Law & Religion 2016 and 2017: retrospect and prospect

Could 2017 be quite as horrible as 2016? Read on…

…and (maybe) weep

All else in 2016 paled into insignificance beside the vote for Brexit and the election of the next President of Trumpton. Needless to say, as a couple of grumpy OAPs raised in more liberal and rational times, we were not delighted at either outcome. Whether 2017 will be any better, who knows? Brexit will drag on and on, the situation in Syria will no doubt deteriorate further, Marine Le Pen might be the new President of France. Or the French electorate might have more sense and The Donald might not, after all, turn out to be as mad a box of frogs, though we aren’t holding our breath.

But apart from all that, there was quite a bit of law and religion.

Interesting cases

Maybe 2016 wasn’t a vintage year for cases on law and religion; but a few caught our eye.

C (Children) [2016] EWCA Civ 374 answered the question, “Does a parent have an unfettered right to choose a child’s name?” with a resounding “No”. The mother of twins, who were in care, wanted to call the boy Preacher (which she described as “a strong spiritual name”) and the girl Cyanide (which she described as “a lovely pretty name”): their foster carers called them Harry and Annie. As we briefly reported, the Court of Appeal was having none of that: King LJ held that the court, in the exercise of its inherent jurisdiction, “should intervene to protect the girl twin from the emotional harm that I am satisfied she would suffer if called ‘Cyanide'” [109]; and though there was nothing inherently objectionable about Preacher, “the girl twin’s welfare can only met by neither she nor her brother having the names chosen for them by their mother” [115].

The facts in Lee v McArthur & Ors [2016] NICA 39, aka The Great Ulster Bake-Off, are too well-known to be worth repeating: the case may possibly have generated almost as much media comment as the Brexit litigation. But at least no-one accused Morgan LCJ and his judicial brethren of being

As we noted, Jeremy Pemberton lost his appeal. In Revd Canon Pemberton v Right Revd Richard Inwood (Sex Discrimination: Marital status) [2016] UKEAT 0072/16/0712 HHJ Eady QC, sitting alone, upheld the findings that Bishop Inwood had not discriminated against Canon Pemberton directly on grounds of sexual orientation and/or marital status in refusing him Permission to Officiate and an Extra Parochial Ministry Licence and had not unlawfully harassed him. The Church of England also lost its cross-appeal against the ET’s finding that the Bishop was a “qualifications body” for the purposes of sections 53 and 54 of the Equality Act 2010.

In Pendleton v Derbyshire County Council & Anor [2016] UKEAT 0238/15/2903, Mrs Pendleton’s belief ‘that her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith’ [15] triumphed over her employer’s wish to dismiss her from her teaching post after she had refused to leave her husband, a head-teacher at another school who had been convicted of voyeurism and making indecent images of children and sentenced to ten months’ imprisonment. We noted it here.

Eversheds LLP included Wasteney v East London NHS Foundation Trust (Religion or Belief Discrimination) [2016] UKEAT/0157/15/0704 in their Employment cases of 2016: we noted it here. The EAT upheld the conclusion that Ms Wasteney “had not been subjected to disciplinary process or sanction because she manifested her religious belief in voluntary and consensual exchanges with a colleague but because … she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond ‘religious discussion’, without regard to her own influential position. The treatment … was because of, and related to, those inappropriate actions; not any legitimate manifestation of her belief” [65].

Finally, in December the Charity Commission for England & Wales refused to register The Temple of the Jedi Order as a charitable incorporated organisation with purposes including “to advance the religion of Jediism, for the public benefit worldwide, in accordance with the Jedi Doctrine”. We noted the decision here: Russell Sandberg subsequently provided us with a long analysis of the decision.

Consistory court judgments

Throughout 2016 we have continued our practice of reviewing the judgments of the consistory courts, provided by the Rev. Raymond Hemingray of the Ecclesiastical Law Association; reporting other determinations of the Church of England’s courts and tribunals; and writing stand-alone posts where the issues raised merited more detailed consideration. The index of the judgments we reviewed includes some navigation features as we reckoned that no-one would wish to read this long post from beginning to end. This year, the longer articles included inter alia: a number on the application and development of Churchyard Regulations, and on the reservation of space within churchyards; considerations on the permanence of Christian burial; the disposal of unwanted fonts, again; and issues of costs in the long-settled issue of phone masts in church towers.

