Law and religion round-up – 3rd February

A mixed bag, dominated inevitably by …

… Brexit: the latest developments

On Tuesday, the Commons voted by 318 votes to 310 in favour of an amendment tabled by  Jack Dromey (Lab) and Dame Caroline Spelman (Con) rejecting a no-deal Brexit and by 318 to 310 in favour of an amendment proposed by Sir Graham Brady (Con) rejecting the Northern Ireland backstop. The amended Motion, as agreed to, reads as follows:

Resolved,That this House, in accordance with the provisions of section 13(6)(a) and 13(11)(b)(i) and 13(13)(b) of the European Union (Withdrawal) Act 2018, has considered the Written Statement titled ‘Statement under Section 13(4) of the European Union (Withdrawal) Act 2018’ and made on 21 January 2019, and the Written Statement titled ‘Statement under Section 13(11)(a) of the European Union (Withdrawal) Act 2018’ and made on 24 January 2019, and rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship, and requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change.”

The BBC website has a useful graphic of the voting patterns by party allegiance, here.

Almost immediately afterwards, a statement was issued on behalf of the President of the European Council, Donald Tusk, as follows:

“We welcome and share the UK Parliament’s ambition to avoid a no-deal scenario. We continue to urge the UK government to clarify its intentions with respect to its next steps as soon as possible. The Withdrawal Agreement is and remains the best and only way to ensure an orderly withdrawal of the United Kingdom from the European Union. The backstop is part of the Withdrawal Agreement, and the Withdrawal Agreement is not open for renegotiation.”

The responses at the European Parliament of the President of the Commission, Jean-Claude Juncker, and the EU’s chief negotiator, Michel Barnier, are here. Where the Prime Minister goes from here is anyone’s guess.

Holocaust denial and the ECtHR

As we trailed in last week’s round-up, on Thursday the ECtHR handed down its admissibility decision in Williamson v Germany [2019] ECHR (No. 64496/17). The applicant (an Englishman who happens to be a bishop consecrated by Archbishop Lefebvre – hence the very tenuous connexion with “religion”) contended that his conviction by a German court for Holocaust denial, after he had given a television interview in Germany to a Swedish television channel intended for transmission in Sweden, had violated his rights under Article 10 ECHR (freedom of expression). He lost.

The Court noted that the German Regional Court had found that Mr Williamson’s denial of the Holocaust had disparaged the dignity of the Jewish victims and had been capable of severely disturbing the public peace in Germany. The ECtHR had no reason to disagree with the Regional Court’s assessment and noted that he had neither distanced himself from the content of those statements nor alleged that the German courts had assessed them wrongly. The Court concluded that he had sought to use his freedom of expression to promote ideas contrary to the text and spirit of the Convention.

The Regional Court had further established that he knew that his statements could attract interest around the world, but particularly in Germany because of its history, the fact that interview took place in Germany and because the Pope at the time was German. Though he knew that his statements were criminal in Germany, he had not come to any specific agreement about any prohibition or restriction on the use of the interview – and he must have understood that it could be disseminated and viewed in Germany.

There was no reason to depart from the German courts’ assessment. States that had experienced Nazism might be regarded as having a special moral responsibility to distance themselves from the mass atrocities of the Nazis: furthermore, the sentence had been very lenient. German had not exceeded its margin of appreciation, the interference had been proportionate to the legitimate aim pursued and had been “necessary in a democratic society”. The application was manifestly ill-founded and therefore inadmissible.

CPS policy on prosecuting pornography

On another issue tenuously connected to “religion”, The Guardian reports that the Crown Prosecution Service has confirmed that, following a public consultation, the CPS does not propose to bring charges

“based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the likely audience is over the age of 18. The CPS will, however, continue to robustly apply the law to anything which crosses the line into criminal conduct and serious harm.”

The updated CPS guidance on prosecuting obscene publications is hereRightsInfo comments here.

Asia Bibi

On Tuesday, it was reported that the Supreme Court of Pakistan had rejected a review petition and upheld its previous decision to overturn Asia Bibi’s conviction and death sentence for blasphemy. Neil Addison noted the original Supreme Court judgment here.

