Assisted dying, charities and wills, abortion in Sweden, excavating graves, registering US Muslims – and what looks like developing into a minor cause célèbre
‘Minimally conscious’ MS sufferer to be allowed to die
The BBC reported that the Court of Protection had decided to grant an application to withdraw clinically-assisted nutrition and hydration from a 68-year-old woman in the end stage of multiple sclerosis but in what was described as a minimally-conscious state. The woman’s daughter, who made the application, said that her mother was “completely incapacitated”. Hayden J said that he found himself “contemplating a serious and important development in the evolution of the case law in the absence of opposing arguments” and that he was “instinctively uncomfortable with that situation” .
The judgment has been posted on BAILII: N, Re  EWCOP 76: if and when we get our heads round it, we shall post a note.
Judicial review of DPP’s assisted suicide policy
In contrast to the above, the High Court heard a petition for judicial review of the DPP’s policy on Cases of Encouraging or Assisting Suicide, as amended in October 2014 at the direction of the Supreme Court. Lawyers acting for disability rights campaigners have accused Alison Saunders, the Director of Public Prosecutions, of amending her prosecution policy for assisted dying cases in a flawed and “whimsical” way. Nikki and Merv Kenward, supported by the Christian Legal Centre, have applied to the High Court with a view to quashing the amendment. They claim that the recent changes represent a “substantive change” to the policy, make it more ”liberal” and were introduced without the medical profession and other interested parties being properly consulted.
However, the DPP’s position is supported by “AM” (otherwise known as “Martin”), a man with locked-in syndrome who, it will be remembered, was one of the applicants in R (Nicklinson & Anor) v Ministry of Justice & Anor  UKSC 38. His lawyers argued that the amendment to the policy was properly made and that the application for judicial review should be refused. Sir Brian Leveson PQBD, sitting with Wilkie and Cranston JJ, said after a morning’s hearing that the court would give its judgment at a later date on what was “a sensitive and difficult issue”.
Charities, legacies and legal action
There has been criticism in recent years of charities contesting wills in the courts, losing and incurring huge legal costs. As we reported at the time, in Ilott v Mitson & Ors  EWCA Civ 797 the appellant, Mrs Ilott, challenged dispositions in the will of her mother, Mrs Melita Jackson, who left almost her entire estate of some £486,000 to be divided between The Blue Cross, the RSPB and the RSPCA: the three charities fought and lost. Last week, however, the boot was on the other foot: in RNID & Ors v Turner  EWHC 3301 (Ch) the RNID, the RNIB, Marie Curie and the Institute of Cancer Research challenged the authenticity of a will made in 1999 which, had it been validly executed, would have revoked a will in their favour made in 1982. HHJ Behrens, sitting as a judge of the High Court, decided in favour of the four charities.
Which raises once more a tricky issue for trustees: when to pursue or defend an action over a disputed will (or, if an action is under way, when to settle) – and what weight to give to the possible reputational risk of losing as against the need for legacy income. The three animal charities came in for quite a lot of media criticism over Ilott: we wonder whether the media will be even-handed and welcome the outcome in RNID & Ors. But we aren’t holding our breath.
Sweden, abortion and conscientious objection
We posted a brief note on the case of Ellinor Grimmark, a Swedish midwife who refuses to perform abortions because of her conscientious objection to the procedure and her Christian faith. Because of her stance, three clinics have turned her down for jobs; and last Thursday, in Ellinor Grimmark v Region Jönköpings län 2015-11-12 nr T 1781-14, Jönköping District Court dismissed with costs her complaint of discrimination against Höglandssjukhuset women’s clinic. The case has attracted considerable criticism: Ruth Nordström, senior counsel at Scandinavian Human Rights Lawyers, commented that the court had failed properly to examine the relevant Article 9 case law. We assume that there will be an appeal.
Excavating graves – or possibly not
In Re St James, Gorton  Manchester Cons Ct, Tattershall Ch refused a petition for a faculty to allow a speculative excavation at a grave in an attempt to find evidence relating to the whereabouts of the body of Keith Bennett, murdered by Ian Brady. As with other high-profile investigations, such as that relating to “Shakespeare’s skull“, Re St Leonard Beoley  Worcester Const Ct, we noted that this raises a number of issues when exhumation from consecrated land is sought by third-parties unrelated to the church. Whilst both petitions were unsuccessful, it is likely that the costs in Re St Leonard Beoley would be borne by the organizations seeking the exhumation in view of a draft agreement that was in place; no such draft seems to have existed in Re St James, Gorton. This highlights the significance of the charitable status of PCCs and whether the submission of petitions of this nature are entirely consistent with their charitable objects.
Colanders: yes or no?
The Administrative Court [Verwaltungsgericht] of Potsdam has ruled in VG Potsdam, URT. v. 13.11.2015 – VG 8 K 4253/13 that the Chairman of the Church of the Flying Spaghetti Monster may not wear a Pastafarian hat (aka a colander) for a passport photograph. Regulation §7.3.1 of the Passport Regulations requires that an identity photograph must show the person without headwear, though pursuant to §7.3.4 an exception may be allowed for religious reasons.
The 8th Chamber of the Court did not accept that the claimant’s wish was religiously-motivated. The Church of the Flying Spaghetti Monster was a community without beliefs; and because it had no conceptual system that offered any kind of world view the claimant could not, therefore, rely on a binding commitment to wear the ideological head-covering of his Church. [With thanks to Dr Georg Neureither.]
