Law and religion round-up – 6th November

A week in which everything else paled into insignificance beside… 

…Brexit: a spanner in the works

The big news of the week was that a max-strength Divisional Court of Queen’s Bench [Thomas LCJ, Etherton MR and Sales LJ] ruled in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) that the Government has no power under the Crown Prerogative to trigger the Article 50 process for withdrawal from the European Union without the prior approval of Parliament. Unsurprisingly, a Government spokesperson said that HMG was “disappointed” with the outcome. Equally unsurprisingly, the Government is to appeal to the Supreme Court.

The Prime Minister said subsequently that she was “confident” that the Government would win the appeal. But presumably the Government was “confident” of winning at the initial hearing…

Subsequent events

Following the High Court ruling, a number of commentators have suggested that this could result in the Prime Minister calling a “snap election”. However, that possibility  is now governed by the Fixed-term Parliaments Act 2011 introduced by the Cameron administration; S2 requires the resolution of a motion of no confidence in Her Majesty’s Government, or a motion for an early parliamentary election supported by two-thirds of the membership of the House of Commons (including vacant seats). Furthermore, the option of repealling the 2011 Act is no simple matter, as explained by Lord Norton; he suggests that whilst this is possible, it is not necessarily simple, or politically feasible.

Barristerblogger, Professor Mark Elliott and others noted that In the wake of the dramatic Article 50 judgment, various Brexiteers have been venting their feelings. On 5 November, the Bar Council, the representative body of all barristers in England & Wales, passed a resolution calling on the Lord Chancellor to condemn the recent attacks on the judiciary. A measured summary of the situation has been produced by Harry Bingham, eldest son of the late Lord Bingham, in an open letter to Liz Truss.  A brief statement was issued by the Ministry of Justice on Saturday afternoon, but this stopped short of condemning attacks on senior judges over the Brexit ruling.

The Supreme Court has indicated that it will hear the government’s appeal over 4 days during the week of 5 December with a larger than usual panel of judges. We suspect that Ms Truss’s cursory dismissal of the media attacks will be further tested in the run-up to the UKSC hearing, and afterwards.

Abortion – or its absence – in Northern Ireland

In Northern Ireland, unlike the rest of the UK, abortion is only allowed if a woman’s life is at risk or there is a permanent or serious risk to her physical or mental health. On Wednesday, an appeal began in the Supreme Court against the judgment in R (A (A Child) & Anor) v Secretary of State for Health [2015] EWCA Civ 771, in which the appellants were a girl, A, and her mother, resident in Northern Ireland.A came to Manchester to have her pregnancy terminated at an independent clinic at a cost of £600. At the time of her abortion she was 15 and resident in Northern Ireland. They argued – unsuccessfully – that it was discrimnatory for women resident in Northern Ireland to have to pay for abortions in England: we noted the case here.

According to the British Pregnancy Advisory Service (BPAS), last year 833 women were recorded as having travelled from Northern Ireland to England and Wales for abortion care.

Refugees from persecution of minority religious groups

In September, in Khan v Germany [2016] ECHR 776, the Grand Chamber struck out the claim of a 53-year-old Pakistani woman who had fled to Germany in 1991 with her husband, who belonged to the Ahmadiyya faith. Ahmadiyya is severely discriminated against in Pakistan and Mrs Khan applicant had converted to her husband’s faith. Both applied for refugee status upon arrival in Germany: Mr Khan was successful, Mrs Khan was not; however, she was given a residence permit as the spouse of a refugee in 1994. From then on, things went from bad to worse: she was divorced, became schizophrenic and suffered acute psychosis and, finally, she killed a neighbour.

The case is extremely complex: Benoit Dhondt, a Belgian lawyer specialising in migration and refugee law has posted a thought-provoking piece on Strasbourg ObserversKhan v Germany, Episode II: The Empire strikes out.

Trinity Western – the latest instalment

On Tuesday, the British Columbia Court of Appeal upheld the right of future graduates of  Trinity Western University Law School to practise law in the province. The Court upheld the ruling of the BC Supreme Court that the Law Society of British Columbia had been wrong to deny accreditation to future alumni of the University’s proposed law school. As regular readers will no doubt be aware, at issue was TWU’s “community covenant”, which commits all students to sexual relations only within heterosexual marriage: the Law Society of BC, however, contends that this discriminates against members of the LGBT community.

The position now appears to be this. The Law Society of Upper Canada (ie Ontario), the Nova Scotia Barristers’ Society and the Law Society of British Columbia all refused to accredit TWU’s Law School for the purposes of practice at their provincial bars. Since then:

  • 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 upheld the lower court’s decision;
  • in Trinity Western University & Anor v Nova Scotia Barristers’ Society & Ors 2015 NSSC 25, the Nova Scotia Supreme Court held that the NSBS had acted ultra vires by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federation of Canadian Law Societies; and
  • in April 11 2014 the Benchers of the LSBC voted to restore the initial approval of TWU as a recognised law school, following which the President of the LSBC stated that the Society had “decided to approve” the academic qualifications of TWU graduates: in October 2014 the Benchers decided to rescind that decision but in Trinity Western University v Law Society of British Columbia 2015 BCSC 2326, Hinkson CJ reinstated the April 2014 position – in the judgment that the British Columbia Court of Appeal upheld last week in Trinity Western University v The Law Society of British Columbia 2016 BCCA 423.

We still expect the dispute to end up before the Supreme Court of Canada. Neil Foster has posted on the latest case here.

