Law and religion round-up – 15th January

The usual mix of the newsworthy, the obscure and the faintly ridiculous… 

Historic abuse in Northern Ireland…

The final report of the Historical Institutional Abuse Inquiry has been submitted to the First Minister and Deputy First Minister and will be published on Friday 20 January (though whether Northern Ireland will still have an Executive on 20 January is another question entirely). The investigation, which started in 2013, has been chaired throughout by Sir Anthony Hart, a retired judge of the Northern Ireland High Court. It looked primarily into cases of abuse that took place in 22 residential homes for children between 1922 and 1995.

The Report will make recommendations on the following matters as specified in the Inquiry’s Terms of Reference:

  • an apology – by whom and of what kind;
  • findings of institutional or state failings in their duties towards the children in their care and whether those failings were systemic;
  • recommendations as to an appropriate memorial or tribute to those who suffered abuse; and
  • the requirement or desirability of redress being provided by the institution and/or the Executive to meet the particular needs of victims.

The nature or level of any potential redress (financial or the provision of services) will be a matter for the Executive to discuss and agree following receipt of the Report. [Thanks to Irish Legal News.]

… and in North-East England

The St William’s School saga grinds on; and three claims were decided in December.

In AB v The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors [2016] EWHC 3334 (QB) and EF v The Catholic Child Welfare Society… [2016] EWHC 3336 (QB) HHJ Gosnell dismissed two claims of sexual and physical abuse against the Diocese and the De La Salle religious order. In CD v The Catholic Child Welfare Society… [2016] EWHC 3335 (QB), however, the Claimant was awarded £14,000 in general damages, primarily in respect of being raped when he was twelve.

IICSA

On 10 January, the Independent Inquiry into Child Sexual Abuse announced that Brian Altman QC is to be new lead Counsel. The Chair of the Independent Inquiry into Child Sexual Abuse, Professor Alexis Jay OBE said:

“I am pleased to announce that I have appointed Brian Altman QC as lead Counsel to the Inquiry. He is hugely experienced, having spent 16 years as Treasury Counsel, the last two and a half years of which were as First Senior Treasury Counsel. This is an important appointment for the Inquiry and I look forward to working with Brian as we take forward the work of the Inquiry.”

Law Commission proposals on marriage law

The Ministry of Justice has published its annual report on the progress of implementation of proposals by the Law Commission for England & Wales. This is what it says about marriage law:

Marriage Law

40. The previous Government consulted on whether the law should be changed to allow non-religious belief organisations, including humanists, to conduct legal marriages. They concluded that there were broader implications for marriage law and asked the Law Commission whether it would conduct a review of the law on marriage ceremonies. The Law Commission undertook a preliminary scoping study and reported in December. The Government is carefully considering the report and will respond in due course.” [Thanks to Russell Sandberg.]

Since the scoping study, the Commission has been considering a wider review of the law on weddings as part of its more general consideration of its next Work Programme.

Strasbourg and the margin of appreciation in divorce law

Though slightly marginal – which is why we didn’t produce a freestanding note – in Babiarz v Poland [2017] ECHR 13 the Fourth Section was asked to adjudicate on the legality of Poland’s divorce laws under Articles 8 and 12 ECHR.

The applicant, B, married in 1997, but in 2004 left his wife, R, and had a daughter with his new partner. B refused to undergo the mediation process provided for by divorce law and R did not agree to a divorce, declaring that she loved B and asking the court to dismiss the divorce petition. The domestic court refused B a divorce because, in its view he was the only person responsible for the breakdown of his marriage and, though there had been “a complete and irretrievable marriage breakdown” within the meaning of Article 56 § 1 of the Family and Guardianship Code, under Article 56 § 3, a divorce could not be granted if it had been requested by the “guilty” party if the other party refused to consent and the refusal of the “innocent” party was not “contrary to the reasonable principles of social coexistence” within the meaning of Article 5 of the Civil Code.

The Court concluded that states parties enjoyed a wide margin of appreciation in how they framed their divorce laws in order to “ensure compliance with the Convention and to reconcile the competing personal interests at stake” and dismissed the application by five votes to two. There was a powerful dissent from Pinto de Albuquerque J, however, in which he concluded that:

“Article 8 of the Convention protects de facto family life that is not based on marriage. The majority took an unbalanced, one-sided approach to this case, considering solely the rights of the spouse R. and disregarding entirely the right of the applicant and A.H. to marry and found a family and the right of M. to live in a legally recognised family.”

Possibly one for the Grand Chamber?

