Law and religion round-up – 3rd November

A week in which John Bercow retired as Speaker of the Commons and Hallowe’en turned out to be … the eve of All Saints


The EU Council agreed to give the UK a flexible extension of membership under Article 50 until 31 January 2020. On Tuesday 29 October, all stages of the Early Parliamentary General Election Act 2019 were completed and it was agreed that there should be a General Election on Thursday 12 December; in spite of the availability of a multiplicity of ditches, the Prime Minister appeared at PM’s Questions on Wednesday as usual. The situation was summed up by Michael Sadgrove who tweeted: “The curious incident of what happened on #BrexitDay.” “But nothing happened on Brexit Day.” “That was the curious incident.”

Opposite sex civil partnerships

On 29 October we posted Opposite sex civil partnerships – a further update … in which we reviewed The Draft Civil Partnership (Opposite-sex Couples) Regulations 2019, which were laid before Parliament last week. Russell Sandberg has posted a helpful summary of the implications of the draft Regulations for religious groups. This was the first of the provisions of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 which requires secondary legislation, all of which are subject to the affirmative resolution procedure.

On the afternoon of 31 October, MPs the draft Civil Partnership (Opposite-sex Couples) Regulations 2019, without a division: they will be considered by the House of Lords on Tuesday 5 November. Anticipating their Lordships’ approval, Tim Loughton stated that the first opposite sex civil partnerships are expected to take place on 31 December.

Other legislation

Since Parliament is being dissolved on 6 November rather than prorogued, all unfinished business falls – including any bills that have not received Royal Assent. Bills cannot be carried over from one Parliament to another, reflecting the convention that no Parliament can bind its successor: see the Institute for Government explainer in “Quick Links”, below.

Listed Places of Worship Grant Scheme

Christian Today reported that the Treasury had agreed to extend the Listed Places of Worship Grant Scheme for a further year until March 2021. Neither the Treasury nor the DCMS website carried the news; however, you can find the official confirmation buried among the FAQs on the LPWGS site, here.

Lead thefts and terne-coated stainless steel

Historic England (HE) has published a new Guidance Note: Church Roof Replacement Using Terne-coated Stainless Steel. As many readers will be aware, what to replace a lead roof with when it is failing or has been vandalised (or nicked) is extremely controversial  – and Historic England’s normal expectation is a like-for-like replacement.

The Note merely sets out the pros and cons without coming to any firm conclusions as to the desirability of terne-coated stainless steel or otherwise – though it does suggest that “Replacement like-for-like with lead roofing is the best technical remediation, although where there is a means of access the risk of further theft remains”.

In the recently-reported case Re St Peter Church Lawford [2019] ECC Cov 4, the Deputy Chancellor determined that Petitioners had shown good reason for the replacement of lead with terne-coated stainless steel and a faculty granted. However, Historic England initially objected to terne-coated steel, and referring the court to the its earlier booklet Metal Thefts from Historic Buildings (2017), stated that in this case there does not appear to be a particularly strong argument in terms of the need to replace the existing lead roof with another material such as terne-coated steel [4]. The Deputy Chancellor reminded himself of the contents of the document cited by HE and observed that there is an endorsement of terne-coated stainless steel as an alternative to lead, if absolutely necessary [9].

The Church Buildings Council did not respond to the proposals, and its advice, Guidance note Alternative roofing materials to lead (August 2016), was not considered by the court. Unsurprisingly, it echoes that of Historic England:

“For a great many roofing applications lead is the most appropriate roofing material for appearance, performance, ease of installation and lifespan. It is part of the heritage of our built environment. However, replacing like with like is not always realistic after lead has been stolen, in particular where there have been multiple thefts”.

Arrested for praying? – yes, but…

The Telegraph reports that Christian Hacking, 29, was arrested by police after he was seen praying outside the Marie Stopes clinic in Ealing on the grounds that he was in breach of the Public Spaces Protection Order (Mattock Lane) 2018. Mr Hacking, who uses a wheelchair after breaking his back during a climbing accident, was arrested and carried into a van by police officers. However, the police failed to caution him as they arrested him; instead, they cautioned him when he was already in the police van. The Crown Prosecution Service told him subsequently that the charges were being dropped because there was not “enough evidence to provide a realistic prospect of conviction”.

Which, in terms of precedent, doesn’t tell one an awful lot. Whether or not praying outside an abortion clinic in defiance of a PSPO is an arrestable offence remains to be tested.

