Nothing this week compares with the proposed Brexit terms and the resulting ministerial resignations: nevertheless…

…it was perhaps significant that the snappily-titled Outline of the Political Declaration setting out the Framework for the Future Relationships between the European Union and the United Kingdom commenced [emphasis added]:

“Basis for cooperation: Shared values including the respect for human rights and fundamental freedoms, democratic principles, the rule of law and support for non-proliferation, as essential prerequisites for the future relationship. Reaffirmation of the United Kingdom’s commitment to the European Convention on Human Rights (ECHR), and the Union’s and its Member States’ to the Charter of Fundamental Rights of the Union. Support for effective multilateralism”.

EU law after the transition period

The Draft Agreement on withdrawal declares at Article 4 (Methods and principles relating to the effect, the implementation and the application of this Agreement):

“1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.

Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.

4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.” [our emphasis]

In short, according to a fact sheet issued by the European Commission, the Agreement “ensures that the withdrawal will happen in an orderly manner, and offers legal certainty once [EU] treaties and EU law will cease to apply to the UK”. Tobias Lock analyses the issue on Verfassungsblog here: On Thin Ice: the Role of the Court of Justice under the Withdrawal Agreement.

Brexit and Article 50

On Thursday, Jolyon Maugham QC tweeted that the Supreme Court had refused the Government’s request for an oral hearing on the Article 50 case in which the Inner House of the Court of Session has sought an advisory opinion from the CJEU. Instead, it will determine the Government’s application for permission to appeal on the papers during the course of this coming week. The Supreme Court’s website says:

“The Supreme Court has received an application for permission to appeal in the matter of Secretary of State for Exiting the European Union (Appellant) v Wightman and others (Respondents). The application has been referred to three Supreme Court Justices – Lady Hale (President), Lord Reed (Deputy President) and Lord Hodge – who will form the decision panel.

The Court is aware of the urgency of this matter. We will provide updates as further information becomes available.”

Places of worship at risk

There are approximately 14,800 listed places of worship in England and Historic England works closely with groups of all denominations and faiths to monitor their condition. HE has just launched its 2018 Heritage at Risk Register, which is a searchable database rather than a document.

In total, 6.2 per cent (911) of listed places of worship are on the 2018 Register. 117 places of worship have been removed from the Register in the past year but 96 others have been added. Entries include buildings that are generally in fair or good condition but with a significant problem with one major element, such as the tower. Others are vulnerable to becoming at risk. The main threats are failing roofs (not helped when someone steals the lead), failing rainwater goods such as gutters and downpipes and decaying high-level stonework. The message – unsurprisingly – is that simple, regular maintenance is essential to prevent these buildings declining into a poor or very bad condition. Further information here. And while we’re on the subject…

… should stealing lead be a hate crime?

The Times reports that the head of National Churchwatch, an independent business that advises parishes, has said that stealing lead from a church’s roof should be treated as an anti-Christian hate crime because it forces many to close their doors for worship after repeated raids: “acts of criminal damage and vandalism were routinely treated as hate crimes when committed against synagogues and mosques, but that the same was not true for churches”. However, the suggestion was roundly criticized by several legal commentators on Twitter.

National Churchwatch is normally an eminently sensible organisation: see, for example, its Counter Terrorism Advice for Churches on which we posted in 2016. On this occasion, however, we think that the authors of the proposal have simply got it wrong. It’s a category mistake: hate crimes – by definition – are motivated by hatred, and the test of that is surely the state of mind of the wrongdoer. We cannot believe that people steal the lead from church roofs because they loathe Christians or Christianity: they just want to make a quick, illegal buck – and secular buildings get their lead nicked as well. And in no way can it be compared with daubing a swastika on the door of a synagogue. And, coincidentally, there is to be a review of…

… hate crime in Scotland

The final report of Lord Bracadale’s Independent Review of Hate Crime Legislation in Scotland was published in May. As it announced following the report’s publication, the Scottish Government agrees that all relevant hate crime provisions including the statutory aggravations should be contained in one place and intends to consolidate all Scottish hate crime legislation into a single statute to provide clarity, transparency and consistency.

