Law and religion round-up – 14th April

Exit day redefined (again)

Shortly before the UK parliament adjourned for its Easter recess on 11 April, an important statutory instrument, central to the entire corpus of UK Brexit legislation, was laid before both Houses. The meaning of “exit day” is defined in section 20(2) of the European Union (Withdrawal) Act 2018 (interpretation) and there is a large volume of EU exit legislation, preparing the UK statute book for the moment EU law ceases to apply,  which is due to enter into force on “exit day.” Regulations are necessary to avoid a clash in domestic law; contradictory provisions would apply both EU rules and new UK rules simultaneously, and in some cases new UK rules would replace EU rules prematurely.

Section 1 of the 2018 Act repeals the European Communities Act 1972 on “exit day”, whilst the saving and incorporation of EU law into domestic law (known as “retained EU law”) by section 2 to 4 of that Act take effect on and after “exit day”. Furthermore, the 2018 Act amended the Interpretation Act 1978, providing that the term “exit day” when used in other enactments will, unless the contrary intention appears, have the same meaning as that used in the 2018 Act. Equivalent provision is made in the Legislative Reform (Scotland) Act 2010, and Interpretation Act (Northern Ireland) 1954 for Scottish and Northern Irish enactments respectively.

There is a range of primary and secondary legislation that gives effect to the United Kingdom’s withdrawal from the EU. This includes regulations made under section 8 of the 2018 Act that make provision to prevent, remedy or mitigate deficiencies in retained EU law. A number of these come into force or have provisions that take effect by reference to “exit day”. The on-going negotiations between the UK and the EU have resulted in changes to the date of “exit day”, initially to from 22 March 2019 to 12 April 2019, and most recently from 12 April 2019 to 31 October 2019. 

The European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 is the second SI to legislate for such a change and redefines “exit day” as 31 October 2019 at 11.00 p.m. (i.e. midnight in mainland Europe). A detailed Explanatory Memorandum accompanies the brief Regulations and is essential reading for anyone wishing to follow the implications of what otherwise might appear to be a simple act of changing the “exit date”. Needless to say, should there be a further change to “exit day”, or a decision is taken to revoke the UK notification of its intention to withdraw from the EU, a further set of Regulations will be required.

Brexit mediation

On 21 April, The Times included an interview with Rory Stewart MP and his comments on the Brexit negotiations in the House of Commons. Stewart believes that there needs to be a mediator to broker peace on Brexit and is quoted as saying: “I would be interested in bringing the Archbishop of Canterbury into the Conservative-Labour talks.” However, Justin Welby’s impartiality was compromised in this recent interview with Cathy Newman on Channel 4 News, when he said,  “we’ve got to accept we voted to leave, we’ve got to leave”.

EU Court of Justice appeals

Recognising that the Court of Justice is currently overburdened, the European Council has amended the Statute of the Court and its Rules of Procedure to provide a new filtering mechanism to identify those appeals that merit examination, thereby allowing the Court to concentrate on its core business. The filter will apply to appeals against decisions of the European Union Intellectual Property Office, the Community Plant Variety Office, the European Chemicals Agency and the European Union Aviation Safety Agency. Cases which have already been considered by an independent board of appeal and by the General Court will not be allowed to proceed further before the Court of Justice unless it is demonstrated that they raise a significant issue of EU law.

First ECtHR advisory opinion

On Wednesday, the European Court of Human Rights issued its first advisory opinion under the new procedure established by Protocol No. 16 ECHR (which the UK has neither signed nor ratified). The French Court of Cassation had asked whether the domestic law on registering births in cases of surrogacy exceeded France’s margin of appreciation in relation to Article 8 ECHR (respect for private and family life).

The Grand Chamber concluded that the child’s best interests did not mean that states parties were obliged to recognise the legal parent-child relationship between a child and its intended mother by registering the details of the foreign birth certificate insofar as it designated the intended mother as the legal mother. The child’s best interests could equally be recognised in other ways – such as by adoption.

The Attorney General of Ireland and the Sultan of Brunei

The Irish Attorney General, Séamus Woulfe SC, postponed his trip to London to attend a four-day meeting being held at the Dorchester Hotel from Thursday until Sunday. the Dorchester (not a place frequented recently by the proprietors of this blog) is owned by the Sultan of Brunei and has been subject to repeated protests since Sultan Hassanal Bolkiah announced that homosexuality, sodomy, adultery and rape would be punished with death by stoning.

The Attorney’s attendance of the event was raised in the Dáil on Wednesday, and the Tánaiste, Simon Coveney, said that his understanding was that the Attorney had been invited to the event in a private capacity, but he needed to establish the full details before he could give the Dàil a more definitive answer. [With thanks to Irish Legal News.]

Same sex marriage in the Cayman Islands: Round II

Last week, we reported that on 29 March the Cayman Islands Grand Court had legalised same-sex marriage in the British Overseas Territory by ruling that the refusal to allow a same sex couple to marry was discriminatory and unconstitutional. As it turned out, we were too quick off the mark. The Times now reports (£) that the Cayman Government is appealing the ruling. The territory’s Court of Appeal has stayed the judgment of the Grand Court and will hear the Government’s appeal in August – thereby halting the planned marriage of the couple who had brought the original petition for judicial review.

Freedom of religion in Australia

The Federal Government has announced a twelve-month inquiry into religious exemptions for anti-discrimination legislation and has confirmed that the expected Religious Freedom Bill will not be introduced before the Federal election, nor will the Government appoint a commissioner for freedom of religion to the Australian Human Rights Commission until after the election has taken place.

The inquiry by the Australian Law Reform Commission will focus on what religious exemptions might be made within anti-discrimination laws at national and state levels. The inquiry is expected to focus on marriage, schools and faith-based bodies.

Consistory Courts and the media

In response to our observation that the report of Re Landican Cemetery [2019] ECC Chr 2 in the Metro’s story “Feuding couple at centre of 28-year battle over baby’s ashes” was more colourful than in the monthly round-up, a diocesan chancellor suggested that perhaps we should consider adding similar headlines to all the L&RUK consistory court judgments.

Whilst we will continue to eschew adding such “corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” to our monthly round-up of cases, perhaps the weekly round-ups offer more scope for attention-grabbing headlines? Or a “name that case” section in the Boxing Day Quiz linking media headlines with neutral case citations?

Quick links

And finally…

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