Hate-speech in Greece

Associated Press reports that a court in Greece has convicted Bishop Amvrossios of Kalavryta and Aigialeia, in the southern Peloponnese, of violating laws against racism and abusing his office (the Greek version of misconduct in a public office, maybe?). In 2015, following the extension of domestic partnership status to same sex couples, he put up a post urging his readers to “spit upon” homosexuals, adding: “They are not human beings, they are rejects of nature.” He had been acquitted at first instance but a three-judge court convicted him on appeal. He was given a seven-month sentence, suspended for three years. [With thanks to Howard Friedman.] Serve him right…

Consistory court round-up

This January an above average number of interesting or important consistory court judgments have been published. Consequently, our round-up this month was in two parts:

General Synod – February Group of Sessions

All relevant information, documents and papers for the General Synod’s February 2019 group of sessions has now been published. Legislative business will be conducted on the morning of Thursday 21 February, extending to the afternoon session if necessary. This is covered by Special Agenda I, pages 11 to 13 in the Agenda document, and in the associated papers on the February Synod web page. These items were included in the initial circulation of Synod papers, and an earlier post summarized the items of potential interest.

Other items of interest include the joint motion of London and Truro Diocesan Synods which aims to strengthen the Church of England’s response to climate change and other environmental issues, at national and diocesan levels. This Diocesan Synod Motion is scheduled to be debated on Friday 22 February, (GS 2094A) & (GS 2094B). The DSM states [emphasis added]:

“It has been claimed [by L&RUK] that the CoE ‘makes no reference to how much savings (of energy and carbon emissions) have been made to date’. That might seem unfair, bearing in mind the studies just referenced – but we are at present unready to update them with regular nationwide measurements. The audits in 2007 and 2012/13 were performed on different bases, and they were several years apart. To make a proper assessment of the trend, figures are needed on the same basis each year. Reports need to demonstrate progress towards our ambitious targets. Any level of ambition requires measurement and verification to sustain credibility. But to reach 2020 without a way to ascertain progress towards our public targets would entail a risk to the Church’s reputation, potentially even to the reputation of the Gospel”. 

It should be noted that our criticism of the lack of quantification of carbon reductions was made in 2015. We will follow developments with interest.

Avoidance of simony and income tax

A sneak preview of one of next week’s posts, although clergy should get too excited. This January, the Church of England General Synod Legal Advice Commission issued new advice, Appointment of incumbent on non-stipendiary basis, which updated its earlier opinion Clergy: non-stipendiary ministers: appointment as incumbents. Essentially, this new legal advice clarifies that the introduction of Common Tenure has resolved this potential problem. Nevertheless, an interesting issue for Canon Law anoraks, but comforting for clergy to know that their presentation to the benefice will not be void under the 1588 Simony Act – and they are unlikely to be chased by HMRC even if they never receive that income. 

Further advice published in January was  Delegation of Archdeacons’ functions, which addressed a similar question to those raised an opinion issued on I February 2018, Delegation of Episcopal Functions. A summary will be posted shortly. All of the Commission’s legal opinions and other guidance are to be found here on the CofE web site. Of these, Burial and cremation: funerals in undertakers’ private chapels, issued in February 2017, is of relevance to the scheme for Parochial Fees during the period 2020 to 2024, since fees may be prescribed in connection with funerals that are held in funeral directors’ premises.

Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

During the Committee stage of the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill 2017-19 in the House of Lords on 1 February, amendments 2 and 3 – relating to removal of the exemption for Church of England and Church in Wales clergy under the Marriage (Same Sex Couples) Act 2013 and to marriage of same sex couples in Northern Ireland – were withdrawn after debate, during which it was indicated that neither would receive Government support.

Quick links

And finally… I

And the prize this week for “Do as I say, not as I do” goes to Lord Mance in R (Hallam) v S of S for Justice, R (Nealon) v S of S for Justice [2019] UKSC 2 deploring the use of obscure language in judgments:

“[49]. Unfortunately, as it seems to me, the ECtHR has in a number of judgments condemned courts determining a civil issue for accurate descriptions of the elements of an offence constituting a tort simply because such elements also featured in past criminal proceedings. To require a civil court to tergiversate, by using words designed to obscure the fact that the law may find facts proved on a balance of probabilities which were not proved to the standard necessary for criminal conviction, does not assist either the law or the public or the defendant”.

We feel sure that our readers will have little difficulty with Lord Mance’s pellucid excursus; nevertheless, we have added “tergiversate” to our summary of lesser-known terms &c in  An (ecclesiastical) law glossary.

[With acknowledgements to Matthew Scott@Barristerblog.]

And finally… II

Jeremy Hardy RIP:

“I was raised in the Church of England. I can’t say I’m lapsed. You can’t really lapse if you’re an Anglican. You don’t lose your faith, you just can’t remember where you left it.”

1 thought on “Law and religion round-up – 3rd February

  1. last time I recall the verb tergiversate being employed (actually as a rebuke) was strolling with learned friends along the Boulevard de Nantes in the nighttime shadow of Cardiff Castle when a decision had to be taken whether to imbibe in the (adequate) Park Plaza Hotel or the more gracious purlieux of the newly-opened Hilton – after a brief interlude of tergiversation, the Hilton won.

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