IICSA

To say that the Independent Inquiry into Child Sexual Abuse did not have a good year is an understatement. Dame Lowell Goddard, appointed as the third Chair of IICSA in February 2015, resigned in August and was succeeded by Professor Alexis Jay. Its senior counsel, Ben Emmerson QC of Matrix Chambers, was then suspended on charges of harassment – of which he was later exonerated – and he and various other members of the Inquiry’s legal team resigned, including Professor Aileen McColgan, the lead counsel on the investigations into the Anglican and Roman Catholic Churches.

The year ended with the release of the report of an internal review of its work, which concluded that all thirteen existing investigations will continue. So that, at the present rate of progress, should get us to about 2025.

“British values”?

A low-level debate rumbled on during much of 2016 about “British values”, culminating in the suggestion by Communities Secretary Sajid Javid in the Sunday Times that civil servants and other holders of public office should swear an oath to uphold them. As the child of immigrants himself, on the subject of integration Mr Javid knows whereof he speaks; however, his proposal raises two linked but separate questions. The obvious one is, exactly what are “British values” anyway? The second – on which we have seen very little comment – is, why “British”?

As to the first, If “British values” means tolerance, mutual respect and upholding human rights and the rule of law, we would obviously support all of that – as, no doubt, would most citizens of liberal democracies – so what’s so special about the “British” element?

As to the second, we are citizens not of Great Britain but of the United Kingdom of Great Britain and Northern Ireland. One of the issues that bedevilled the thirty years of terrorism in Northern Ireland was precisely that the Unionist and Nationalist communities did not appear to have much in the way of “shared values” at all – or if they did, their disagreement over the nature of the state rendered nugatory what they did have in common. Less controversially, the values of someone in the Scottish Highlands might not be entirely on all fours with those of a resident of Central London.

And even if we could define what we were talking about, what would be the point of Mr Javid’s oath anyway? If people lie on oath in the witness-box, why should they behave any differently just because they have sworn to uphold something as ill-defined as “British values”? Or as the Chancellor of the Diocese of Oxford, Alex McGregor, pointed out on Twitter, “If an oath is needed (which is doubtful) it should be an oath to The Queen, not to subjective, abstract ideas”. We fear that a lot more work is needed.

The state of the blog

At the close of business on New Year’s Eve, we had 441 e-mail subscribers, 1,000-odd followers on Twitter – and 16,000-plus feed subscribers of whom perhaps a couple of hundred or so may even be genuine. More realistically, we are averaging 600-plus page-views a day so, on that basis, we probably have about a thousand fairly regular followers – bearing in mind that we follow several blogs ourselves but don’t by any means read every post. Although our readership tends to be issue-driven, our numbers are gradually rising: November 2016 was the highest to date with over 22,000 page views and we expect to reach a total of three-quarters of a million by May 2017. Which is more than our published stuff (or that of many full-time academics) ever gets.

Our top-ten posts of 2016

Listed below are the posts which attracted the most readers in the year, apart from visits to the “Home Page” and “Recent Posts”, as at 26 December 2016:

  1. “Religious” content of civil marriage ceremonies, July 2013
  2. Chaplin, Eweida, Ladele and McFarlane: the judgment, January 2013
  3. Public holidays, religion and the law, July 2014
  4. Clerical attire, officiants and safeguarding, February 2015
  5. Churches as charities: some basics, September 2015
  6. Lee v Ashers Baking Co Ltd & Ors – an analysis, May 2015
  7. Marriage and burial obligations of the Church of England, December 2013
  8. York Minster Bell Ringers, October 2016
  9. Thoughts on railways, clergy, religion and the law, April 2016 (a guest post by Michael Ainsworth)
  10. Caste discrimination again: Tirkey v Chandhok & Anor, September 2015.

