A week not entirely dominated by you-know-what, but…

… Brexit is in the Court of Session again

On Friday in the Outer House, Lord Pentland heard the latest round of litigation on Brexit, brought by Joanna Cherry QC MP, Jo Maugham QC and Dale Vince. The petitioners want the Court to invoke the nobile officium to, if necessary, send the Article 50 extension letter on the Prime Minister’s behalf and to impose sanctions on him if he fails to observe the terms of the European Union (Withdrawal) (No. 2) Act 2019. Judgment is expected tomorrow – to be followed, inevitably, by an appeal to the Inner House later in the week.

Abortion, same-sex marriage and civil partnership in Northern Ireland

The Northern Ireland (Executive Formation) Act 2019 requires the Northern Ireland Secretary, inter alia, to introduce secondary legislation providing for same-sex marriage, opposite-sex civil partnerships and greater access to abortion if a Northern Ireland Executive is not formed by 21 October 2019. On Monday, in a debate on the Report pursuant to s.3(14) of the Act, the Secretary of State, Julian Smith, made it clear that the Government will legislate if an Executive is not formed by the deadline:

“… the Northern Ireland (Executive Formation etc) Act 2019 requires the UK Parliament to introduce laws on same-sex marriage and opposite-sex civil partnerships, abortion and victims payments. This House has spoken, and the duty to legislate will come into effect if the Executive are not back up and running before 21 October. My Department will shortly begin an awareness campaign to ensure that women and citizens across Northern Ireland are clear as to how we plan to proceed to regulate for these new legal duties.

I recognise that these are sensitive issues, and this Government’s preference is that they are taken forward by a restored Assembly and Executive, but to those who now lobby me and others in Government to somehow change the law I say that the only way for these laws to be changed and shaped in the best interests of Northern Ireland is for the Northern Ireland party leaders to form an Executive and get back into government. To that end, following the frustratingly slow pace over the summer caused by a range of factors, I will this week work urgently with the Northern Ireland parties and the Irish Government to do everything I can to break the logjam and to get Stormont up and running. The time for that is now. The party leaders need to show leadership and do the right thing for the people of Northern Ireland.”

On Thursday, Keegan J followed the earlier decision by the Supreme Court and ruled in the High Court in Belfast that the current Northern Irish abortion law was incompatible with Article 8 ECHR in relation to fatal foetal abnormality. The text of her judgment is not yet available, but there is a summary here.

Opposite-sex civil partnership in Scotland

The Scottish Government has published the Civil Partnership (Scotland) Bill: “An Act of the Scottish Parliament to enable persons of different sexes to be in a civil partnership”. Links to the Bill and the associated documents are here.

Welsh Government consultation on the curriculum

On 3 October, the Welsh Government issued a consultation on proposals to ensure access to the full curriculum for all learners. The proposals are to change “Religious Education” to “Religion and Worldviews” and make it a compulsory part of the Humanities area in the new curriculum from 2022. The consultation also proposes the removal of the parental right to withdraw their children from Religious Education (RE), and from Relationships and Sexuality Education (RSE) in the new curriculum. The Consultation document is here and the Integrated impact assessment here. Responses are required by 28 November. Russell Sandberg analyses the proposals in a guest post.

The Catholic Education Service has already issue a press release in which it affirms its belief that high-quality RE is “essential for producing well rounded, religiously literate young people” and that well-taught RSE “plays a vital role in preparing children for life in modern Wales as well as keeping them safe” – and that Roman Catholic schools already do both of those things. However:

“parents are the primary educators of their children and schools exist to support, not replace them. This is particularly important when dealing with sensitive and deeply personal topics such as faith and RSE. To remove the right of withdrawal would, therefore, be huge erosion of parental rights and represent a regressive step in the relationship between parents and the state.”

It is also deeply concerned about the proposed name change of RE to include worldviews, “as this would represent a dumbing down of RE”.

IICSA: residential music schools

This  Independent Inquiry into Child Sexual Abuse (IICSA) is carrying out public hearings into its Residential Schools investigation over the period 30 September – 11 October. The scope of the investigation is here; the hearing will examine child sexual abuse in residential music and special schools, as well as institutional responses and safeguarding procedures. The first week will focus on residential music schools: Chetham’s School of Music; Wells Cathedral School; Yehudi Menuhin School; and Purcell School. These schools were chosen “because of the issues arising from their specialist nature, including one-to-one tuition, an intimate atmosphere and an imbalance of power in teacher/pupil relationships”. The Consultation Document is here, and the Integrated Impact Assessment here. Responses are required by 28 November 2019.

IICSA: Roman Catholic Church

On 25 September 2019, the IICSA held the ninth preliminary hearing in its investigation into the Roman Catholic Church; this was the second preliminary hearing specifically related to preparation for the two-week 13 public hearing which begins on October 28, 2019. In her opening statement, Jacqueline Carey, counsel to the investigation (together with Mr Donmall), said that further to the hearing in May of this year, the inquiry had continued to liaise with the Foreign and Commonwealth Office to progress its request of the Apostolic Nuncio and the Holy See, [13/5]. Earlier in September, the inquiry asked the Holy See to clarify whether it would be providing a witness statement and/or a witness.

On 24 September, the Holy See confirmed that it would not with be providing a witness statement or a witness to attend the hearing [15/18]. “The Holy See confirmed that it would not be providing a witness statement or a witness to attend the hearing. The Holy See considers that the “domestic laws and internal proceedings of a foreign sovereign entity are not the proper object for a British inquiry” [15/21].

