Law and religion round-up – 7th April

Brexit: PM seeks a flexible extension

The Prime Minister has written to the President of the European Council requesting

“a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the  Euratom Treaty. The United Kingdom proposes that this period should end on 30 June 2019. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early. The Government will want to agree a timetable for ratification that allows the United Kingdom to withdraw from the European Union before 23 May 2019 and therefore cancel the European Parliament elections, but will continue to make responsible preparations to hold the elections should this not prove possible.”

This proposal for an extension until the end of June precludes the possibility of holding a referendum before the joint talks with Jeremy Corbyn have concluded. However, David Allen Green notes that under Article 50 TEU, any extension has to be unanimous within the EU27, so regardless of what the UK (i.e. Theresa May) may ask for, if the EU27 agree on an extension date which suits them (i.e. 31 March 2020), then that will be the only date on offer.

A right to sex?

In a sensitive case before the Court of Protection, social workers asked the Court to determine whether a man should be banned from having sex with his wife of twenty years. The wife has learning difficulties, and the social workers are concerned that her mental health has deteriorated to such an extent that she no longer has the capacity to consent. Lawyers for the unnamed social services department said that the Court might have to make an order barring the husband from continuing to have sex with his wife to ensure that she was not being raped. Though told that the man had offered to give an undertaking not to do so, Hayden J decided that he wanted to examine the evidence in detail and hear arguments from lawyers for the woman, the man and the council before ruling. He was reported as pointing out that the man could face prison if he breached any such order or undertaking and that it would, in any case, be a difficult order to police. Further, “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife and the right of the state to monitor that. I think he is entitled to have it properly argued.”

His comment caused something of a media storm. Thangam Debbonaire, MP for Bristol West, tweeted “This legitimises misogyny and woman hatred. No man in the UK has such a legal right to insist on sex” and referred to the Sexual Offences Act 2003. Jess Phillips, MP for Birmingham Yardley, tweeted: “It is not a basic human right to have sex with your wife. It is not even close to a right.” Others pointed out that it was a complex issue. Dagmar Steffens, a solicitor and a law lecturer at the University of the West of England, acknowledged that Hayden J might have expressed his thoughts badly but said that the issue was complex, asking: “Should this mean that a certain degree of learning disability means you can never have sex?” It is perhaps worth noting that the defence of “spousal exception” to rape in England (and presumably in the rest of the UK) was abolished by the House of Lords in R v R [1991] UKHL: [1992] 1 AC 599: see Lord Keith of Kinkel at 616.

New President of the ECtHR

On Monday, the European Court of Human Rights elected Linos-Alexandre Sicilianos as its new President. He took office on Friday, in succession to Guido Raimondi.

Judge Sicilianos is currently on leave from his position as a Professor in the Faculty of Law at the University of Athens. He has been a judge of the ECtHR since 18 May 2011, a Section President since 1 February 2017, and a Vice-President of the Court since 1 May 2017.

Same sex marriage in the Cayman Islands

On 29 March, the Cayman Islands Grand Court legalised same-sex marriage in the British Overseas Territory. Cayman Compass reports that Smellie CJ ruled that the refusal to allow a same sex couple to marry was discriminatory and a clear violation of freedoms guaranteed in the Constitution – including the right to a private and family life. He ordered that the provision specifying that marriage is reserved for heterosexual couples be altered to state, “‘Marriage’ means the union between two people as one another’s spouses.” [With thanks to Howard Friedman.]

Safeguarding overview report of CofE

On 4 April, the Church of England issued a Press Release welcoming the final report from the Social Care Institute for Excellence (SCIE), which gave an overview of the learning from 42 independent diocesan safeguarding audits. Our post also included a summary of the response from the National Safeguarding Steering Group and the Survivors Response to Church Abuse from MACSAS (Minister and Clergy Sexual Abuse Survivors), which is available on the Thinking Anglicans post Sexual abuse survivors respond to SCIE report.

CDM complaint on bishop’s response on child sex abuse

On 4 April, Premier reported that a formal complaint under the Clergy Discipline Measure (CDM) had been filed by the Church of England’s interim safeguarding director, Sir Roger Singleton. The complaint was instituted against the Bishop of Chester, Dr Peter Forster, concerning his response to a case of child sex abuse. A letter was sent to the bishop in 2009 by a Warrington vicar who confessed to child abuse; however, he was permitted to stay on as a retired clergy member and hold services for a further five years. The vicar was jailed last month after admitting eight counts of sexual assault against a boy during the 1970s.

Churches’ Car Wash App and human trafficking

The BBC reports that nearly 1,000 notifications of potential human trafficking have been made in the first five months of an app enabling hand car wash users to report concerns over workers. The Safe Car Wash app was launched by the Clewer Initiative and the Catholic Church at General Synod last year. The Clewer Initiative forms part of the Church of England’s approach to eradicating modern slavery, and is funded by the Clewer Sisters, an Anglican order of Augustinian nuns founded in 1852. More detailed information is available in the subsequent CofE Press Release More than 900 reports of potential modern slavery recorded through app

[With thanks to Gerry Pocklington.] 

Quick links

And the prize for the best law & religion April Fool goes to…

May the Fourth be with you…

And finally…

It pays to follow Brexit debates in Hansard. During the debate on the European Union (Withdrawal) (No. 5) Bill, Sir Nicholas Soames (Mid Sussex) (Con) is reported as saying:

“On a point of order, Sir Lindsay. In the spirit of the new regime of bringing the whole House together on these difficult matters, and while you are waiting to get these amendments circulated, I thought it would be helpful if I was to let the House know that the Grand National will be won by a horse called Tiger Roll. [Laughter.]”

Commons Hansard 3 April 2019 Vol 657 Col  1153.

Tiger Roll, the 4-1 favourite, ridden by Davy Russell, “won a thrilling 2019 Grand National to become the first horse since Red Rum 45 years ago to win the Aintree race back-to-back”, (BBC).

2 thoughts on “Law and religion round-up – 7th April

  1. Trevor Bending wrote:

    Two examples of political correctness gone mad?

    The Jedi school example is, of course, an April Fools post from the National Secular Society – hoping to raise a laugh and some funds?

    As for man, wife and sex, I would have thought the state, council, courts and other busy bodies could have left man and wife of twenty years to it.

    • But the anonymous Court of Protection case isn’t about political correctness: it’s about mental capacity.

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