Some chilling news from Italy, the first (mixed) reactions to Trinity Western, a curious judgment from France’s Conseil d’État – and more.

First, they came for the Roma…

World Religion News reports that Italy’s Minister of the Interior, Matteo Salvini, has proposed a detailed census of Italy’s Roma population, of whom there are about 170,000. Salvini explained in a media interview that doing so would assist the deportation of undocumented Roma people and that only Roma with Italian citizenship would “unfortunately” be permitted to remain in the country. His proposal has been roundly condemned by the Union of Italian Jewish Communities, which said that it recalled the anti-Semitic legislation introduced by the fascist Government during the start of the Second World War.

Or as Pierre-Henri Teitgen, one of the architects of the ECHR and subsequently a judge in the European Court of Human Rights put it:

“Democracies do not become Nazi countries in one day. Evil progresses cunningly … one by one, freedoms are suppressed in one sphere after another. Public opinion and the entire national conscience are asphyxiated. And then, when everything is in order, the ‘Führer’ is installed and the evolution continues even to the oven of the crematorium.”

Comment on Trinity Western

• Barry Bussey, Intersection: The Constitutional Promise of Religious Freedom Betrayed: the Supreme Court of Canada’s judgments “have disrupted our understanding of the accommodation of religion in a dramatic way.”
• Neil Foster, Law and Religion Australia: Trinity Western University loses before Supreme Court of Canada: “the decisions are fundamentally flawed.”
• Paul Marshall, Providence: Canada’s Supreme Court Ruling Is a Grave Blow to Religious Freedom—and Not Only in Canada.
• Michael Rhimes, UKHRB: Bars to the Bar: Diversity in the Legal Profession Before the Canadian Supreme Court: “a ringing endorsement of the value of LGBTQ diversity at the Bar, and one which merits careful reflection.”
• Leonid Sirota, Double Aspect: The Supreme Court v the Rule of Law: “In ruling against Trinity Western’s fundamentalist law school, the Supreme Court unleashes the administrative state.”
• University of Manchester, Balancing Beliefs: Trinity Western Judgment: Enforcing a Discriminatory Code of Conduct Not Compatible with running a Law School: “we would argue that the Canadian court in this instance came down on the correct side of a complicated debate.”

Church property in France

The Conseil d’État has handed down an interesting judgment (well, interesting to geeks like us) on the status of church property expropriated during the Revolution: 21 juin 2018, Société Pierre Bergé et associés et autres N° 408822. In a nutshell, the Minister of Culture and Communication had refused the claimants an export licence for a mediaeval alabaster statue weeping tears – with the prosaic description “pleurant No 17” – which they believed they owned and which had been removed from the tomb of Philip the Bold when the tomb itself was destroyed in 1793. However, the Constituent Assembly of 2 November 1789 had decreed that “all ecclesiastical goods are at the disposal of the nation” [tous les biens ecclésiastiques sont à la disposition de la nation].

The Conseil held, in effect, that the decree of the Constituent Assembly had made the statue the property of the state and, because that decree had never been rescinded, the claimants had not acquired a good title to the statue even though they had purchased it from its previous “owner” in good faith. The claimants did not, therefore, have standing to bring the appeal.

Civil partnership

Judgment in the case of R (Steinfeld & Anor) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) will be handed down by the Supreme Court on Wednesday at 9.45 am. Watch this space.

In which connexion, Helen Fenwick and Andy Hayward have just published “From same-sex marriage to equal civil partnerships: on a path towards ‘perfecting’ equality?” in Child & Family Law Quarterly – but we couldn’t put it in quick links, below, because there’s no text or abstract to link to.

Assisted dying

Also on Wednesday, the Court of Appeal will be handing down judgment in the appeal of Mr Noel Conway, who has terminal motor neurone disease and is seeking the right to end his life at a time of his own choosing, against the order of the Divisional Court in R (Conway) v Secretary of State for Justice [2017] EWHC 640 (Admin) dismissing his claim for judicial review.

Christian solicitors?

Christian Today reports the launch of a Christian legal charity established “to provide official legal advice specifically for Christian organisations”:

“Edward Connor Solicitors is linked to the Fellowship of Independent Evangelical Churches (FIEC) and describes its lawyers as ‘Christians first, solicitors second’. It says they will offer specialised guidance where ‘spiritual issues’ merge into legal ones, giving the example ‘where an employee’s extra-marital affair conflicts with the employer’s ethos’.”

It quotes the firm’s managing director, Gemma Adam, as explaining that:

“Evangelical Christians believe the Bible is useful in all matters and the Christian lawyer may be able to direct the Christian client to Bible verses (as well as legislation) that will help as they go through the issue. They will bring value, for example by suggesting alternatives that may not have been considered and which are in line with the biblical principles the client will be wanting to apply.”

The charity will be regulated by the Solicitors Regulatory Authority.

Marriage and the state

Last week, we published a guest post by Daniel Hill, The State and Marriage: Cut the Connection, suggesting that it was time simply to abolish marriage as a legal status. We expect to post Part II later this week.

