Law and religion round-up – 16th July

A quiet week, apart from…

… not the Great Repeal Bill

On Thursday, the Government published the European Union (Withdrawal) Bill. We noted it here and the Parliament page on the Bill is here.

In Public Law for Everyone, Professor Mark Elliott’s post looks in some detail (albeit preliminarily) at how the EU (Withdrawal) Bill works, and comments on some of the key constitutional issues that it raises, here. As a taster (for both Brexiteers and Remainers), he concludes:

“In political terms, the Withdrawal Bill is being presented as the epitome of the taking back of control and the restoration of “sovereignty” that has been so fetishized by some. But it actually demonstrates something very different. It serves as a stark reminder of the way in which the banal rhetoric that has characterised — and that continues to characterise — much of the political debate in this area is now beginning to meet brutal legal and constitutional reality. Some will doubtless find clause 1 of the Bill, with its references to “exit day” and the repeal of the European Communities Act, intoxicating. They should make the most of it. Because the rest of the Bill palpably demonstrates that those drunk on the notion of taking back control need to face up to the fact that they — indeed, we — are in for one hell of a hangover”.

A shorter post on the Bill, which forms part of his 1,000 words series, can be found here.

Meanwhile in Ireland…

… a group of TDs – Mick Barry, Paul Murphy and Ruth Coppinger – sought leave to introduce the Thirty-fifth Amendment of the Constitution (Separation of Church and State) Bill 2017. A private Member’s Bill which was unopposed, it would remove religious references from the Constitution.

Moving the motion for leave to introduce the Bil, Deputy Barry said that the Constitution was written from the perspective of a Roman Catholic people and a Roman Catholic State, “which then gifts religious liberties to others. Religious minorities are tolerated. What most people want, however, is the guarantee of religious liberties for all, regardless of the religion they may have”. His Bill would remove the obligation to treat blasphemy as a crime and religious-based oaths for key offices of state – but if the Bill were passed by the Oireachtas, the changes would require a referendum on the necessary amendments to the Constitution.

Don’t cover your face in Belgium…

The European Court of Human Rights ruled on two cases involving the Belgian ban on wearing the niqab or burqa in public – Belcacemi and Oussar v Belgium [2017] ECHR 655 and Dakir v Belgium [2017] ECHR 656, both available in French only – and upheld the ban, though in Ms Dakir’s case it did find that the refusal by the Conseil d’État to hear her substantive arguments for annulment had violated Article 6 §1. We posted a long note on the two judgments here.

We were not remotely surprised: the Court had previously upheld the ban introduced in France, there are bans in Austria, the Netherlands and Bulgaria, and a ban is likely to be introduced in Germany. The Court once more adduced as a reason for upholding the ban the principle of “living together”, which, as Lucy Vickers commented on the previous ruling in S.A.S. v France, is a nebulous concept “which could equally be met by promoting a ‘live and let live’ attitude, and which moreover could lead to bans on anything that makes the majority feel uncomfortable”. For an early comment on the Belgian cases, see Yasmeen Serhan in The Atlantic: Does the Burqa Have a Future in Europe?.

…but do marry your same-sex partner in Malta

Article 2 of the Constitution of Malta declares that:

“(1) The religion of Malta is the Roman Catholic Apostolic Religion.

(2) The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong.”

Nevertheless, life in Malta moves on; and Reuters reports that, on Wednesday, the unicameral Maltese Parliament voted on Wednesday to legalise same-sex marriage, fulfilling Prime Minister Joseph Muscat’s campaign promise to make it the first law brought before Parliament in his new term. The Marriage Act and other Laws (Amendment) Bill, which drew cross-party support, removes words such as “husband”, “wife”, “mother” and “father” from the Marriage Act 1975 and replaces them with the gender-neutral “spouse”, “parent who gave birth” and “parent who did not give birth”.

“But the seventh day is the Sabbath”

A Jewish hairdresser in Montreal who was not allowed to work on Saturdays and was eventually fired when he insisted on doing so has won a discrimination case against his former employer. We aim to post a note on the case later in the week.

New Lord Chief Justice

The Government has announced the appointment of The Rt hon Sir Ian Burnett as Lord Chief Justice of England and Wales from 2 October 2017, in succession to Lord Thomas of Cwmgiedd, who retires on 1 October. Sir Ian was appointed Lord Justice of Appeal in 2014.

Legal Cheek points out that Joshua Rozenberg took to social media to indicate that at the sprightly age of 59, Burnett will be the youngest Chief Justice in over 50 years; he added that Lord Parker of Waddington, appointed in 1958, was younger. “As the law currently stands, Burnett could serve as Chief Justice for up to ten years. The job is hugely demanding and Burnett might be expected to move up to the Supreme Court after five years or so”.

There is a mandatory retirement age of 70 for all judges and, earlier this year, the Judicial Appointments Commission (JAC) imposed an upper age limit on the LCJ role, stating that only candidates aged 65 and younger would in future be considered. By way of comparison, in 2014 we posted Age-related milestones in the church which demonstrated the range of criteria which apply. Pope Francis is now 80 – and was elected Pope at the age of 76 after he had submitted his resignation to Benedict XVI as required by Canon Law.

