Law and religion round-up – 5th February

Brexit yet again, child abuse, abortion, deposition from Orders – the usual mix…

Brexit yet again

On Friday, the Administrative Court threw out the latest Brexit challenge by a group led by Peter Wilding and Adrian Yalland. They argued that, under the terms of Article 127 of the Agreement on the European Economic Area, Parliament should give separate approval to the UK’s exit from the EEA.

Lloyd-Jones LJ and Lewis J concluded that the Government had not made a decision “as to the mechanism by which the EEA agreement would cease to apply within the UK”. As a result, it was not clear at this stage what issues, if any, would fall within the jurisdiction of the courts. All we have at the moment is press reports: we’ll be interested to see the written judgment.

‘EU Withdrawal Bill’ – Second Reading and White Paper

The European Union (Notification of Withdrawal) Bill was given its Second Reading on 31 January and 1 February, following which the government issued an apparently hastily-prepared White Paper setting out government’s 12 negotiating objectives to build a Global Britain with a strong new partnership with the EU after the UK’s exit. A detailed critique of the White Paper has been given by Professor Steve Peers in his post As Bad as it Gets: the White Paper on Brexit on 3 February 2017. Those who voted for Brexit on the assumption that it would enable the UK to “take control of its own laws”, will be surprised to find that the White Paper states:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that” [2.1].

Nasty goings-on at Iwerne holiday camp 

Brexit apart, much of the week was dominated by the revelations on Channel 4 about the violent abuse of some of the boys who attended a Christian holiday camp between 1978 and 1982. We posted the three major statements on the affair here. According to a report in the Telegraph, Hampshire Police has launched an investigation into the alleged perpetrator, John Smyth QC.

Julian and Sandy go to Cambridge

At the end of what has been a bad week for the CofE in the media – continued criticism of the House of Bishops Report, safeguarding at the Iwerne Trust, and the early release of Peter Ball – the Revd Canon Chris Chivers, Principal of Westcott House was forced to issue a Statement in Response to Recent Social Media concerning a student-led Evening Prayer in which in which the office text had been changed is in its transduction into Polari; the transduction was modelled on the “Polari Bible”, a project of the Sisters of Perpetual Indulgence, Manchester Chapter, from which the readings of Scripture were taken. As the Principal commented:

“At Westcott we value the opportunity to give space for LGBQT community and we always hope to make a creative contribution to setting a different tone for the debate on human sexuality in the church. But this was not it”.

Gender dysphoria and family breakdown in the Charedi community

We posted a note on J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, about a dispute over child contact in the case of a couple, members of the North Manchester Charedi Jewish community, who ended their marriage in June 2015 when the father left home to live as a woman. The case, which was widely reported in the media, not only highlighted the sensitive and difficult issues that the family courts have to resolve on every working day but also pointed up the distinction between religious rules and secular law.

In McFarlane v Relate Avon Ltd [2010] EWCA Civ 880, Laws LJ was very firm about the subordination of religion to secular law, particularly at [22]:

“We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.”

In J v BPeter Jackson J put it rather more crisply:

“Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations” [180].

Ultra vires in the Anglican Church of Australia

We noted the decision of the Appellate Tribunal of the Anglican Church of Australia in Appeal of Keith Francis Slater [2017] 19 January, in which the Tribunal decided that it had no appellate jurisdiction in the matter – but went on to hold that the recommendation for dismissal of the appellant by the Diocese of Grafton’s Professional Standards Board and his subsequent deposition had been ultra vires. We thought it was “an unusual judgment”: a diocesan chancellor of our acquaintance subsequently described it as “bizarre”.

Magistrates and same-sex adoption

A magistrate has been reprimanded for refusing to sit on a same-sex parenting case. On 26 January, the Judicial Conduct Investigations Office issued the following statement:

“Mrs Susan Preston JP, a magistrate assigned to the South Derbyshire Bench, has been issued with a formal warning following an investigation into her conduct. Mrs Preston had declined to adjudicate on a case in the Family Court because of her personal views about same sex couple parenting. The Lord Chancellor and Lord Chief Justice considered that this amounted to misconduct and have issued Mrs Preston with a formal warning. Mrs Preston has also been asked to stand down from the Family Panel with immediate effect.”

Scottish Child Abuse Inquiry

The Scottish Child Abuse Inquiry, chaired by Lady Smith, held a preliminary hearing on Tuesday. Lady Smith gave an update on the work of the Inquiry and its progress to date. Over 50 residential care establishments for children are being investigated by Inquiry staff ahead of future public hearings. More than 100 locations have been identified where abuse of children is said to have taken place.

