Law and religion round-up – 1st July

A brief roundup of an extraordinary week..

Opposite-sex civil partnership

Rebecca Steinfeld and Charles Keidan won their case for judicial review of the Government’s continuing refusal to amend the Civil Partnership Act 2004 to allow opposite sex couples to enter into civil partnerships. In R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32, the five Justices of the Supreme Court unanimously allowed their appeal in a single judgment delivered by Lord Kerr and made a declaration of incompatibility: we noted it here.

Where we go from here, however, is not at all clear. As Lord Kerr himself pointed out at [60], “a declaration of incompatibility does not oblige the government or Parliament to do anything” and, as we also noted, the Prime Minister made an extremely guarded comment on the judgment at Prime Minister’s Questions on the same day.

Assisted dying

In R (Conway) v The Secretary of State for Justice & Ors [2018] EWCA Civ 1431, the appellant, Mr Noel Conway, who has Motor Neurone Disease, wishes to be assisted to end his life at some point while he still has the capacity to make the decision. He lost his appeal: we noted the judgment here.

Humanist marriage in Northern Ireland

As we noted, the Northern Ireland Court of Appeal decided last week that Article 31 of the Marriage (Northern Ireland) Order provides a basis for avoiding discrimination against humanists, contrary to Articles 9 and 14 ECHR, by enabling the appointment of a humanist celebrant. The fact such a person would be appointed under Article 31 (Registrars and other staff) rather than under Article 14 (Temporary authorisation to solemnise religious marriage) does not, in its view, give rise to any difference of treatment.

So humanist wedding ceremonies are legal in Northern Ireland – but we’d still like to see the actual judgment, not merely the summary.

Niqabs in Québec

One to watch. In National Council of Canadian Muslims (NCCM) c Attorney General of Québec 2018 QCCS 2766, the NCCM and others sought a stay of section 10 of Bill 62, An Act to foster adherence to State religious neutrality, pending a final determination on the merits of their application to have that section and section 15 of the Act declared unconstitutional. Its effect would be to oblige women who cover their faces for religious reasons to make a separate accommodation request from each of the agencies with which they come into contact. An accommodation request would have to be made in advance in order “to do such basic things as ride the bus or metro, attend a health care facility, pick up a child from school, vote, attend school or go to a museum” [12]:

“This means that certain women in Québec will be faced with the daily choice of either engaging in activities that all Quebecers take for granted … or expressing their sincerely held religious beliefs” [15].

The Attorney argued in response that, though there was a serious issue to be tried, section 10 of the Act was a minimal impairment to religious freedom that did not trigger a violation of section 2(a) of the Canadian Charter and section 3 of the Québec Charter [19].

Blanchard JSC held that the threshold test in RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199 had been satisfied: there was a serious issue to be tried, irreparable harm would occur if the stay was not granted and the balance of convenience favoured granting it [23]. He therefore granted the application and stayed the operation of section 10 of the Act, pending a determination on the merits of the application for judicial review, notwithstanding appeal [82 & 83]. [Thanks to Howard Friedman.]

Supreme Court appointments

It has been announced that Lady Justice Arden DBE and Lord Justice Kitchin will become Justices of the Supreme Court on 1 October 2018, followed by Lord Justice Sales on 11 January 2019. The appointments will fill the vacancies caused by the retirement of Lord Mance in June and the impending retirements of Lord Hughes and Lord Sumption in August and December.

(The other) Supreme Court departure

Also this week, Justice Anthony Kennedy announced his decision to apply for senior status (ie retirement) from the US Supreme Court at the age of 81. As a quick Google will show, this has caused an immense amount of media comment, primarily because Justice Kennedy was seen as the “swing vote” when the Court was composed of four liberals and four conservatives. Which means, we suspect, that he’s the one who can always be relied on to listen to the arguments…

Ecclesiastical court judgments – June

The summary of last month’s ecclesiastical court judgments will be posted next week. Within this bumper crop of 12 judgments are seven relating to churchyards, including Re Holy Trinity Drayton Parslow [2018] ECC Oxf 3; an additional inscription “Beloved” on his father’s headstone was sought by the petitioner who had received a custodial sentence for his murder. The Reverend and Worshipful Chancellor, Alexander McGregor noted “’[i]t is always open to a person who wishes to introduce a memorial to submit a petition to the consistory court”, but in this case refused to grant a faculty as the addition would be an affront and offence to the parishioners.

In Re Christ Church Surbiton Hill [2018] ECC Swk 2, Chancellor Philip Petchey  commented on the second of the ‘Duffield’ questions and also on the status of the CBC’s guidance regarding chairs. With regard to the latter, he stated

“[31]. …I accept that the CBC Guidance on seating is guidance given by virtue of the duty of the CBC under section 55 (1) (d) of the Dioceses, Mission and Pastoral Measure 2007

… to promote, in consultation with such other persons and organisations as it thinks fit, by means of guidance or otherwise, standards of good practice in relation to the use, care, conservation, repair, planning, design and development of churches.

[32]. Evidently guidance under sub-section (d) coming from a body constituted of those with great expertise and experience in this field (as the CBC is) is entitled to considerable weight.

Nonetheless it is not given any special status by the 2007 Measure and, in particular, that Measure does not establish a presumption that guidance issued under section 55 should be followed unless there is good reason to the contrary or a justification for departing from it is spelled out”.

[This is in line with our views on CBC Guidance, expressed in Pews vs Chairs: Application of CBC Guidance].

Also to be reviewed is Re Grangetown Cemetery [2018] ECC Dur 1 (link t.b.c.) concerning the disposal of two lodges and the associated land by Sunderland City Council.

Quick Links

Et enfin

On 26 June during a visit to the Vatican, President Macron was created an honorary canon of St John Lateran. The ancient title of “premier et unique chanoine honoraire de l’archibasilique du Latran” was reactivated by the Pope for King Henri IV who, after having abjured his Protestant religion and received absolution, donated the Benedictine Abbey of Clairac to the Lateran; in exchange, he received an honorary canonry, subsequently awarded to the Kings of France ex officiis. All the Kings of France and, subsequently, the Heads of State were honorary canons but it was not until 1957 that President René Coty visited Rome to take possession of the title.

Han estado realmente, realmente estúpidos…

…as a certain diocesan chancellor might have commented on discovering the attempt of a local handicraft teacher to freshen up the 16th-century polychrome statue of St George in the church of St Michael, in the town of Estella in the Navarre region. Whilst this has echoes of the disastrous attempts of 81-year-old parishioner Cecilia Giménez to restore the Ecce Homo fresco by Elijah García Martínez in the Sanctuary of Mercy church in Zaragoza, Northern Spain, we should not forget that the UK is not exempt from monstrosities by amateur and professional alike; the consistory court’s approval was given to the font designed by a parishioner at St Bartholomew Kirby Muxloe which was described by a Deputy Chancellor as “more like a toilet than a font”.


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