Law and religion round-up – 15th September

A week of Greek myths, obscure legal provisions and parliamentary procedures…

..when the media puzzled over the meaning of a former golfing term, the phrase “nob off” could be used in polite (legal) company, an executive fiat had nothing to do with automobiles, and the Irish Prime Minister and commentators resorted to Greek mythology to describe the Government’s performance on Brexit issues.


Parliament was prorogued on 9 September; thirteen Government bills fell but may be reintroduced and started afresh in the new session if included in the Government’s legislative agenda to be outlined in the Queen’s Speech on 14 October. These include the Divorce, Dissolution & Separation Bill (which we covered here) and the Domestic Abuse Bill, which had cross-party support and had been provided with significant assistance from a large number of groups during its two-year development.INK

Last week, we reported that the Church Representation and Ministers Measure 2019 and the Civil Partnerships, Marriage and Deaths (Registration etc) Act 2019 would be affected by the 5-week prorogation of Parliament, which will delay the further secondary legislation necessary for their implementation. It is unlikely that this will be subject to the accelerated procedures as identified by the Defra Permanent Secretary in relation to the eleven items of secondary legislation needed to prepare for a post-Brexit regulatory regime. With regard to other legislation &c in this area:

  • The hybrid High Speed Rail (West Midlands-Crewe) Bill, which impacts on a number of churchyards, will be carried over to the next session;
  • on 19 September, the Office of National Statistics (ONS) will release Consumer Price Index figures August on which the Parochial Fees for 2020 will be calculated; officials at the Archbishops’ Council will undertake the necessary calculations and publish a table showing the fees that are payable for 2020; and
  • The Petitions Committee has stated that while Parliament is prorogued, it is still possible to start and sign petitions at, “although it might take [the Committee] a bit longer than usual to moderate new petitions”. However, the Petitions Committee cannot consider any new petitions for debate until after Parliament returns on 14 October.

Brexit in the courts again

So where are we now?

  • in England & Wales, the High Court rejected Gina Miller’s petition for judicial review: see R (Miller) v The Prime Minister [2019] EWHC 2381 (QB). She was granted leave to appeal directly to the Supreme Court.
  • In Scotland, the Inner House overturned the decision of the Lord Ordinary on a petition by Joanna Cherry and others and made an Order declaring that “the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect”: see Cherry & Ors v Advocate General  [2019] CSIH 49. Like R (Miller), it has been appealed.
  • In Northern Ireland, McCloskey LJ dismissed petitions for judicial review in the High Court in three conjoined cases: see In the Matter of Applications by Raymond McCord, Jr 83 and Jamie Waring for Leave to Apply for Judicial Review v The Prime Minister & Ors [2019] NIQB 78.

The appeals to the Supreme Court will be heard by an eleven-judge panel: Lady Hale PSC, Lord Reed DPSC and Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Sales JJSC. Links to the live proceedings, the timetable of events and the written cases of the parties are available of the Supreme Court’s dedicated web page Brexit-related judicial review cases.

Perhaps David Allen Green nailed it:

Northern Ireland

The Northern Ireland (Executive Formation etc) Act 2019 was granted Royal Assent on 24 July 2019 but it is subject important time-constraints. They are not directly related to Brexit but they are likely to impact on the relationship between the Conservative Party and the DUP. Under s.13 (4) of the Act, ss.8 to 12 come into force on 22 October 2019 unless an Executive is formed in Northern Ireland on or before 21 October (in which case they do not come into force at all). The relevant sections include:

  • same sex marriage and opposite sex civil partnership;
  • abortion and the implementation of CEDAW recommendations; and
  • victims’ payments to persons who have sustained an injury as a result of a Troubles-related incident.

As to abortion, the Secretary of State for Northern Ireland told the Commons on 9 September that if an Executive is not formed,

“From 22 October, the specific criminal law in Northern Ireland will fall away, and a criminal moratorium on prosecutions will come into place. I have instructed my Department, working closely with the Department of Health and Social Care and the Government Equalities Office to develop an appropriate new legal framework that will be in operation by 31 March 2020 if that proves to be the case.”

Assisted dying in Quebec

In Truchon c Procureur Général du Canada (Quebec Superior Ct, 11 Sept 2019) [in French], a Quebec trial court judge has held that portions of the assisted suicide laws of Canada and of the Province of Quebec are unconstitutional because they are too restrictive.