On Wednesday, it announced a consultation on how one set of consolidated hate crime legislation might be modernised and reformed.

Inter Faith Week

To mark Inter Faith Week, MHCLG published a report, Belief in communities: bridging the divide. The report suggests how interfaith networks can encourage social mixing and play a role in building resilient communities. The Minister for Faith, Lord Bourne, called on individuals and religious institutions to recognise the valuable contribution of faith and belief institutions, to remain open to understanding those of other faiths and beliefs within their communities, to establish partnerships with other organisations. to encourage their faith institutions to join a local interfaith network and to establish interfaith networks where they do not already exist.

Safekeeping of ashes in Italy

In one of the more unusual cases to cross our path, the CJEU has ruled in Memoria and Dall’Antonia [2018] EUECJ C-342/17 that legislation prohibiting private companies from holding cremated remains for safekeeping is contrary to EU law. Ms Dall’Antonia plans to have her husband’s body cremated and to have the urn containing his ashes stored by Memoria, a private company. In 2015, however, the Comune di Padova amended its regulation on funeral services expressly to prohibit the bereaved from using private companies independent of the municipal cemetery service to store cremated remains.

Unsurprisingly, on a reference from the Tribunale amministrativo regionale per il Veneto the CJEU ruled that the ban contravened the principle of freedom of establishment under Article 49 of the Treaty on the Functioning of the European Union (TFEU).

Parochial Fees 2019 – sero sed serio

This week the Church of England issued details of its parochial fees for 2019. Some incumbents have expressed disquiet at the late appearance of these figures which are frequently sought by couples intending to marry in the following year. However, the calculation of these fees is dependent on information from sources outwith the Church of England. The Parochial Fees and Scheduled Matters Amending Order 2014 provides the basis of fees for 2015 to 2019; Schedule 1 lists the two components of each of the various parochial fees for 2014, and these are changed by the year-on-year increases (if any) in the Retail Price Index in September. The September 2018 Consumer Price Inflation data were released by the ONS on 17 October.

Diocesan Synod statement concerning the Dean of Christ Church, Oxford

Yesterday, the Bishop of Oxford gave a statement to the meeting of the Oxford Diocesan Synod concerning the formal complaint that has been made against the Dean of Christ Church, Martyn Percy. The statement, entitled “Diocesan Synod statement concerning the Dean of Oxford”, notes: “Christ Church is a complex institution and, uniquely in the Church of England, the Dean is also Head of an Oxford College. The Governing Body and Chapter have now requested that the complaint against Martyn, which relates to a governance matter, be properly reviewed by an independently chaired internal tribunal”.

An article in The Guardian comments: “The Church of England is not involved in the tribunal and there is no question of a clergy disciplinary measure”. As such, L&RUK will not be covering developments, although we echo the comment of Bishop Steven that “[t]he tribunal must now conduct an impartial, thorough and fair review of the complaint that has been made”. For reference, a copy of the Christ Church statutes is here.

Quick links

• Church of England Media Centre: Chief Legal Adviser Stephen Slack announces retirement.
• The Conversation: Brexit special: links to a series of recent academic comments on the detail of the draft Withdrawal Agreement and the accompanying political declaration.
• Samantha Knights, UKSC blog: Case Comment: Lee v Ashers Baking Company Ltd & Ors.

And finally… I

Civil Society reports that Legacy Foresight, an organisation that analyses charitable bequest statistics, reckons that legacy income is being “squeezed from all sides” and says this is because of a “deceleration in the number of deaths” and “a weaker macroeconomic climate”. So do its analysts want people to hurry up and die more quickly, or what?

And finally… II

In a piece about the current shortage of flu vaccines for the over-65s, the BBC reports that “Public Health England said the adjuvanted flu vaccine, which is designed to help the immune systems of older people fight off flu, was worth having”.

“Adjuvanted”??? Domine, ad adiuvandum me festina.