The most-read post overall is still Sharia and the English legal system: the Government’s view, April 2013, with more than 15,000 page-views – but it’s now long out of date.

And for 2017?

Forthcoming judgments

  • The big one: very shortly, the Supreme Court will no doubt be handing down judgment in the conjoined cases of Miller and Agnew & Ors on the mechanism for triggering Article 50.
  • At some point, the CJEU will issue advisory opinions in Achbita and Bougnaoui: two rather similar cases on wearing hijabs at work on which Advocate General Kokott and Advocate Genera Sharpston have issued fairly contrary opinions.
  • The conclusions of the Grand Chamber ECtHR in Károly Nagy v Hungary, about a pastor dismissed by the Hungarian Calvinist Church and the subsequent refusal of the domestic courts to adjudicate his claim for wrongful dismissal: we noted the chamber judgment here.
  • At the time of writing, the Court of Appeal had refused leave to appeal against its ruling in Lee v McArthur & Ors and had rejected as out of time a proposed devolution reference by the Attorney General – but the McArthurs have announced that they intend to seek leave from the UKSC.
  • Also at the time of writing, Jolyon Maugham QC was seeking to challenge the Brexit process in the Irish courts rather than in the UK. How that will play out – and what effect an unfavourable ruling in Dublin would have on the Article 50 process – is anyone’s guess.

Other events

  • The outline timetable for the Church of England’s General Synod has now been published, and following the recent “holding statements” issued by the House of Bishops, the business on Wednesday 15 February is likely to attract significant attention both within the Church and elsewhere: Introduction to the work of the Bishops’ Reflection Group on Sexuality; Group Work: and the “Take Note Debate” on a Report from the House of Bishops.
  • On 19 July 2016, the Bishop of London, The Rt Revd & Rt Hon Richard Chartres KCVO DD FSA, announced his forthcoming retirement in 2017. His last public engagement as Bishop of London will be Candlemas at St Paul’s Cathedral on 2 February 2017; however, he will continue to hold the post of Dean of HM Chapels Royal until the appointment of the 133rd Bishop of London. As a holder of one of the five “ex officio sees” – Canterbury, York, London, Durham and Winchester – his successor will automatically receive Writs of Summons to attend the House of Lords, s 5 Bishoprics Act 1878; such an appointment as a Lord Spiritual is irrespective of gender, s1(5) Lords Spiritual (Women) Act 2015. Watch out for watchers from WATCH.
  • The start of the year marks the commencement of Hull 2017 UK City of Culture, for which David is well-prepared with a copy of Me Sannies are Brannies – “a thoughtful and engaging look into the Hull accent and Dialect” [Many thanks to Caroline W]. Not all readers will be concerned with the city, which is situated at “the end of the railway line; the end of the motorway; well …the it actually finishes about twelve miles before you reach Hull”. However, they will probably remember an earlier post indicating that on 13 May 2017, the Archbishop of York is to return to the city to confer Minster status on Hull Holy Trinity Church. The consistory court judgment on the associated development of the churchyard suggests that “Cassock and Council” relationships are better in Hull than in Leeds.

A long goodbye to the ECHR?

As the year drew to a close, The Telegraph reported that the Prime Minister intends to include withdrawal from the jurisdiction of the European Court of Human Rights in the Conservative Party’s 2020 General Election manifesto. How much truth there is in the report remains to be seen, but such a move would be consistent with statements she made when Home Secretary. So will we see the consultation draft of the much-heralded British Bill of Rights or will it be shelved until after the next election? And – if she wins it – will that mark the beginning of the end of the UK’s adherence to the ECHR?

And finally… 

And a Happier New Year from both of us.

10 thoughts on “Law & Religion 2016 and 2017: retrospect and prospect

  1. As an occasional commentator, who was also involved in one of the more unusual consistory court cases of the year (Re St George, Hanworth [2016] ECC Lon 1; 18 Ecc LJ 383 and [2016] ECC Lon 3; 18 Ecc LJ 397), may I add my thanks to those of Tim Barker. Your posts often alert me to an item of ‘law and religion’ news that otherwise I might have missed.

