An extraordinarily busy week dominated by Brexit – and just how many more times will we find ourselves saying that?
Brexit and the Supreme Court
Although we steadfastly avoided predicting the outcome of the Supreme Court appeal in the Brexit cases, we were not at all surprised either at the result or that it was an 8/3 split decision. We do not intend to add to the already a mass of analysis on the legal blogs by commentators much more expert than we are; they have been summarized by Robert Craig on the Constitutional Law Group site: Miller: An Index of Reports and Commentary. The site is designed to be a “one-stop-shop” for locating relevant documents, helping to identify the key issues; it will include updates and 500-word reaction pieces will also be added to the list. It is anticipated that this post will sit on the sidebar of the UKCLA blog during further debate on Miller for easy access for readers.
Meanwhile, we are waiting for some journo to accuse Lord Neuberger and his seven colleagues of being “Enemies of the People” – though one can always rely upon Ian Duncan Smith to expose his profound grasp of constitutional issues. More surprising, perhaps, was Lord Chancellor Elizabeth Truss, who was quick to issue a statement supportive of the judiciary. Responding to the judgment, she said:
“Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our Supreme Court justices are people of integrity and impartiality.
While we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect the decision of the court”.
To the cynical (like us), however, this had echoes of the fictional Fr Jack Hackett being coached to say: “that would be an ecumenical matter” in order to avoid offence.
Sexuality issues and the Church of England
On 27 January, the Church of England published Marriage and Same Sex Relationships after the Shared Conversations: A Report from the House of Bishops, GS 2055. The House was also provided with legal advice which described the effect of the relevant provisions of ecclesiastical law . The parts of that advice which are material to the content of this report were included as ANNEX 1, which we reproduced here. Whereas the Report is dated 23 January 2017, the Annex is dated November 2016 and was therefore available at an early stage of the deliberations of the House of Bishops and the College of Bishops, who met in November and December.
Anglican Mainstream, Thinking Anglicans, and others carry links to the many of the commentators’ responses to the Report, here, here and elsewhere. In Christian Today, Ruth Gledhill noted that whereas prominent LGBT campaigners were vociferous in their criticism, the Report would please conservatives: Conservative evangelical Anglicans – in line with Traditional Anglo-Catholics, Orthodox, Roman Catholic and other Reformation Churches – who argue that this is a “first order” issue that cannot be changed, because that would be like changing the Creed itself, or the texts of the Gospels.
She observes that whilst there appears to be little danger that conservatives will depart the Church en masse, and despite their anger, the LGBT community shows every sign of remaining within the Church, the problem is how the bishops are going to persuade anyone under 30 to join the Church in the first place.
Members of General Synod have until the debate [item 14] on Wednesday 15th February 2017 in which to formulate their views on the bishops’ document. Of the various commentaries, a useful start would be to look at Michael Sadgrove’s The Bishops’ Report on Same-Sex Relationships, Ian Paul’s Where are the bishops leading on the sexuality debate? and Sex and the bishops by Miranda Threlfall-Holmes. However, for anyone concerned at how the Church of England might be perceived in non-church circles, the Beaker Folk’s classic post Ceremony of Not Blessing Things We’d Rather Not Think About is essential reading.
Brexit and Parliament
In the debate earlier in the week on Article 50, Stephen Doughty (Cardiff South and Penarth) asked: “will the Bill be drafted in such terms as to allow not just amendments, but substantive amendments? Yes or no?”. In reply, the Minister said: “I have been here for 30 years. If the hon. Gentleman knows how to draft a Bill that withstands any amendments, I would like to hear about it”. All the amendments tabled up to and including Monday 30 January are available here.
The European Union (Notification of Withdrawal) Bill will be debated in the House of Commons from 31 January to 8 February 2017, and a useful Briefing Paper has been produced by the House of Commons Library.
Religion, hate crime – and fitba’
Annabelle Ewing, the Scottish Minister for Community Safety and Legal Affairs, has announced that Lord Bracadale, of the Court of Session, is to chair an independent review of the Scots law on hate crime. The review will consider whether current laws are appropriate and consistent, whether hate crime legislation needs to be simplified, rationalised or harmonised and whether new categories of hate crime for characteristics not currently legislated for, such as age and gender, need to be created.
The review will include the operation of the (extremely controversial) Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 , s 2 of which criminalises, inter alia, “expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of a religious group [or] a social or cultural group with a perceived religious affiliation”, as well as hatred on grounds of colour, race, nationality (including citizenship), ethnic or national origins, sexual orientation, transgender identity or disability. But Ms Ewing said that “This review goes far beyond football.”
