Law and religion round-up – 27th October

A week in which MPs were given less time to decide the future of 65 million people than they devoted to the Wild Animals in Circuses Act which affected 19 animals, while…

…non-lawyers were reminded that “‘reading’ is not the same as legislative oversight and scrutiny”. Scott Wortley observed “It is presumed that every word in a statute must be given effective meaning – McMonagle v Westminster City Council [1990] 2 AC 71 – as “Legislature is deemed not to write in words or to say anything in vain”: Quebec Railway, Light, Heat and Power Company v Vandry (1920) AC 662 (per Lord Sumner); and Frank tweeted “And see Lord Bridge of Harwich in Associated Newspapers Ltd v Wilson [1995] UKHL 2: ‘it remains the golden rule of construction that a statute means exactly what it says and does not mean what it does not say'”.

And the Chancellor of the Exchequer announced that the Budget due to be presented on 6 November will be cancelled if Labour votes down a General Election motion because “what is more important right now, I think, is getting Brexit done and then having that general election”. The Guardian points out that this comes as the Government refuses to carry out a detailed impact assessment of its Brexit deal, and effectively blocks the release of these forecasts. The decision means the Office for Budget Responsibility, the Treasury’s official forecaster, will not publish updated growth forecasts and a key health check on the public finances, which was likely to include an assessment of the Brexit plan.

Brexit in the Court of Session

On Monday, the Inner House decided to suspend proceedings, temporarily, on the reclaiming motion of Dale Vince and others against the Advocate General and await further developments. The court said that it would return to the matter at a later date.

During the first hearing on 9 October, the Government’s lawyers assured the Court that the Prime Minister would adhere to the law and, as we reported, the Court proposed to delay advising its decision until after the deadline for the extension letter to be sent under the terms of the legislation. On Monday, however, Lord President Carloway said that the decision would be further delayed under terms similar to those at the previous hearing: “The court considers that the case should be continued until clear that the [Government’s] obligations under the 2019 Act have been complied with in full.”

Parliament, spin and the accurate reporting of Brexit

Followers of recent developments will be aware of the frequency with which the media appears to place unquestioning credence on “a senior No 10 source”, and may question the role of the Downing Street Press Team in the repeated use of unnamed Downing Street briefings. One is also reminded of an observation last year by Frankie Boyle who said “If you’re a political journalist who has regular contact with people in power, and your analysis is always aligned with prevailing orthodoxy, then you’re not really a journalist, you’re a courtier”. 

The post by Lisa James and Meg Russell of the Constitution Unit at UCL argues that when it comes to key aspects of parliamentary procedure, the present climate of anonymous briefings and counter-briefings may make reporters’ traditional sources less trustworthy than usual; however, they suggest that there are other sources to which they can, and should, be turning. We would recommend that our readers read their post in full, which echoes the concerns of David Allen Green, Peter Oborne, and others. “Not a single one of the many legal devices briefed … to political reporters came to anything. Not one. Each ploy was daft on its own terms, as a moment’s consideration would have revealed. But each was instead breathlessly promoted as some ingenious loophole”.

A timely anniversary?

On 24 October, gov.uk posted The Principles of Public Life: 25 years:

“On the 25th anniversary of the Committee on Standards in Public life, Committee members talk about the Principles and what they mean in practice. The independent Committee on Standards in Public life was established 25 years ago this month. Its remit has evolved but its role has broadly remained the same – to advise the Prime Minister, national and local government and the public on trends, issues and concerns about standards in public life”…

“The Committee doesn’t investigate individual cases but acts as the guardians of the Seven Principles of Public Life – the Nolan Principles. Everyone in public office at all levels – Ministers, civil servants, NHS staff, the police, council officers – all who serve the public or deliver public services should uphold the principles of accountability, honesty, integrity, objectivity, selflessness, openness and leadership.”

