We managed to avoid initiating or endorsing “fake news” on April Fool’s Day…
…although we did enjoy Bishop Paul Bayes’ tweet: “Anglican news: Sodor & Man annexes @LivDiocese. Bp of Warrington invokes Article 50. @paulbayes flees, demands Methodist/CofE citizenship“. However, at L&RUK we will continue to report on issues relating to Brexit, which has tended to attract “fake news” and misinformation from both sides.
Talking of which … Brexit
The Brexit process began on Wednesday, when the UK Ambassador to the EU, Tim Barrow, handed over the Prime Minister’s formal letter of notification under Article 50 TEU to the President of the European Council.
— Charles Michel (@eucopresident) March 29, 2017
The Prime Minister’s statement to the Commons on triggering Brexit is here.
On Thursday, the Government published its Great Repeal Bill White Paper, Legislating for the United Kingdom’s withdrawal from the European Union. As expected, the White Paper commits the Government to converting the acquis – the body of EU legislation – into UK law at the point when the European Communities Act 1972 is repealed, in order to provide maximum certainty and avoid a gaping hole in the statute book:
“The same rules and laws will apply on the day after exit as on the day before. It will then be for democratically elected representatives in the UK to decide on any changes to that law, after full scrutiny and proper debate.”
We should imagine that “democratically elected representatives” will then have a field day (or, indeed, several field years) arguing over the fine detail of what should be retained and what should be repealed.
Brexit and the law
Ironically, David received Sweet & Maxwell’s royalty payment for the 2nd Edition of The Law of Waste Management on 29 March 2017, the day on which Article 50 TEU was triggered. The Preface states:
“The influence of the EU is such that for most of the areas covered, it has been logical first to address the European legislation and its associated links to international agreements, then its enactment in the UK and the devolved administrations, followed by the more practical issues addressed by the competent authorities”.
Leaving the European Union will reverse this logic, and necessitate a 3rd Edition once the dust has settled. Authors of ecclesiastical law text books will be less affected by EU law, and any changes to the ECHR are some way off, if they ever materialize.
Caste and equality law
The Government has launched Caste in Great Britain and equality law: a public consultation. It invites views on whether legal protection against caste discrimination is best ensured by developing case-law under the Equality Act 2010 or by making caste explicitly an aspect of race under the Act. The consultation suggests that
“Reliance on developing case-law in courts and tribunals (in particular, the Employment Appeal Tribunal ruling in the case of Tirkey v Chandhok) would be likely to mean that caste, as an aspect of ethnic origins within the Act, is already covered by legislation and therefore an insertion of it as an aspect of race may not be necessary.”
On Tuesday, the following exchange appeared in Commons Hansard:
Mr Graham Allen: When the Parliamentary Under-Secretary of State for Civil Society plans to amend section 10 of the Charities Act 2011 to define ecclesiastical corporations as charities. 
Mr Rob Wilson: There are no plans to amend section 10 of the Charities Act 2011 to apply charity law to ecclesiastical corporations. Ecclesiastical corporations are regulated under canon law of the Church of England.
Sheffield and Llandaff
On Monday, the news slipped out that five members of the Electoral College of the Church in Wales had complained about “deeply inappropriate” references which, they alleged, had been made regarding The Very Revd Dr Jeffrey John’s nomination as Bishop of Llandaff. A formal investigation was launched into the process; a legal panel chaired by a judge will decide whether to scrap the decision not to take Dr John’s nomination forward. Late on Friday afternoon, the C in W issued an updated statement reporting that Church’s Legal Subcommittee concluded:
““All three Complaints are without merit. The proper course is for the Bishops to proceed to fill the vacancy in accordance with Regulation 23 and the exercise of their own judgment.”
As we noted earlier, the findings of the Legal Subcommittee were restricted by the narrow focus of its remit, viz.
“. This Advice is concerned only with the appropriate legal response to the Complaints. It does not constitute an adjudication consequent upon an investigation of fact concerning what transpired at the meeting of the Electoral College mentioned below. Nor does it constitute advice as to the merits or demerits of particular persons for appointment as Bishop of Llandaff.
In the interests of clarity and understanding, this Advice sets out significant parts of the legal background and factual narrative; however it does not explore matters falling outside the terms of the Complaints.
For the avoidance of doubt, the Legal Subcommittee is not privy to any information concerning the proceedings of the meeting of the Electoral College that has not already been placed in the public domain”.
