Law and religion round-up – 19th August

Lots of interesting stuff, but hardly anything that seemed to merit a post of its own – except that…

 Nadia Eweida is suing again

There were press reports that Nadia Eweida is suing British Airways for discrimination again, alleging victimisation and harassment since her earlier court case: we noted the case here. There will be an Employment Tribunal hearing on 26 October.

More on Brexit

BuzzFeed has seen a provisional list of forthcoming “no-deal Brexit” technical papers. According to Buzzfeed, a Government spokesperson told it that

“We don’t comment on leaks or speculation. However, as we’ve already made clear, individual departments are preparing specific technical notices to help citizens, businesses and consumers to prepare for March 2019 in the unlikely event of a no-deal scenario … These will be published in August and September and will be available on gov.uk in a centralised location that is easy for people to access and use. The Secretary of State for Exiting the EU and the Prime Minister confirmed this in July.”

The following may possibly be of interest to readers:

  • Civil judicial cooperation
  • Common Travel Area
  • Data
  • Erasmus
  • EU citizens in the UK
  • Intellectual property
  • UK citizens in the EU
  • Workplace rights.

Peter Ball – legislation, then and now

This week we posted the second part of our three-part summary of the IICSA Case study on Peter Ball. Part I considered the issues surrounding the appointment of Peter Ball as a diocesan bishop, and his subsequent Permission to Officiate (PTO). Part II looked at: the issue of a police caution and its implications; the sanctions applicable to bishops; misconduct in public office; and mandatory reporting. Next week we will post Part III, which will consider the closing statements and the work which is currently on-going.

Safeguarding contacts

The Church Times reported on the initiative of Chris Hernandez, a survivor of abuse by Peter Ball, who with other survivors is urging parishes to give clear safeguarding information on their websites, as well as on the recently revised church-finding website, A Church Near You. The article comments:

“All PCCs are required to sign a statement formally adopting the latest safeguarding policy from the House of Bishops. To comply with this policy, church websites must display information about where to get help with child- and adult-safeguarding issues, such as local authorities and helplines, as well as details of the parish safeguarding contact and churchwarden. They must also provide access to a safeguarding handbook”.

On the CofE website, the Parish Safeguarding Handbook (2018) “is currently down for editing”; however, Appendix 7 of Key roles and responsibilities of church office holders and bodies practice guidance (2017) provides A Model Parish Safeguarding Checklist. One of the areas each PCC (or equivalent charitable body) must address, “in order to assist with the creation of a safeguarding culture” is to display:

  • A formal statement of adoption of the House of Bishops ‘Promoting a Safer Church;
  • Safeguarding policy statement’. This should be signed on behalf of the PCC.
  • Contact details of the PSO [Parish Safeguarding Officer], Churchwarden and any other local leaders.
  • Contact details for the Diocesan Safeguarding Team – including phone, email and website details.
  • Information about where to get help with child and adult safeguarding issues, domestic abuse and key helplines e.g. ChildLine (See separate ‘Model Safeguarding in parishes-who’s who’): and
  • Provide access to a hard copy Parish Safeguarding Handbook (see separate Handbook)
  • Provide access to a hard copy of the Diocese Safeguarding Manual

A Church Near You requires the completion of two fields: “Enter a tag” (from a dropdown menu) and “Postcode or place”. The inclusion of safeguarding would appear to require two actions: the addition of “safeguarding” to the dropdown menu; and the provision of safeguarding information against this tag by each church. As we have commented before, it is this latter action which is the weak link in the operation of this otherwise excellent website.

The Church Times comments:

“The team at Church House were “certainly working on a range of information to share with all its parishes, including safeguarding”, a spokeswoman confirmed on Wednesday [15 August]. This may include a dedicated page on which the church administrator can upload details of parish safeguarding contacts and other information.”

The power of prayer and the letter of the law

The Guardian reports that a Guernsey resident, parish councillor Rosie Henderson, has activated the ancient Norman Clameur de Haro in protest against the narrowing of a road which she claims would endanger pedestrians and motorists. The Clameur is fully enforceable in Guernsey and Jersey law, and involves kneeling and calling for help in Norman French – “Haro! Haro! Haro! À l’aide, mon prince, on me fait tort” – which the Guardian translates as “Come to my aid, my prince, for someone does me wrong” [Google Translate doesn’t run to Norman French], followed by the Lord’s Prayer and (in Guernsey), the Grace. Whoever calls the Clameur has 24 hours to register it in court, but whomever it is called against must stop all work immediately: in brief, it’s an immediate interlocutory injunction – or maybe, since we’re talking civil rather than common law, an interim interdict.

As a consequence of Mrs Henderson’s action, the construction work in St Peter Port was stopped until a court decided the case. Despite the feudal origin of this 10th-century provision, its terms are quite prescriptive – and each must be satisfied for the circumstances to be considered by the court. In this case, the Criant was unsuccessful; Judge Russell Finch decided that the Clameur failed because Mrs Henderson didn’t own the roadway.

Funeral costs in Scotland

The Scottish Government has opened a consultation on draft statutory guidance on funeral costs under s.98 of the Burial and Cremation (Scotland) Act 2016. The accompanying commentary says that the draft guidance is about improving the transparency and availability of funeral pricing information. Because many Scottish cemeteries and crematoria are operated by local councils, the guidance also includes a section specifically for local authorities on charge-setting and tackling funeral poverty. The consultation closes on 8 November.

