Law and religion round-up – 30th June

A week in which painting wooden boxes to look like buses became the new “dead cat on the table”…

…. the well-known diversionary tactic. As a certain Telegraph columnist stated in 2013: “Let us suppose you are losing an argument. The facts are overwhelmingly against you, and the more people focus on the reality the worse it is for you and your case. Your best bet in these circumstances is to perform a manoeuvre that a great campaigner describes as ‘throwing a dead cat on the table, mate’”.

Wedding law in England & Wales

Also a week in which the Government made the rather breathless announcement, “First ever marriage review to free-up dream wedding venues” – which shorn of the Civil Service PR-speak means that it has agreed on terms of reference for the Law Commission’s forthcoming project on wedding law. We noted it, in rather more sober terms, here.

Quoth the Prime Minister, “The vital institution of marriage is a strong symbol of wider society’s desire to celebrate commitment between partners. But we can do more to bring the laws on marriage ceremonies up to date and to support couples in celebrating their commitment.” Indeed – and they could have done exactly that when the Law Commission first published its scoping paper in 2014.

Civil partnership in Scotland

The Scottish Government has announced that it will bring forward a Bill in the autumn to make civil partnership available to opposite-sex couples, after consulting last September on whether to ban further civil partnerships or open them up to opposite-sex couples. After considering the comments made by consultees, Ministers have decided that making civil partnerships available to all would be the best way to remove the current ECHR incompatibility from the law in Scotland.

Abortion and mental capacity

On 22 June, The Independent reported that Lieven J, sitting in the Court of Protection, had ruled in an unreported judgment that a woman in her twenties with limited mental capacity who is 22 weeks pregnant should have an abortion. The Court was told that the woman, who lives with her mother, has the mental age of a child aged between six and nine. The NHS Trust which oversees the woman’s care had asked the Court to authorise termination, though a social worker and lawyers acting for the woman argued that the pregnancy should continue. Lieven J concluded that, though the evidence indicated that the woman wanted to keep the baby and her mother, a former midwife who opposes abortion, had offered to care for the child with her daughter’s help, the balance of the evidence was that termination would be in the woman’s best interests.

On Monday, however, the Court of Appeal [McCombe, King and Peter Jackson LJJ] reversed the Court of Protection after the woman’s mother sought a review. We hope to publish a guest post on the judgments if and when the transcripts become available.

IICSA and the Church of England

On 27 June 2019, the Independent Inquiry on Childhood Sexual Abuse (IICSA) issued a Press Release on the two weeks of public hearings in the Anglican Church investigation over the period 1 to 12 July. The topics of the first week’s hearing were summarized in our post and fuller details are available on the IICSA web page; the timetable for the second week will be published on Thursday 4 July.

Also on 27 June, the Church of England announced its response to IICSA’s report (“the Response”), and we summarized the comments in the Response on the IICSA Report’s five recommendations here. The blog of Meg Munn, the Chair of the National Safeguarding Panel comments specifically on the Clergy Discipline Measure in her post Safeguarding and the Clergy Discipline Measure.

The General Synod of the Church of England will take place in York over the period 5-9 July 2019; papers are available here. In view of the common goal to improve safeguarding within the Church, it is regrettable that the two organizations could not come to an agreement which avoided the overlap of the evidence session with General Synod. In February 2019, General Synod was briefed of the situation in GS Misc 1213, which said:

“[9]. IICSA published their 2019 timetable of hearings on 22 October – 2 weeks have been set aside for public hearings in respect of the national Church, commencing on 1 July 2019. A request was made to the Inquiry to change this date in view of it clashing with General Synod in York. The Inquiry did not agree to our request but has indicated that it will avoid calling senior members of clergy during the period that Synod is due to meet in July.”

One consequence is that the deadline for submission of questions ahead of the York Synod was brought forward one week so that those answering safeguarding questions could do so before having to make final preparations for the IICSA hearing. It also means that Bishop Peter Hancock (lead bishop on safeguarding) will miss most of the Synod, only travelling to York on the Saturday and returning to London after the safeguarding business on Sunday afternoon in time to be back at IICSA on Monday morning.

With thanks to David Lamming for clarifying the position regarding the overlap of General Synod and the IICSA hearing.

