A week dominated by Brexit, ‘First Minister vs Prime Minister’ and the fall-out from the first judgments of the CJEU on religious manifestation… 

Brexit

As expected, on Monday the Commons rejected the Lords amendments to the European Union (Notification of Withdrawal) Bill, the Lords did not insist on their amendments and the bill passed. So after a total of 70 hours of debate, the EU (Notification of Withdrawal) Bill completed its passage through Parliament and received Royal Assent on Thursday. The BBC reports that the Prime Minister is expected to wait until the end of the month formally to notify the EU of the UK’s intention to leave.

Meanwhile in Scotland…

… also to no-one’s surprise (or certainly not to ours), First Minister Nicola Sturgeon confirmed on Monday that she wanted a second referendum on Scottish independence at some point between autumn 2018 and spring 2019 and would begin the process by asking the Scottish Parliament to request a Section 30 order from Westminster to permit a further, legally-binding independence referendum: we noted her statement here. The Prime Minister’s slightly equivocal response, in a television interview, was that she did not rule out a second independence referendum but that the vote would have to take place after Brexit.

The response of the Church of Scotland’s Church and Society Council supported the call for a second referendum – “The UK Parliament will have the final say on whether to grant the right to hold an Independence Referendum. It would be wrong if it was withheld” – but otherwise was studiously neutral:

““Individual church members will always be entitled to their own views but the Church retains a position of active neutrality on the matter of Scottish Independence … there is nothing inevitable about this debate being divisive and acrimonious. All those who take part in this debate about Scotland’s future – and the UK’s future as well – must be committed to holding a positive and informative debate. The Church of Scotland will contribute to this debate in creative and inclusive ways. It will also seek to call to account those who exaggerate their claims or who move from committed debate to inappropriate ways of treating one another.”

In a very measured comment on her announcement, the Primus of the Scottish Episcopal Church echoed that position:

“Faith communities in general have adopted a position of active neutrality in response to this issue. They should exercise care about adopting positions ‘for or against’ on constitutional issues. But faith communities also care deeply about the quality of the national conversation – about the need for all voices to be heard respectfully. It is also important that the debate attempts to do justice to the depth and the complexity of the issues and does not become over-focused on the single issue of constitutional status.”

For a pertinent comment on the legal complexities, see Tobias Lock, Verfassungsblog: Once More unto the Breach? An Independent Scotland, Europe, and the Law.

Achbita and Bougnaoui

The CJEU judgments in Achbita and Bougnaoui, which we noted here, gave rise to some fairly ill-considered instant reactions in the media: the judgments were also raised in an Urgent Question in the Commons, noted here, where the Government took an entirely sensible line. Academic and professional opinion was far from unanimous, as the links below demonstrate:

• Dylan Brethour, RightsInfo: Employers Can Ban Headscarves and Religious Symbols – As Long As The Rules Apply To Everyone:

• Schona Jolly QC, Cloisters: Achbita & Bougnaoui: A strange kind of equality: “to the extent that guidance has been provided, it potentially throws yet more obstacles in the way of minority communities and leaves employers, particularly in the UK, unclear about their obligations.”

• Roseline Letteron, Liberté, Libertés chéries: Le voile en entreprise et la conception française de la laïcité: European law recognises “a French model of laïcité“: in contrast, absent a clearly-affirmed policy of neutrality a similar restriction cannot be possible in a British business.

• Ronan McCrea, EU Law Analysis: Faith at work: the CJEU’s headscarf rulings: “Sweeping away all workplace rules across 28 Member States that imposed a general ban … would represent a striking degree of certainty for an international court and would have risked placing the Union on a constitutional collision course with at least one major Member State. The solution … seems like a reasonable one.’

• Steve Peers, EU Law Analysis: Headscarf bans at work: explaining the ECJ rulings: the judgments “do not constitute a ‘workplace headscarf ban’, but merely permit employers to establish such a ban – subject to limits which might prove difficult to comply with in practice.”

• Matthew Rogers, Solicitors Journal: Employers may impose ‘neutral’ dress code if applied equally: “G4S’s policy did not directly discriminate against employees on the ground of religion because it did not treat one religion less favourably than another. ‘This is where much of the mainstream press stopped short.’”

• Sara Silvestri, The Conversation: Freedom of religion under threat across Europe after EU court rules employers can ban headscarves: “The ruling opens up a Pandora’s box and could disproportionately affect Muslim women facing requests to remove headscarves in some places of work across Europe.”

• Richy Thompson, Humanist Life: No, the European Court of Justice has not banned headscarves in the workplace: “Headlines saying the ECJ has allowed employees to ban headscarves are premature at best and completely wrong at worst.”

• Lucy Vickers, Oxford Human Rights Hub: Direct Discrimination and Indirect Discrimination: Headscarves and the CJEU: “the ease with which the CJEU accepts restrictions on religious dress in public facing roles means that it may have missed the chance to establish strong standards for the protection of religious equality in its first religious discrimination case.”

• Amy Wren, WorkLife: Headscarves in the workplace a thing of the past?! Well, not surprisingly, no…: “where does this leave employers in the UK? Actually, not far from the advice I would usually give in these sort of situations: unless it can clearly be shown that the wearing of religious items is genuinely interfering with employees’ ability to carry out work safely and properly, then just don’t go there.”

