And as a couple of OAPs continued to slug it out for the US Presidency, a very busy week in which another couple of OAPs carried on blogging…

…and reporting on the week’s bumper crop of developments in law and religion, (with, surprisingly, only a peripheral mention of Brexit).

Culling the Lords Spiritual?

The Government’s policy of reducing the number of Commons constituencies from 650 to 600 has produced the inevitable reactions and accusations of gerrymandering – particularly from MPs whose seats would disappear under the Boundary Commission’s initial proposals – and what the Mail on Sunday described as an “ultimatum from rebel Tories”. According to its report:

“Senior Tory MP Charles Walker branded the plans ‘ridiculous’ if they were not matched by similar measures to cut the size of the ‘bloated’ and unelected House of Lords, which has 805 members. Mr Walker, chairman of the influential Commons’ Procedure Committee, set out a radical plan involving:

– Ejecting 21 Church of England bishops from the Lords, leaving only five senior ‘Lords Spiritual’ – including the Archbishop of Canterbury;

– Removing the remaining 92 hereditary peers;

– Requiring all other peers to stand down automatically after 20 years’ service.”

A recent House of Lords Library Note analysed in detail the membership of the Upper House, and noted that whilst the appointment of bishops has relatively little effect on the size of the House – the number of Lords Spiritual was fixed by the Bishopric of Manchester Act 1847 – there is no regulation of prime ministerial appointments at all (except vetting for propriety). It cited the UCL Report Enough is Enough (2015), which observes “Successive premiers have used this power to advantage their own side through appointments, which creates a ratchet effect upwards on the size of the chamber”, [See Table 2 of Report].

Whether or not the number of Lords Spiritual should remain at its present level in a reduced House of Lords is not something on which we could possibly comment – but that the Lords has become far too big is pretty well indisputable.

Canon law developments – Church of England

An insight into the CofE’s legislative process was given from its publication of a number of comments to the Revision Committee in relation to Draft Amending Canon No. 36 (Of the vesture of ordained and authorized ministers during the time of divine service, Of the burial of the dead). We shared this in our post Vesture and burial: Draft Amending Canon No. 36 and noted that in common with many of the commentators, considered that the inclusion of two such disparate objective in a single legislative instrument was questionable on a number of levels: the pastoral consequences of the two are of very different degrees of seriousness; and more importantly, although the Church of England attaches no doctrinal significance to currently permitted vesture (Canon B8 1), it has attached considerable significance to the burial of those who have taken their own lives while of sound mind.

Commenting on our post, Peter Owen added that in summing up at the end of the debate in General Synod, the Bishop of St Albans, the Chair of the Steering Committee, explained that issues of cost and convenience were also involved. However, if cost were such an important issue, the necessity of changing Canon B 8 Of Vesture &c does not seem to have heeded the advice of so the Archbishop of York, Dr John Sentamu who said “…the truth is this: the canon is already very, very permissive. So when you are amending it from mandatory to occasional, look carefully at what it is you are amending”.

Canon law developments – Church in Wales

Yesterday, the Bishops Bench of the Church in Wales issued a Pastoral Letter stating that as from the First Sunday in Advent this year, 27^th November 2016, the Bishops are giving permission “to all who are baptised in water and in the name of the Holy Trinity [within their dioceses and jurisdictions]. None is required to receive, but no barrier should be erected to prevent all the baptised from making their Communion, other than that which is required by civil law”. Unlike the developments in the Roman Catholic Church and the Church of England, these developments do not require any legislative changes in the present Canon Law or Constitution of the CiW. In our post we noted that this initiative has implications on the admission of children to Holy Communion in the Church of England; however, Frank commented that this situation already exists for those baptised and chrismated in the Orthodox Churches, and Kelvin Holdsworth stated that the Episcopal Church of Scotland changed its Canon Law on this issue about a decade ago.

Canon law developments – Roman Catholic Church

On 15 September, the Vatican announced that an apostolic letter issued Motu Proprio by Pope Francis, De Concordia inter Codices, dated 31 May, had been formally published. Although available only in Italian in addition to Latin, the Catholic Herald has provided a full English translation, and the Catholic New Service gives a useful background and summary, devoid of Vatican legalese. It explains that this is a result of 15 years of study and worldwide consultation, resolving the conflicting rules by adopting the Eastern Church code’s formulations for the Latin Church; essentially, Latin-rite Catholic deacons may not preside at a wedding when one or both of the new spouses are members of an Eastern Catholic church. The new rule is one of the changes to 11 canons in the Latin-rite Code of Canon law that Pope Francis approved in order to harmonize the laws of the Latin and Eastern Catholic churches on a number of issues relating to the sacraments of baptism and marriage.

On his Facebook page, canonist Dr Edward Peters’ initial thoughts were that there was nothing startling in the Motu Proprio other than the requirement for a priest rather than a deacon at to preside at Eastern weddings, it was essentially “some housekeeping” and issues that were addressed every day. i.e. an initiative not dissimilar in purpose to the Amending Canon 36 which essentially regularizes a number of existing practices.

