A week in which IICSA seemed in crisis yet again, another burkini ban was slapped down and the size of the House of Lords came under fire …
Independent Inquiry into Child Sexual Abuse
The woes of the Independent Inquiry into Child Sexual Abuse seem to continue undiminished. On 28 September it was announced, and confirmed on 29 September, that the senior member of the Inquiry’s legal team, Ben Emmerson QC of Matrix Chambers, had been suspended from duty; and on the following day he resigned from the role of Counsel to the Inquiry. At the same time, it came to light that Elizabeth Prochaska, Emmerson’s immediate deputy, had already resigned. The BBC reported her as saying:
“I can confirm that after 15 months working on the Independent Inquiry into Child Sexual Abuse, I resigned from my position as Junior Counsel with effect from 15 September 2016. I very much valued the experience of working with the Inquiry and I wish all my former colleagues the best as they continue their work.”
In a letter to the Chair on 29 September, Mr Emmerson notified Professor Jay of his resignation and expressed his personal doubts about whether he “was genuinely the right person to steer that review process”. Professor Jay announced that she had accepted Mr Emmerson’s resignation, stating that
“[t]here is no truth in suggestions that he has resigned due to a difference of opinion with me about the next steps for the Inquiry. He will continue to be available to the Inquiry whilst his replacement is recruited and brought up to speed. I am pleased he continues to support the Inquiry’s aims and objectives. He has made an enormous contribution to the Inquiry and we wish him well”.
Further comment is superfluous.
Two hundred and ten Lords a-leaving?
We have previously noted the call by Charles Walker, the Conservative chair of the Commons Procedure Committee, to reduce the size of the House of Lords and to limit the number of Lords Spiritual to five. The Sun now reports that the Campaign for an Effective Second Chamber, led by two Conservatives, Lord Cormack and Lord Norton of Louth, is stepping up the pressure for reform.
Lord Norton told The Sun: “We are conscious that we must reduce numbers. We look bloated to the public, and we will soon also be unable to fulfil our functions with the resources we have.”
Under the Campaign’s proposals, the strength of each party would be reviewed after every election and newly-created peers would have to wait for the next vacancy before taking their seats – very much as new diocesan bishops do at present. Exactly how to reduce the size of the existing House remains a problem: suggestions for reform include age limits, term limits and a system of proportionality related to the general election result. But the new Lord Speaker, Lord Fowler, told The House Magazine in an interview: “I don’t think that we can justify a situation where you have over 800 peers at the same time as you’re bringing down the Commons to 600 MPs”.
He wasn’t wrong: but what impact a reduction in the size of the House would have on the Lords Spiritual remains to be seen – always assuming, of course, that anything ever happens at all.
Demolishing historic religious buildings a war crime
On 27 September, Trial Chamber VIII of the International Criminal Court (ICC) delivered its judgment in The Prosecutor v Ahmad Al Faqi Al Mahdi  ICC-01/12-01/15. It found, unanimously, that Mr Al Mahdi was guilty beyond reasonable doubt as a co-perpetrator of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. Mr Al Mahdi, who had pleaded guilty, was sentenced to nine years’ imprisonment.
Religion – Weltanschauung – Recht has posted a long summary of the judgment.
Baptism and Confirmation
Earlier this month, we reported that the Bishops of the Church in Wales had issued a Pastoral Letter concerning Admission to Holy Communion: as from the First Sunday in Advent this year, 27 November, the Bishops are giving permission to communicate “to all who are baptised in water and in the name of the Holy Trinity” [within their dioceses and jurisdictions]. This was followed with a Press Release and further information on the theological background, practical advice to Churches on introducing the new policy, and guidance for congregations. With regard to Confirmation:
“the work of the Doctrine Commission illustrates well that this rite has had a whole number of meanings and has been conducted in many different ways over time. The Commission was also unanimous in affirming that confirmation has a very important place in the life of the church today and should continue to do so.
Also this week, in a Pastoral Letter to the Roman Catholic Diocese of Leeds, Bishop Marcus Stock expressed his concerns about the number of baptised Catholics who were not confirmed and announced that young people would now be invited to make their Confirmation in their last year of primary school when they are 11, as opposed to 14. Further details were given in two documents: Sacrament of Confirmation and Youth Services Provision, 2016; and Appendix A : Guidance on Timing of Sacramental Preparation.