The current investigations include institutions run by faith-based organisations, other major care providers, boarding schools and local authorities. There is a full list on the Inquiry’s website: it includes seven Roman Catholic religious orders and the Church of Scotland’s social work arm, Crossreach. The public hearings will proceed in phases, with the first commencing on 31 May 2017. Phase one will cover:

  • interim reports of commissioned research;
  • the State’s role in, and responsibility for, children in residential and foster care in Scotland;
  • the history and governance of organisations providing residential and foster care; and
  • the background to, and reasons for, the establishment of survivor groups.

Conscientious object to abortion in Sweden

In November 2015 we noted the case of Ms Ellinor Grimmark, a Swedish midwife who objects to abortion because of her Christian beliefs. She had been offered jobs by two women’s clinics; but when she explained that she could not perform abortions because of her conscientious objection and her Christian faith, both clinics withdrew their offers; and in Ellinor Grimmark v Region Jönköpings lan 2015-11-12 nr T 1781-14, Jönköping District Court [Tingsrätt] dismissed with costs her complaint of discrimination. The Equality Ombudsman [Diskrimineringsombudsmannen] also ruled against her. Subsequently, a third clinic also turned down her application for a vacancy. She is now appealing to a labour tribunal: a ruling is expected shortly.

Disestablishment in Norway – or maybe not entirely

Last Sunday the Prime Minister, Erna Solberg, addressed the General Synod of the Church of Norway in Trondheim. According to a report in Vårt Land (isn’t Google Translate wonderful?), she told Synod that the change had altered the state’s relationship with the Church, but “not the people’s relationship with the Church.” Further:

“The state will support the Church of Norway – with money and legislation – so it can remain a national church. It will also support the other belief communities on an equal footing. The Constitution requires that the Church of Norway should continue to have a special position in our country and that this be done without discriminating against all other religious and philosophical communities.”

She stressed the need to find the right balance in the new relationship between tradition and innovation and between continuity and disruption. So, maybe, not so much a total divorce, more an amicable separation with promises of mutual support.

Quick links

  • Neil Foster, Law and Religion AustraliaAustralian inter-State vilification orders overturned: constitutional implications of NSW Court of Appeal overturning two findings of “homosexual vilification” made by an NSW tribunal against residents of Queensland and Victoria.
  • Aidan O’Neill, VerfassungsblogThe Miller decision: Legal constitutionalism ends not with a bang, but a whimper: “This judgment has made the political constitution of the devolved United Kingdom as a whole more unstable, more brittle, more fragile and more likely to break-up precisely because it denies the devolved nations’ institutions any legal right to participate in the Brexit process.”

Launch of Law and Religion Research Cluster, 28 February

University of Westminster, 4-6 pm, 309 Regent Street, London W1:

Click here to register.

Forthcoming day conference, 14 September

Heythrop College, Kensington Square, London W8:

Further details from John Duddington:

And finally I… Maltesers again

The Catholic News Agency reports that the Order of Malta has accepted the resignation of its Grand Master, Fra’ Matthew Festing, and reinstated its former Grand Chancellor, Fra’ Albrecht Freiherr von Boeselager, annulling the decrees establishing “disciplinary procedures” against him. According to a press release of 28 January, the Order’s Sovereign Council also appointed Grand Commander Fra’ Ludwig Hoffmann von Rumerstein as the new “Lieutenant ad interim” until a new Grand Master is elected. Along with the Grand Master’s resignation, the Order announced its decision to annul the decrees establishing “disciplinary procedures” recently instituted against von Boeselager and the revocation of “the suspension of his membership in the Order”.

The Tablet observes that as a consequence of these latest moves, Cardinal Burke, the Pope’s most prominent critic, is “in office but out of power”:

“Cardinal Burke is currently the Order of Malta’s patron, a role whose main task is to be the Pope’s personal representative to the knights and point man for the Holy See. But following the saga between the Order and the Vatican … the Pope has ruled that his representative will, for the time being, perform the cardinal’s job.” 

And finally II… a thought for Lord Chancellor Truss

[With thanks to St Mary’s Cathedral, Glasgow and Kelvin Holdsworth.]

4 thoughts on “Law and religion round-up – 5th February

  1. What a miscarriage of justice! Surely Mrs Susan Preston JP is entitled to her personal views (about same sex couple parenting) as we all are? If she feels that this would compromise her judgement in a case then surely standing down is the right thing to do. Should be lauded not penalised.

    What are the Lord Chancellor and Lord Chief Justice thinking of?

    • Hi Trevor

      Fair point: but members of the judiciary (even magistrates) are there to administer justice “without fear or favour, affection or ill-will”. If she doesn’t approve of the laws she is required to enforce, might not the more appropriate course be for her to resign from the magistracy? Anyway, since she’s been stood down from the Family Court, she’s not going to have the same problem in future.

      In Friendship


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