Brexit apart, hardly any home news to report this week…

Brexit and the Court of Session

In Wightman, Reclaiming Motion by Andy Wightman MSP and Others Against Secretary of State for Exiting The European Union [2018] ScotCS CSIH 62, the Inner House decided to refer to the European Court of Justice for a preliminary ruling the question “whether, when and how the notification [under Article 50]…can unilaterally be revoked”. The case has been brought by a cross-party group of six Scottish MPs, MEPs and MSPs, along with Jolyon Maugham QC, Director of the Good Law Project, who helped arrange the case after a crowdfunding appeal. They want a definitive ruling from the CJEU on whether or not the UK can halt the Article 50 process without needing the approval of the 27 other EU member states. 

The Government sought leave to appeal the Inner House’s referral decision to the Supreme Courts. The CJEU has applied its expedited procedure to the case, with an oral hearing fixed for 27 November 2018, and the Court of Session was advised that the UK Supreme Court might be in a position to hold an oral hearing, should permission for leave be granted, on either 22 or 26 November. On Thursday, however, the Inner House [The Lord President, Lord Menzies and Lord Drummond Young] refused the application.  In a written statement of reasons published by Scottish Legal News, the Lord President said:

“The points of law in this appeal may well be arguable and the matters raised are of great constitutional significance. However, if permission were granted, and the CJEU were thereby required to await the decision of the UKSC, then even if the UKSC were able to hear the case on the dates provisionally fixed, there would seem to be little prospect of the CJEU being able to answer the question in the reference in advance of the prospective parliamentary vote.

It has to be assumed that, whatever the date of the oral hearing, the UKSC would require some time to consider the points raised. Permission would, in short, render the reference, and indeed the petition, academic. For this reason, permission to appeal must be refused.”

Scottish Legal News carries a full note, here.

ELS Lyndwood Lecture 2018

On 7 November, Professor Diarmaid MacCulloch delivered the 2018 Lyndwood Lecture at the Temple Church, London, on Richard Hooker (1554 – 1600): Invention and Re-invention. Bishop Christopher Hill reports that in his “altogether splendid presentation”, Professor MacCulloch  “traced…Hooker’s invention by his gradual departure from Tudor theological orthodoxy in his subtle development of the theology of justification”. The lecture was preceded by Choral Evensong at which the sermon was delivered by the Rt Rev June Osborne, Bishop of Llandaff.

The Lyndwood Lecture is a biennial event, established in 1996, and organised alternately by the Ecclesiastical Law Society and the Canon Law Society of Great Britain and Ireland, takes its name from William Lyndwood (1375-1446), sometime bishop of St David’s, a distinguished diplomat and canonist, most noted for the publication of the Provinciale, an early authoritative commentary on canon law.

Non-theological training for “faith leaders”

We noted that the Ministry of Housing, Communities & Local Government has invited bids from prospective training providers interested in delivering non-theological, voluntary training for faith leaders, as envisaged in the Integrated Communities Strategy green paper.

Reading between the lines, MHCLG’s proposal looks as if it is aimed primarily at religious minorities rather than at the mainstream Christian Churches; at least some of the proposed syllabus – marriage law, equalities law, hate crime legislation, finance and data management – looks like the kind of stuff that ordination training ought to include as part of teaching about basic professional practice. Having had to explain to a few Anglican clerics about the existence and role of diocesan registrars however, Frank, for one, is not so sure that it does.

Church and State in Greece

The Greek Government and the Holy Synod of the country’s Orthodox Church have come to an agreement under which clergy will no longer be regarded as civil servants. According to a report in The Guardian, government spokesman Dimitris Tzannakopoulos said that “With this agreement, 10,000 civil servant posts will be freed up. Although clerics are not exactly civil servants, in name they are, and are counted as civil servants.” According to a BBC report, the Church will continue to receive an annual subsidy of around €200m for paying clergy stipends, and that payment will not change if the Church increases or reduces the number of priests.

The agreement has yet to be ratified by Parliament and the Holy Synod.

Pastafarians in Germany

The Federal Constitutional Court of Germany has upheld the decision of the lower court in  Brandenburg and ruled that the Church of the Flying Spaghetti Monster is not a “religion” for the purposes of German law. It has been refused permission to erect official signs in cities and towns in Germany advertising the location and times of its worship services. [With thanks to Law and Religion Forum.]

