Law and religion round-up – 3rd July

A week in which Cameron announced his impending resignation, Labour MPs had no confidence in Corbyn and, as cats the world over rejoiced, Theresa May said she would not seek to take the UK out of the ECHR – but there was also quite a bit of proper law to get our heads round…

Brexit: the aftermath

Since the outcome of the EU Referendum became known, everyone appears to have become an expert on constitutional law. Neither of us is a constitutional or EU law specialist and we have largely avoided commenting on the run-up to the EU Referendum, not least because we had no particular locus for doing so. However, now that the votes have been counted and the Captains and the Kings are at least preparing to depart, (with one notable exception), we thought it might be helpful to readers of this blog, large numbers of whom are not lawyers, if we posted occasional round-ups of the latest comment pieces from the blogosphere and links to the relevant legislation.

On Monday we published Brexit Basics and by Saturday there was sufficient new material to post the first of our updates covering the on-going legal considerations over the issue of Article 50 TEU notifications and the events in the European Council and Parliament. Civil Litigation Brief is doing something similar, see Brexit: The Legal Consequences: useful links. This is across a much wider canvas and is primarily aimed at lawyers with sections on specific areas of law, although environmental law is at present not included.

Much will depend upon the details of the agreement reached between the UK and the EU Council, about which there is currently the “Catch-22” situation created by changes made by the Lisbon Treaty in relation to Article 50 TEU. It is up to the UK to determine when, and if, and Article 50 notification is to be made, but equally the EU need not enter into discussions with the UK until it receives such notification. From the UK’s point of view, a decision on Article 50 is unlikely to be made before 9 September when the new Prime Minister is elected, and the EU has indicated that it will not enter informal discussions in the absence of a formal Article 50 notification.

We are currently in the process of preparing Brexit Basics 3 and readers should be aware that on Tuesday 5 July the House of Lords has organized a debate on the outcome of the EU referendum. The debate was proposed by Baroness Stowell of Beeston (Conservative), Leader of the House of Lords, and over 120 members of their Lordships have signed up to speak. Also on Tuesday, Oliver Letwin who has been nominated to head up a civil service “Brexit unit” will give evidence to an evidence session of the Foreign Affairs Committee as part of its new inquiry Implications of leaving the EU for the UK’s role in the world; Committee Room 15, Palace of Westminster.

An item of news breaking late on Sunday was the announcement by Mishcon de Reya that “legal steps have been taken to ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament”.

Cremation in Scotland

The Scottish Government announced its response to the recommendations of the National Cremation Investigation Report by Dame Elish Angiolini, the former Lord Advocate, which was published on 17 June. Ministers have accepted Dame Elish’s recommendations in full.

Three judgments from the ECtHR

It was a busy week for law and religion at Strasbourg.

  • Same-sex relationships in Italy: On Thursday, in Taddeucci   and   McCall   v   Italy [2016] ECHR 604, the ECtHR held by six votes to one that the Italian authorities’ refusal to give Mr McCall, a New Zealander, a residence permit on family grounds so that he could live with his partner, Mr Taddeucci, amounted to discrimination based on their sexual orientation, contrary to Article 14 (discrimination) taken with Article 8 (respect for private and family life). Though they had not been treated any differently from an unmarried heterosexual couple, their situation was not comparable because, at the relevant time, they could not obtain any form of legal recognition of their relationship and could not, therefore, be classified as “spouses” under national law. The restrictive interpretation of the notion of “family member” in relation to same-sex couples was an insuperable obstacle to granting Mr McCall a residence permit on family grounds; and there was no objective or reasonable justification for treating the applicants differently from an unmarried heterosexual couple. In a sense, the situation in Taddeucci has been superseded by the judgment last year in Oliari & Ors v Italy [2015] ECHR 716 and the subsequent legislation by the Italian Parliament for civil partnerships: see Legge 20 maggio 2016, n. 76: Regolamentazione delle unioni civili tra persone dello stesso sesso e disciplina delle convivenze. (16G00082). But it’s still worth reading, even if it’s only available in French.
  • Registration of churches: In Magyar Keresztény Mennonita Egyház and Ors v Hungary [2014] ECHR 552 the applicants were a range of religious groups and individual members of those groups that challenged the new “the Church Act 1990” (Act no. IV of 1990), which, in effect, deprived them of their previous monetary and fiscal advantages unless they applied to Parliament to be registered as incorporated churches and the ECtHR held that that had violated Article 11 read in the light of Article 9. Last week’s judgment in Magyar Keresztény Mennonita Egyház and Ors v Hungary (Just Satisfaction) [2016] ECHR 593 awarded the remaining applicants €540,000 in total, plus costs: we noted it here.
  • Prisoners’ religious rights: The rights of prisoners under Article 9 came up again in Janusz Wojciechowski v Poland [2016] ECHR 586. Mr Wojciechowski was, however, unsuccessful: the Court was unable to agree that his religious practice and attendance at Sunday Mass had been made impossible by the Polish prison authorities and held that part of his complaint inadmissible: we noted it here.

