Law and religion round-up – 31st July

A week in which a French priest was murdered while saying Mass and safeguarding was in the news on both sides of the Border…

Fr Jacques Hamel RIP

On Tuesday morning two men entered the church at Saint-Étienne-du-Rouvray, near Rouen, and took five hostages: Fr Jacques Hamel, two nuns and two parishioners. They slit Fr Hamel’s throat as he was saying mass, after which they filmed themselves preaching in Arabic by the altar. According to the latest information on the Web, one of the freed hostages is still in a critical condition.

David is an Anglican in the Catholic tradition: Frank is a Quaker of the Unitarian-Universalist tendency. For both of us, however, there is something peculiarly repulsive in the cold-blooded murder of someone in church, at prayer. Or as Andrew Copson, Chief Executive of the British Humanist Association, tweeted:

“Just when you were worried Europe was backsliding to 1930s, turns out it’s the 1130s. Solidarity with all people of goodwill .”

Security in the church

On Wednesday, the Home Office announced the Places of worship: security funding scheme for the provision of protective security measures for places of worship in England and Wales. The scheme is part of a wider cross-government Hate Crime Action Plan which sets out the government’s plan of actions to deal with hate crime until May 2020. It applies to England and Wales only. Bids for security funding can be made for the next 8 weeks until 5pm on 20 September 2016. A second round of bids will open in spring 2017. In parallel with this initiative, the National Police Chiefs’ Council has issued protective security advice specific to Christian places of worship which stated that while there is no specific intelligence relating at attacks against the Christian community in the UK, police are urging the community to be alert but not alarmed, report concerns to the police and review their security as a precaution.

On a more positive note, on 29 July, the Church of England issued Hatebusters and neighbourlovers, which lists examples of the initiatives being taken by a number of Church of England dioceses including Birmingham, Bradford, Exeter, Leicester, Lichfield, Liverpool, London, Manchester and Worcester.

Brexit

The flood of stuff on Brexit shows no sign of abating. Our Brexit Basics 6: update 30th July provides links to what we think is the most useful new comment and analysis from the perspective of law and religion.

Alleged sexual abuse, vicarious liability and limitation

In F And S v TH [2016] EWHC 1605 (QB) the two claimants sought damages as victims of sexual abuse which, they alleged, was perpetrated by Father M between 1979 and 1986 [1]. The defendants were sued as personal representatives of the Bishop then responsible for the diocese in which Father M worked as a priest.

It was accepted (in effect on behalf of the local Roman Catholic Church) that the Bishop was vicariously liable for such acts of abuse as might be established; but the defendants argued that, because at least 30 years had passed since the last alleged acts of abuse, they could not now be proved to the requisite standard of proof: the balance of probabilities. The passage of time had rendered testimony unreliable and made it difficult fairly to assess such testimony as could be given [2]. It was accepted that the primary limitation period had expired; whether or not to extend it was a matter for the unfettered discretion of the Court under s 33 of the Limitation Act [2].

The circumstances of the case were complex; and, in a judgment (which we missed) handed down on 1 July, Langstaff J refused the application for an extension:

“In summary, in the particular circumstances of this case and the particular and unusual circumstances of the individual claimants, I am bound to hold that although it is entirely possible that one or both of the claimants may have been the subject of serious abuse and breach of trust by a priest for whose deeds the defendant is vicariously liable I do not think that a fair trial of these allegations is any longer possible. I have decided therefore that, even if I had thought the evidence sufficient to satisfy the burden and standard of proof, such are the difficulties caused by delay in taking action that I should not exercise my discretion to permit the claim to continue” [87].

Safeguarding and the Church of England

The preliminary hearing of the Goddard Inquiry commenced on 26 July; Graham Tilby, the Church’s National Safeguarding Adviser, issued a statement in which he welcomed “today’s update on the investigation into the Anglican Church in England and Wales and the acknowledgment from the Inquiry that the material already submitted is relevant and useful”. A substantial amount of material has been submitted by the Church and other core participants, and the analysis of this is now under way, as is the process of identifying possible witnesses. After the initial hearing in March, the Church expressed its commitment to engaging with the Inquiry in an open and transparent way and the belief that its work “will play a vital part in our commitment to making the Church a safer place for all”.

Safeguarding in the Sheffield Diocese

This week The Guardian carried a report by Harriet Sherwood concerning safeguarding in the Diocese of Sheffield in which a complaint had been made under the Clergy Discipline Measure against the conduct of a number of senior Anglican clergy who were accused of failing to act on rape allegations. All five clergy have contested the complaints because they were made after the one-year limit within the CDM. In Thinking Anglicans, Simon Kershaw commented that this complaint appeared to be that the named clergy did not respond to the complainant’s initial complaint about sexual abuse and then, over a year later, a second complaint was made on the ground that the five clergy had not responded to the first complaint. The rape allegations are currently the subject of a police investigation. Spokespersons for the clergy said since the matter was the subject of an internal church process and a police investigation, they were unable to comment.

