fiendish complexity there is a galaxy of proposed changes to the legislation”. In the event, the Bill survived report and third reading, albeit with the first Government defeat of the new Parliament on these “purdah” amendments, and will now be considered by the House of Lords.

More on end-of-life issues

In Scotland, the issue of prosecution for assisting suicide came before the Court of Session in In Ross (Re Judicial Review) [2015] CSOH 123. The petitioner, a 65-year-old man in very poor health, averred that the Lord Advocate’s Prosecution Code was insufficiently clear about the circumstances in which a person who wishes to enlist the help of another to commit suicide will be able to predict the likelihood of the other person being prosecuted. The Lord Ordinary [Doherty] held that the law was clear and foreseeable and that there was no evidence of arbitrary or inconsistency on the part of the Lord Advocate – and dismissed the petition. We posted about it here.

In France, Vincent Lambert’s case was on its way back to the courts. Mr Lambert is in a vegetative state following a serious road accident and has to be artificially fed and hydrated: his parents, half-brother and sister want him to be kept alive while his wife, his nephew and his physicians want to withdraw life-support. The case came before the Grand Chamber ECtHR in July and we posted a brief note on it at the time.

Le Monde now reports that the case is likely to return to the domestic courts. His family have lodged two competing appeals. His nephew, François Lambert, has applied to the tribunal administratif of Chalons-en-Champagne for a declaration of abuse of power [excès de pouvoir] against the University Hospital of Reims, where he is a patient, and an order to require the hospital “within two weeks” to discontinue the feeding and artificial hydration that is keeping him alive. At the same time his parents, Viviane and Pierre, are to apply to the tribunal de grande instance to have him transferred to another facility, on the grounds that the care he is currently receiving is inadequate.

The Scottish Parliament, devolved powers and human rights

In January we noted that a group of petitioners had mounted an unsuccessful challenge to the ‘named person’ provisions in Part 4 of the Children and Young People (Scotland) Act 2014. The Lord Ordinary [Pentland] held that the provisions were not incompatible with Articles 8 (private and family life), 9 (thought, conscience and religion) ECHR and Article 2 of Protocol 1 (education) and were not ultra vires the Scottish Parliament’s devolved powers – and that the first to fourth petitioners (a group of charities led by the Christian Institute) did not have sufficient standing to bring the proceedings in the first place: see In the Petition of the Christian Institute & Ors for Judicial Review of the Children and Young People (Scotland) Act 2014 [2015] ScotCS CSOH 7.

Last week the matter was back in the courts again. In The Christian Institute & Ors v The Scottish Ministers [2015] CSIH 64 the Inner House (Lord Carloway, Lord Bracadale & Lord Malcolm) unanimously dismissed the petitioners’ reclaimer. While the Lord Justice Clerk seemed to be inclined to concede that the first to fourth petitioners might possibly have had standing to bring the original petition, the Court held that the provisions of the 2014 Act dealing with the sharing of information were not incompatible with the requirements of the European Parliament and Council Directive on Data Protection (95/46/EC), nor was the Act ultra vires the terms of the Scotland Act 1998.

UKHRB has a long post on the case: Controversial named person scheme upheld by the Court of Session

Replacing the Human Rights Act

During Justice questions on Tuesday Dominic Raab, Parliamentary Under-Secretary of State for Justice, confirmed the Government’s plans for a consultation on replacing the Human Rights Act 1998 with a “British Bill of Rights”:

“We will bring forward proposals on a Bill of Rights this autumn. They will be subject to full consultation. The preparation is going well … We will take our time to get the plans right, and we will take on board all the views that have been expressed. We want to restore some balance to our human rights regime, and that is what a Bill of Rights will achieve … We want to see greater authority for the Supreme Court—the Labour Government set up the Supreme Court and we do not think that it should be subordinated—and a greater respect for the legislative role of hon. Members in this place.”

Which adds very little to what we already knew.

Genome editing

This week we reported on a statement issued by a group of leading UK research funders calling for an urgent national debate on the ethics of genetically modifying human embryos and other tissues to prevent serious diseases. The editing of human germ cells or embryos falls within the ambit of the Human Fertilisation and Embryology Act 1990 and is regulated by the Human Fertilisation and Embryology Authority (HFEA); the editing of somatic cells, (i.e. any cell of the body except sperm and egg cells) is regulated by the Human Tissue Authority (HTA), established under the Human Tissue Act 2004; the HTA regulates matters relating to human bodies, organs and tissue for research and transplantation.

Current legislation permits the present use of gene editing for non-clinical research purposes in germ cells, including human embryos up to 14 days old. However, the joint statement calls for “this type of research to be allowed to continue and … a broad and inclusive discussion about genome editing and its future implications”. The statement stresses that developments in this area, such as the CRISPR-Cas9 technique, are still at an early stage; the first clinical applications are likely to involve somatic cells; and any potential treatments based on this technique are many years away. However, in the longer term genome editing could be used clinically to edit the DNA of human eggs and sperm, or early embryos (known as germline editing); and here, any changes made would be passed on to future generations.

Under the Government’s working definition, mitochondrial donation does not constitute genetic modification and, as such, can be accommodated within both UK and EU legislation; but this would not be the case for some of the techniques proposed for the future. As we found in our review of the funders’ statement, it is necessary to have an understanding of both the science and the current legal provisions before addressing the issue of the future applications of genome editing.

Pope Francis’ reforms of marriage annulment laws

At a press conference in the Holy See Press Office on 8 September, two letters issued Motu proprio by Pope Francis were published: “Mitis ludex Dominus Iesus (The Lord Jesus, the Meek Judge)” and “Mitis et misericors Iesus (The Meek and Merciful Jesus)” relating to the reform of canonical procedure for the annulment of marriage in the Code of Canon Law (CIC) and the Code of Canons of the Oriental Churches (CCEO) respectively.