Recent consistory court judgments – June

The June consistory court judgments included a number of interesting cases relating to reordering, “church treasures” and other sales, exhumation, and churchyards & burial. This is a sneak preview and the following judgments, and others,  will be reviewed in a post next week. The (relatively uncontroversial) complete demolition of an unlisted church and its replacement by a new building was considered in Re St Philip the Evangelist Dorridge, whilst Re St Michael & All Angels Stockton will be of interest, both technically and legally, to churches having pre-Victorian roof tiles in need of replacement.

An unexpected return of the small corpus from a crucifix following its theft from Coombes Parish Church led to a consideration of its future safe-keeping. In  Gorilla’s head leads to return of church relic we supplemented the consistory court judgment with a summary of the complex police investigation, initiated by the enforcement of environmental regulations; the earlier Re St James the Great Flockton also considered what was regarded as a “church treasure” – in fact, none of the items referred to the court in this case.

In Re St Paul Woodhouse Eaves the chancellor determined that, in the absence of a bishop during a vacancy in see, he could authorise the installation of an aumbry in the church. Re All Saints Shawell concerned the disposal of “children’s pews” of varying sizes from the church, and unusually the chancellor made proposals “not suggested in the paperwork on this petition” for consideration by the petitioners and their architect. The shortest and possibly least controversial judgment of the month, Re St Michael Cornhill, was perhaps one of the most significant since, unusually, permissions was granted for the burial of “non-clergy” ashes within a church.

As occurred last month, an older case was made available in electronic form in view of current interest in the issues under consideration – access to premises adjoining a churchyard. Re St. Martin le Grand York [1988] York Const. Ct, Coningsby Ch is reported at [1990] Fam 63 but before readers rush to download the case from the ELA website, they should be aware that the judgment is 96 pages long (but with a few blank pages and a number with photographs)  and the file is ~8MB in size.

You wait ages for an inquiry into sharia tribunals…

… then two come along at once. The Commons Home Affairs Committee announced a wide-ranging inquiry into the operation of sharia tribunals and their relationship with UK law, not long after the Home Secretary had announced her own long-promised inquiry into sharia under Professor Mona Siddiqui.

Trinity Western Law School: update

Regular readers will be aware of the long-running dispute over Trinity Western University, British Columbia: an overtly-confessional, Christian institution that requires its students to agree to comply with a “Community Covenant” that, inter alia, bans all sexual intimacy outside heterosexual marriage. The Law Society of Upper Canada (ie Ontario), the Nova Scotia Barristers’ Society and the Law Society of British Columbia have all refused accreditation to its law school.

In Trinity Western University v The Law Society of Upper Canada 2015 ONSC 4250 the Divisional Court of Ontario dismissed the application for judicial review of the Society’s decision; and in Trinity Western University v The Law Society of Upper Canada 2016 ONCA 518 the Court of Appeal for Ontario has now upheld the lower court’s decision. Next stop, presumably, the Supreme Court of Canada.

“Thair is Christ Jesus the King”

In The Scottish Parliamentary Corporate Body for section 46 Order (aka #indyref), currently before the Court of Session, Lord Turnbull has been hearing argument for the removal of protestors camped outside the Scottish Parliament. The case engages with law and religion in a rather surreal way: the defenders contend that Jesus Christ is the rightful King of Scotland and, therefore, that they cannot legally be evicted from the grounds of the Parliament because neither the Parliament nor the Court has jurisdiction to evict them. They (but not, presumably, their advocate, who based the case on human righs grounds) argue, inter alia, that “The pretended judges and their fraudulent queen are … guilty of capital crimes and under the law should all be executed”.

Twitter and the media generally have been awash with quotes from Lord Turnbull’s remarks during the hearing, of which the choicest are perhaps these:

“So part of your position is that this Court has no authority, I am a fraud and I and my colleagues should be executed?”

“This witness statement is signed with the single word ‘Christ’ – can we talk about that for a moment?”

The oral hearing is over and we may just conceivably write a proper case-note when His Lordship hands down judgment – but we’ll see. For the background, see Philip Sim’s post on the BBC website: IndyCamp: sovereignty and spirituality at the Court of Session.

[With thanks to the suesspiciousminds blog and Philip Sim ‏@BBCPhilipSim]

Ruff justice?

The BBC reports that a religious conflict of a peculiar nature has sprouted in Osun state, southwest Nigeria, which has a large population of Muslims as well as Christians.