Same sex relationships – England and Wales

In his final address to the Governing Body of the Church in Wales, on 14 September Dr Barry Morgan, Archbishop of Wales stated “Biblical stories can reveal a new understanding of same-sex relationships”. In this he responded to claims that he and his fellow bishops had been “swayed by the liberal culture of our age” and “ignored Holy Scripture” in issuing prayers earlier this year that could be said with same-sex couples following their civil partnership or marriage; he stated that studying the Bible in its full context can lead to a very different view of same-sex relationships from that traditionally held by the Church.

After the meeting of the College of Bishops in Oxford 12-15 September 2016, the Church of England announced that following the conclusion of the shared conversations process, the Archbishops of Canterbury and York had invited some bishops to take forward work on sexuality to assist the episcopal discernment process. The Bishops’ Reflection Group on Sexuality will be chaired by Graham James, the Bishop of Norwich; the full membership of the group and its terms of reference were published in a further Press Release.

Prison chaplains

This week we cross-posted Issues of imprisonment and the Church of England, an article by the Revd Dr Peter Phillips first published on the LSE Religion and the Public Sphere blog; this observed that the statutory presence of the Church of England in prisons should give it a voice on issues of imprisonment, but suggested that it remains largely silent.

Coincidentally, on 15 September the Bishop of Rochester, the Rt Revd James Langstaff, who is the Church’s lead bishop of prison chaplaincy, received a written answer to a question on vetting of prison chaplains [HL1518]: Lord Keen of Elie replied:

“there are established pre-appointment checks in place for all prison chaplaincy positions, including Counter Terrorist Check (CTC) security clearance and the scrutiny of professional credentials. The Government response to the review into Islamist Extremism included a commitment to strengthen the due diligence process for the recruitment of prison chaplains. This policy is still being developed, and will supplement rather than replace existing arrangements. The checks can be applied to all prospective prison chaplains, of any faith, before a final offer of employment is made”.

Northern Ireland and fatal foetal abnormality

The BBC reports that one of the two paediatric pathologists in Northern Ireland has resigned over interventions by the Northern Ireland Attorney General, John Larkin QC, on abortion laws surrounding fatal foetal abnormality – which, she said, made her position “untenable”. The law in Northern Ireland on cases of fatal foetal abnormality is currently under consideration by the Court of Appeal; and the Attorney has argued that allowing terminations in such cases discriminates against children with disabilities, contrary to the UN Convention on the Rights of Persons with Disabilities.

Education and humanism in Scotland

Humanist Society Scotland has launched a petition for the removal of religious representatives from local education committees, arguing that  it is inconsistent with the principles of local democracy for education committees to include religious leaders without an electoral mandate.

Rule of Law checklist

The Committee of Ministers of the Council of Europe endorsed the Rule of Law Checklist drawn up the Venice Commission, invited relevant authorities in the member states to make use of the Checklist and to disseminate it widely. The Venice Commission – an advisory group of experts more formally known as the European Commission for Democracy through Law – breaks down the concept into a mass of systematic points, beginning, “1.i: Is there a written Constitution?” Errrr…

Court of Appeal of Alberta rules expulsion of church member reviewable

In Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses 2016 ABCA 255 (CanLII) the respondent had been expelled from the Highwood Congregation of Jehovah’s Witnesses and sought judicial review of that decision. A chambers judge (in a very strangely-worded ruling: see Wakeling JA at [62]) concluded that the Court of Queen’s Bench had jurisdiction to hear the application. The Congregation and its Judicial Committee appealed.

Dismissing the appeal, the Court of Appeal of Alberta (Paperny & Rowbotham JJ: Wakeling JA dissenting) held that

“… a court has jurisdiction to review the decision of a religious organization when a breach of the rules of natural justice is alleged. The respondent’s application raises numerous complaints regarding the process used by the appellants. He contends that he was not provided with particulars of the allegations again him or the process that he would face. He was not advised whether he could retain legal counsel or whether there would be a record of the proceedings. He also contends that he is entitled to written reasons of the decisions of the Judicial Committee and the Appeal Committee. On the basis of these allegations, the Court of Queen’s Bench has jurisdiction to hear the application. We note as well that the respondent appears to have exhausted all avenues of appeal within the church so jurisdiction could also be found on that basis” [22].

The case was remitted to the Court of Queen’s Bench to be heard by a judge other than the chambers judge.

Another burkini ban bites the dust – or maybe not

The tribunal administratif de Lille has suspended the ban on burkinis imposed by the Mayor of Le Touquet (Pas-de-Calais) that had continued in force despite the recent decision by the Conseil d’État that such bans were an unwarranted intrusion into personal freedom.The town of Le Touquet has “taken note” of the decision and said it was preparing a new ordinance on Monday “that would take account of this jurisprudence.” A spokesman told Agence France-Presse:

“The municipality considers that the invalidation is partial and a text is essential to enable the police and lifeguards properly to carry out their tasks within the framework of the police powers that the law gives the Mayor and which he must exercise.”