Well, maybe not in Germany: but CBS Boston reports that the Registry of Motor Vehicles has allowed a Massachusetts woman to wear a spaghetti-strainer on her head in her driving-licence picture as an expression of her Pastafarian religion. The RMV does not allow drivers to wear headgear on licence photographs unless for a medical or religious purpose; however, after Lindsay Miller argued that the colander was a sign of her religion, the RMV relented. Enjoy: it’s just a different world over there in the Home of the Brave…
Registering US Muslims?
And while we’re on about the Land of the Free, on Thursday Donald Trump floated the idea of registering all Muslims. According to The New York Times, Trump was asked about the issue by an NBC News reporter and pressed on whether all Muslims in the country would be forced to register. “They have to be,” said Trump. When asked how a system of registering Muslims would be carried out — whether, for instance, mosques would be where people could register — his response was: “Different places. You sign up at different places. But it’s all about management. Our country has no management.’’ Asked later how such that would differ from Jews having to register in Nazi Germany, he repeatedly said, “You tell me.” [With thanks to Howard Friedman].
Which leads us to wonder how that would square with the Free Exercise clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” One might have thought that there was at least a tenable argument – if not necessarily a conclusive one – that to require US citizens to register a particular religious affiliation might conceivable traverse the free exercise limb. Perhaps it would not be so bad if every US citizen were required to register his or her religion (or lack of it) – but that is not what Trump is suggesting. And Paul de Mello (Jnr) tweeted that George W Bush had already tried something similar in relation to people coming into the country. But we aren’t by any stretch of the imagination experts on the First Amendment – so we look forward to comments from those who are.
LARSN Conference 2016
The 2016 Law and Religion Scholars Network (LARSN) Conference will be held on Thursday 5 and Friday 6 May 2016 at Cardiff University. This will form part of the Cardiff Festival of Law and Religion, celebrating the 25th Anniversary of the LLM in Canon Law at Cardiff. The current intention is to include a number of themed panels alongside the usual general panels. Proposed panels so far include: Law, Religion and Media Reporting, The Reformation Revisited and Religious Law. Further details, including a call for papers (for both themed and general panels) and information about the conference fee, will be available in the New Year.
Clergy employment: a plea
Does any reader have a copy of the judgment in Ganga v Chelmsford Diocesan Board of Finance and the Bishop of Chelmsford  ET 3200933/2013/? It was referred to in the ET determination in Pemberton v Inwood and we’d very much like to see it, because it’s very recent and clergy employment cases are very rare.
- Affirming Catholicism: Response to the proposals on modifying the rules relating to the seal of the confessional.
- Church Times: The Church of England media statement about Bishop George Bell: in a letter to the Editor, HH Alan Pardoe QC describes the Church of England’s statement on the allegations against George Bell as “thoroughly slipshod and muddled in its wording, and appallingly unfair to [his] reputation”.
- Bishop of Sheffield: Reform and Renewal – the Noddy and Big Ears Guide … to Reform and Renewal. It’s a Noddy guide because I’ve tried to make it simple. It’s a Big Ears guide because the whole Reform and Renewal process is about listening to what’s happening across the country and developing a response”.
This morning the Church of England issued the Press Release “Church of England “bewildered” by cinema ban on Lord’s Prayer, 22 November 2015 as its response to the refusal of the country’s leading cinemas to show a 60-second advert of The Lord’s Prayer in cinemas from December 18 2015 as part of the ad reel before Star Wars: The Force Awakens. It comments that the “plain silly” decision could have a “chilling effect” on free speech. However, from a public affairs point of view, one would probably look to the maxim “no publicity is bad publicity”, a point on which Archbishop Cranmer expanded:
“But as the Church of England ponders its legal options and assess whether it’s worth casting Pearl & Dean before swine, we might consider how many more millions might now hear of the ‘Just Pray’ campaign and experience the Lord’s Prayer – perhaps for the first time – courtesy of the BBC, Mail Online and the dozens of other news media outlets which will now pick up on this “plain silly” decision and broadcast it round the globe. ‘And we know that all things work together for good to them that love God, to them who are the called according to his purpose.‘ Perhaps the Rev’d Arun Arora is actually a communications genius.”
The issue of controls on broadcast advertising surfaced at Strasbourg in Animal Defenders International v United Kingdom  ECHR 362, in which the Grand Chamber upheld the UK ban on broadcast political advertising by 9 votes to 8: we posted a note about it here.
And finally …
… some recent observations on “dead links” and non-active web pages. On “quiet news days” a trip oltre Tevere to the Vatican Information Service is often a source of interesting copy. However, its frequent users will have realized that although the last news item in Italian was posted on 16 November 2014, the versions in English, French and Spanish have continued until recently; the links from the Bollettino site have resulted in an error message suggesting that there was an issue with the server. However, this week a chance Google search revealed that VIS is now available via a Blogger site, although the Italian version is still frozen to the final post last year.
Other sites joining our list of “also rans” are the somewhat arrogantly-named True Anglican blog which has been posting “Out to Lunch for a while” for quite some time, and the Teads “top blog” ranking site which has not been updated since September, when L&RUK was at the (relative) high of #6 in Law (whatever that might mean).