Same-sex marriage in Guernsey
On 21 September, the Guernsey States voted by 33 to 5 to approve the draft Projet de Loi entitled “The Same-Sex Marriage (Guernsey) Law, 2016”, and to authorise the Bailiff to petition the Monarch for her Royal Sanction. This Law implements the States’ Resolution of 10th December 2015 and its main purpose is to enable same-sex couples to get married, either in a civil ceremony or, provided that the religious organisation concerned is in agreement, on religious premises or according to religious rites. Once approved by the Privy Council, it is expected that the first same-sex marriages in Guernsey will be able to take place from mid-2017.
Prisons, kosher food and FoI
Simon Price, an Orthodox Jew jailed for 25 years for his role in a drug-smuggling plot, sought information under the Freedom of Information Act 2000 from the Ministry of Justice (MoJ) for information about the provision of kosher food for strictly observant Orthodox Jewish prisoners. He was told that the MoJ the department held some but not all of the information requested and was given the information that was held relevant to his request. The MoJ pointed Mr Price to the relevant Prison Service Instruction (2010/44) and reproduced parts of the guidance issued to prisons regarding on kosher meals: paragraphs 3.22-3.25 of the Catering Operation Manual.
In Simon Price v The Information Commissioner (Allowed: Freedom of Information Act 2000)  UKFTT 2016 0138 (GRC), Tribunal Judge Annabel Pilling was satisfied that, on the balance of probabilities, the MoJ held further information falling within the scope of the request. The Commissioner had been wrong to conclude that the only information held was in the Prison Service Instruction and the Catering Operation Manual. It followed that It follows the Commissioner had been incorrect to conclude that the MoJ was entitled to rely on section 21 of FOIA in relation to parts 1,2, 3 and 5 of Mr Price’s request: that is, that the information was reasonably accessible to him by other means.
It should be noted that Mr Price had a second appeal decided by TJ Pilling at the same time: he was also successful in Simon Price v The Information Commissioner (Allowed: Freedom of Information Act 2000)  UKFTT 2016 0123 (GRC), about the terms and conditions of employment of the post held by Rabbi Michael Binstock and, more generally, about the size of the Jewish prison population.
Burkini bans – the latest score
Last week saw the latest ruling striking down a ban on wearing the burkini on a French beach. The current situation about the legality of such bans seems to be like this:
- Villeneuve-Loubet: on 26 August the Conseil d’État suspended a ban imposed by the Mayor of Villeneuve-Loubet (Alpes-Maritimes) on wearing the burkini on the town’s beaches, overruling a three-judge section of the tribunal administratif de Nice for an order suspending the Mayor’s ordinance dated 5 August 2016: see CE, ordonnance du 26 août 2016, Ligue des droits de l’homme et autres – association de défense des droits de l’homme collectif contre l’islamophobie en France: Nos 402742, 402777.
- Le Touquet: on 9 September, the tribunal administratif de Lille suspended the ban imposed by the Mayor of Le Touquet (Pas-de-Calais) that had continued in force despite the decision of the Conseil d’État in the Villeneuve-Loubet case.
- Cagnes-sur-mer: on 26 September the urgent applications judge [juge des référés] of the Conseil set aside the ordinance of the Mayor of Cagnes-sur-mer (Alpes-Maritimes): see CE, ordonnance du 26 septembre 2016, Association de défense des droits de l’homme – Collectif contre l’islamophobie en France: No 403578.
The Guardian reported on 28 August that there were then about thirty bans in place. Two had been lifted in light of the ruling by the Conseil – at Oye-Plages near Calais and at Eze in the Alpes-Maritimes – but mayors from the right-wing Les Républicains party and from the far-right Front National were ignoring the ruling in Villeneuve-Loubet.
So it looks like five down, twenty-odd to go.