New Charity Governance Code

Thursday saw the publication of the new Charity Governance Code, which draws upon, but is fundamentally different from, the Charity Commission’s guidance. The relevance of the new Code to religious organisations – as charities – is obvious; however, it is not a legal or regulatory requirement. Instead, the Code sets out the principles and recommended practice for good governance. It is deliberately aspirational and the authors suggest that “some elements of the Code will be a stretch for many charities to achieve”. The Charity Commission has withdrawn its own guidance, Hallmarks of an Effective Charity, in favour of directing people to the new Code.

The Code’s starting point is that all trustees:

  • are committed to their charity’s cause and have joined its board because they want to help the charity deliver its purposes most effectively for the public benefit;
  • recognise that meeting their charity’s stated public benefit is an ongoing requirement;
  • understand their roles and legal responsibilities, and, in particular, have read and understand:
  • are committed to good governance and want to contribute to their charity’s continued improvement.

The Code has been prepared by a Steering Group consisting of representatives of ACEVO, the Association of Chairs, ICSA: The Governance Institute, the National Council for Voluntary Organisation, the Small Charities Coalition and the Wales Council for Voluntary Action. The Charity Commission is an observer on the group.

Stephanie Biden, of Bates Wells Braithwaite, comments:

“These measures are more prescriptive than the measures contained in the previous Code of Good Governance, and charities will be expected to ‘apply or explain’ their compliance with the Code in their annual report – charities will have to explain how they apply the Code, or if they do not apply the Code, they must explain why not. Although the Code is not a legal or regulatory requirement, the Charity Commission will be expecting trustees to be familiar with the new Code, and as such trustees of all charities should begin considering whether they should make any key governance changes to their charity to ensure compliance.”

We continue to wonder how many trustees of religious charities ever got round to reading The Essential Trustee, but we live in hope…

Church roofs and metal theft

This week we post extracts from the new English Heritage new guide, Metal Theft from Historic Buildings: Prevention, response and recovery which, although accessible on the EH website for a few weeks, was only published with its colour illustrations on 12 July. At 38 pages in length, in addition to stating EH’s position on the replacement of roofing materials, it includes valuable information on preventative measures and the action a congregation might need to take following the theft.

Although English Heritage is one of the amenity bodies whose opinion a consistory court is required to seek, the statutory guidance for the Church of England in this area is provided in the Church Buildings Council’s 2-page Guidance Note, Roofs. In comparison to its Guidance on seating, the CBC’s position of roofs is less prescriptive: “[t]he use of substitute materials such as resin slates or artificial stone slates is not recommended”.

1500 Posts and Counting

Not at L&RUK, but the latest post from Dame Catherine Wybourne, a.k.a. Digitalnun, in which she suggests a taxonomy for the various types of readers of her blog at iBenedictines: “The World seen from the Cloister…”. We would not presume to replicate the exercise, (and in any case we post nothing of specific interest to DLs, i.e. dog-lovers). However, many bloggers, including ourselves, will appreciate her comment “I am not above using the moderator’s power to edit out a nasty gibe or refuse to permit a comment that is libellous”.

“Dance, dance, wherever you may be”?

It is just over four years since we posted Wedding dance flash-mob, viral vicars and the liturgy and reported on the “viral video” of Gary and Tracy Richardson’s wedding at St Mary and St Martin, Blyth, Nottinghamshire, an unexpected consequence of which was that the officiating priest, the Reverend Kate Bottley, appeared (even then) to have attracted more attention than the bride. Scroll forward through seemingly hundreds of similar events to the BBC Bristol headline “Bristol couple knock themselves out practising wedding dance”. Sharon Price and fiancé Andy Price were trying to recreate a scene from the 80s film Dirty Dancing in a pub garden in Weston-super-Mare in Somerset, at the weekend: Mr Price said: “We were about 30ft apart and Sharon ran and I grabbed her hips and the next thing we knew we were flat out on the floor”, he was unconscious and she was struggling for breath. The couple, who are marrying next year, are now planning a slow dance. Very wise.

Quick links

And finally…

In the “you couldn’t make it up” category, Howard Friedman reports that a Michigan federal district court has dismissed as frivolous a suit by a Jewish plaintiff seeking a formal declaration that “Koranic Sharia Law” is incompatible with US constitutional law. He also asked the court to direct Congress to outlaw certain passages from the Qur’an, to issue a federally approved and edited version of the Qur’an, to withdraw tax-exempt status from mosques that do not adopt the new version and to establish a National Islamic Registry Program. In Levay v United States (ED MI, July 11, 2017), the court concluded as follows [III: emphasis added]:

First, Levay lacks standing to bring this suit. Levay’s suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury … Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence … And, more fundamentally, Levay’s requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles. The First Amendment forbids Congress from making a law ‘respecting an establishment of religion, or prohibiting the free exercise thereof.’ … Levay does not have standing to bring suit and requests remedies which violate the Constitution.

As any fule kno.

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