“While previous religious conflicts have involved machetes, the battle in Osun is being fought with religious garments … Back in the beginning of June, a judge ruled that female Muslims who attend public schools in the state could wear their hijabs to class. The state’s branch of the Christian Association of Nigeria (Can) said Christian students would wear garments associated with church activities to schools if the state governor implemented the court ruling … On 14 June some Christian students in the state’s schools turned up wearing church clothes over their school uniforms. Some wore maroon choir robes and others donned ankle-length, white garments”.

In rural Oxfordshire, however, junior choristers are often unwilling to appear at public events – singing in the Market Place &c – in choir robes, given the prospect of images being circulated on social media by others from their school.

Quick links

  • Church of England: the Church announced an independent review of the handling of the George Bell case; but the announcement did not give any details of  the review’s membership or terms of reference.
  • Church of England:  Week in Westminster, 27th June – 1st July 2016 Bishops in the House of Lords called for action to counter fear and race hatred following the outcome of the EU referendum. Bishops also asked questions about freedom of speech at universities, radicalisation in prisons, and strengthening religious education. Bishops also spoke in debates on zero hours contracts, trust in public institutions and historic sex abuse allegations. During the recall of the House the previous week, the Bishop of Leeds paid tribute to Jo Cox MP.
  • Philip Jones, Ecclesiastical Law: The Burden of Legislative Reform “The Measure may not receive very close attention in the General Synod, if the members are preoccupied with the more sensational matters to follow.  It may prove insignificant in practice, if it is used only to make minor and uncontroversial administrative changes.  But a more confused attempt at ecclesiastical law reform is hard to imagine.”
  • Church of England:  Week in Westminster, 27th June – 1st July 2016: Bishops in the House of Lords called for action to counter fear and race hatred following the outcome of the EU referendum. Bishops also asked questions about freedom of speech at universities, radicalisation in prisons, and strengthening religious education. Bishops also spoke in debates on zero hours contracts, trust in public institutions and historic sex abuse allegations. During the recall of the House the previous week, the Bishop of Leeds paid tribute to Jo Cox MP.

And finally…

At the beginning of the week the Radio Times reported “Game of Thrones production won’t be affected by Brexit says HBO”; however, by Friday the Metro headline read “The Real Game of Thrones: Tory leadership turns VERY bloody after Gove sees off Johnson”. As Harold Wilson is often reported to have said, “A week is a long time in politics”.

3 thoughts on “Law and religion round-up – 3rd July

  1. A lot to report this week, but you may have failed to appreciate the significance of the announcement by the Church of England on Tuesday 28th June of an independent review of the Church’s handling of the George Bell case, just two days before a debate in the House of Lords, calling for “the introduction of statutory guidelines relating to the investigation of cases of historical child sex abuse”, in which several speeches were highly critical of the both the inquiry by a “Core Group” that led to the settlement with ‘Carol’ and the terms of the statement of 22 October 2015 in which that settlement was reported. Lord Dear (former HM Inspector of Constabulary) described the statement as “as “slippery” and “disingenuous”. The former Archbishop of Canterbury, George Carey, said that the Church’s procedures in the Bell case had “the character of a kangaroo court,” a description which clearly stung the Bishop of Chelmsford, duty bishop in the HL for the week, who called it “a really rather unhelpful slur in an otherwise serious and helpful debate.”

    In his speech, Bishop Stephen Cottrell said that “It also happens now to be standard practice for us to do such reviews when a Bishop has been accused”, but, if that is true, it begs the question why the review, the terms of which have yet to be announced, was not announced at least six months ago, shortly after the 22 October 2015 statement.

    It appears, too, that the review will only look at “the processes used in the George Bell case”, not validity of the conclusion that led to the settlement with Carol, despite the powerful points made by the George Bell Group in their Review (published in March 2016) and reiterated in the debate, referring to evidence not considered by the Core Group that seriously undermines their conclusion and suggests that Bishop Bell has been the victim of a miscarriage of justice. To the contrary, Bishop Cottrell said that “the Church remains satisfied of the credibility of the allegation.” He also indicated that the Church could not say more for fear of breaching the “survivor’s” confidentiality, a view that has been challenged by His Honour Alan Pardoe QC and Desmond Browne QC in a legal opinion posted on the George Bell Group website.

    The issue will be raised at General Synod at York on 8 July 2016. Several questions have been put down for answer, including one for the Church Commissioners relating to the funding of the settlement with Carol (she was paid £15,000). A Private Member’s Motion (PMM) has been lodged and will be open for signature, which starts, “this Synod regret that it can have no confidence in the investigation conducted on behalf of the Church of England into the allegations against the late Bishop Bell, by reason of its lack of transparency and accountability.”

    • We don’t for a moment underestimate the significance of the C of E’s announcement; but since it didn’t give details of membership or terms of reference there wasn’t a lot to report. Thanks for the summary of the Lords debate.

  2. A relative in Canada emailed ‘How are you with the referendum vote to bow out of Eurovision?’ If only…..

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