Further clarification of the report in The Guardian has been provided by the Church Times

Children and Young People (Scotland) Act 2014

On Thursday, in Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51, the Supreme Court upheld a challenge to the “named person” legislation under Part 4 of the Children and Young People (Scotland) Act 2014. The provision assigning a “named person” to every child and young person in Scotland was extremely controversial. The UKSC held that the information-sharing sections of Part 4 and the Guidance as currently drafted did not satisfy the requirement of being “in accordance with the law” [85] and, though Part 4 undoubtedly pursued legitimate policy aims and was rationally connected to those aims [91-92], its operation could well give rise to disproportionate interferences in particular cases [101].

The UKSC felt that the appropriate remedy would be an order under section 102(2)(b) Scotland Act 1998 to allow the Scottish Parliament and the Scottish Ministers an opportunity, if so advised, to correct the defects identified, but the court best placed to make further orders might be the Court of Session [102]. In the meantime, the provisions could not come into force.

An end to quinquennial inspections? Maybe not just yet

In June we posted on the Draft Inspection of Churches Measure, GS 2028 (Explanatory Memorandum, GS 2028x), which would replace the Inspection of Churches Measure 1955 with a new legislative framework. The Draft Measure avoids making detailed provisions for the inspection of churches and does not prescribe either the frequency of inspections or what must be inspected and reported on.

On 9 July, however, after the Chair of the Steering Committee (the Rt Worshipful Timothy Briden) had moved that the Inspection of Churches Measure be considered for revision in committee, the Synod carried a motion moved by the Revd Simon Butler (Southwark) for the adjournment of the debate on the Draft Measure. The effect is that debate will only be resumed with the agreement of the Business Committee.

Blessings and same-sex marriage

On reading Church of England priest quits to marry gay partner in Christian Today on 24 July, we anticipated that some attempt would be made to “prove” that a “marriage” had taken place on Church of England premises, contrary to ecclesiastical law, and with the implicit agreement of diocesan authorities, i.e. following the pattern of recent events in which an Oxford clergywoman didn’t conduct the celebration of same-sex marriage of Mpho Tutu, here.

We took a decision not to comment on the allegations within this report. The law concerning: same-sex marriage and the CofE, the services which are authorized by the Church, and the vires associated with a Permission to Officiate is settled. However, the CofE’s position on what constitutes a “blessing” is less certain, particularly where these are private rather than public events; furthermore, there is no authoritative report of the proceedings.

Same-sex marriage and opposite-sex civil partnerships

On Friday, the Marriage and Civil Partnership (Amendment) Act 2016 came into force on the Isle of Man following its approval by Tynwald earlier this year. It will be remembered that homosexuality was only decriminalized in 1992 and official recognition for same-sex couples was not available until 2011, when civil partnerships were introduced. An important aspect of the new law is that it permits opposite-sex couples to enter civil partnerships and, even though it is not part of the United Kingdom, the Isle of Man has become the first jurisdiction in the British Isles to offer such a choice to heterosexual couples.

We will watch with interest the response of the Diocese of Sodor and Man to these developments – perhaps this is something to be left for the in-tray of the next Lord Bishop, following the retirement of Robert Paterson on 11 November 2016?

Trinity Western again

On Tuesday, the Nova Scotia Court of Appeal upheld the decision of the lower court to allow future graduates of Trinity Western University law school to practise in the Province. In 2014, the Nova Scotia Barristers’ Society refused accreditation graduates of the law school because TWU requires students and staff to abide by a community covenant that obliges students to abstain from sexual intimacy that violates the “sacredness of marriage between a man and a woman.” The Barristers’ Society contends that the covenant violates the provisions of the Federal Charter of Rights on sexual orientation.

In Nova Scotia Barristers’ Society v Trinity Western University 2016 NSCA 59 the NS Court of Appeal dismissed the Society’s appeal. Nova Scotia’s Legal Profession Act 2004 did not authorize the Society’s Council to enact a regulation that the Council could issue rulings as to whether or not someone in British Columbia “unlawfully” violated the Human Rights Act or the Charter. Trinity Western’s activity occurred in British Columbia and was therefore outside the reach of Nova Scotia’s Human Rights Act; moreover, as a private university, Trinity Western was not subject to the Federal Charter of Rights. So Trinity Western did not act “unlawfully” under either enactment. The Court also noted that:

“The judge’s findings and the Society’s acknowledgments remind us that Trinity Western’s law graduate is not Trinity Western’s alter ego. The graduate is a vital stakeholder in his or her own right. The Society’s purpose is to protect the public interest in the “practice of law”. Section 16(1) of the Legal Profession Act defines “practice of law”. Trinity Western’s law graduate would have the same ability to practice law, as defined, as would a graduate from another law school.” [99]