The dispute featured in the Sunday programme last week, and following the leader in the Church Times, “Exclusive Wales“, the Welsh Bishops have responded with a Letter to the Editor that begins: “[w]e consider it to be ill-informed, unbalanced, and little short of grossly disrespectful of the episcopal electoral process of Church in Wales, to us as Bishops, and to the ongoing process for selecting a new Bishop for the diocese of Llandaff”. At L&RUK we suspect that this will not be the end of the matter, but will confine our comments to relevant legal developments.
Ecclesiastical court judgments – March
The ecclesiastical court judgments for March were posted last week. Readers who saw the Daily Telegraph piece Having comfy chairs in church is more important than preserving pews, church court rules may be surprised if they read the petitioners’ observations in Re St. Margaret of Antioch Rainham  ECC Roc 2 which state:
“[14.]…they [The Victorian Society]: ‘do not realise that the chairs will normally be stored and only set out for major services and concerts and similar high attendance events such as funerals of the order of 10 occasions per year’. The pews that are being removed are effectively redundant”.
However, the DT’s use of the photograph of a church with an apsidal east end, was a bit of a give-away. A virtual tour of St Margaret’s is here.
Praying with patients again
The Mail Online reports that a nursing sister in Dartford, Sarah Kuteh, is taking her NHS Trust to an Employment Tribunal after she was dismissed for breaching guidelines at Darent Valley hospital, Dartford, by offering to pray with patients. Eight of them complained: Mrs Kuteh was sacked and her conduct was referred to the Nursing and Midwifery Council.
Easter Bells at York Minster
In our post Recruitment of Head of Bell Tower – York Minster we reported that the Minster was inviting experienced bell ringers to apply for the role of Head of Bell Tower, and interviews were planned for 11 March. Commenting on The Guardian headline “The bells of York Minster could ring out on Easter Sunday after it began the search for a replacement bellringing team”, we cautioned that assuming a successful applicant is selected on 11 March, (i.e. the day before the 2nd Sunday in Lent), there would be a relatively short time if this were to be achieved.
The York Press now reports that “York Minster says arrangements are in hand for its famous bells to be rung again at Easter by visiting bands of bellringers – as happened just before Christmas…A spokeswoman said yesterday that the head of tower role had been offered. ‘References and DBS checks are being taken up’, she said. ‘The DBS process can take a while..'”
News from Trumpton
The US District Court for the District of Hawai’i has granted the motion by the State of Hawai’i to convert its prior temporary restraining order against President Trump’s second Executive Order on the travel ban into a temporary injunction. In State of Hawai’i v. Trump (D HI, March 29, 2017), the court concluded that “Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim….” District Judge Derrick K Watson concluded that, whatever the ostensible reasoning offered by the Executive, the Order was aimed at Muslims. He said in part:
“The Federal Defendants’ arguments, advanced from the very inception of this action, make sense from this perspective—where the ‘historical context’ and ‘the specific sequence of events leading up to’ the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context … The Court, however, declines to do so. Washington, 847 F.3d at 1167 (‘It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.’). The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has. The Supreme Court and this Circuit both dictate otherwise, and that is the law this Court is bound to follow.”
Unsurprisingly, the Justice Department announced that it would appeal the ruling. [Thanks to Howard Friedman.]
On 29 March, Janet Henderson posted Anonymous Blogging on her site Social Horizons in which observed an increase in:
“the number of blogs that form little anonymous communities of comment on various issues; some bloggers go to great lengths to conceal their own identity. Others (not necessarily themselves operating under the cloak of anonymity) promote anonymous and therefore unaccountable comment on their site … As we all know, many of these sites give rise to the propagation of factual untruth, defamatory comment, and bullying”.
She strongly condemns this practice, stating that “there’s no defence for anonymous blogging in a society where freedom of speech exists. It is simply unnecessary … It undermines and does huge damage to those who are trying to work in a transparent, accountable manner…”.
At L&RUK we discourage the use of pseudonyms but, in practice, there is a degree of pre-selection on other grounds: from our point of view we regard ourselves as legally obliged to prevent the publication of offensive or defamatory material; and from the point of view of the Commenter, there is little use in anonymity if one is intending to air one’s views on an academic blog. Either way, inappropriate comments get trashed, regardless of their provenance. That said, however, we would vastly prefer it if people would put their names to comments. We always do so ourselves when we submit comments to other blogs: why wouldn’t you?
