A week in which a group of MPs and Peers petitioned the Court of Session to prevent the Prorogation of Parliament, the Church of England concluded an agreement with the Italian State, and there was another round in the Ashers Baking saga…
Lee v Ashers Baking again
Perhaps the most interesting development of the week was that Gareth Lee, the losing appellant in Lee v Ashers Baking Company Ltd & Ors (Northern Ireland)  UKSC 49 is to take his case to Strasbourg: we noted the news here. We would be slightly surprised if the application were declared inadmissible, and we would be even more surprised to see a judgment this side of 2021.
Religious slaughter again
The Belgian Constitutional Court has sought the opinion of the CJEU on three questions relating to “religious slaughter”. In its judgment No 53/2019 of 4 April 2019 [French text], the Court referred the following questions to the CJEU for a preliminary ruling:
“1. Is the first subparagraph of Article 26(2)(c) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing to be interpreted in the sense that it authorizes the Member States, by way of derogation from the provision contained in Article 4(4) of that Regulation and with a view to promoting the welfare of animals, to adopt rules such as those contained in the Decree of the Flemish Region of 7 July 2017 ‘amending the Law of 14 August 1986 on the protection and welfare of animals, with regard to methods authorized for the slaughter of animals’, rules which provide, on the one hand, for a ban on the slaughter of animals without stunning also applicable to slaughter carried out as part of a religious rite and, on the other hand, an alternative stunning procedure for slaughter carried out in the frame of a religious rite, based on reversible stunning and on the precept that stunning can not lead to the death of the animal?
2. If the first question is answered in the affirmative, does the first subparagraph of Article 26(2)(c) – on the interpretation set out in the first question – infringe Article 10 paragraph 1 of the Charter of Fundamental Rights of the European Union?
3. If the first question is answered in the affirmative, does the first subparagraph of Article 26(2)(c) read in conjunction with Article 4(4) of the abovementioned Regulation infringe the interpretation set out in the first question of Articles 20, 21 and 22 of the Charter of Fundamental Rights, in that it provides – in the case of slaughter of animals in accordance with specific methods prescribed by religious rites – only a conditional exception to the obligation to stun the animal (Article 4 (4), in accordance with Article 26 (2)), while provision is made for the killing of animals in the context of hunting, fishing and cultural and sporting events, for the reasons set out in the recitals of the Regulation, provisions according to which those activities do not fall within the scope of the Regulation or are not subject to the stunning of the animal when it is put to death: (Article 1(1), second subparagraph and paragraph 3)?”.
The ban on slaughter without pre-stunning was adopted in 2017, coming into effect in Flanders on 1 January and in Wallonia on 1 September. The Federal Government in Brussels has not issued any decree on the matter.
Positions of trust within faith settings
With a title which could encompass this week’s events in the Church of England, the All-Party Parliamentary Group on Safeguarding in Faith Settings launched an inquiry on whether there should be a change in legislation relating to “Positions of Trust” within faith settings. The inquiry will produce a report on the need for changes to be made to “positions of trust” within the terms of the Sexual Offences Act 2003 to ensure that faith settings are sufficiently within the scope of the legislation to allow young people to be better protected from harm.
“Positions of trust” were also in the news with the statement from the Archdeacon of Buckingham on the Ben Field verdict on 9 August 2019, when the Oxford Crown Court found him guilty of murdering Peter Farquhar after tricking him into changing his will. The fact that he was a churchwarden and had enlisted the assistance of “a magician” is immaterial, as are many details of the case which, in the words of the Crown Prosecution Service, was like a “plot from a novel”.
What was significant is the manner in which Field targeted a vulnerable church community and that he was just five days away from attending a Bishops’ Advisory Panel (BAP), a significant component of approval for ordination training – Field was quoted as saying “I’m gonna become a vicar … just because I can outmanoeuvre the Church.” On this last point, however, Premier reports that “[Field] had asked Rev Stephen Bushell, a trained psychotherapist, to be his spiritual director. Mr Bushell contacted the Diocese of Oxford in January 2017 with ‘serious concerns’ about Mr Field, and if he had been selected he would have had procedural psychological assessment”.
The Archdeacon’s statement notes that “sentencing will be followed by “lessons learned” reviews by various organisations including the Diocese [of Oxford]”. The Diocese is due to report the conclusions of an Independent Case Review on the abuse of spiritual power and authority by the Revd Timothy Davies, although this was not triggered by criminal intent.
Field’s co-defendant, Martyn Smith was found not guilty of murdering Farquhar and also cleared of charges of conspiracy to murder and the attempted murder of Moore-Martin.
On 13 August, the Church of England announced that its National Safeguarding Team had commissioned Keith Makin to undertake a review into its handling of allegations relating to the conduct of the late John Smyth QC. However, two key organizations have declined to participate in the review: the Titus Trust which on the grounds that it is “restricted by on-going legal action” and the Scripture Union which prefers to undertake its own “independent review”. In contrast to the reservations of the Titus Trust regarding on-going legal action, the ToR note:
“Winchester College has stated that it anticipates that it will cooperate with the Review, providing all relevant information on a voluntary basis, i.e. with the status of an Interested Party rather than a Subject Organisation. In such a capacity, subject to the matter of any live litigation, Winchester College will share its own findings and answer any questions so far as it reasonably can.”
Unlike the Independent Inquiry on Child Sexual Abuse (IICSA) which has statutory powers under the Inquiries Act 2005, the review under Keith Makin will not be able to compel the attendance of witnesses. Furthermore, its Terms of Reference are restricted to the activities of Smyth and do not encompass the broader issues which these have raised.
Lessons from the consistory courts (1)
“Whilst the citation, without context, of a newspaper article (even one as reputable as the Church Times) in which a soundbite from the Archbishop of Canterbury is quoted, again without context, is an unconventional method of making representation to the Consistory Court, the petitioners can take comfort that reported archiepiscopal sentiment is consonant with the Duffield approach and the working of the faculty jurisdiction more generally. But each individual disposal is, of course, fact-specific”: Re All Hallows Bardsey  ECC Lee 3, per Hill Ch.
Historic England sought support for the views expressed in its booklet, Metal Thefts from Historic Buildings, when it objected to the replacement of a leaking lead roof with terne-coated steel. Unfortunately for Historic England, however, Deputy Chancellor Glyn Samuel noted that the same document included an endorsement of terne-coated stainless steel as an alternative to lead if absolutely necessary – as in the instant case: see Re St Peter Church Lawford  ECC Cov 4.
- House of Commons Library: “Common law marriage” and cohabitation: Commons Library briefing paper on how the law applies to cohabitants, the number of cohabiting couples, and about the Law Commission’s proposals for reform.
- IICSA: Mandatory Reporting Seminar 2: A Summary Report
- Scarle v Scarle  EWHC 2224 (Ch): following our earlier note, the judgment applied the Commorientes Rule – that there was no basis for displacing the statutory presumption that 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.