Forthcoming Grand Chamber hearing

The applicants are a religious community, the Brčko Branch of the Islamic Community of Bosnia and Herzegovina (Medžlis Islamske zajednice Brčko), and three non-governmental organisations from the Brčko District of Bosnia and Herzegovina. In May 2003 they complained to the authorities about the alleged misconduct of an entertainment editor of their district’s multi-ethnic public radio station, alleging that he had been involved in disparaging behaviour towards Bosniacs and Bosniac culture and was therefore disqualified from being a candidate for the position of the radio station’s director. Soon afterwards, the letter was published in three daily newspapers and he sued them successfully for defamation. Relying on Article 10 (freedom of expression) ECHR, the applicants complained that the domestic courts’ decisions against them breached their right to freedom of expression.

In its judgment of 13 October 2015, the Fourth Section held by four votes to three that there had been no violation of Article 10 but on 14 March 2016 the Grand Chamber Panel accepted the applicants’ referral request. We didn’t note the Chamber judgment: but we’ll read the GC judgment with interest.

Pokémon Go

In the 17 July round-up, we reported that the Church of England had published Why your church needs to know about Pokémon GO, suggesting that “Pokémon Go is … giving churches around the country a great opportunity to meet people from their area who might not normally come to church”. This week, however, The Tablet carried the story Cologne cathedral hires lawyer to stop Pokemon players, which reported that the cathedral had decided to take legal action after the virtual reality game’s manufacturers didn’t react to requests to exclude the ancient building from Pokémon Go; a “large wave of Pokémon Go players” were invading the building, which is one of many churches which double as “pokestops”. The Dean, Robert Kleine, is quoted as saying that “the cathedral isn’t a playground.”

The PC Advisor website carries advice on How to remove a location, business or venue as a Pokémon Go gym or PokéStop, which suggests that “It’s perfectly possible, you’re experiencing an overwhelming amount of attention because you’re location is a Pokémon gym or a PokéStop”, adding “It’s easy and quick to request removal”. Possibly so, but this does not per se guarantee removal and, in some cases, it may be necessary to be a little more assertive and bring in the lawyers.

Quick links

And finally… I

On 2 November 1917 the Foreign Secretary, Arthur Balfour, signed what came to be known as the Balfour Declaration:

“His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”

The Guardian now reports that the Palestinian Authority’s foreign minister, Riyad al-Malki, has told Arab League that the Authority proposes to sue the UK for having made the Declaration. Eh??

And finally… II

“Whitehall civil servants banned from communicating in Latin”, reports iNews. The latest version of the Government’s style guide bans the use of common Latin abbreviations in official communications amid concerns that they could confuse readers. The guide, compiled by the Government Digital Service, advises avoiding the term “i.e.” and suggests that civil servants “use an alternative such as ‘meaning’ or ‘that is.’” And, apparently, “e.g.” is sometimes read aloud as “egg” by screen reading software, so the style guide prefers “such as” or “for example”. It’s all in the interests of Plain English.

Plain Scots is, presumably, another matter: e.g. we cannot, in all honesty, think of an adequate two-word translation of nobile officium – and, in any case, every Scots lawyer knows exactly what it means. Oh well: fiat justitia ruat caelum

2 thoughts on “Law and religion round-up – 31st July

  1. Whilst every Scots lawyer might know exactly what “nobile officium” means, and presumably also “fiat justitia ruat caelum”, this English reader of your blog (who is not a lawyer and gave up Latin at the end of what was then the 3rd Form, now Year Nine) had to resort to Google to find out what you were on about in your last paragraph!

    On the other hand having been taught the English language properly I do know what “i.e.” and “e.g.” mean, but possibly today’s school children and screen reading computers are no longer taught such basic language skills.

    • I confess to having written the last bit and I fear I was being slightly flippant. But there is a genuine point about legal Latin (and for that matter law French, which still hangs on, vestigially, in the English and Welsh courts). Expressions like nobile officium and ius quaesitum tertio are technical terms: the parties do not need to understand them, just so long as the lawyers do. But using Latin just for the sake of using Latin when there’s a perfectly good English phrase which expresses precisely the same meaning is probably a different matter.

      I’m reminded of an occasion on which I was clerking a Commons standing committee and one of the MPs referred to the fairly rare plea of “autrefois acquit” (that the defendant on a criminal charge had been already acquitted of the offence on a previous occasion). The Member in question pronounced it as modern French; and I passed a note to the drafter of the bill that was being debated to the effect that when I was a student I’d been taught that it was pronounced “oterfoyz akwit”; how did he pronounce it? He passed my note back with a scribble on the bottom: “I try to avoid saying it”!

Leave a Reply

Your email address will not be published.