Religious discrimination in higher education in Ireland

A student at University College Dublin, Mark Savage, withdrew from his course in late 2017. UCD had refused to grant him a third year-long leave of absence in October 2017 which, he claimed, was necessary so that he could conduct (unrelated) litigation in order to vindicate his rights. He claimed that UCD was aware of his religious beliefs as an Evangelical Christian and that by refusing to grant him leave of absence, the university had discriminated against him contrary to s.21 Equal Status Act 2000. In Mark J Savage v University College Dublin [2019] WRC ADJ-00014412, Adjudication Officer O’Driscoll held that the evidential burden on Mr Savage had not been discharged and that no prima facie case of religious discrimination had been established. Róise Connolly reports the case at length in Irish Legal NewsWorkplace Relations Commission: Evangelical Christian loses religious discrimination case against UCD.

What qualifies as joint authorship?

In Kogan v Martin & Ors [2019] EWCA Civ 1645, the Court of Appeal was asked to rule on a dispute over the authorship of a screenplay. The first and second respondents, Nicholas Martin and Big Hat Productions Ltd, sought a declaration that Mr Martin was the sole author of the screenplay and sole owner of the copyright. Ms Kogan sought a declaration that she was a joint author with Mr Martin (and thus a joint owner of the copyright) because she had contributed substantially to the project – though not to the actual writing. Unusually, the Court ordered a retrial before the High Court after highlighting several inadequacies of the proceedings at first instance.

In doing so, the Court set out 11-point guidance at [53] on how to determine whether or not a contribution to a creative project is sufficient to merit a finding of joint authorship. It confirmed that a work of joint authorship is “a work produced by the collaboration of all the people who created it” and that collaboration will be said to have occurred “where those people undertake jointly to create the work with a common design as to its general outline, and where they share the labour of working it out”. It was for the trial court to “determine the nature of the co-operation between the putative joint authors which resulted in the creation of the work”. Critically:

“4. In determining whether there is a collaboration to create a literary or artistic work it is never enough to ask ‘who did the writing?’. Authors can collaborate to create a work in many different ways. For example, there may be joint authorship if one person creates the plot and the other writes the words, or if either or both of these types of labour is shared.

5. Joint authors must be authors, in the sense that they must have contributed a significant amount of the skill which went into the creation of the work. Again, it is not correct to focus exclusively on who fixed the work in writing. The statutory concept of an author includes all those who created, selected or gathered together the detailed concepts or emotions which the words have fixed in writing.

6. Contributions which are not ‘authorial’ in the above sense do not count. What counts as an authorial contribution is acutely sensitive to the nature of the copyright work in question.

7. The question of what is enough of a contribution is to be judged by the Infopaq test, i.e. whether the putative joint author has contributed elements which expressed that person’s own intellectual creation. The essence of that term is that the person in question must have exercised free and expressive choices. The more restrictive the choices the less likely it will be that they satisfy the test.”

All of which is very interesting when applied (eg) to academic journal articles and book chapters. As most of our readers will know, asking one’s academic colleagues to crawl over one’s drafts is very common practice. We do it ourselves and we occasionally find ourselves doing it for others. It’s both polite and good academic practice to acknowledge such help in a footnote, but at what point does a non-writing contribution begin to justify joint authorship? We suspect that the “rules” (if you can call them that) may be about to change slightly. Iain Connor of Pinsent Mason comments on the case here: Joint authorship does not require writing contribution.

Archbishop appoints registrar for the Diocese of York

The Archbishop of York has appointed Louise Connacher of Lupton Fawcett LLP as Registrar for the Diocese of York and Legal Secretary to the Archbishop, after seven months as Acting Registrar following the sudden death of her colleague Caroline Mockford in March this year. She is currently the Registrar of the Diocese of Sodor and Man and a Deputy Registrar in the Dioceses of Leeds and Blackburn. Louise also acts for individual clients. The diocesan press notice comments that Louise is a keen ringer and lover of country pubs and Yorkshire-brewed real ale. She has led a £63,000 project to restore the 18th-century bells of her local church with the help of a Heritage Lottery Fund grant and is an avid reader of novels. This plus her membership of the ELS and ELA seems to tick all the boxes for us (apart from choral singing, dp) (and anything that encourages gambling, fc).

Quick Links

And finally…

At the end of a politically tumultuous week, it seems apt to end with the comment “Britain (or as we pedants prefer to call it, the United Kingdom) Deserves Better” – though how readers interpret this is entirely up to them.

3 thoughts on “Law and religion round-up – 3rd November

  1. “Since Parliament is being dissolved on 6 November rather than prorogued, all unfinished business falls” what happens to business from the General Synod, and in particular to the Church Representation and Ministers Measure? Is this measure likely to get Royal Assent before the end of this year, as I understand was originally planned?

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