The claimants, Jean Truchon and Nicole Gladu, had been declared ineligible for medical assistance in dying. They challenged the constitutionality of the requirements of paragraph 241.2 (2) (d) of the Criminal Code and paragraph 3 of the first paragraph of the Criminal Code and s.26 of the End-of-Life Care Act, which requires respectively that their natural death be reasonably foreseeable or that they be at the end of life in order to obtain medical assistance to die. They argued that those requirements violated their right to life, liberty and security of the person and their right to equality as guaranteed by ss.7 and 15 of the Canadian Charter of Rights and Freedoms.

The Court accepted the application in part. Baudouin JCS ruled invalid the Criminal Code requirement that a natural death be “reasonably foreseeable” before someone can be eligible for assisted death and invalidated a section of the Quebec law that says people seeking such assistance must “be at the end of life”. She granted an exemption to M Truchon and Mme Gladu allowing them to seek medical aid in dying during this period if they satisfy other conditions in the law. In conclusion:

  • she declared that paragraph 241.2 (2) (d) of the Criminal Code contravenes s.7 of the Canadian Charter because it is not in accordance with the principles of fundamental justice and cannot be justified under s.1 of the Canadian Charter of Rights [764];
  • she declared that paragraph 241.2 (2) (d) of the Criminal Code and subparagraph 3 of the first paragraph of s.26 of the Act respecting end-of-life care contravenes section 15 of the Canadian Charter and cannot be justified under s.1 of the Canadian Charter [765];
  • she declared inoperative paragraph 241.2 (2) (d) of the Criminal Code and paragraph 3 of the first paragraph of s.26 of the Act respecting end-of-life care [766];
  • she suspended the declaration of the inoperability of paragraph 241 .2 (2) (d) of the Criminal Code and of paragraph 3 of the first paragraph of s.26 of the Act respecting end-of-life care, during a period six months from the date of her judgment [767]; and
  • she granted a constitutional exemption to M Truchon and Mme Gladu as to the inoperability throughout the period of constitutional exemption granted to the legislators [768].

[With thanks to Howard Friedman]

Workshop and book launch

There will be one-day Workshop on Multi-disciplinary approaches to contemporary issues in Religion and Society at the University of Westminster on 17 October. The general theme is the place of religion in secular society and the challenges posed by religious/secular influences or movements in the contemporary world. The aim is to discuss how interdisciplinary approaches can help with understanding conflicts and/or alliances arising between the religious minorities and the secular majority including different transnational contexts. Russell Sandberg will give the keynote speech, to be followed by plenary sessions and Q & A.

The workshop will be followed by a book launch and reception to mark the publication of Religious Symbols and the Intervention of the Law: Symbolic Functionality in Pluralist States (Routledge: 2019) by Sylvie Bacquet.

Quick links

And finally…I  marital snakes and ladders?

Scottish Legal News reports that three academics at Glasgow University’s School of Law – Professor Jane Mair, Dr Frankie McCarthy and Felicity Belton – are developing a board-game to help the public negotiate the complex legal world of marriage in Scotland. Professor Mair, Head of the School of Law, explained that

“Around 30,000 wedding ceremonies took place in Scotland last year, and with the advent of same sex marriage and legal recognition given to humanist wedding ceremonies, the choice to get married is open to a greater number of couples than ever before. However, the legal consequences of marriage – and the legal differences between marriage and long-term cohabitation – are poorly understood. Our research has explored how the law regulating marriage, divorce and cohabitation is applied in practice by the courts, solicitors and other legal practitioners in Scotland.”

The team received funding from the Economic and Social Research Council Impact Acceleration Account Business Booster Fund to develop their board-game prototype and hope it will be available for sale to the public in 2020.

As in Scotland, so in England and Wales – where the myth of “common law marriage” persists in spite of all the evidence to the contrary.

And finally… II Operation Yellowhammer

It has been pointed out that yellowhammer is an anagram of Orwell Mayhem; birdwatchers will also know that the song of the yellowhammer (emberiza citronella) is often described as sounding like “a little bit of bread and no cheese”. Which will no reassure the Secretary of State for International Trade. #BlessedAreTheCheesemakers.

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