Law and religion round-up – 23rd December

A week that saw lots of pre-Christmas tidying-up – except, of course, there’s still… 

… Brexit

The saga continues. In a Commons statement on Monday, the Prime Minister said that she could confirm that she intended “to return to the ‘meaningful vote’ debate in the week commencing 7th January and hold the vote the following week”. In the meantime, the European Commission started implementing its “no deal” Contingency Action Plan as part of its commitment to adopt all necessary “no deal” proposals by the end of the year. The package includes 14 measures in a limited number of areas, including financial services and customs.

On Thursday, the Court of Session granted a declarator in line with the judgment of the CJEU in the Article 50 case, Wightman and others, in which it ruled that it was possible for the UK unilaterally to revoke the notification of its intention to leave the EU. Lord President Carloway said that “This court will grant a declarator which mirrors the decision of the Court of Justice of the European Union.” Hmmm.

Church Measures

Four Church Measures received Royal Assent on 20 December:

The Commons debate in the Delegated Legislation Committee is here.

Ecclesiastical Law Association website

The Reverend and Indefatigable Ray Hemingray tells us that he has just about finished the mammoth task of rebuilding the Ecclesiastical Law Association’s website, following the disastrous server crash at the beginning of September. The rebuilt site uses a more up-to-date framework which, he hopes, will make it easier to read on tablets and smartphones. He has uploaded 577 judgments with summaries, which leaves 86 judgments to upload that were on the original site, plus a further five new ones. He writes:

“It is taking some time to get fully up to date, as there were no summaries for a lot of judgments circulated before 2014, so I am having to reread judgments and summarise them again in such cases. If anyone has any old judgments which are not on the web site, and they think them to be of such importance that they should be on the web site, I would be glad to receive copies.”

Belgium and the seal of the confessional

On Monday, the Bruges Criminal Court [correctionele rechtbank/ tribunal correctionnelsentenced Fr Alexander Stroobandt, the chaplain of a care home in Bruges, to a one-month suspended prison sentence and a symbolic one euro in damages to the widow of Tony Vantomme, for culpable negligence. In October 2015, Stroobandt had received a phone call from Vantomme, aged 54, whom he had known for twenty years and who was suffering from depression, during which Vantomme had said that he wanted to end his life. After three phone calls and several text-message exchanges, he committed suicide in his garage by piping exhaust fumes into his car.

On behalf of Stroobandt, Advocate Jan Leysen argued that to warn anyone else of what Vantomme had been going to do would have violated the seal of the confessional. Stroobandt also said that he had tried to dissuade Vantomme from committing suicide. The Court recognised that the seal of the confessional was an aspect of professional secrecy; however, it justified its judgment on the grounds that professional confidentiality did not relieve one of the duty to provide assistance to a person in need.

Advocate Leysen has said that, though his client had received the minimum sentence, he nevertheless intends to appeal on the grounds that the judgment raises an issue that merits further debate and could establish an important precedent:

“We want the Court of Appeal in Ghent to reconsider the case. Everything revolves around the trade-off between professional secrecy and the right to suicide. According to European law, every citizen has the right to step out of life. The victim entrusted this to my client. His confessional secret was sacred to him. Had he broken it, he would be excluded by the Church.”

On the other hand, Advocate Patrick-Bernard Martens, representing Mme Vantomme, who had filed the original complaint against the priest for failing to assist a person in danger, argues that the seal of the confessional is not engaged in this case at all: “It was just a phone conversation between a priest and a man who needed help.” [With thanks to Daniel Hill for alerting us.]

Can a monk be a lawyer?

To which the answer, one might think, is blindingly obvious – but in Monachos Eirinaios [2018] EUECJ C-431/17_O, Advocate General Sharpston has had to deal with precisely that question.

The Greek Council of State sought an advisory opinion from the CJEU on whether it is compatible with Directive 98/5/EC (on mutual recognition of legal qualifications) for the Athens Bar Association to refuse to register Brother Eirinaios, a monk qualified as a lawyer in Cyprus and a member of the Cyprus Bar Association, to practise in Greece under his home-country professional credentials – on the ground that monks simply cannot, under Greek national law, be entered in the registers of bar associations. The decision of the Athens Bar Association was based on Article 8(1) of a Presidential Decree that provides that the Greek national rules on incompatibilities (specifically, being a cleric or a monk) also apply to lawyers from other EU jurisdictions who want to practise in Greece.

Unsurprisingly, AG Sharpston was having none of that. She advises that Directive 98/5/EC does not permit a Member State automatically to ban a person qualified in his home-country “on the grounds that, as a person under religious discipline, he cannot by definition conduct himself in the manner required to provide the guarantees necessary for practice as a lawyer”. The usual caveat applies: that an AG’s Opinion is merely advisory. But we should be astonished if the CJEU were to take a different view.

Canada abolishes blasphemous libel

On 13 December, Bill C-51 received Royal Assent: inter alia, it repeals s.296 of Canada’s Criminal Code, which criminalised blasphemous libel and imposed a maximum penalty of two years’ imprisonment. [With thanks to Howard Friedman.]

Freedom of religion in Australia

As we mentioned briefly in last week’s roundup, the Australian Government has published the Religious Freedom Review: the report of the expert panel chaired by the Hon. Philip Ruddock which was tasked to “examine and report on whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion”. Neil Foster analyses the report in a series of posts on Law and Religion Australia:

Vatican appointment for blogger

On 18 December, il Bollettino announced that the Pope has appointed the Distinguished Dr Andrea Tornielli as director of the editorial directorate of the Dicastery for Communication. Since April 2011 he has worked for the daily La Stampa, where he coordinated the website Vatican Insider. The Catholic Herald reports:

“His role as ‘editorial director’ will be to coordinate the ‘editorial line’ of all the Vatican’s media outlets, to work on ‘strategic development’ of new forms of communication and to integrate ‘traditional media with the digital world’, according to the dicastery’s statutes. He is the first to hold the post since it was created in 2016.”

The Pope also conferred the title of Director Emeritus of L’Osservatore Romano to the Distinguished Professor Giovanni Maria Vian and called the Distinguished Professor Andrea Monda to succeed him as editor-in-chief of the newspaper. [Too many distinctions – Eds.]

A (tagged) Church Near You for Christmas?

This week, the otherwise efficient CofE site A Church Near You was suffering from complaints that the site was effectively “broken”, data were being “hidden” from users, or churches had been “blocked”. The website which receives over 13 million page views annually is one of the Church’s most popular online resources, particularly in the last 72 hours before Christmas Day. Consequently, there was justifiable consternation when users of the site were unable the find a local church for Christmas or other services.

A search on A Church Near You requires the completion of two fields: “Enter a tag” (from a dropdown menu) and “Postcode or place”. This year, the “Enter a tag” space carried a default “Christmas”, and those churches which had not tagged “Christmas” were not identified in a search. Whilst the default could be removed by double clicking, this was not immediately apparent, and some seeking information on issues other than Christmas were left feeling that the required information was not available.

On a number of occasions, this blog has highlighted the potential problems of this relatively sophisticated site, which is reliant upon the input of data by many who are not necessarily regular users of the social media, have other priorities, or may be unaware of the importance of up-to-date tags, here, here, and here. After some high profile tweeting, the immediate issue was resolved; however, there remain lessons to be learned by the web site providers, those populating it with information, and with regard to its interrogation by users.

Quick links

And finally…

Tweet of the week:

AND A HAPPY CHRISTMAS FROM BOTH OF US!🌲🌲🌲🥂

 

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