    While supporting freedom of the press (and regarding section 40 of the Crime and Courts Act 2013, if implemented, as a serious threat to that freedom), the Daily Mail front page of 4 November 2016 (which you reproduce above) must be, at the same time, one of the most memorable and most appalling front pages of the year. And, while endorsing Voltaire’s oft-quoted statement (“I disapprove of what you say, but I will defend to the death your right to say it”), the failure of the Justice Secretary, Liz Truss (see the letters in The Times on 11 November 2016), to condemn that headline was disgraceful.

    Happy New Year!

  2. So the big three stories of 2016 are:

    (1) The Brexit referendum
    (2) Trump for POTUS
    (3) The liberation of Aleppo

    all three of these stories are disasters? That is what you think, Frank?

    For what its worth, I thought that one good reason for voting Leave was the sheer intensity, and the unreasoning quality, of the emotional investment of many Remainers, in their ow simplistic vision of the future options for Europe. They saw only two possible futures for relations between the nation states of the European continent. Either accelerating convergence to union, under an unelected federal governance; Or utter disaster involving the erection of massive trade barriers, the ethnic cleansing of non-nationals from the workforces of the countries of Europe, and (according to some of the most far-fetched accounts) another European war like World War 1 before long.

    The longer such fears were allow to flourish, unchallenged, the more entrenched would the doctrine become that fuelled those false fears. The only challenge that would work, was an EU member state leaving the EU, for the first time, without Armageddon immediately ensuing. For the Remainers had started to see the EU as an end in itself, of eternal significance, rather than merely one possible, man-made, expedient, temporary means to an end that has, by now, already been achieved: a Europe in which many kinds of foreigners get on far better together than they used to during the first half of the 20th century. This achieved, the EU is as unnecessary as the scaffolding around a building that has now already been completed.

    As for Trump, it remains to be seen whether he will achieve anything much at all, in one of the most impossible jobs in the world.

    And Syria? Frank, the liberation of Aleppo just in time for Christmas, was a wonderful gift to the Christians who were being persecuted by the rebels, deprived of the protection of the government of Syria whose authority the Islamic terrorists were challenging. The worst that can be said about this was that it was too little, too late, because the rebels did not withdraw as soon as the government they sought to overthrow called their bluff.

    The liberation of Aleppo was certainly a step in the right direction. It has restored law and order to a part of Syria that was some to a large civilian population, before foreign politicians decided to transform it into an urban battle field.

    Whose bright idea was it, to stage a so-called “Arab Spring” in the first place, as a cover for western a plot to destabilise the Middle East even more than the west had already destabilised the Middle East? No matter. The buck stops with the politicians who went along with this callous, bloody suggestion. The blood of the Christians martyrs crucified and beheaded for their Christian faith in Syria in on their hands, and the blood of all the other classes of victim for that matter (including many, many Muslim children), who have perished because it became western foreign policy to fund and to arm Islamic ar terrorists in Syria, as though the politicians who decided to do this simple had no idea what harm such mischievous policies always inflict.

    • Brexit, and Trump for POTUS: yes, that is what I think – and since we worked on this jointly, I assume that David thinks the same.

      The liberation of Aleppo: I don’t know the rights and wrongs – but I fear that the whole thing will drag on endlessly and more people will die. And people dying is not good.

  3. Hi Frank, all the best for the New Year to you and David, keep up the great work! Thanks for the “shout-out”. Can I put my pedantic hat on for the moment and just clarify something? When you note that the new Bishop of London will be “a holder of the “five ex officio sees” ” I assume you actually mean “one of” the five sees? Or is the Bishop of London also the Bishop of the other four sees? I assume not. All the best, Neil.

    • Hi Neil

      A Happy New Year to you too, and do please keep up the news from Australasia.

      As a fellow-member of #thepedantsrevolt, all I can do is to blush slightly and correct it – which I’ve just done.

      F

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