A week of necessary and disingenuous anonymity, IICSA disarray, and Brexit sniping
Miller, Brexit and Lady Hale
On 9 November in Kuala Lumpur, Lady Hale delivered the Sultan Azlan Shah Lecture 2016, The Supreme Court: Guardian of the Constitution?, and caused something of a stir. In the course of her lecture, she referred to the recent proceedings in the Divisional Court in Miller and suggested that the European Union Referendum Act 2015 had not produced a result that was legally binding on Parliament. Which, one might think, was a statement of the obvious, because there is no binding mechanism in the Act. ObiterJ has posted a full analysis of her speech on his Law and Lawyers blog.
Nevertheless, there were howls of protest: so much so that there were calls for her to recuse herself from the forthcoming appeal. A “Supreme Court spokesman” made a statement on the matter while, in an exclusive in Solicitors Journal, Lady Hale declared that she would “absolutely not” recuse herself, adding, “I have exhibited no bias and those that suggested that I have are simply mistaken.”
Lord Neuberger of Abbotsbury, president of the Supreme Court, is the latest to have been accused of bias, this time by pro-Brexit Conservative MPs on account of him being allegedly compromised by his wife’s views.
Of more substantive importance, the Supreme Court has announced that the following applications to intervene in the case have been granted: the Lord Advocate, for the Scottish Government; the Counsel General for Wales, for the Welsh Government; the “Expat Interveners” (George Birnie and Others); and the Independent Workers Union of Great Britain. In addition, the Attorney General for Northern Ireland has made a reference to the Court regarding devolution issues relating to that jurisdiction: in his case, permission to intervene is not necessary.
Abortion in Northern Ireland
In R (A (A Child) & Anor ) v Secretary of State for Health  EWCA Civ 771 the Court of Appeal upheld the policy of the Secretary of State for Health not to provide free NHS abortions for women who travel to England and Wales from Northern Ireland in order to have a termination. The appeal, brought by a teenage girl from Northern Ireland and her mother, was dismissed. The case was appealed to the Supreme Court and there was a one-day hearing on 2 November: judgment is awaited.
At First Minister’s Questions in the Scottish Parliament on Thursday, the issue was raised by Scottish Green Party co-convener Patrick Harvie. Nicola Sturgeon agreed to explore the possibility of them having the cost of their operations met by the NHS in Scotland:
“abortion should never be seen in isolation—it is a part of healthcare, and delivering abortion safely is a fundamental part of healthcare. I am happy to explore the particular issues to do with how NHS Scotland deals with women who come from other parts of the UK.”
Cryogenics and the law
On 18 November, the BBC carried the story Terminally-ill teen won historic ruling to preserve body, following the lifting the territorial reporting restrictions which existed until one month after the death of the teenager concerned, referred to as “JS”. However, the judgment was far from the ”historic ruling” widely-heralded in the media and was based upon existing statutory legislation and case law. It would not have come to court had JS not been a minor whose parents were in dispute over their consent to permit this new, but not illegal, option for preserving the body after death. Nevertheless, the case highlighted the fact that such techniques are currently outside the scope of the Human Tissue Act 2004 and therefore beyond the remit of Human Tissue Authority (HTA). Furthermore, the detailed note from the solicitors for the hospital trust expressed “real misgivings about what occurred on the day of JS’s death” on which the judge commented “It may be thought that the events in this case suggest the need for proper regulation of cryonic preservation in this country if it is to happen in future.”
Our more detailed post on the case is here.
Ashers Baking again
The Attorney General for Northern Ireland is seeking permission to appeal to the Supreme Court in the Ashers Baking case. A spokeswoman for his office told the Belfast Telegraph that an application for permission to appeal has been listed for hearing on 22 November.
[With thanks to Chris Morley for the alert]
IICSA: another resignation…
As we noted, late on Tuesday the BBC reported that Professor Aileen McColgan, who was leading IICSA’s investigations into the Anglican and Roman Catholic Churches, had resigned. Professor McColgan declined to comment; but Yvette Cooper MP, who chairs the Commons Home Affairs Committee, was quoted as saying that what went wrong had to be made clear if the survivors of child abuse were to have any confidence in the Inquiry.
… a postponement…
On the following day, the IICSA announced a further postponement in the start date of 7 March 2017 for the oral hearing for the investigation concerning institutional responses to allegations of child sexual abuse involving the late Lord Janner of Braunstone QC. The preliminary hearing due to take place before 31 January will also be postponed.
.… and a walkout
The largest victims’ group in the Inquiry, the Shirley Oaks Survivors Association, for 600 victims who lived in children’s homes in Lambeth, withdrew, saying that its members had no confidence in the inquiry’s leadership. The treatment of children in care in Lambeth during the second half of the last century is one of thirteen areas under review: IICSA will investigate the claim that a large paedophile network infiltrated children’s homes in the area.
Raymond Stevenson, who has previously spoken about being physically abused during his time at the Shirley Oaks home in the 1970s, told the BBC that the group’s members had voted “overwhelmingly” to pull out of the inquiry and that they “felt relieved not to be part of this mangled attempt to get belated justice for our members”. The group had threatened to withdraw on a previous occasion, questioning IICSA’s independence.