IICSA: report on Ealing Abbey and St Benedict’s School

On Thursday, IICSA published its report on the Ealing Abbey and St Benedict’s School public hearings. It also contains an update of the Ampleforth and Downside case studies, also part of the English Benedictine Congregation. The report is pretty damning, describing the atmosphere at St Benedict’s as sadistic and predatory with a culture of excessive corporal punishment and concluding that, in many cases, physical abuse was used as a platform for sexual gratification and a means by which to instigate sexual abuse. Since 2003, four members of staff connected to St Benedict’s have been convicted of multiple offences for the sexual abuse of over 20 children. Another teacher was convicted of offences relating to the possession of indecent images of children in 2016. The report concludes that the total scale of abuse can never be known, but it is likely to be much greater.

Office-holders and whistleblowing

Last Sunday, we noted the Supreme Court’s unanimous judgment in Gilham v Ministry of Justice [2019] UKSC 44  that a district judge qualified as a “worker” or a “person in Crown employment” for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act 1996. We wondered whether, if the issue were to arise in future in relation to other classes of office-holders such as clergy, whistle-blowing protection might be extended further.

Jeremy Lewis and Martin Fodder, of Littleton Chambers, suggest that it very well might. In Gilham: breaking down the limitations on whistleblowing protection – where next? they conclude that Gilham will encourage a wider range of claimants to test the extent to which the Courts are prepared to exercise their interpretative power under s.3 Human Rights Act 2010 in other aspects of whistleblowing law: “More difficult but potentially far-reaching challenges to limits on the scope of protection lie ahead”.

Abortion and same-sex marriage in Northern Ireland

Following the failure of a last-ditch attempt at the Stormont Assembly to stop abortion law changes in Northern Ireland on 21 October, changes were initiated with regard to abortion and same-sex marriage – both of which had been introduced as amendments during the passage through Westminster of the Northern Ireland (Executive Formation etc) Act 2019. These changes are reviewed in our posts Abortion in Northern Ireland from 22 October 2019 and Abortion and same-sex marriage in Northern Ireland. In brief:

  • Abortion:  ss.58 and 59 of the Offences Against the Person Act 1861 repealed in relation to Northern Ireland; moratorium on new and on-going prosecutions relating to these offences; other relevant laws remain in place, in particular, s.25(1) of the Criminal Justice Act (Northern Ireland) 1945 which imposes a 28-week limit on abortion; purchase of abortion pills illegal unless under prescription; access to abortion services not be routinely available during the interim period until 31 March 2020; free access to services in England, including travel and accommodation costs.
  • Same-sex marriage: regulations “no later than 13 January 2020”; “first civil same-sex marriages will take place in the week of Valentine’s Day 2020”.

Electronic Communications Code

On 16 October, we published Electronic Communications Code and the CofE, in which we reported the initiative of the Church of England and its partnership with Cornerstone in a move to help deliver improved connectivity in areas currently suffering from poor mobile phone coverage. Further changes to the Code are being introduced by the present administration under the Telecommunications Infrastructure (Leasehold Property) Bill 2019-20. However, it is likely that these provisions would have only limited application to religious premises because not many are held on leases – certainly not in the C of E, and probably not in many of the other historic denominations.

Banning religious parties in France?

The media in France is reporting that Bruno Retailleau, the president of Les Républicains – the largest party in the French Senate – is to bring forward a bill to prohibit “communitarian lists” at the next municipal elections. He told Le Journal that they are “a form of secession, since these lists want to privilege a part of the population while our Republic is ‘indivisible’” and he proposes “to prohibit any public financing of a communitarian movement that does not respect the principles of national sovereignty and secularism and to prohibit, under the control of the administrative judge, candidatures and communitarian electoral propaganda”. His move follows the announcement by the Union of French Muslim Democrats that it intends to put up candidates.

The first limb of his proposal does not seem unreasonable (why would anyone want to spend public money on political parties anyway?) but the second is problematical: how would it square with Article 11 ECHR (Freedom of assembly and association)?

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others…

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

Even if it’s “prescribed by law”, is banning confessional political parties really “necessary in a democratic society in the interests of national security or public safety”? If Retailleau’s proposal ever gets on to the French statute-book, maybe Strasbourg will tell us.