Challenge to “home abortions” in Scotland fails

The vast majority of abortions in Scotland take place at less than nine weeks gestation – normally by taking two different drugs: mifepristone, which blocks the hormones that maintain the pregnancy, then misoprostol, which can be taken on the same day or subsequently. Within an hour of taking misoprostol women often experience heavy bleeding – usually on the way home from the clinic. S.1(3) of the Abortion Act 1967 allows the Secretary of State to approve individual places for the treatment of abortion and s.1(3A) of the 1967 Act, inserted by the Human Fertilisation and Embryology Act 1990, extended this approval to a “class of place”; and in October 2017 the Scottish ministers exercised their devolved powers under the Scotland Act 1996 to allow the second dose of medication to be taken in the pregnant woman’s home.

On Wednesday, in SPUC Pro-Life Scotland Limited v Scottish Ministers, for Judicial Review [2018] CSOH 85, Lady Wise rejected the argument that, under the 1967 Act, abortions could only legally be carried out in a medical facility and that the Scottish Government’s decision contravened the terms of the Act. She concluded that “patients who self-administer medication at home may still be described as being treated by their medical practitioner, who remains in charge of that treatment”, citing insulin-dependent diabetics [40], and ruled that the decision of the Government to approve a woman’s home as a place where one stage of the termination of pregnancy can be carried out was not unlawful [43]. [With thanks to Daniel Hill.]

The Netherlands gives the thumbs-down to Pastafarianism

A woman from Nijmegen applied for an ID card and a driving licence and sent in passport photos in which she was wearing a colander on her head. The Mayor of Nijmegen refused to issue the documents because her head was covered in her passport photos and they did not, therefore, meet the applicable legal criteria. The Administrative Jurisdiction Division of the Council of State then had to decide whether or not Pastafarianism was a religion because, contrary to the general requirements, one can apply for an official document with a passport photo in which the head is (partially) covered, provided that the one can demonstrate a religious reason for the head-covering.

In what The Guardian couldn’t resist describing as a “spaghetti injunction”, the Administrative Jurisdiction Division ruled on Wednesday that Pastafarianism, as embraced by the Church of the Flying Spaghetti Monster, was not a religion, that wearing a colander by an adherent could not be regarded as an expression of religious belief and that, in this case, the religious exception did not apply. The Court concluded that the satirical element of Pastafarianism was so predominant that it did not meet the criteria of “cogency, seriousness, cohesion and significance” for the purposes of Article 9 ECH. In particular, it lacked the requisite degree of seriousness and cohesion. There is an English version of the main paragraphs of the judgment here. [With thanks to Marc de Werd.]

But it’s evidently not the universal opinion. In New Zealand, the world’s first Pastafarian wedding took place in 2016 – aboard a reconstruction of a pirate ship.

Handshakes in Sweden and Switzerland

The BBC reports that the Labour Court in Sweden has ruled, in a split 3-2 decision, that a Muslim woman whose job interview was ended when she declined to shake the hand of a male interviewer for religious reasons had been unfairly discriminated against. It ordered the offending company to pay the claimant 40,000 kronor (£3,420) in compensation. The majority ruled that her refusal on religious grounds to shake hands was protected by the ECHR and that the company’s policy in demanding a specific greeting discriminated against Muslims.

Coincidentally, The Guardian reports that Lausanne has refused to grant a Muslim couple’s citizenship application because of their refusal to shake hands with members of the opposite sex. The Mayor, Grégoire Junod, and his deputy Pierre-Antoine Hildbrand, who was on the three-member commission that questioned the couple, said that, though freedom of religion and belief was enshrined in the laws of the Canton of Vaud, religious practice did not fall outside the law. The couple has thirty days in which to appeal.

Trinity Western: the dénoument?

Trinity Western University has been the subject of controversy since the Law Societies of Upper Canada and British Columbia refused to recognise graduates of its putative law school on account of the University’s Community Covenant, which includes sexual abstinence outside of heterosexual marriage. The refusals were upheld by the Supreme Court of Canada; however, Trinity Western has now decided that as from the beginning of the 2018-19 academic year it will no longer require its students to abide by the Covenant.

According to a report in the Vancouver Sun, on 9 August the Board of Governors passed a motion to remove the mandatory requirement for incoming and current students, as follows:

“In furtherance of our desire to maintain TWU as a thriving community of Christian believers that is inclusive of all students wishing to learn from a Christian viewpoint and underlying philosophy, the Community Covenant will no longer be mandatory as of the 2018-19 Academic year with respect to admission of students to, or continuation of students at, the University.”

So maybe the two Law Societies will recognise Trinity Western’s law graduates after all. [With thanks to Barry Bussey – and see Raji Mangat’s article listed below.]

Cakes in Trumpton

The ABA Journal reports that Jack Phillips, the owner of Masterpiece Cakeshop, is challenging another decision by the Colorado Civil Rights Commission: regular readers will recall the ruling in Masterpiece Cakeshop Ltd et al v Colorado Civil Rights Commission et al 584 U. S. __ (2018) 3, which we noted here. This time, the issue is a probable cause finding that his refusal on religious grounds to bake a cake celebrating a gender transition was a violation of Colorado’s public-accommodations law.

Quick links

And finally…

On the whole, we’ve avoided the saga of John Smyth and the Iwerne Trust (now part of the Titus Trust) on the grounds that it was about good-old-fashioned criminal law rather than anything much to do with our brief as we understand it. The admirable Andrew Brown nails it, however, in a Church Times comment on the Titus Trust’s statement sympathising with Smyth’s victims and saying that “Our thoughts and prayers are with all those affected by the news of John Smyth’s death”:

“Even apart from the use of ‘thoughts and prayers’ — which is an infallible marker of insincerity — this is a document that exemplifies the reasons that no decent person trusts a certain type of public-school Evangelical.”

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