Law and religion round-up – 9th December

Brexit, Brexit and more Brexit…

… but “Brexit” as understood on 29 March 2017 certainly does not mean “Brexit” as understood on 3 December 2018 and may probably mean something different by 29 March 2019. Perhaps the country now needs “strong and stable” leadership?

In which connexion, the CJEU will deliver its ruling on the reversibility of the UK’s declaration under Article 50 TEU (case C-621/18, Wightman) tomorrow, 10 December, at 8 am: more below. And on Thursday at 9.30, the UKSC will hand down its judgment in the case of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, in which the Law Officers are asking for a ruling on whether the Bill is within the Scottish Parliament’s devolved powers.

The UK, Brexit and Article 50

On Tuesday, Advocate General Campos Sánchez-Bordona issued his Advisory Opinion to the effect that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU until such time as the withdrawal agreement is formally concluded – provided that the revocation has been decided in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice. Unfortunately, some of the initial reports were straight from the headless chicken tendency and clear candidates for the Stool of Repentance. Several people who really should have known better seemed to think that an AG’s Opinion was exactly the same as a judgment of the CJEU – which it’s not. Though that said, the Court does not often disagree with an AG’s Opinion.

Also on 4th December, by 311 votes to 293, the Commons supported a motion backed by six opposition parties requiring disclosure of the full legal advice on the Withdrawal Agreement after MPs had found it in contempt of Parliament for not doing so. Dominic Grieve’s amendment, requiring “prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union” before making regulations implementing the Agreement then passed by 321 votes to 299.

Reporting patterns

In advance of the release of the Attorney General’s legal advice on Brexit, David Allen Green tweeted his predictions on the likely sequence of events:

  • 1130 – Government legal advice published
  • 1131 to 1145 – Hot takes from people who have not read the legal advice
  • 1145 to 1200 – Press files copy based on collating hot takes or skim reading advice
  • 1201 – Everyone loses interest
  • 1202 – New political drama unfolds
  • 1215 – Informed commentary from people who have read and understood advice but nobody cares
  • 1230 – What advice? Wasn’t that yesterday’s political drama?

Although tongue-in-cheek, this emphasizes the dilemma faced by those of us attempting to provide an accurate report on high-profile, fast-moving events. With regard to the publication of the Advocate-General’s Opinion, we first published AG Campos Sánchez-Bordona: UK may unilaterally rescind EU withdrawal notification to provide readers with quick (and hopefully legally sound) feedback of the publication of the press briefing, followed by A-G’s Opinion on revocation of Article 50 TEU – further comment, later in the day. But we’ll see what the Court makes of it tomorrow.

The EU and antisemitism

On Thursday, the European Council adopted a comprehensive Declaration on the fight against antisemitism and the development of a common security approach to better protect Jewish communities and institutions in Europe. Inter alia, the Declaration invites Member States to adopt and implement a holistic strategy to prevent and fight all forms of antisemitism as part of their strategies on preventing racism, xenophobia, radicalisation and violent extremism and calls on those that have not yet done so “to endorse the non-legally binding working definition of antisemitism employed by the International Holocaust Remembrance Alliance (IHRA) as a useful guidance tool in education and training, including for law enforcement authorities in their efforts to identify and investigate antisemitic attacks more efficiently and effectively,”

Education in “out-of-school settings”

The Department for Education has returned to the issue of informal education with an online consultation on Voluntary safeguarding code of practice: Draft guidance for out-of-school settings providers. Out-of-school settings (“OOSS”) are defined as “any institution that provides tuition, training, instruction, or activities to children in England without their parents’ or carers’ supervision, that is not a school, college, 16-19 academy or a provider caring for children under 8 years old which is registered with Ofsted or a childminder agency”. The consultation document a non-exhaustive list of what is considered to be an OOSS – which includes religious settings that offer “education in their own faith, culture, religious texts, preparation for rites of passage, etc”: yeshivot, madrassahs, Sunday schools and suchlike.

The original proposal was extremely controversial; the authors say that the new draft code ‘has been developed in consultation with representation from charitable organisations linked to OOSS, individuals with a good working knowledge of religious faiths (Christianity, Hinduism, Islam, Judaism and Sikhism), organisations representing youth and sports clubs, Ofsted, and local authorities’ [our emphasis] and the consultation is aimed both out-of-school settings providers, parents, carers, designated safeguarding leads and other interested parties.

The consultation closes on 24 February. You can respond to it online here.

Veganism as a philosophical belief?

On Monday, the BBC reported that a former employee of the League Against Cruel Sports, Mr Jordi Casamitjana, is suing the League for wrongful dismissal, claiming that he was sacked because he disclosed that the League invested pension funds in firms involved in animal testing. Mr Casamitjana says that he is an “ethical” vegan and that he was discriminated against on the basis of his vegan belief. The League denies that his dismissal was because of his veganism and says he was dismissed for gross misconduct.

According to the BBC, there will be a preliminary hearing in March at which an employment tribunal will decide whether veganism is a “philosophical belief” for the purposes of the Equality Act 2010; if the tribunal decides that veganism is protected, the discrimination claim will proceed to a full hearing.

Summer jobs and human rights in Canada

As we have previously noted, Canada operates a federally-funded Summer Jobs Programme as part of its the Youth Employment Strategy which subsidises employers to hire registered full-time students between the ages of 15 and 30 to help them in acquiring employment and/or career-related skills. The 2018 application form for employers requires the applicant organisation to attest that “both the job and [the] organization’s core mandate respect individual human rights in Canada” including “reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”

The wording of the 2018 application form caused a major row and the Federal Government has now removed the problematic 2018 values language from the 2019 Attestation. The Canadian Council of Christian Charities is still not happy, however, arguing that some of the language used is still unclear as to its practical effect.

Pussy Riot judgment becomes final

The ECtHR’s Grand Chamber panel has rejected Russia’s application to review the judgment in Mariya Alekhina and Others v Russia [2018] ECHR 616 – the conviction of Pussy Riot members for a “punk prayer” in Moscow’s Christ the Saviour Cathedral in which the Court ruled that the convictions had violated the claimants’ rights under Article 10 (freedom of expression) and Article 6 (fair trial) ECHR.

Banns of marriage

When Frank attempted to find a post from February 2017 on banns, he found that he couldn’t access the text except through the WordPress editor. What caused the glitch we shall never know; but the February 2017 post has been removed and the text re-posted in its original form, even though things have moved on since the publication of the Law Commission’s scoping paper on marriage law in December 2015, the Government’s subsequent rejection of the Commission’s proposal to conduct a thoroughgoing review of the law on formation of marriage – and the Government’s recent change of mind.

Another quarter million page reads

On Monday 4 December, we exceeded 1,250,000 page reads. While this is not really a major milestone in the development of the blog, we do seem to have reached this point quite soon after passing the million mark at the end of February. A highlight of the year was a meeting at  Nico’s Gelateria, Venice, (of all the unlikely places) to discuss the state of the blog and future developments of the L&RUK site. Following the problems of the Ecclesiastical Law Association website, we are now holding all new consistory court judgments on our site and, where appropriate to the context of a post, adding earlier judgments.

Quick Links

And finally…

The (unintentional) Tweet of the Year by one of The Donald’s attorneys: click on ‘G-20.In’ and see what happens…

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