We know who they are…
… or at least the cognoscenti do. One possible exception to the “anonymity rule” is for those who post under an assumed name or identity but whose real name is generally known or readily discernible from Twitter or internet searches – for some we even know their age, weight and the type of bicycle they use! In this respect, there is probably little real difference in the use of real names and pseudonyms, e.g. Guido Fawkes (aka Paul Staines) and the dynamic duo +Cantuar and +Ebor. With regard to the latter, however, on Friday the Daily Mail mistakenly posted a picture of Dr David Hope when he was ABY instead of one of the former ABC, Dr Carey. Much fun on social media, the best comment on David’s Facebook page being “Hope trumps Carey”; the Mail’s error has now been corrected.
It was just under a year ago when we posted Law and Religion UK – a recent milestone to mark 500,000 page views since we started the blog in 2012. Reaching the three-quarter of a million mark on Thursday almost caught us by surprise, but checking back on the statistics, we are attracting substantially more daily page-views, from 572 in March 2016 to 963 in March 2017.
As we often point out in “milestone reviews” such as this, the readership of our posts tends to be event-led – but the downside is that it would have been better if some of the events had been considered to be less newsworthy: the appointments to the Sees of Sheffield and Llandaff and bellringing at York Minster are the obvious examples.
It is clearly important that there should be a high degree of transparency in public discourse, but this must be coupled with accurate reporting and knowledge of some of the basics – and some of the stuff that we see in the media seems to be defective in both respects. Only last February we felt it necessary to issue an updated version of an earlier post, retitled The CJEU and the ECtHR: an idiot’s guide. As the Brexit debate intensifies, it may soon be necessary to revisit the explanation of the difficulties of holding “a snap General Election“.
From our perspective, we report on events which have at least a vestige of a legal/religious interest: but beyond that, we do not believe that it is our role to back one side against another or to tell the Churches what they should be doing about some of the contentious issues that arise. This is not to say that we do not hold strong views on some of the things we write about [and on Brexit] – but we try not to express them in the blog or our associated L&RUK Twitter account Law & Religion UK @FCranmer.
We are looking towards our next milestone of 1M page views and are considering updating the appearance of the site.
- Saïla Ouald Chaib, Strasbourg Observers: European Court of Justice keeps the door to religious discrimination in the private workplace opened. The European Court of Human Rights could close it: “We are … left today with the question whether the ECtHR would close the door the ECJ opened in case it would be confronted with the same question from an employee who wants to wear a headscarf in the workplace. We would like to believe that it would.” Er, don’t hold your breath…
- The Guardian, Editorial: The Guardian view on religion and violence: context is everything: “Real people with whom we deal every day can be impossibly frustrating, but they can’t easily be reduced to mere symbols in a clash of civilisations. We learn to see them as the complex beings they are – and that we are, too.”
- Mark Elliott and Stephen Tierney, Public Law for Everyone: The ‘Great Repeal Bill’ and Delegated Powers: concludes that Parliament must seek to ensure that Brexit “does not also bring about a dramatic rebalancing of law-making power in favour the executive, the marginalisation of legislative scrutiny and a potentially dangerous unsettling of the territorial constitution.”
- Philip Jones, Ecclesiastical Law: Electing the Bishop of Llandaff: Propriety and Privacy: suggests that “Absent proper authority from the Governing Body, [the Legal Sub-Committee] has no power under the Constitution to investigate the deliberations of the Electoral College. And to be effective in practice, any investigation of the objection is bound to contravene the constitutional rule of privacy concerning the Electoral College meeting”.
- Hugo Leith, Brexit Law: Government publishes White Paper on the ‘Great Repeal Bill’: a really useful summary of the main points of the White Paper.
- Hansard Society: Parliament and Delegated Legislation in the 2015-16 Session.
- Tim Turner, 2040 Training: Fundraising and Data Protection: A survival guide for the uninitiated: “This is a terrible time to be bad at Data Protection. The stakes – in terms of reputation and enforcement – have never been higher.” You can say that again…
- DoveBid: Anyone who has performed a “Mr Rusty Surprise” (and others) may wish to know that there is a 31-inch “Slow Swinger” up for grabs in Whitechapel until 6 April; minimum offer, £5k.
The Mail Online reports that “The former Archbishop of Canterbury has described Donald Trump as a ‘Good Samaritan’ for the American people. Lord Carey said the US President had offered the country ‘a voice’ and said he had ‘deep sympathies’ with the forces that propelled him to victory last year.”
Not the version of Luke 10:25-37 we’re used to. Ever wondered what a Bad Samaritan looks like? The Beaker Folk of Husborne Crawley provide the answer.