Law and religion round-up – 31st March

Another week dominated by Brexit, which ended even more confusingly than it began…

… but for those contemplating the possibility of a “snap general election”, we would point out that this was covered this in our 2016 post following the judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

Hate-crime in Scotland

The Roman Catholic Church in Scotland has questioned the use of specific aggravations in the prosecution of hate crimes. Though it accepts that there are practical benefits in using statutory aggravations to record specific types of offending behaviour and to monitor trends, in a submission to the Scottish Government’s consultation on hate crimes, it has raised concerns about the risk of creating a “hierarchy of protected characteristics”. In an endorsement of the right to freedom of expression, it warns that in a climate of heightened sensitivity, the definition of “hate” has become contentious and open to misuse:

“care must be taken to allow room for debate and a robust exchange of views, ensuring that ‘hate’ doesn’t include the kind of ordinary discourse where people reasonably hold divergent views. The fundamental right to freedom of expression, and the right of an individual to hold and express opinions, even if they are considered by some to be controversial or unwelcome must be upheld.”

The Director of the Catholic Parliamentary Office, Anthony Horan, said that the Church did not believe that sectarianism needed to be specifically defined in hate crime legislation:

“Existing legislation, including existing statutory aggravations, are adequate. We would oppose any move to shift existing protections to an unnecessary sectarianism aggravation and agree with Lord Bracadale [who conducted the initial review] that the absence of such an aggravation would not leave a gap in the law as both race and religion statutory aggravations can be attached to any base offence if proven.”

Relationships education

Last week, amid considerable controversy about the appropriateness (or otherwise) of teaching primary-age children about same-sex relationships, the Commons approved the draft Relationships Education Relationships and Sex Education and Health Education (England) Regulations 2019 by a majority of over 500. [With thanks to Daniel Hill.]

Laïcité in Quebec

We noted the publication in Quebec’s Assembleé Nationale, on Thursday, of Bill 21, which would ban future – though not current – public servants in the Province from wearing religious dress or symbols at work and which would override the equalities provisions in the Canadian Charter of Rights. The proposed legislation comes months before an expected federal election and attracted immediate criticism from Prime Minister Justin Trudeau, who said that it would be “legitimizing discrimination of our citizens based on religion.”

Human rights legislation in Queensland

Although the Australian Human Rights Commission was established in 1986 by an Act of the federal Parliament, Australia does not have an overarching federal Human Rights Act – a deficit that has attracted adverse criticism from the United Nations Human Rights Committee. Instead, some states have passed domestic human rights legislation: the Australian Capital Territory legislated in 2004, Victoria in 2006 and Queensland is the latest state to legislate.

Queensland’s Human Rights Act 2019 was given Royal Assent on 7 March. As well as the familiar rights protected by the ECHR and its Protocols, it includes a specific right to “humane treatment when deprived of liberty” and a right for a child charged with a criminal offence “to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation” and to age-appropriate treatment if convicted. Like the Canadian legislation, it includes a Parliamentary override in s.43. Unlike the Canadian legislation, however, s.43(4) declares that “It is the intention of Parliament that an override declaration will only be made in exceptional circumstances. Examples of exceptional circumstances— war, a state of emergency, an exceptional crisis situation constituting a threat to public safety, health or order.” The Act will be brought into force by Proclamation.

Opposite sex civil partnerships

On 26 March 2019 Royal Assent was granted to the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, setting in motion the events which will bring its provisions into law. During the debate in the Commons, Tim Loughton stressed that “… this legislation does not give rise to the specific changes in the law; it enables the Secretary of State to bring in the changes that will enable opposite-sex couples to enter into a civil partnership“.

However, the Ministry of Justice was quick off the mark in announcing its consultation on the coronial investigations of stillbirths (although the Press Release emphasized that this was “one that it had prepared earlier” in parallel with the new Act). The Church of England focused on the marriage certification issue in its own Press Release, Bishop and MP welcome marriage registration changes by Parliament – a relatively small but not insignificant aspect of the new Act. We are currently in the process of updating our post Opposite sex civil partnerships, which was published before the Act was finalized.

New Canon Law for “Nuns on the Run

On 26 March, in an Apostolic Letter in the form of a Motu proprio of Pope Francis, “Communis vita”, available only in Latin and Italian, changes were made to some provisions of the Code of Canon Law regarding religious who desert their community. Under the new provisions, superiors can declare a member dismissed ipso facto if they have been illicitly absent from the community for more than a year and cannot be located.

The Catholic News Agency reports that under the current provisions of Canon 694, there are two conditions under which the ipso facto dismissal of a member of a religious community can be declared: that he or she has “defected notoriously from the Catholic faith,” or “has contracted marriage or attempted it, even only civilly.”

Following these recent changes, which take effect on 10 April  2019, a member of a religious community who is “absent from the religious house illegitimately, in accordance with can. 665 § 2, for twelve months without interruption”, can be declared dismissed from the community, provided that its superiors are otherwise unable to locate or contact the absentee. Decrees of dismissal must be confirmed by the Holy See or by the local bishop, depending upon the constitution of the religious order in question.

Protection of minors within the Vatican City State

On 29 March, Alessandro Gisotti, Interim Director of the Holy See Press Office, announced the publication of three documents: the laws on the protection of minors in Vatican City State; the Motu proprio which applies the norms to the Roman Curia; and the Guidelines for the Vicariate of Vatican City. Whilst “reinforcing the protection of minors by strengthening the normative framework”, these relate solely to the Vatican City State and the Roman Curia and do not change Canon Law. The documents are available here in Italian. Vatican News has a summary in English. In a Catholic News Agency post, Ed Condon provides an analysis of the new norms for mandatory reporting requirement, the most significant of which is the definition of sexual abuse. He notes:

“The new laws define a vulnerable person very broadly, including anyone ‘in an infirm state, of physical or mental deficiency, or deprivation of personal freedom, that in fact, even occasionally, limits their capacity to intend or to want or in any way to resist the offense.’

This represents a radical expansion of the definition currently being used by the Congregation for the Doctrine of the Faith as it handles cases from dioceses around the world, in which a ‘vulnerable’ is one who ‘habitually lacks the use of reason’”.

In addition to the limited geographical scope of the present provisions, Article 2 imposes a 20-year period of limitation. It has been pointed out that had this ecclesiastical provision been in effect in Australia, then Cardinal Pell could not have been prosecuted.

Hull Minster

This week, the Highways Agency issued the Press Release, Grant to make Hull Minster a hub for city’s history, heritage and community, announcing “a  £3.9 million grant to complete the transformation of Hull Minster into a hub for the city”. Further information is on the Minster website, which indicates the scope of the project which will take two years to complete. Followers of our consistory court summaries will be aware of the on-going “cassock and Council” liaison over the past few years, and the current proposals demonstrate the “community benefit” aspect of the Re Duffield guidance considered in Re Holy Trinity Hull [2015] York, Peter Collier Ch and in Re Holy Trinity Burial Ground Hull [2018] ECC Yor 4. In the latter, the Highways Agency and the vicar were petitioners on one of the petitions considered.

Quick links

And finally…

On Saturday, The Guardian reported Eurostar trains cancelled as man with St George’s flag spends night on station roof, or as a comment on Twitter put it, “A delay to a train caused by Leavers on the line. Classic Britain“.

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