“There is a proper role for referendums in constitutional change, but only if done properly. If it is not done properly, it can be a dangerous tool”
David Davis, Hansard 2002
That vote on Amendment 7
Returning briefly to Brexit since our last foray in August, Wednesday’s vote is notable in that it is the Government’s first defeat on the European Union (Withdrawal) Bill. The impact of the amendment is that clause 9(1) now reads [amendment italicized]:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.
As constitutional lawyer Professor Mark Elliott notes:
“All that Parliament will be able to do is to (a) grant or withhold its assent to a withdrawal agreement and (b) if it assents, shape the legal machinery whereby the agreement will be given domestic effect. What Parliament will not be able to do is to amend the withdrawal agreement itself. The agreement will have been negotiated by the EU and the UK Government. Parliament will be presented with it on a take-it-or-leave-it basis”.
or as Laura Kuenssberg tweeted:
“But it’s one vote on one bill, Parliament was always going to be choppy for govt with no majority – Remainers hoping to soften Brexit shouldn’t bank on this suddenly changes everything”
The Commons Committee stage continues and the Bill will again be debated on 20 December.
Liberal Conservatives on human rights
Bright Blue, “an independent think tank and pressure group for liberal conservatism”, has published Individual Identity: understanding how conservatives think about human rights and discrimination. The following gives a flavour of the overall approach:
“There is no inherent reason why Conservatives should be sceptical of human rights. Conservatives typically believe in the principles of personal freedom and a government limited by the rule of law. There is a strong tradition of Conservative politicians championing the development and protection of human rights. The ECHR was drafted and championed by Conservative politicians after World War Two. It was actually a Conservative MP – Quintin Hogg – who first advocated a bill to incorporate the ECHR into UK law.
Human rights are about protecting individual freedom. Discrimination is, like the abuse of human rights, an unjustified barrier to individual freedom. Tackling discrimination should be comfortable territory for Conservatives; unfair barriers that prevent humans from flourishing should be removed.”
We couldn’t have put it better ourselves.
Inadequate religious schools
Last week, Ofsted published its Annual Report – the first for Amanda Spielman as HM Chief Inspector of Education, Children’s Services and Skills. Of particular interest to this blog is the Report’s comment on what are, in effect, illegal religious schools:
“We have found an increasing number of conservative religious schools where the legal requirements that set the expectations for shared values and tolerance clash with community expectations. The schools are, therefore, deliberately choosing not to meet these standards. This tension is also leading to the creation of illegal ‘schools’ that avoid teaching the unifying messages taught in the vast majority of schools in England. Both of these situations are of great concern.”
Transgender issues in school
In the round-up for 19 November, we reported that Mr Joshua Sutcliffe, a teacher who is also an associate pastor at Christ Revelation church in Oxford, had been suspended from teaching, pending an investigation into an incident in which he accidentally used “girls” in the plural when addressing a group which included a girl who identifies as a boy. The transgender girl-to-boy corrected him and Mr Sutcliffe apologised. The pupil’s parents then complained about that particular incident and also that their child had been given a disproportionate number of detentions for poor behaviour. It appears that the school then postponed a pre-scheduled disciplinary hearing and initiated further investigations, alleging breach of confidence and bringing the school into disrepute.
Christian Concern now reports that Mr Sutcliffe is to take the matter to an Employment Tribunal. Watch this space.
Carlile Report Published
Last month, the Church of England issued a Press Release which outlined the remaining stages of the Lord Carlile’s independent review of the Bishop George Bell case prior to its publication; it stated “the final version of the report will then be presented to the National Safeguarding Steering Group before publication. This is the process with all independent reviews, there is a period of a few months between receiving the first draft and final publication.”
Concern had been raised since the timing of its publication was later than that indicated in the review’s web site Q&A pages. However, contemporary with the Press Release, a C of E tweet stated: “The independent review into the George Bell case will be published once the processes, standard in all reviews, are completed. Nobody is delaying it”.
On 15 December, the Church issued a Press Release announcing the publication of key findings and recommendations, along with the full report, from the independent review into the processes used in the case. A link to the Report is here, and to the Annexes here. Whilst the Report itself has been well-received, there has been criticism on the Church’s approach to its handling of the abuse complaint – the raison d’être of the review – and also its response to the issue of transparency has been strongly criticized, here, here and elsewhere. A detailed analysis is given by Martin Sewell, a retired Child Protection Lawyer and a member of General Synod, on the Archbishop Cranmer web site.
On 7 December we published a post summarizing the background to AMiE ordinations which were then due to take place. It was followed up on 13 December with a summary of the initial reactions and has been progressively updated as events progressed.