Eid al-Adha 2016

On 12 September, No 10 issued a Press Notice which said “To all Muslims, in this country and around the world, I want to say Eid Mubarak. I wish you a happy and peaceful Eid.” Prime Minister Theresa May. “To all Muslims in Britain and around the world I wish you a blessed Eid al-Adha. I know this festival means a great deal to communities, a time when families and friends are brought together to pray and feast, and Muslims across different continents are brought together in faith.”

Here at L&RUK, our July 2014 post, Public holidays, religion and the law, was the most read in the last 30 days: in it, we considered the e-petition which sought to make Eid and Diwali public holidays. With 122,991 signatures when debated in Westminster Hall, this was the largest e-petition that has come to central Government since e-petitions began in August 2011, although it was recently eclipsed by the naïve and pointless petition EU Referendum Rules triggering a 2nd EU Referendum which attracted 4,146,907 signatures. 

Nevertheless, there is an on-going e-petition Make Eid a National Holiday which seeks to “Make Eid a National Holiday so that British Muslims do not have to use their annual leave or provide them with the option of swapping Christmas day for Eid holiday”. Currently, this has 50,897 signatures, but the Government response made by the Department for Business, Innovation and Skills, (BIS), as it then was, states:

“The Government regularly receives requests for additional bank and public holidays to celebrate a variety of occasions including religious festivals. The current pattern is well established and accepted, and there are no current plans to create another permanent bank holiday, or to enable employees to swap existing bank holidays”.

Neither petition indicates whether it refers to Eid al-Fitr (at the end of Ramadan),  Eid al-Adha, as celebrated yesterday, or both.

Announcing a new journal

The Law and Religion Forum at St John’s Law School Center for Law and Religion reports that the Religion & Law Review, a new journal for early scholars, has issued a call for papers, for editors and peer reviewers.

According to the announcement, the Religion & Law Review

“was born to aid early scholars. The RLR is an academic space where articles, book reviews, blog posts, and other content explore the intersection between religion and law in an approachable, international, and interdisciplinary format. In particular, the Review will consist of a triannual publication of submitted articles from early scholars accepted through a double-blind peer review process. Through a scholastic and faculty benefactor, the RLR is able to offer prizes to the top two papers in our first publication … $100 will be awarded to the top paper and $50 for the runner-up. A Call for Papers will open on November 1st.”

Early scholars we ain’t: we’re both far too old – but we’ll follow its progress with interest.

Quick links

• Emmanuelle Bribosia and Isabelle Rorive, Strasbourg Observers: ECJ headscarf series (4): The Dark Side of Neutrality: Achbita and Bougnaoui give the CJEU its first opportunity to address religious discrimination – “a first opportunity that resembles a poisoned gift” – aka a hospital pass.

• Philip Jones, Ecclesiastical Law: Unprecedented Confusion: A Tribute to Chancellor Bursell: a scholarly and somewhat critical analysis of Bursell Ch’s judgment in Re Sam Tai Chan [2016] ECC Dur 2.

• John Lever, Religion and the Public Sphere: Religious animal slaughter, immigration and global trade in a post-Brexit Britain: argues that increased transparency in the meat supply chain will help improve public understanding of the underlying debates on religious slaughter and help the UK to make the most of emerging trade opportunities.

• Matthias Mahlmann, Strasbourg Observers: ECJ headscarf series (3): The Everyday Troubles of Pluralism: finds a degree of common ground between the Opinions of AG Kokott and AG Sharpston.

• House of Commons Home Affairs Committee: Female genital mutilation: abuse unchecked: concludes that “FGM is not a religious or cultural rite of passage that deserves protection” and that the Government should “provide global leadership in tackling this form of child abuse”.

• House of Commons Library: Social Fund Funeral Payments, Briefing Paper 01419: looks at Social Fund Funeral Payments scheme, under which claimants of means-tested benefits and tax credits may get help with funeral costs. The adequacy of payments has long been a source of complaint. The complex eligibility criteria have also been criticised for creating confusion, frustration and further emotional distress, [12 September 2016]. See also our post “Public health funerals” and “direct cremation”. [With thanks to Tracy Luke for the link.]

And finally…

The ruling handed down last week by Mr Justice Peter Jackson was thought to be the first in English legal history to incorporate an emoji, or web symbol, to explain a point of evidence. By contrast, for “weekend reading” we were directed by Simon Hunter of Three Stone Chambers to an amusing Canadian judgment which included the following:

“For readers under the age of thirty or so, the ‘typewriter’ was a mechanical device used for creating documents that pre-dated the computer and lacked some of the computer’s more annoying characteristics, in particular the computer’s facilitation of ‘cutting and pasting’, which is undoubtedly one of the four horsemen of the modern apocalypse and which has cost many trees their lives and many lawyers and judges their eyesight”: per O’Donnell J in R v Duncan 2013 ONCJ 160 (CanLII) at note [2].

Enjoy.