Gender-neutral passports

Christie Elan-Cane, a campaigner for the issue of non-gendered identity “X” (i.e. unspecified) passports, was unsuccessful in an application for judicial review of the UK passport application process and whether the requirement that individuals indicate whether they are male or female is inherently discriminatory. In R (Elan-Cane) v Secretary of State for the Home Department & Anor [2018] EWHC 1530 (Admin) Mr Justice Jeremy Baker said:

“[152]. …although at present I am not satisfied … that the current policy of [HM Passport Office] is unlawful, part of the reasoning for this is that the comprehensive review has not been completed. It seems to me that once the review has occurred, then depending upon its outcome and whether and to what extent the identification of those who consider themselves to be non-gendered is legally recognised, the strength of the focused challenge in the present case may be required to be reassessed, in order to determine whether the current policy of the HMPO in relation to the issuing of “X” marked passports continues to be justified.”

Private burial grounds

On 18 June, Baroness Hussein-Ece (LD) secured a debate on Private Burial Grounds (HL Hansard, 18 June 18, Vol 791 Col 1848): “To ask Her Majesty’s Government what plans they have to review legislation to bring private burial grounds in line with cemeteries and burial grounds regulated by statute”. She declared an interest as a member of the Tottenham Park cemetery charitable trust, which is run by families of the privately-run cemetery where her own family members are buried. She questioned:

“Is the Minister aware that privately run burial grounds remain unregulated in law and are only loosely governed by guidelines? Is he further aware that they are often left to unscrupulous owners, as I have discovered in my own case, with no requirements for a licence or any maintenance, and that there is evidence of unlawful burials, reburials, exhumations and, in this instance, a Victorian listed chapel left to fall into ruin? The local authority, the police or any other body have little power of enforcement. Will the Government take action to ensure that these burial grounds are regulated by statute, as is the case in Scotland, and end this scandal?

Lord Keen of Elie, spokesperson in the Lords for the Ministry of Justice, accepted the noble Baroness’s observation on the limited regulation of private burial grounds in England, stating [Col 1849]:

“That is why we have agreed that the Law Commission should have a project aimed at addressing this matter. The present regulation, such as it is, goes back to a series of statutes between 1852 and 1857 and is of limited utility today. The London Borough of Enfield has acted on health and safety concerns reported at the cemetery referred to by the noble Baroness, and following an inspection by council inspectors, a temporary closure notice was placed on the site so that necessary repairs could be carried out”.

Lord Keen intimated that there had been no prosecution under S25(1) Burial Act 1856 “within living memory”, but was not in a position to give even an estimate of the number of private burial grounds in the country at present; he undertook to make inquiries as to whether those figures are available to the Government.

Underpinning the issue of cemetery maintenance, but not raised in the debate, is the inadequacy of the financial model on which many are operated. The 2004 Home Office document Burial Law and Policy in the 21st Century: The need for a sensitive and sustainable approach commented:

“A fundamental problem facing all burial grounds and those wishing or needing to provide burial facilities is the need to maintain them in perpetuity without the income to do so from what is a diminishing asset (the income from existing grave purchasers is rarely sufficient to generate adequate income indefinitely and there is usually insufficient funding from the sale of remaining grave plots).
How burial grounds are to be maintained in the future is a key question which is linked with issues about the provision of new burial grounds, the protection of buried remains, and wider questions about the best use of land and competition for land use. Any changes to address these problems will require legislation to implement them …”

Quick links

• Katrina Gaffney, RightsInfo: Faith Schools ‘Discriminating Against Non-Religious Children’: discusses the recent report by Humanists UK.
• David Pannick QC, The Times: The urgent need for abortion law reform in Northern Ireland: points out, inter alia, that “Section 6(2)(c) of the Northern Ireland Act 1998 states that a provision is outside the legislative competence of the assembly if ‘it is incompatible with any of the convention rights’ …  Devolution does not confer power to breach human rights”.
• Pew Research Center: Global Uptick in Government Restrictions on Religion in 2016: the Pew Forum’s annual review of international religious freedom.
• University of Manchester, Balancing Beliefs: Minorities within Minorities: why they should not be forgotten when we talk about conflicting rights and differing identities.

And finally… I

A degree of sympathy for the House of Lords during “ping-pong” of the European Union (Withdrawal) Bill, when faced with the following response of the Commons read by the Clerk:

“My Lords, The Commons agree to certain Amendments made by the Lords in lieu of Amendments made by the Lords to the to which they disagreed; they agree to the Amendments made by the Lords to their Amendment in lieu of an Amendment made by the Lords, to which they disagreed; and they agree to the Amendments made by the Lords to their Amendment made in lieu of their Amendment made by the Lords to which they disagreed, with Amendments, to which they desire the Agreement of the Lords”.

[Frank’s sympathies are wholly with the Clerk.]

And finally… II

“The panel found that, over the period, the lives of more than 450 patients were shortened by clinically inappropriate use of opioid analgesics”, said the Secretary of State for Health in a Commons statement on 20 June on the Gosport Independent Panel’s report. Or, as one might say, “the hospital killed over 450 people by clinically inappropriate use of …”