Pilgrimage to Santiago…

… however, not Santiago de Compostela, Spain, but Santiago in Chile where on 4 November the Iglesia Anglicana de Chile – the Anglican Church of Chile – was inaugurated as the latest province of the Anglican Communion in a service held in the capital, Santiago. The Church had been part of the Province of South America but was given permission to have provincial status after sustained growth.

More than 800 people, including many from overseas, attended the service led by the primate of South America, Presiding Bishop Greg Venables, and presided over by the Most Revd Justin Welby. During the service Bishop Hector (Tito) Zavala Munoz was installed as Archbishop and Primate of the new Province. He became Bishop of Santiago when Chile was split into four dioceses in preparation for its move towards provincial status. The other new dioceses are Valparaíso, Concepción, and Temuco.

Quick links

• Lord Justice Bean, Atkin Lecture 2018: Misconduct in Public Office: “clergymen in the Church of England are holders of public office, but ministers of other religions are not; so Peter Ball, an Anglican bishop who had committed sexual offences, could be charged with (and sent to prison for) misconduct in public office, but a Catholic priest, a rabbi or an imam who had behaved identically could not have been”.
• Katie Boyle, Scottish Human Rights Commission: Models of Incorporation and Justiciability for Economic, Social and Cultural Rights: argues that there is an accountability gap in the UK and in Scotland on protection and implementation of economic, social and cultural rights
• Eva Brems, Saïla Ouald Chaib & Katrijn Vanhees, Netherlands Quarterly of Human Rights: ‘Burkini’ Bans in Belgian Municipal Swimming Pools: Banning As a Default Option.
• Erasmus, The Economist: The Church of England plays a big role in acts of remembrance: “This year’s centenary will be marked by a thunderous ringing of bells across the country … And in England, most of those bells will be in Anglican churches and cathedrals because that is where bells generally are”.
• Catherine Fairbairn, House of Commons Library Briefing Paper: Humanist Marriage Ceremonies.
• Abigail Frymann Rouch, Standpoint: Disestablish the C of E? Ask Corbyn.
• Marko Milanovic, EJIL Talk!: Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgment in E.S. v. Austria: “I have now read this judgment several times. Each time I read it I was left more disturbed.”
• Yossi Nehushtan and Stella Coyle, UK Constitutional Law Association: Ashers Baking (Part 1): The Supreme Court’s Betrayal of Liberalism and Equality: “on why the Supreme Court got it wrong”: Ashers Baking (Part 2): Do Homophobes and Racists have a Right Not to Manifest Liberal Messages? “the freedom of expression arguments.”
• Jack Palmer-White, Religion and Global Society: ‘Collaboration between faith and non-faith actors is vital’: The Anglican Communion at the UN.
• Ben Ryan, Religion and Global Society: Christianism: A crude political ideology and the triumph of empty symbolism: “Where does the ‘religion’ end and the ‘populism’ begin?” – you can probably guess.
• Stijn Smet, Strasbourg Observers: E.S. v. Austria: Freedom of Expression versus Religious Feelings, the Sequel: “When I first read E.S. v. Austria, I was dumbfounded; struck by how contrived and nonsensical some of the ECtHR’s reasoning is.”
• Ed Peters, In the Light of the Law: Breaking law once hardly justifies breaking it twice. On Pope Francis’ reported wish to change Roman Catholic canon law forbidding ecclesiastical funeral rites for “manifest sinners who cannot be granted ecclesiastical funerals without scandal”.

And finally… I

From Eccles‏ @BruvverEccles, a variation on the Four Yorkshiremen sketch, generally attributed to the Monty Python series:

“Well, I ‘ad to get up at 6, clean the church, bath the deacon, translate “If I were a butterfly” into Latin for the children, mend a broken drainpipe on the church, blow up balloons for the solemn Mass, and sober up the bishop”.

And finally… II

The Law Commission of England and Wales and the Scottish Law Commission are launching the first of a series of public consultations on reform of road traffic law to accommodate the introduction of automated vehicles. Anyone who has ever received the message “Microsoft Word has closed unexpectedly” already knows the answer instinctively: each automated vehicle will have to be preceded by a person displaying a red flag…