Law and religion round-up – 15th October

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Sero sed serio…

… as until Friday, we thought it was going to be a quiet week for news, despite the MPs’ return to Parliament after the break for Party Conferences. In addition to our Saturday posts on Sex segregation in school, and the disposal of Ian Brady’s remains, reviewed below, shortly after the publication of this round-up, the Church of England issued a statement concerning the meditation that had taken place with the sexual abuse survivor known as “Gilo”; this prompted a response from Ecclesiastical Insurance Office plc.

Sex segregation in school

On Friday, the Court of Appeal handed down judgment in Chief Inspector of Education, Children’s Services And Skills v The Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426. The issue of principle before the Court was

“whether it is direct discrimination, contrary to sections 13 and 85 of the Equality Act 2010 for a mixed-sex school to have a complete segregation of male and female pupils over a certain age for all lessons, breaks, school clubs and trips” [1].

The Court held unanimously that it was indeed direct discrimination: crucially:

“81. It is common ground, and well-established by authority, that the motive for discrimination is irrelevant: the JFS case at [20], [35], [65]. There are certain exemptions from section 85(1) and (2) in Part 2 of Schedule 11 of Equality Act 2010 relating to religion but they are not relied upon by the School in the present case. It is irrelevant, therefore, that in adhering to its strict policy of segregation of sexes the School is motivated by conscientious adherence to what it regards as the applicable tenets of Islam.

82. The same is also true of parental satisfaction with the School’s policy and indeed the decision of parents to choose the school precisely because of its segregation policy…”

We noted the case briefly here and hope to publish a more detailed consideration later in the week.

Ian Brady

Also on Friday, the Chancellor of the High Court, Sir Geoffrey Vos, handed down judgment in Oldham Metropolitan Borough Council & Ors v Robin Makin & Ors [2017] EWHC Case No: HC-2017-002064 (Ch) and gave directions under Section 116 of the Senior Courts Act 1981 and by virtue of the court’s inherent jurisdiction over estates as to who should dispose of the remains of Moors murderer Ian Brady and as to how they should be disposed of. We noted the case here and – as above – we hope to publish a more detailed consideration shortly.

“Guardate un poco, che maschere galanti” 

In our 1 October round-up, we reported that the Austrian ban on veiling the face in public had come into force. Under it, anyone wearing clothes that obscure the face in public can be fined €150 and must remove the offending garment at once if ordered to do so by the police. Those who refuse can be arrested.

The law has now started to bite, and an early victim was a man dressed as a shark who was arrested while working as a mascot outside a shop. With an accompanying picture (“Some fin wrong officer”), the Daily Mail reported that “police officers demanded he removed his shark head and when he refused, protesting he was ‘just doing his job’, they arrested him and slapped him with a fine”. The Daily Telegraph observed:

“he is not the only victim of police who appears to be somewhat overzealously interpreting the new law. Others who have had a run-in with police in recent days include a woman cyclist who wrapped her scarf around her face against the cold, and street musicians performing in animal masks”.

This appears to be a case of poorly drafted legislation implemented by jobsworths. However, readers will recall that in 2016, an Austrian man won the right to wear a plastic colander on his head in his driving licence photo, by apparently insisting that the kitchenware was a part of his religion, i.e. he was a ‘Pastafarian’ – a member of the Church of the Flying Spaghetti Monster. At least the logic associated with facial visibility was the same, but…

Life peerages

The Prime Minister’s Office announced five new crossbench peers: the new Lord Chief Justice, a General, a courtier, the retired Metropolitan Police Commissioner – and the Rt Revd Richard Chartres, Bishop of London from 1995 to 2017. The life peerage for Chartres provoked the National Secular Society to tweet “Retired religious leaders are often appointed. Many temporal peers are religiously motivated. Why on earth is there also a bench of bishops?”

To which Richard Chapman replied as follows:

“Over the past 20 years Governments have created about 675 new life peers. Five of whom (0.75%) were former Lords Spiritual … Carey, 02; Hope, 05; Harries 06; Williams 13; Chartres 17”.

To which one might reasonably add Baroness Richardson of Calow (former President of the Methodist Conference, 1998), Rabbi Lord Sacks (at the time Chief Rabbi, 2009), Lord Griffiths of Burry Port, (former President of the Methodist Conference, 2004) and Lord Singh of Wimbledon (2011) – and there may be a handful more “religious” appointments of which we are unaware. But that hardly qualifies as “often”.

Whether there should be places in the Lords for bishops of the Church of England is a perfectly legitimate matter for debate (as, indeed, is the question of whether there should be a House of Lords in anything like its present form at all); but as to the prevalence of appointments of “retired religious leaders”, the NSS is simply wrong on the facts.

Clergy Discipline Measure 2003

On Wednesday 11 October, Sir Mark Hedley DL, Deputy Chair and Deputy President of Tribunals, delivered the latest London Lecture to the Ecclesiastical Law Society: Practical Aspects of the Clergy Discipline Measure. He concluded:

“That there should be restraints on clergy behaviour is clear. That such restraints should be exercised transparently and with fairness to all involved is, I trust, also clear. However any such process repeatedly has to strike a balance between potentially conflicting objectives like expedition and fairness or risk and incursions of freedom and so on. No process is infallible, nor will ever be so, and none will please all of the people all of the time. I have long since learnt as a judge to be conscious of fallibility, both personal and systemic. The Clergy Discipline Measure, and those who administer it, are no exception to that. We owe it to all to keep the system as sound and effective as we can and to operate it as well as we can. Further than that, no guarantees can be given”.

The issues discussed by Sir Mark will be of interest to those concerned with the operation of the CDM particularly in relation to safeguarding issues, and a reading of the complete lecture is highly recommended. This week the House of Bishops issued revised guidance on safeguarding, and we expect to post a summary of these new documents

Faculty jurisdiction

A notable tweet from Matthew Chinery this week: “Interim Faculty just issued within 28 minutes of initial enquiry. Faculty jurisdiction doesn’t always work as stereotyped … #churchlaw” … but in raising expectations, he might become a hostage to fortune.

Quick links

And finally…

Couldn’t resist:

Sed tamen consumebatur, maybe?

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