In a letter dated 14 December (but issued on 12 December) the GAFCON Chairman, Archbishop Nicholas Okoh, Metropolitan and Primate of All Nigeria, stated that GAFCON recognizes AMiE as ‘fully part of the Anglican Communion’. These claims were flatly denied by the Secretary General of the Anglican Communion, Dr Josiah Idowu-Fearon, in The ties that bind our Anglican Communion family, in which he reflects on how membership of the Communion is defined in a manner which has strong echoes the three formal Instruments of Communion: the Lambeth Conference; the Anglican Consultative Council; and the Primates’ Meeting.
More development of CofE’s new website
The CofE is continuing to populate its relaunched website, and of interest to readers will be the recent inclusion of Legal Opinions from the General Synod’s Legal Advisory Commission, as well as other formal guidance relating to legislation. These and those relating to clergy discipline fall within the Legal Services section of the website. In addition to links to these legal opinions, we have posted summaries of links to relating to policy and law, and to issues which are of relevance to the clergy and members of General Synod.
Same-sex marriage in Australia and Italy
The first marriages same-sex marriages in Australia took place under the terms of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which amends s.5 of the Marriage Act 1961 to define marriage in Australia as the union of “2 people” [sic]. The Act received Royal Assent on 8 December 2017 and came into effect on the following day. Same-sex marriages lawfully entered into overseas became recognised immediately and the first weddings under the amended law were to take place from 9 January 2018. However, several same-sex couples applied successfully for an exemption from the one-month waiting period between completing a notice of intended marriage and the wedding ceremony, and the first ceremonies were held on 16 December 2017.
In Orlandi & Ors v Italy  ECHR 1153, the claim was by six same-sex couples. The ECtHR held by five votes to two that the authorities’ refusal to register the claimants’ marriages contracted abroad – and, more generally, the impossibility at that time of obtaining legal recognition of their relationships because Italian law did not then allow for marriage between persons of the same sex nor provide for any other type of legally-recognised union – breached their rights under Article 8 ECHR (respect for private and family life):
“the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship … the State failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions” .
Some of the couples had registered their unions under the new law introduced after the judgment in Oliari & Ors v Italy  ECHR 716; but the Court recognised that they had, nevertheless, suffered from unfair treatment until 2016. There was no need further to examine the complaint under Articles 12 and 14.
Law Commission Review: 13th Programme of Law Reform
On 14 December, the Law Commission announced that leasehold, trust law, smart contracts and chancel repair liability are among the 14 projects that the Law Commission will look at over the next three years. A number of these projects are associated with “law and religion” and related issues, including: A Modern Framework for Disposing of the Dead; Employment Law Hearing Structures; Registered Land and Chancel Repair Liability; Surrogacy. Further details are in our post here.
LARSN Conference 2018
The Annual Conference of the Law and Religion Scholars Network (LARSN) will be held on Friday 27 April 2018 at the School of Law and Politics, Cardiff Univesity, to coincide with the 10th anniversary of the foundation of the Network. The call for papers invites those interested to submit a 100-word abstract of a paper and its proposed title by 1 February 2018 to Doe@cf.ac.uk.
Registration is compulsory for all participants and the registration fee is £20. You must register and pay online: the online registration link will be available in January.
- Lady Justice Arden, Desai Memorial Lecture 2017: Law of medicine and the individual: current issues What does patient autonomy mean for the courts?: “As I see it, the law on the doctor/patient relationship needs further work. I have cautiously suggested that it needs in some way to give more weight to the significance of trust. We are not, I think, at the end of the road on the issues.”
- John Bowers, OxHHR: De Groen v Gan Menaschem Hendon: Dismissal from Religious Schools: another take on the recent case of the teacher dismissed by an Orthodox Jewish nursery-school for cohabiting.
- Eva Brems, Strasbourg Observers: Skullcap in the Courtroom: A rare case of mandatory accommodation of Islamic religious practice: “After Ahmet Arslan a.o., Hamidovic is only the second successful claim for accommodation of Islamic religious practice. Remarkably, both cases concern internal minorities in a Muslim majority context. In all other cases, the wide margin of appreciation gave a licence for the restriction of Muslim practices.”
- Joint Public Issues Team: Sharing the Gift of Life: maybe slightly off our normal beat, but a fascinating exploration of some of the ethical issues around presumed consent to organ donation.
- Roseline Letteron, Liberté, Libertés chéries: Signes religieux en entreprise: le choix du règlement intérieur: on the judgment of the Cour de Cassation in Bougnaoui.
- Sir Noel Malcolm, Policy Exchange: Human Rights and Political Wrongs: A new approach to Human Rights law: Policy Exchange is home to the Judicial Power Project, whose basic premise is that “unelected” judges have too much power: Malcolm’s is emphatically not the position we would take – but read it for yourself.
- Martin Sewell, Archbishop Cranmer: Mandatory reporting of CofE child abuse is complicated, so let’s proceed incrementally: written by a former member of the then Children’s Panel of the Law Society.
There were various reports that Dominic Grieve QC MP and Anna Soubry MP had received death threats for supporting the successful amendment to the European Union (Withdrawal) Bill. Not funny at all.