Seal of the confessional again

In July, we reported a US case on the confidentiality of sacramental confession. In February a Louisiana trial court had held that a plaintiff suing a priest and the Roman Catholic Church could legitimately testify that in 2008 she had told the priest in confession that she was being abused by a parishioner. The Church and the priest appealed on grounds of confidentiality and in Mayeux v Charlet LA App, July 29, 2016, in a 2-1 decision, the Appeals Court upheld the trial court.

In Mayeux v Charlet LA Sup Ct, Oct 28, 2016, however, the Supreme Court reversed the Appeals Court. It held that, under the Louisiana statutes, Roman Catholic priests when administering sacramental confession are not “mandatory reporters” of child abuse. Therefore, art. 609 of the Lousiana Children’s Code – which, in some instances, eliminates the defence of privileged communications for mandatory reporters – does not remove protections for priests. Therefore, a priest has no duty to report any confidential communication made during the sacrament of confession that, under canon law, he is authorized to hear and obliged to keep confidential. [With thanks to Howard Friedman.]

English Churches and Cathedrals Sustainability Review

The English Churches and Cathedrals Sustainability Review, announced in March 2016, has started work. Further details here.

A bishop by any other name …

There is a degree of consternation in certain parts of the diocese that the Rt Revd Dr Steven Croft signs himself as ‘+Steven Oxford’ rather than ‘+Steven Oxon’. David’s view is that the diocese should be grateful that it eventually has a diocesan bishop and what he calls himself is really his own concern. Her Majesty’s Congé d’Elire merely refers to the “Bishopric of Oxford” and is silent on the style of Bishop Steven. As we noted in The Style of the Bishop of Sodor and Man, in practice there is a certain degree of personal choice in episcopal signature. In his scene-stealingbologns-img_6655 performance as University Chancellor in the Twilight of the Gods episode of Inspector Morse, Sir John Geilgud observes, “There are other Oxfords. At least five in Canada alone. There’s one in New Zealand, one in Jamaica and as for America, there’s scarcely a state without one! – Oxford, Alabama; Oxford, ldaho; Mississippi; Maryland; New York …”.

However, in +Oxford’s case there is little opportunity for confusion – it’s the one that has a university that hasn’t taught canon law since 1535 and which is almost the oldest in western Europe – on these criteria, Bologna wins on both counts.

Church of England removes Article

Not one of the 39 Articles of Religion, but the definite article, as announced on its Church of England Facebook page: “This Page used to be named The Church of England. Is the new name misleading or offensive? Let us [i.e. the CofE] know”. We are also informed that “[t]he Church of England symbol is designed based on the traditional Christian cross, but encompassed by an e, implying universality”.

The title of the Church’s web page is unchanged, but as noted last week, the Daily Digest no longer features on the “Releases” part of its Home Page and is only available to subscribers via email. This results in large gaps (in time) in “Releases” – e.g. no items between 14 October 2016 [Bishop of Leicester to chair Central Readers’ Council] and 27 October 2016 [2015 Attendance Statistics published] – which a casual observer might regard as inward-looking and suggesting that the CofE is not involved in events in the wider world.

Canon C 3§7 and Mrs Beamish

Under the headline “Double ordination for ’70s pop star”, the Church Times reported (£) that Peter Skellern, the 1970s pop singer-songwriter and pianist had fulfilled a life-long ambition to take holy orders and was ordained deacon and priest on the same day. Two and a half years ago he was put forward for ordination training, following which he was diagnosed with an inoperable brain tumour. The story was also carried by the Daily Mirror. Fortunately, (Sir) Richard Stilgoe, with whom Skellern collaborated and performed, is less restrictive than the Church Times with access to his material and on his website states:

“One song you can have for nothing is Mrs Beamish, which somebody has added pictures to and put on YouTube. To my surprise and delight it has had over 200,000 hits.”

Enjoy. And best wishes to the Revd Peter Skellern in his ministry.

Quick links

  • Clive D Field, British Religion in NumbersCounting Religion in Britain, October 2016: roundup of recent statistical surveys on religion, including a survey on public attitudes to the Ashers Baking case which suggests that 58 per cent of over-60s thought that the McArthurs had not behaved unreasonably, while 60 per cent of 18-24s sided with Gareth Lee.
  • Historic Religious Buildings Alliance (HRBA): November 2016 e-newsletter A wide-ranging review with 50 summaries/links to items of interest: highly recommended. There is no charge for subscribing to the newsletter, see
  • Digitalnun: The Henrician Act of Supremacy and Other Matters: posted on 3 November, the day in 1534 when Parliament passed the First Act of Supremacy. Dame Catherine considers this in relation to the question of ecclesiology and the announcement be Pope Francis of a commitment to seeking a resolution of the differences between the Catholic and Lutheran Churches; in particular, the issues of the impossibility for a woman to be ordained to priest’s orders and working towards a shared Catholic/Lutheran Eucharist.
  • Chichester Cathedral: Bishop’s Charge At Evensong on Friday 4th November 2016 the Bishop of Chichester, the Right Revd Dr Martin Warner, handed over his Charge to the Dean, Chapter and College of Canons at Evensong. Our comments to follow. [With thanks to Mark Hill for the link]

And finally…I


And finally…II

From a Daily Mail piece on “a new generation of cool worshipers” [sic]: “Christians can do any kind of job. They don’t have to work in a ‘noble’ profession such as teaching or nursing; they can work in law or fashion.”

So the law is an ignoble profession? Oh well, guess that’s us told…

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