Registration of Marriage Bill 2016-17

On Friday, the Registration of Marriage Bill was read a second time without debate and stands committed to a public bill committee. Its purpose is to reform the way in which marriages are registered in England and Wales by moving from the current paper-based system to registration in an electronic register. If the Bill becomes law, it will facilitate change to the register entry both now and in the future, including a line for the inclusion in the register of the names of the parties’ mothers.

Civil Partnership Act 2004 (Amendment) Bill

Following a short debate, [Commons Hansard 13 January 2017 Vol 619 Col 639], the Second Reading of Tim Loughton’s Civil Partnership Act 2004 (Amendment) Bill on 13 January was adjourned and will resume on 24 March. The two-clause Bill seeks to amend the Civil Partnership Act 2004 to provide that opposite-sex couples may enter a civil partnership, i.e. “Part 1 of the Civil Partnership Act 2004 is amended as follows: (2) In Section 1, subsection (1), leave out ‘of the same sex’”.

The Minister for Apprenticeships and Skills (Robert Halfon) commented [Col 650]:

“There is always the law of unintended consequences, as I am sure my hon. Friend would acknowledge, and it is right that the Government make sure that all these avenues are carefully looked at before making any further changes to the law. That is not an unreasonable position”.

It would also be not unreasonable in relation to the many necessary legislative changes post-Brexit, which will be somewhat more complex than a two-clause Bill.

European Union (Article 50) Bill 2016-17

The second reading of Peter Bone’s Withdrawal from the European Union (Article 50) Billwhich was expected to have its second reading debate on Friday, has been rescheduled for 27 January.

Combating Islamophobia

On 17 January, the Permanent Missions to the UN of Canada, the United States and the Organization of Islamic Cooperation and the Delegation of the European Union to the UN, jointly, will host a High-Level Forum on Combating Anti-Muslim Discrimination and Hatred. Discussions will focus on rising anti-Muslim discrimination and hatred worldwide and will compare government and private sector responses, share best practice and provide concrete recommendations for combating anti-Muslim discrimination and hatred.

Basic ecclesiastical law – I

We are still puzzling as to why a “fundamentally flawed” application for an injunction to stop the Dean and Chapter of York Minster preventing the ringing of the Minster bells was ever made to the York Consistory Court, which has no jurisdiction in this area. We suspect that the Chancellor/Vicar General had similar thoughts, but at least, as Chair of the Cathedral Council, he had no need to recuse himself: “a perception of bias [could not] conceivably arise when the sole issue is the jurisdiction of the court in such a plain case”: Locabail (UK) Ltd v Bayfield Properties Ltd [2002] QB 451.

Basic ecclesiastical law – II

On 12 January, Christian Today carried the story Archbishop Of Canterbury Urged To Discipline Cathedral Over Koran Reading, which began:

“The Archbishop of Canterbury has been urged to discipline a Scottish Episcopal cathedral over a reading of the Koran that denied Jesus was the son of God. Justin Welby was asked to intervene by the conservative grouping GAFCON UK on Thursday after a service last week at St Mary’s Cathedral, Glasgow, contained a recitation from the Islamic holy book”.

To this, Frank tweeted “The Archbishop of Canterbury hath no jurisdiction in this Realme of Scotland“. Ironically, on 10 January, the Church of England had commemorated William Laud, Archbishop of Canterbury, 1645.

Vacancy in See Committee, London

The Diocese of London provides the following information regarding the Vacancy in See Committee [emphasis added]:

“A Vacancy in See Committee is required to be in existence at all times in every diocese. The Committee only meets when there is a vacancy in the See…The Committee holds at least two meetings, the first of which is held as soon as practicable after the vacancy has been announced. At its second meeting the Committee discusses the needs of the Diocese. It then prepares a statement setting out those needs and sends it to the Crown Nominations Commission…”

“The Committee elects…persons to be members of the Crown Nominations Commission… normally taken as the final business of the second meeting of the Committee, and is conducted by the method of the single transferable vote in accordance with the Regulations of the General Synod…”.

The formal resignation date of the Rt Revd & Rt Hon Richard Chartres, Bishop of London, is at the end of next month on Shrove Tuesday, 28 February 2017, although his last official engagement is Candlemas at St Paul’s Cathedral on 2 February. Other dates relevant to the vacancy are here.

Re-posts and blogging

This week, Frank’s post on the Christian Institute case was re-posted on the UKSC blog and we re-posted Peterborough Cathedral: thoughts on the visitation report from Michael Sadgrove’s Woolgathering in North East England blog. In theory, material such as this is generally available on the Internet anyway, so what is the value of re-posting?