Today marks 100 days after the EU Referendum vote, and yesterday we posted our 9th Brexit Basics update on the legal issues relevant to leaving the European Union by the United Kingdom. To date we have avoided political comment and the competence of Minister, which continues to be of concern of a number of legal commentators. However, following a challenge by Bindman’s, the Government was forced by the High Court to reveal its skeleton argument in rebuttal to the action R (Gina Miller and Deir Tozetti Dos Santos) v Secretary of State for Exiting the European Union); paragraph 5(3) of its Detailed Grounds of Resistance on behalf of the Secretary of State asserts:
“The decision to withdraw from the EU is not justiciable. Like the decision to join the EEC (as it then was), it is a matter of the highest policy reserved to the Crown. Equally, the appropriate point at which the UK should begin the procedure required by Article 50(2) to give effect to that decision (that is, the notification) is a matter of high, if not the highest, policy; a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of Ministers and their officials are particularly well-suited and the Courts ill-suited.”
Overall, the Government’s arguments did not persuade the court. Nevertheless, readers might like to ponder the applications of polycentricity – a concept in Canadian administrative law – to Brexit. According to the Supreme Court of Canada in Pushpanathan v Canada (Minister of Citizenship and Immigration)  1 SCR 982 it is “well known to academic commentators”; a polycentric issue” is defined as “one which involves a large number of interlocking and interacting interests and considerations”.
Now we are seven (with apologies to A A Milne)
In October 2009 the UK’s highest court, formerly known as the ‘House of Lords’ (not to be confused with the parliamentary House of Lords), was officially re-designated the Supreme Court. To mark its 7th “birthday”, yesterday RightsInfo highlighted seven ground-breaking human rights cases decided the House of Lords / Supreme Court.
Christmas must be coming … Zwarte Piet is in the news again
We have posted before on Zwarte Piet (“Black Pete”) – the traditional “helper” of St Nicholas in Dutch Sinterklaas parades – and on the claim that the custom is not just harmless fun but insults black people and helps perpetuate racist stereotypes. The Netherlands Children’s Ombudsman, Margrite Kalverboer, has now entered that debate. She said that, after talking with children about it, she felt that the figure of Zwarte Piet could be hurtful and contribute to bullying, exclusion or discrimination:
“Many black children … experienced discrimination in their daily lives and say that this is worse around Christmas time. They attributed this to a number of typical characteristics and behaviour of Zwarte Piet.”
- Catherine Fairbairn, House of Commons Library Research Briefing: “No fault divorce”: considers the current basis for divorce and arguments for and against the introduction of “no-fault divorce”.
- Neil Foster, Law and Religion Australia: Protection of Religious Free Speech in Australia.
- Historic Religious Buildings Alliance (HRBA): October e-Newsletter: extensive summary (with links) of issues in this area.
- RightsInfo: Human rights: what could be more British than that?: short animation about David Maxwell Fyfe’s role in the ECHR – well worth watching.
- G Owen Schaefer, CivilAttorneyGroup.com: Why Treat Gene Editing Differently In Two Types Of Human Cells? – about the recent statement by the organising committee of the International Summit on Human Gene Editing on regulating human genetic engineering.
- Linda Woodhead, Religion in the Public Sphere: The government’s changes to faith schools sides with hardline religion: argues that “in striving to protect the rights of religious minorities, the Government is undermining the religious centre ground”.
And finally… I
Readers of the OUP Journal Social Cognitive and Affective Neuroscience will have seen the abstract: “Effects of oxytocin administration on spirituality and emotional responses to meditation”. This explains:
“In exploratory analyses, participants were also genotyped for polymorphisms in two genes critical for OT signalling, the oxytocin receptor gene (OXTR rs53576) and CD38 (rs6449182 and rs3796863). Results showed that intranasal OT increased self-reported spirituality on two separate measures and this effect remained significant a week later. It also boosted participants’ experience of specific positive emotions during meditation, at both explicit and implicit levels,”
or as Indy100 suggested, less prosaically:
“Having sex makes you more likely to believe in God, according to science”.
According to Encyclopaedia Britannica, early practical work supportive of these findings was conducted by Grigory Yefimovich Rasputin (1872-1916) in his interpretation of the beliefs of the Khlysty (Flagellants) sect.
And finally… II
Would Jesus have an iPhone? No: the mobile signal in first-century Israel was lousy. Next daft question…