Low pay and the two-child benefit limit

Winding up a debate in the Lords on benefit changes and vulnerable people, Baroness Buscombethe Parliamentary Under-Secretary of State, Department for Work and Pensions, said this – somewhat ambiguously:

“Low pay is a key area of this subject. I listened to what the right reverend Prelate  [the Bishop of Chichester] said about the two-child policy, and a lot of this is about taking responsibility in the same way as those who make really tough decisions about whether or not they can afford to have more children. We have to think about low pay. I think about the Church and other religious institutions that rely on thousands of people who work as volunteers. What are they actually living on? Are they actually being paid, and are they being paid the living wage? This is something where we must all look to our own institutions and places of work and work out what we are doing to ensure that those people for whom we are responsible are properly supported” [our emphasis].

Surely she couldn’t have been asking whether the Church was paying its volunteers, could she? Volunteers are by definition unpaid except for legitimate expenses, and once an institution starts paying a volunteer beyond that, he or she becomes an employee or a worker. It’s Key Stage 1 employment law: and see X v Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59. Or did she mean that individual congregations should start interrogating local employers to see whether or not their choristers, sidespersons, cleaners and whatnot are being paid the living wage in their day-jobs?

Islamophobia in Scotland

The Scottish Parliament’s Cross-Party Group on Tackling Islamophobia has launched a public inquiry into the prevalence of Islamophobia, in association with Professor Peter Hopkins of Newcastle University, who has previously researched bigotry in Scotland. The inquiry will look at possible ways of challenging and overcoming Islamophobia, as well as assessing its nature, extent and impact on children, young people and families. It will also look at the role of traditional and social media, the public sector and politicians, and at what steps can be taken to challenge and overcome anti-Mulsim bigotry.

Burkinis again

Earlier in the month, we noted that the Higher Administrative Court of Rheinland-Pfalz had granted an interim suspension of Koblenz City Council’s ban on whole-body swimsuits in its municipal swimming pools and noted in passing that in 2016 the French Conseil d’État had struck down a similar ban imposed by the Mayor of Cagnes-sur-Mer. On Monday, however, the BBC reported that a group of Muslim women had defied a local burkini ban in Grenoble – and had each been fined €35 for breaching the rules – following which, lifeguards shut down the city’s two municipal swimming pools.

The Commorientes Rule and simultaneous deaths

Whilst testamentary legislation is beyond the scope of L&RUK, we could not help but be intrigued by the case of the stepsisters’ inheritance battle in the High Court over which parent had died first, and the application of the little-used s.184 Law of Property Act 1925; under this provision, known as the “Commorientes Rule” (meaning “simultaneous deaths”), if two or more people die in circumstances where it is not possible to determine who died first, the younger is deemed to have survived the elder. In the instant case reported here, the family of whichever of the couple survived longest is set to inherit the £280,000 house with their step-siblings getting nothing, the High Court heard. The judge has reserved his ruling on the dispute until a later date.

Clergy discipline, former clergy and parochial fees – continued

In 2015 we posted Clergy discipline, former clergy and parochial fees – I which reviewed two related issues: new C of E Guidance on the payment and receipt of parochial fees by the clergy and a Clergy Discipline Tribunal determination which concerned the retention of such fees by a former clergyman, the Revd Dr Andrew Hawthorne. Four years later, events have moved on; and after a trial in May, the Winchester Crown Court found Dr Hawthorne guilty of fraud by abuse of position and fraud by false representation. A post next week will consider events in the ecclesiastical and the secular courts.

Richard Page

Earlier in the month, the Employment Appeal Tribunal handed down two separate judgments relating to the same appellant, Mr Richard Page: Page v Lord Chancellor & Anor [2019] UKEAT 0304 18 1906 and Page v NHS Trust Development Authority [2019] UKEAT 0183 18 1906. Mr Page was a magistrate who sometimes sat on adoption cases and he was removed because, as a matter of religious belief, he regarded it as abnormal for a child to be adopted by a single parent or a same-sex couple. For the same reason, he was also removed from his position as a Non-Executive Director of an NHS Trust. Given that the two cases were inextricably linked, we published a combined note on both of them, here.

Children’s Funeral Fund for England

Today, the Ministry of Justice issued the Press Release Bereaved parents spared children’s burial and cremation costs, which announces the establishment of the Children’s Funeral Fund for England “to ensure no parent will have to pay for their child’s burial or cremation”.

Quick links

And finally…I

No comment.

And finally…II

Recent spell of hot weather raised the question on Twitter “Does canon law allow one to go commando under a cassock? Asking for a friend. Obviously.” Our advice would be that Canon B 8 – Of the vesture of ordained and authorized ministers during the time of divine service – is silent on the issue. However, how would one explain a “wardrobe malfunction” to a CDM Tribunal?

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