Law and religion round-up – 15th July

So it’s goodbye from him – and it’s goodbye from him…


Last week, Boris Johnson resigned as Foreign and Commonwealth Secretary and David Davis as Secretary of State for Exiting the European Union. Johnson was replaced by Jeremy Hunt, who campaigned for Remain in the run-up to the 2016 EU referendum but who, according to the BBC, has since said that he is a convert to Brexit. In Davis’s place, the Prime Minister appointed Dominic Raab – a longstanding supporter of UK withdrawal from the ECHR, never mind from the EU. But, on the other hand …

… latest Brexit plans include adherence to ECHR

The Government’s strategy for Brexit published last week, The future relationship between the United Kingdom and the European Union, declares, inter alia, that the new relationship should be underpinned by appropriate safeguards: respect for human rights, comprehensive data protection arrangements and robust, appropriate governance arrangements – and states that “The UK is committed to membership of the European Convention on Human Rights (ECHR)”.

Residence, cohabitation and third-country nationals

Ms Banger is a national of South Africa. Her partner, Mr Philip Rado, is a United Kingdom national. Between 2008 and 2010, they lived together in South Africa, then in May 2010, moved to the Netherlands when Mr Rado got a job there and they lived in the Netherlands until 2013. Ms Banger obtained a residence card in her capacity as an “extended family member” of an EU citizen. In 2013, they decided to move to the UK; but Ms Banger’s application for a residence card was refused because they were not married and Regulation 9 of the Immigration (European Economic Area) Regulations 2006 provided that only the spouse or civil partner of a UK national could be considered a family member of that national. The matter came before the Upper Tribunal (Immigration and Asylum Chamber), which decided to stay the proceedings and to seek a preliminary ruling from the Court of Justice.

In Secretary of State for the Home Department v Banger [2018] EUECJ C-89/17, the CJEU held that Article 21(1) of the Treaty on the Functioning of the EU requires the Member State of which a Union citizen is a national to provide a residence authorisation to an unregistered third-country national partner with whom that Union citizen has a durable, duly attested relationship, where the Union citizen, having exercised the right of freedom of movement to work in a second Member State, returns with his partner to live in the Member State of which he is a national [53.1]. Moreover, the refusal of a residence authorisation to the third‑country national and unregistered partner of a Union citizen in those circumstances “must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons” [53.2]. [Thanks to Daniel Hill.]

The judgment suggests that in EU law the practical distinctions between “marriage”, “civil partnership” and “cohabitation” are becoming increasingly blurred, at least in relation to rights of residence.

Halal meat in Lancashire

The Guardian reports that Lancashire County Council voted on Thursday to cease providing halal meat to council establishments unless the animals are stunned before slaughter. According to the report, the decision ignored the result of a public consultation in which 65 per cent of respondents strongly disagreed with the proposal and 33 per cent strongly agreed.

A right not to be offended?

Radio Praha reports that the Archbishop of Prague, Cardinal Dominik Duka, has filed a lawsuit over two plays staged in Brno in May: Our Violence, Your Violence and The Curse – for the gory details, read the report. Cardinal Duka, who is suing as a private individual, argues that the content of the plays represented an attack on his rights under the EU Charter of Fundamental Rights and Freedoms: specifically Article 1 (human dignity) and Article 10 (freedom of thought, conscience and religion). [With thanks to Howard Friedman.]

The general view is that the various human rights instruments do not include an unequivocal, generalised “right not to be offended”. It will be interesting to see if the domestic courts seek an opinion from the CJEU on the applicability of the Charter in such circumstances.

Of fonts

In April 2015, we commented “They bury fonts, don’t they?” and concluded:

“‘some used to bury them’, but now, despite a chink of flexibility from some DACs, consistory courts seem very reluctant to permit the practice. Although it has its origins in theology and spiritual anthropology, present day restrictions appear to be achieved through a creative interpretation of Canon F 1 §3 which places limits the use of the font bowl: clearly, a strict reading would also preclude their use as a plinth for a replacement font.”

This post gave rise to a valuable comment stream which we followed up in Last rites for fonts – continued, and Burial and destruction of unwanted fonts – further clarificationAs a further update, in Re Eastern Green St Andrew [2018] ECC Cov 6, which became available this week, the court permitted the introduction of a movable font and imposed conditions to provide for an exploration of alternative disposal of the present font dating from 1975 , “With burial [in the churchyard] being a last resort”. However, “In the circumstances here there is no need for concern about the font bowl and cover which are to be incorporated in the new font” [13].