Sikhs and hard-hats in Quebec

Recently, in Singh c Montréal Gateway Terminals Partnership 2019 QCCA 1494 [in French], the Quebec Court of Appeal dismissed a challenge by three Sikhs to the policy of the Port of Montreal which obliges drivers to wear a protective helmet when they leave their trucks in order to deliver or retrieve containers. An accommodation measure had been tested for a few months in different terminals, but it was concluded that drivers who refuse to wear a helmet should stay inside their trucks at all times while other employees did the required tasks outside the truck. The result was that the work of delivery and retrieval sometimes took much longer than before; and the attempt at an accommodation was abandoned because both truckers and terminals concluded that it was unsustainable.

The appellants argued that the terminals had only demonstrated a theoretical risk of head injury without providing accurate statistics on accidents involving truck drivers. The Court of Appeal dismissed that proposition on the basis of extensive evidence presented by the terminals about the objective dangerousness of working in a terminal. It also decided that the policy was intended to be the least intrusive possible: Sikh truckers were not required to remove their turbans in such circumstances – merely to wear a helmet, over the turban if necessary. Finally, the Court noted that the duty to accommodate was not one-sided and that the cooperation of both parties was necessary and, in the present case, the appellants had not suggested any accommodation but had sought an outright exemption.

On balance, the need to secure a safe working environment overrode the temporary interference with the appellants’ religious freedom and was proportionate in terms of Article 9.1 of the Québec Charter. [With thanks to Lexology.]

Captain Matthew Flinders

The exhumation and re-interment of Captain Matthew Flinders involved no new legislative provisions or interpretation of the existing law; the (legal) interest which has been shown in the story arises from a somewhat singular combination of factors: exhumation during the development of the transport infrastructure where ecclesiastical legislation had been disapplied by statute; high-level involvement between the Church and the nominated undertaker; and a local determination of the irregular but licit reburial within a church. An updated version of our initial post, incorporating the helpful Comments made and subsequent new information, will be posted early next week. 

Parochial Fees – 2020

For those planning a wedding next year (and for Church of England clergy planning to conduct them) parochial fees are an important component, and our piece on the scheme of fees for 2020 to 2024 is currently the most accessed of our posts. From the ONS inflation figures for 2019 on which the new fees will be based, it appears that the fees for 2020 will include a small increase on the present fees; this information has now been added to our posts on the matter.

Flooded churches

Comparison of the images of South Wingfield Church, now under water following last night’s bad weather, with those used on the @churchofengland Instagram last week provides a stark reminder of the vulnerability of some churches to flooding. In Guidance to churches on flooding we observed that whilst the issue of flooded churches is outside the normal remit of L&RUK until remediation falls within the faculty jurisdiction, the links in the post to advice from Ecclesiastical Insurance and Heritage England may be of use to those who have suffered flood damage as a result of recent weather conditions, and others in high-risk areas who wish to introduce preventative measures. A subsequent post considered the judgment in Re St Mary Charminster [2016] ECC Sal 1, in which the court was required to determine which of two quite different technical solutions was most likely to address problems of future flooding and produce minimal side effects.

Amazonia and ordination

Although we have not been reporting on it, many readers will be aware that the Synod of [Roman Catholic] Bishops for the Pan-Amazon region has been meeting in Rome. The Catholic News Agency reports that the document finally approved by the Synod yesterday calls for the ordination of married men as priests. It also asks for “the institution of a ministry for ‘women’s leadership of the community’ to be created and recognized within the service of the changing demands of evangelization and community care”, noting  that there were calls for a permanent diaconate for women and that Pope Francis had already created a commission to examine that issue.

Quick links

And finally… I

A “religion and law” exchange, courtesy of Peter Nimmo: “After John Bercow said that the bill was in ‘limbo’, Jacob Rees-Mogg, responded: ‘I think theologically speaking it was reported that Pope Benedict XVI abolished limbo, so I do wonder whether the bill is in purgatory, suffering the pains of those in purgatory’”; on which Peter observed: “As a clergy colleague pointed out, with purgatory you’re at least still going somewhere” .

And finally… II

From Thursday’s edition of The Brief (the daily e-mail of legal news from The Times):

“back to the Supreme Court, where a boffin was awarded £2 million for inventing a blood-sugar measuring device;”

A boffin????

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