The Apostolic Letters were published in Latin and Italian, although unofficial translations in English have become available. Although widely reported (and mis-reported) in the media, the complexities of these changes to the canon law of the Roman and Eastern churches are not straightforward; and Dr Ed Peters is publishing a series of his observations on the changes. Our summary with links to these and other comments is published here.

Climate change targets

On 25 June, our post Climate change and human rights – the Urgenda case summarised the landmark ruling of the Hague District Court which held that a States’ legal obligations extended beyond international treaties and include independent legal obligation towards their citizens.The Dutch government published its formal response to the judgment on 1^st September; the parliament will be hearing experts and debating the case before the government takes a final decision on an appeal, for which the deadline is 24 September 2015.

Action similar to that taken by Urgenda is in prospect in Belgium; elsewhere, the development of the Oslo Principles on Global Climate Change Obligations will assist action in the courts. Launched on 30 March 2014, the Oslo principles hold that regardless of the existence of international agreements, governments already have a legal obligation to avert the harmful effects of climate change, based on existing international human rights law, environmental law and tort law. 

Upcoming law & religion conference: Irish Context – International Perspectives

A one-day conference is to be held in Trinity College Dublin on 6 November 2015, organised by Neville Cox (Law School, Trinity College), Norman Doe (Centre for Law and Religion, Cardiff Law School), Linda Hogan (Vice-Provost, Trinity College) and Celia G Kenny (Trinity College & Centre for Law and Religion, Cardiff). Celia has supplied the following information:

” ‘Law and religion’ has become a recognised sub-discipline in USA and UK Law Schools, analogous to family law or sports law, with specialist journals and dedicated research centres. The Law and Religion Scholars Network (LARSN) – an association set up for those who teach and/or research in the field – now has over 200 members.

Contemporary Irish society provides a rich context for a discussion of key issues in the field. A series of referendums on matters central to traditional Irish identity has re-calibrated popular religiosity, irrevocably changed attitudes towards institutional authority, and ushered in an awareness of the centrality of religious freedom in the vision of human rights.

Trinity College Dublin, working with members of the Centre for Law & Religion at Cardiff Law School will host this one-day inter-disciplinary conference in the Long Room Hub. Speakers will include Neville Cox, Frank Cranmer, Eoin Daly, Norman Doe, Roja Fazaelli, Silvio Ferrari, Gerard Hogan, Celia Kenny, Marco Ventura and Gerry Whyte.

The conference will be chaired by Linda Hogan. Topics to be addressed include:

• Religious freedom under the Irish Constitution
• Human Rights and Islam
• Patronage and Education;
• Blasphemy in Relation to Irish law;
• How the Judiciary has ‘Defined’ Religion,
• Changing Models of Church & State in Europe.
• The Right to Manifest Religion
• Law as an Instrument of Ecumenism.”

Registration is free but early booking is essential because places are limited: if you are interested, please contact Celia at cgkenny@tcd.ie.

Almost the end of a sorry affair

Last week Peter Ball, former Bishop of Lewes and Bishop of Gloucester, pleaded guilty at the Old Bailey to two counts of indecent assault. He also admitted misconduct in a public office between 1977 and 1992. He is to be sentenced on 7 October.

Quick links

• Home Office: Asylum Statistics to June 2015. Asylum applications, initial decisions, appeals, unaccompanied asylum-seeking children (UASCs), age disputes, support, resettlement and international comparisons. Data for year ending June 2015 and comparisons with year ending June 2014.
• Julie Withers, Changing Attitude: Reflections from the North West (2nd – 4th Sept 2015) Feedback from Shared Conversations held in Cheshire 2nd; conversations and reflections subject to the St Michael’s House Protocols.
• Ruth Harley: Shared Conversations – shared with whom? Feedback from “Common Ground” event in Oxford, aimed at allowing a wider range of people to have some participation in the Shared Conversations about sexuality than the small number from each diocese who can participate in the official Conversations themselves.
• Church of England: Week in Westminster 7th-11th September 2015. In the first week back after the summer recess the bishops in the House of Lords spoke about child exploitation, debt management, Civil Partnerships, child mental health and benefit sanctions. Caroline Spelman the Second Church Estates Commissioner took part in the assisted dying debate in the House of Commons and answered a number of Church Commissioner questions about metal theft, open churches, climate change and food banks. Both Caroline Spelman and the Bishop of Peterborough joined other Members of Parliament in paying tribute to the Queen upon becoming the longest reigning monarch.
• Reimagining Europe: In Caught between reform and reformation former diplomat Stephen Wall examines how our attitudes towards the EU have been shaped by our experiences of the Reformation. In Anglo-Saxons or Europeans? Lord (William) Wallace of Saltaire looks at how the Protestant underpinnings of Anglo-Saxon exceptionalism have shaped and continue to shape our understanding on economics and Europe, and in ‘… every tribe and language and people and nation ….‘,  Revd Canon Dr Sarah Rowland Jones LVO OBE, who “looks again at Revelation’s picture of heaven to see how it might help us make sense of the diversity of tribes and nations that shape our understanding of Europe”; We did that! in which Alison Elliot looks at why we negate or own human agency in Europe.
• Christian Institute: Reminder: Sunday trading consultation closes Wednesday A summary of the consultation is available in our post here.

And finally…

The travails of ordering a takeaway if you happen to be Archbishop of Canterbury: but probably fewer onlookers than when the Pope purchased new glasses last week. Enjoy.