Scientology and Article 6 ECHR
In Hiernaux v Belgium  ECHR (No. 28022/15), the applicant, Anne-France Hiernaux, complained about the length of a criminal investigation of the leaders of the Belgian Church of Scientology to which she belonged.
In 1997 and again in 2008, two investigations were opened into the Church of Scientology and its leadership, including Ms Hiernaux. The cases were joined in May 2013; and she and several others were committed for trial before the Brussels Court of First Instance in March 2014. Before the domestic courts, she complained that the length of the proceedings had been unreasonable and asked the court to find the prosecution inadmissible. By a judgment of 11 March 2016, the Court of First Instance declared the prosecution inadmissible for infringement of the right to a fair trial, but rather than invoking the right to be tried within a reasonable time it did so for a different reason: that the entire proceedings had been unfair because the investigation had been biased and no offences had been committed .
Before the Second Section ECHR, Ms Hiernaux argued that she had not had an effective remedy by which to raise her complaint about the excessive length of the criminal proceedings brought against her, contrary to Article 13 ECHR (effective remedy) taken together with Article 6 §1 (fair hearing within a reasonable time). The Court noted that the approach of the domestic courts had not been contrary to the Convention nor had it infringed Articles 6 and 13, in that it had not resulted in an irreparable violation of Ms Hiernaux’s right to conduct her defence or the loss of evidence. There had therefore been no violation of Article 13 taken together with Article 6 §1.
Surrogacy – or just babies for sale?
In Paradiso and Campanelli v Italy  ECHR (No. 25358/12) the Grand Chamber ruled on the decision of the Italian authorities to place in care a child born through surrogacy in Russia to an elderly Italian couple who claimed to have undergone assisted procreation using a Russian company. A DNA analysis suggested that the child had no biological connection with either parent: he was the result of in vitro fertilisation and surrogacy. The Italian judges had decided in the interests of the child – who was by then six months old – to place him in care with a view to adoption. The Second Section (Raimondi and Spano JJ dissenting) had ruled that placing him in care had violated the couple’s rights under Article 8 ECHR (private and family life).
The Grand Chamber reversed the chamber judgment by eleven votes to six: the relationship between the applicants and the child did not constitute “family life” for the purposes of Article 8. It noted that, according to the Campobasso Minors Court, the applicants had acted illegally: by bringing to Italy a foreign child with no biological ties to either of them they had breached the rules on international adoption. Further, they had concluded an agreement that was contrary to the prohibition on heterologous assisted reproduction in Law no. 40 of 19 February 2004 (the Medically Assisted Reproduction Act).
The Court had already accepted in its case-law that, even without a biological tie and a legally-recognised parental relationship, “family life” could still exist between foster-parents and a child whom they had cared for temporarily. But though Ms Paradiso and Mr Campanelli had forged close emotional bonds with the child, that did not amount to “family life” and, insofar as their conduct had breached the Adoption Act and the prohibition on heterologous artificial reproduction, the measures taken in respect of the child had been legitimate and proportionate to the aim pursued: the protection of the “rights and freedoms” of others. There had therefore been no violation of Article 8.
CORAB one year on
Public Spirit is beginning to post short versions of the papers that were delivered at the recent Zutshi-Smith symposium at Bristol Law School on the report of the Commission on Religion and Public Life. The first tranche is as follows:
- Tariq Modood: Zutshi-Smith Symposium on The Commission on Religion and Belief in British Public Life: Introduction.
- Alison Mawhinney: The law on collective school worship: The rationale then and now.
- Frank Cranmer: Reasonable accommodation for religion in employment and provision of services?
- Prakash Shah: How CORAB instantiates the treatment of Hindus in British religion and faith policy.
- Silvio Ferrari: The transformations of freedom of religion and belief: reflecting on Europe today.
- Simon Lee: Why we must have particular regard to what the law actually says.
- David Perfect and Kathleen Jameson: EHRC religion or belief guidance and evaluation of the law.
In addition, last week we posted a critique of CORAB by Jonathan Chaplin and cross-posted Steven Kettell: A secularist response to CORAB: recommendations at odds with the realities of twenty-first century life in Britain.