From the point of awareness, blogs tend to have an established group of readers, and cross-posting items such as these exposes them to a wider range of people with a potential interest. Likewise, they can be valuable from the point of view of the author. We frequently cross-post items of interest with the approval of the authors. Similarly, in most cases, we are very happy for pieces on L&RUK to be re-posted elsewhere, although on one or two occasions we have refused permission on the grounds of unsuitable material on the potential host site.

With regard to the Peterborough Visitation specifically, this is an area that we had begun to follow, here, and republishing Michael Sadgrove’s entire post rather than providing a link appeared to us to provide better continuity to the story. Furthermore, with almost thirty years’ experience of full-time ministry in (three different) cathedrals, he can provide insights that few other commentators can match (and certainly not us). [For those following these events, the Church Times has an article, Deans defend cathedrals’ independence, which quotes the Dean of Lichfield, the Very Revd Adrian Dorber, as stating that the financial troubles at Peterborough Cathedral should not be used as “a stick to beat the rest of the cathedrals with”. Dean Dorber chairs the Association of English Cathedrals].

Quick links

  • Church of England: Week in Westminster, 9th-13th January 2017 :in the House of Lords bishops hosted a debate on armed forces welfare, sponsored an amendment to the Government’s Higher Education and Research Bill, and spoke in debates about the armed forces, the north of England and the situation of the Rohingya Muslim people in Burma. They also asked questions about underage online gambling, the situation of UK and EU nationals after Brexit and the safety of people returned to the Democratic Republic of Congo. In the House of Commons, the Second Church Estates Commissioner answered a question about churchyard biodiversity in the Blackburn Diocese.
  • The Economist Erasmus Blog: Swimming together, living together: comment on Osmanoğlu and Kocabaş v Switzerlandon obligatory mixed swimming classes (on which we posted here) and how the verdict vindicates the margin of appreciation and le vivre-ensemble – which is OK so far as is goes, but there’s nothing about “living together” in the Convention.
  • Kirsteen Shields, Scottish Parliament Information Centre [SPICe]: Human Rights in Scotland: covers Scotland’s relationship with the ECHR, the EU Charter of Fundamental Rights and UN treaties, the powers of the Scottish Parliament in relation to human rights and the potential implications of Brexit for human rights law in Scotland.

And finally… I

In August, we reported briefly on the case of HHJ Patricia Lynch QC who, when a defendant on whom she was passing sentencing called her “a c*** “, reportedly replied, “Well, you’re a bit of a c*** yourself. Being offensive to me doesn’t make things better at all.” The Law Society Gazette reports that the Judicial Conduct Investigations Office will not be taking any formal action against her; instead, she has been advised to “ensure that she responds appropriately to parties in court at all times”.

We couldn’t possibly comment further…

And finally… II

3 thoughts on “Law and religion round-up – 15th January

  1. Historical sexual abuse – the St Williams School saga:

    There was a fourth claim decided by HH Judge Gosnell in December: GH v The Catholic Child Welfare Society [2016] EWHC 3337 (QB). In that case the judge exercised his discretion under section 33 of the Limitation Act to allow the claim to proceed, but dismissed it on the evidence. This was his conclusion (para 76):
    “The burden of proof is on the Claimant to satisfy me on balance of probability that he suffered the sexual and physical abuse which he contends occurred in this case. He has failed to discharge that burden. I found him an unreliable witness for the reasons alluded to above. There were too many unexplained inconsistencies in his evidence and his performance in the witness box did nothing to allay my concerns. Whilst I accept that Father McCallen may have sexually abused boys at St William’s that he has not been called to account for in the criminal courts I am not convinced on balance that this Claimant is one of them. The allegations of physical abuse are easy to make and difficult to defend but my concerns about his allegations of sexual abuse infect his credibility on the allegations of physical abuse. I intend to dismiss the claim.”

    Vacancy in See Committee, London

    At 52 members, this must be one of the largest (if not the largest) vacancy-in-see committee in any diocese. Interestingly, although Bishop Chartres’s impending retirement was announced some time ago and will take effect on 2 February 2017, the Crown Nominations Commission will not be meeting to consider his successor until the autumn. The dates of the three meetings (as announced on the C of E website) are 27 September 2017, 7 November 2017 and 29 November 2017: see http://www.churchofengland.org/clergy-office-holders/aaad/senappt/dbnom.aspx. This is after the elections due to take place this summer at General Synod for six new ‘central’ members of the CNC. Those elections promise to be particularly interesting.

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