Proroguing Parliament

No 10 has announced that the PM intends to request that the current session of Parliament be prorogued from the evening of Tuesday 8 October, with a Queen’s Speech on Monday 14 October. These timings would mean that Parliament will be prorogued for the shortest time possible that will allow for all the necessary logistical preparations for a State Opening, including those done by the authorities of the two Houses. The Queen’s Speech will include a summary of the Government’s legislative agenda for the next session of Parliament: Brexit, plans for the NHS, schools, tackling crime, investing in infrastructure and building a strong economy. However, in the absence of a majority, it might not win a vote on the presentation of a Loyal Address. The Institute for Government observes:

“As no government has been defeated on the address since the passage of the Fixed-term Parliaments Act (FTPA) in 2011, it is unclear what would happen if such a situation were to arise. This is because a defeat on the Address would not meet the requirements under the FTPA to trigger an election. But any defeat might encourage the opposition to then table a formal vote of no confidence, under the FTPA, in the government. There would also be intense political pressure on the government.”

On the UCL Constitution Unit’s website, Professor Robert Hazell comments :

“The Queen will not have been amused when the Supreme Court concluded that ‘when the Royal Commissioners walked into the House of Lords [to announce the prorogation] it was as if they walked in with a blank sheet of paper’. Her Majesty will be even less amused if in mid-October she is required to walk into the House of Lords with an equally blank sheet of paper, purporting to be a legislative programme, but in fact being a trailer for the Conservative party’s election manifesto”,

– and then having to repeat the exercise for a post-election government. Not to mention the need to resignify the Parliamentary Buildings (Restoration and Renewal) Bill.

Implications of proroguing Parliament on 8 October

When Parliament was illegally prorogued on 9 September, we noted that thirteen Government bills would fall but could 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. The same considerations apply to the next (legal) Prorogation, apart from the Parliamentary Buildings (Restoration and Renewal) Bill, which formed part of the Royal Commission appointed under the quashed Order in Council. However, on 2 October the Domestic Abuse Bill was given its second reading and a motion agreed for its carry-over to the next session of Parliament. However, a date for a carry-over motion for the Divorce, Dissolution & Separation Bill (which we covered here) has not been set.

On 3 October, the Institute for Government observed [emphasis added]:

“there are currently 14 government bills in Parliament, 10 in the Commons and four in the Lords. These include several key Brexit bills – such as the Immigration, Fisheries and Agriculture Bills – which the government will need to pass shortly after a no-deal Brexit… [Some bills] cannot be carried over under current procedures, including the Financial Services (Implementation of Legislation) Bill and Trade Bill – both of which are needed shortly after a no-deal Brexit … If bills are carried over to the next parliamentary session, the limited parliamentary time available means they are highly unlikely to make it onto the statute book before 31 October”.

As we have noted, there is legislation relevant to law and religion for which Royal Assent has been granted, but the application of which is stymied until relevant statutory legislation has been passed by both Houses. The Parliamentary Calendar indicates that no time has been allocated for these provision before parliament is prorogued on 8 October. At least there is no legislation delaying the publication of the Church of England Parochial Fees for 2020 as the Consumer Price Index figures August have been available from 19 September.

C of E Diocese in Europe: Belgium

Belgium has granted two key permanent salaried posts to Anglicans. After a process which has taken 20 years, begun by Dirk van Leeuwen and Robert Innes during their time as presidents of the Anglican Central Committee in Belgium, the current president, Jack McDonald, has managed to steer through the Belgian Parliament a clause in a bill which gives the Anglican Church a full-time salaried chaplain-president and a full-time salaried secretary. HM King Philippe gave his assent to the bill in July this year.

 Quick links

• Charlotte Gilmartin, UKHRB: What is a “Mother”, in law?: on the case of Freddy McConnell, aka R (TT) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam).
• House of Commons Briefing Paper: Carry-over of public bills.
• Institute for Government: Queen’s Speech.
• Manchester University, Balancing Beliefs: Brexit War of Wars: How Far Is Too Far? “Free speech is … a treasured and fundamental liberty, without which democracy cannot function, but it is equally clear that there cannot be an absolute right to say anything anywhere.”
• Max Steinbeis, Verfassungsblog: Not Madness nor Treason: Brexit, and the fact that “the adaptivity of the British constitution does come at a hefty price”.
• The Church of England in Parliament: Week in Westminster,19th-25th October 2019.

And finally…I: “Nobody expects the Spanish Inquisition”…

… least of all, in the Vatican. On 1 October 2019, the Holy See Press Office issued the Communiqué:

“This morning, activities were carried out to acquire documents and electronic devices from certain offices of the First Section of the Secretariat of State and the State Financial Information Authority. The operation, authorized by decree of the Promoter of Justice of the Tribunal, Gian Piero Milano, and the Adjunct Promoter, Alessandro Diddi, and of which the superiors were duly informed, is linked to the complaints presented at the beginning of last summer by the Institute for Works of Religion and the Office of the General Auditor, regarding financial transactions carried out over time.”

“Cardinal Fang! Fetch…THE COMFY CHAIR!”

And finally…II: Tory quotes Satan

The Independent noted:

“The Conservative MP Steve Baker has taken to Twitter to quote Satan in a bizarre tweet about the party conference currently taking place in Manchester. I give not Heaven for lost: from this descent celestial virtues rising will appear more glorious and more dread than from no fall, and trust themselves to fear no second fate … Baker is almost certainly referencing Brexit and the idea that we might have a second referendum but it was probably ill-advised to make the point by quoting Beelzebub directly.”