Following the ruling, Equality and Human Rights Commission Chief Executive Rebecca Hilsenrath said: “This Court of Justice ruling does not mean businesses can target women wearing the hijab for dismissal, or introduce policies which ban religious dress from customer-facing roles. We believe our laws do not need to change and the guidance we issued to employers on religion or belief includes advice on this issue. Any employer thinking of changing policy should consult that guidance before making rash decisions.”

Reproductive Health (Access to Terminations)

Immediately prior to the Commons consideration of the “Brexit Bill”, Diana Johnson (Kingston upon Hull North) (Lab) sought leave to bring in a Bill under Standing Order No. 23 [HC Hansard 13 March Vol 623 Col 26] “to regulate the termination of pregnancies by medical practitioners and to repeal certain criminal offences relating to such terminations; and for connected purposes”. The motion was approved – Ayes: 172, Noes: 142 – and the Bill was read the first time and ordered to be printed [Bill 153]. It has been set down for a second reading on Friday 24 March but it is highly unlikely that it will be debated.

Nevertheless, Anglican Mainstream carries a story on the Petition from Voice for Justice UK: “Stop the move to decriminalize abortion!” on the basis that “The Bill will go for its second reading on March 24th, after which it can in theory become law”. Maybe, in theory, it can – but its chances of doing so are just about zero.

Secular or religious schooling?

The Telegraph reports that the High Court has decided that the 10-year-old son of a divorced couple should attend an Islamic secondary school in accordance with the wishes of his mother in the face of opposition from his father, a self-proclaimed atheist. The father said that he was determined to prevent his son from attending a “school inside a mosque” on the grounds that he would be “marginalised” by his son if he was enrolled at the school. According to the report, a judge in the High Court dismissed an appeal against an earlier ruling by the Family Court. [With thanks to Paul de Mello, Jr – we should be very interested to see a transcript.]

Appointment of the Bishop of Llandaff – continued

The process to appoint the next Bishop of Llandaff will continue to a further stage, following last week’s meeting of Bench of Bishops of the Church in Wales. The Bishops met to discuss a possible appointment, having consulted widely within their dioceses. They will now meet with short-listed candidates. 

The appointment of the next Bishop of Llandaff fell to the Bench of Bishops after a meeting of the Electoral College in February ended with no candidate receiving enough votes to be declared Bishop-Elect. Unlike the Electoral College process, there is no fixed timetable for an appointment process.

The Bishops have stated their wish to announce any appointment made as soon as all necessary formalities are finalised. However, in an open letter to the Bishop of Swansea and Brecon dated 18 March, The Very Reverend Dr Jeffrey John, Dean of St Albans, alleges that there has been a “clear and ludicrous breach of process” and calls for an “open and honest examination of this process in the light of day, and that [they] will not attempt to appoint a bishop for Llandaff until it is complete”.

Churchyard Regulations – a postcode lottery?

“…there is no statutory basis for creating Churchyard Regulations, from which we could discover their intended purpose(s). They are essentially a creation of the Chancellors themselves over the years. There is no reason to suppose that Chancellors as a body or individually have any particular expertise in judging what is good design or good taste, in the matter of memorials … in most dioceses the DAC is consulted, and possibly other interested parties, including some representative(s) of memorial masons in the area or nationally, before the final terms of the Regulations are adopted, but … Regulations relate primarily to the issue of the limits of the authority to be delegated, rather than wider questions of taste and acceptability”: Re St Mary the Virgin Eccleston [2017] ECC Bla 4 per Bullimore Ch at [28].

Discuss.

Charity finance

The Charity Commission for England & Wales has just updated its guidance, Charity finances: trustee essentials, and, in a speech on Wednesday, the Commission’s CEO, Paula Sussex, stressed how important it was for trustees to understand the issues:

“It is vital that trustees are familiar with the charity’s governing document, understand the finances, ensure control and procedures are in place and work, and ask the right – and sometimes difficult – questions.”

We cannot help wondering how many church trustees (such as PCC members) are even aware of the guidance, let alone have read it. How many, for example, “plan for an orderly wind up if the charity can no longer function effectively” [para 2.1]? Our guess is, hardly any.

News from Trumpton

The Second Executive Order came under fire in Honolulu on Wednesday. In State of Hawai’i and Ismail Elshikh v Donald J Trump (mentioned in last Sunday’s roundup), US District (so-called) Judge Derrick Watson issued an Order Granting Plaintiffs’ Motion for a Temporary Restraining Order [TRO], concluding:

“Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.”

In an act described by the President as “unprecedented judicial overreach” (he’s obviously unaware of Marbury v Madison), the TRO provides that:

“Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.”

Watson J intends to set an expedited hearing to determine whether the Temporary Restraining Order should be extended.

The District Court of Maryland then chimed in with a nationwide preliminary injunction barring enforcement of s 2(c) of the Second Executive Order: see International Refugee Assistance Project v Trump D MD, March 16 2017. The original Executive Order (which had been withdrawn) was also revisited in the 9th Circuit US Court of Appeals, which voted by a majority not to convene a sitting en banc in order to revisit its previous judgment: Howard Friedman has the details here.

Forthcoming conference: Exempting Conscientious Beliefs in UK Law