Computer analysis of ECtHR judgments
We noted the results of an interesting piece of research from University College London on the automatic analysis of cases of the European Court of Human Rights. The researchers concluded that algorithmic analysis of the facts as stated in judgments on cases brought under Articles 3 (inhuman or degrading treatment), 6 (fair trial) and 8 (private and family life) could predict the court’s decisions with a high degree of accuracy: 79% on average. We wondered, however, how accurate that would prove in Article 9 cases, given the tendency of the ECtHR to give states parties a fairly generous margin of appreciation in cases involving thought, conscience and belief.
Church silver plate
On Thursday, Philip Petchey, Chancellor of the Diocese of Southwark, delivered his lecture Hidden Treasure: the Church of England’s stewardship of its silver plate to members of the Ecclesiastical Law Society. Those unable to attend will need to wait until the lecture is published in the Journal. However, for anyone interested in the practical use of historic church plate, on January 30 at 12.30pm there will be a said Eucharist for the commemoration of Charles the Martyr celebrated in the Chapel Royal according to the 1637 Scottish Prayer Book. At this, the chalice and paten used with be those presented by his son to the Chapel.
With thanks to Fr Anthony Howe, Chaplain and Deputy Priest in Ordinary.
A “good news story” for those concerned about cathedral finance is to be found in a recent item posted in the CofE Document Library: the Derby Cathedral AGM Report 2015. The Very Revd Dr John Davies DL, Dean of Derby wrote:
“The bottom line
I anticipate here what follows later in connection with finance. That we could show a surplus in a year which saw the Cathedral closed for four months, shows how sustainable this Cathedral is. We keep a very close eye on costs, and we are always keen to increase our income. I salute the work of the Finance Committee”.
The full Derby Cathedral Statutory Reports & Accounts 2015 are here. Incidentally, Dr Davies was appointed as the new Dean of Wells and took up his position and was installed at a special service on Sunday 20 November 2016 at Wells Cathedral.
New faces in Strasbourg
The Parliamentary Assembly of the Council of Europe has elected new judges to the ECtHR in respect of Hungary and The Netherlands: Péter Paczolay and Jolien Schukking. Both have considerable judicial experience in their own jurisdictions – and they are emphatically not “unelected judges”.
And while we’re on the subject, on Tuesday the Minister for Courts and Justice, Oliver Heald, confirmed that plans to repeal the Human Rights Act 1998 have been put on hold: “we will return to our proposals once we know the arrangements for our exit from the European Union”.
Quick links, mainly on Miller and Article 50
- ChurchCare: Grants for the conservation of (church) clocks: closing date: Monday 30 January 2017.
- ChurchCare: Guidance for Turret Clocks.
- Judicial Power Project: Miller Supreme Court Judgment: Expert Reactions: mostly unenthusiastic.
- Mark Dawson, Verfassungsblog: Brexit in the Supreme Court: An Opportunity Missed?: “In the end, this judgment was something of a damp squib”.
- Mark Elliott, Public Law For Everyone: Analysis: The Supreme Court’s Judgment in Miller.
- Saxon Norgard, Rebecca Hacker & Adam Wagner, UKHRB: The Supreme Court Brexit Judgment In Plain English.
- Louise Thompson and Simon Usherwood, The Conversation: Article 50 hits parliament – here’s what to expect.
And finally … I
The Grand Master of the Knights of Malta, Fra’ Matthew Festing, has resigned over what the BBC describes as “a bitter dispute with the Vatican about free condoms that became a test of the authority of liberalising Pope Francis”. The Grand Master and the Vatican have been in dispute since the Order’s Grand Chancellor, Fra’ Albrecht Freiherr von Boeselager, was sacked in December after allegations that thousands of condoms had been distributed in Myanmar by a medical project for the poor that was managed by the charity’s humanitarian relief arm, Malteser International. Von Boeselager appealed to the Pope, who appointed a five-member commission to look into the circumstances of the sacking – with which Festing then refused to cooperate.
No doubt someone better-qualified in Roman Catholic canon law than we are (which wouldn’t be difficult) will explain it all in due course.
And finally … II
Another Malta-related issue that has been extensively covered by Roman Catholic canon lawyers is the on-going issues raised by Amoris laetitia, and the declaration of the bishops of Malta that divorced-and-remarried Catholics who are living as if they were married “cannot be precluded from participating in … the Eucharist”. Those seeking a more pictorial (and musical) summary should view That’s Amoris.
In contrast to a certain Tory MP, it is unlikely that Pope Francis has written off the “tiny little island” of Malta.