Burial of the bowl of the font is sometimes sought in view of its sacramental nature, although in Re St Peter, Draycott [2009] 3 WLR 248 [summarized here] the Arches Court rejected the view of the CBC that as a consequence, a font could never be sold or disposed of for another use. Unlike the instant judgment, in Re St Philip Scholes [2016] ECC Lee 5 the plinth/pedestal of the font was doomed to a discreet but ignominious end. Chancellor Hill stated [49]: 

“As the point was not argued before me, I need not come to a final determination, but in my judgment it is appropriate for the bowl to be retained with dignity; however, the ‘builders rubble’ which is all that remains of the pedestal can properly be disposed of in such matter as the Archdeacon may direct. I can see no difficulty in it being discretely buried in a corner of the unconsecrated field in which the church building stands, but having regard to the nature of the material, providing the bowl is reverently preserved, I can see no objection to it being dumped in a landfill site or similar”.

IICSA – English Benedictine Congregation case study

On 11 July, the Independent Inquiry into Child Sexual Abuse announced that it will publish the investigation report on the Ampleforth and Downside hearings held last November and December at 12 pm on Thursday 9 August 2018. Ampleforth Abbey and School and Downside Abbey and School were considered as part of the English Benedictine Congregation case study, which is part of the Roman Catholic Church investigation.

The public hearings considered the nature and extent of child sexual abuse by individuals associated with the English Benedictine Congregation, and any failures by them or the Roman Catholic Church to protect children from sexual abuse. The hearings also examined the adequacy of the response by the Church and other authorities, into allegations of child sexual abuse by individuals associated with the Congregation, how these allegations were acted upon by the Church and what criminal or civil proceedings resulted from these allegations.

On not understanding contempt of court

Thus far, because we thought it had nothing whatsoever to do with “law and religion”, we have studiously avoided commenting on the case of Tommy Robinson, alias Stephen Yaxley-Lennon, who was jailed after he admitted that he had been in contempt of court for the second time: the Secret Barrister blog summarises the law and the details of the two cases here. However, Reuters now reports that President Trump’s Ambassador-at-Large for International Religious Freedom, Sam Brownback, raised the matter in a June meeting with Sir Kim Darroch, HM Ambassador to the Court of Mar-a-Lago, which covered a range of “religious freedom issues”.

But hang on: wasn’t Robinson jailed after admitting his contempt?  And didn’t the second contempt automatically trigger his suspended sentence for the first one? So what, we wonder, was the “religious freedom issue”? Maybe it’s different in Trumpton.

Father(s) of the House

We were reminded that along with the Revd Graeme Buttery, the Revd Stephen Trott is now the joint “father of the House of Clergy” – both having been elected in 1995. Stephen was awarded his LLM in Canon Law at Cardiff in 2003 with a dissertation entitled “Establishment in theory and practice in the Church of England 1829-1929: from Tractarianism to William Temple”.

Quick links

And finally…

7 thoughts on “Law and religion round-up – 15th July

  1. May I suggest that you don’t use the phrase “assisted suicide”. “Suicide” implies that suicide is a crime, which it is not. And the overwhelming body of the population (except the usual powerful religious lobby) supports a person’s human right to have their life ended when it becomes intolerable. “Assisted dying” is a better phrase. Many people are sensitive to that wording.

    Harry Small

    • Sorry, my mistake: what I should have written was “assisting suicide” – which is what I’ve now changed it to.

      The category and tag we use is “assisted dying” – and that’s how we normally would describe the issue. But, like it or not, that’s how the Suicide Act 1961 describes the offence in s.2; and that’s what Dominic Ruck Keene is writing about.

    • Presumably so but, equally, we could presumably repeal s.1 European Union (Withdrawal) Act 2018 which declares that “The European Communities Act 1972 is repealed on exit day”. Whether the EU would then say, collectively, “Oh no, sunshine: you’ve triggered Article 50 so there’s no going back” is another matter.

      It’s a riddle wrapped up in an enigma – and one on which I’m no kind of expert at all.

  2. Article 50 two-year period can be extended by unanimous consent of the 28 in which case UK would be into Neverendum extra time.

  3. Pingback: Ecclesiastical court judgments – July 2018 | Law & Religion UK

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