They’ve got a little list …. but you now need not be missed
On 13 November, GAFCON UK released the report The Church of England and Lambeth 1:10 by an unnamed author which included a “partial list” of the names of clergy known to be in same-sex relationships or who have officiated or publicly supported gay unions in the Church of England. There are a number of concerns regarding the accuracy of some of the statements, but we will leave a more detailed analysis to others. However, we both felt – rightly or wrongly – that the publication of such a document was not an acceptable way for self-avowed Christians to proceed. Significantly, the Bishop of Salisbury, the Rt Revd Nicholas Holtam sent a strongly-worded letter to the Church Times (£), the copy of which on the diocesan web-site gives less restrictive access to his important comments.
In addition to widespread condemnation of the publication, two sites were created for those who felt aggrieved that they had not been included on the list or wished to express their solidarity with those who were: Lambeth 110 which includes a link to the Dad’s Army exchange: “Your name will also go on the list, what is it?” “Don’t tell him, Pike!”; and the LGCM’s Rainbow List.
However, there has been a case of “Chinese whispers” in the reporting of the story with almost everyone (with the notable exception of Bishop Nicholas) linking back to the error in the title of the GAFCON UK document, which when first published referred to the relevant part of the 1998 Lambeth Conference as “Section 1.10”. [The title of the GAFCON UK document has recently been revised along with other corrections]. As we all know, what GAFCON UK meant was Section I.10 – Human Sexuality. We corrected our post at an early stage and the only vestige of our error lies in its URL.
Canadian House of Commons condemns Islamophobia
On 26 October, the House of Commons in Ottawa resolved “By unanimous consent” to adopt the following Petition:
Islam is a religion of over 1.5 billion people worldwide. Since its founding more than 1400 years ago, Muslims have contributed, and continue to contribute, to the positive development of human civilization. This encompasses all areas of human endeavors including the arts, culture, science, medicine, literature, and much more;
Recently an infinitesimally small number of extremist individuals have conducted terrorist activities while claiming to speak for the religion of Islam. Their actions have been used as a pretext for a notable rise of anti-Muslim sentiments in Canada; and
These violent individuals do not reflect in any way the values or the teachings of the religion of Islam. In fact, they misrepresent the religion. We categorically reject all their activities. They in no way represent the religion, the beliefs and the desire of Muslims to co-exist in peace with all peoples of the world.
We, the undersigned, Citizens and residents of Canada, call upon the House of Commons to join us in recognizing that extremist individuals do not represent the religion of Islam, and in condemning all forms of Islamophobia.”
This was reported by the Gatestone Institute under the headline, “Canada: Parliament Condemns Free Speech”. Eh?? (as they say in Canada).
Judgment vs Judgement
Lord Neuberger, President of The Supreme Court, First Annual BAILII Lecture: No Judgment – No Justice, 20 November 2012:
“Judgments are the means through which the judges address the litigants and the public at large, and explain their reasons for reaching their conclusions. Judges are required to exercise judgement – and it is clear that without such judgement we would not have a justice system worthy of the name – and they give their individual judgement expression through their Judgments. Without judgement there would be no justice. And without Judgments there would be no justice, because decisions without reasons are certainly not justice: indeed, they are scarcely decisions at all.”
So now you know. Maybe.
[With thanks to Joshua Rozenberg for the link]
Comment policy: a reminder
We welcome comments on our posts, particularly comments that offer corrections to inaccuracies. But we reserve the right to edit or to bin comments which we deem offensive or defamatory to other people or institutions. (We don’t have a problem with people being rude to us.) And our editorial decisions on comments are final: rightly or wrongly, it’s our blog, so we say what goes. And if you don’t like our editorial judgments, there are lots of other blogs out there to choose from.
- Sionaidh Douglas-Scott, UCLA blog: Miller: Why the Government Should Still Lose in the Supreme Court (Even with New Arguments): l-o-n-g piece on the forthcoming appeal.
- House of Commons Library: Brexit and the EU Court: looks at the questions of the revocability of a notice under Article 50 TEU and referral to the CJEU.
- Rachel Lewis, WorkLife: Segregation – not discrimination? Some thoughts on the judicial review application in the Interim Executive Board of X School: expresses doubts about “separate but equal” segregated education in a mixed-sex school and concludes, “there remain some arguments, depending on the evidence, that this is direct discrimination, and (if so) that one cannot seek to justify it on religious or cultural grounds.”
- Pierre de Vos, Daily Maverick: An Old Boy sets out how the law applies to religious observance at his childhood school: the Professor of Constitutional Governance at the University of Cape Town looks at the constitutionality of coercive “religious observance” in South African schools.
And finally… I
Earlier this month, the Indian Prime Minister unexpectedly announced that 500 rupee (£5.80) and 1,000 rupee (£11.75) notes were to be withdrawn from circulation within days, as a move to combat counterfeiting. The Hindu newspaper reports that some have hit on the novel idea of giving these notes as wedding gifts instead; cash is commonly given at weddings and these offerings are collected by relatives of the happy couple. One told the reporter: “Everybody is giving Rs. 500 or Rs. 1,000 currency. Whatever I have collected so far are only these notes. The majority are hesitant to take out Rs. 100 notes from their pockets.”
[With thanks to the Marilyn Stowe Family Law and Divorce Blog for the story.]
And finally… II
Red Box reports:
“Elwyn Davies has just been named the second best-known Welsh MEP in a poll asking voters which politicians they recognised. Except he doesn’t exist, and was included alongside the names of real people who must now be wondering why they bother.”
For the curious, there’s a full report in the South Wales Evening Post.