Law and religion round-up – 24th November

“Fact-checking” – Quis custodiet…?

Brexit latest

Following a letter from the UK Government to the effect that it will not nominate an EU Commissioner until after the General Election on 12 December, the European Commission has started an infringement proceeding against the UK for failing to nominate a commissioner-candidate. The Commission’s view is that “in accordance with established EU case-law” a Member State cannot invoke provisions in its domestic legal system to justify failure to observe its obligations under EU law. The UK has until Friday 22 November to respond.

General Election 2019

Church of England

The Archbishops of Canterbury and York issued a pastoral letter urging people to play their part in the political process but to do so respectfully and with charity. They said in part:

“Offering facts and opinions should be done with humility and in love. People who hold different political views are not our enemies. Two people can look at the same facts and in good faith interpret them very differently. Issues need to be debated respectfully, and without resorting to personal abuse. We should engage responsibly, especially on social media. If we leave our echo-chambers and make a conscious effort to listen to people and ideas we disagree with it will help us understand where others are coming from in this election period, even though we may disagree vehemently.”

The letter has been reported verbatim and without comment by many media outlets. Nevertheless, published in a week of blatant misrepresentation by the political parties and their supporters, it comes across as a bland reflection of the current situation. There are diverging opinions on the influence of the “echo chamber” effect and the “social media bubble”; however, it has been suggested that the crucial issue is not what people hear, but whom people believe.

Church in Wales

The Archbishop of Wales, the Most Reverend John Davies, is quoted in a Provincial Press Release as suggesting that the  political agenda needs urgent rebalancing. He argues: “poverty, homelessness and struggling public services are among the critical issues which have been airbrushed off the political agenda for too long and now need addressing”. In a statement ahead of the General Election on December 12th, Archbishop John encourages people to vote, to take part in debates and also to help their friends and neighbours who may be reluctant to go out on dark winter days, to get to hustings and polling stations. He asks them to vote for a government that seeks unity and a “just, welcoming and tolerant society” rather than feeds narrow self-interest. He also calls for a willingness to pay more tax for what needs to be improved.

Safeguarding in the Church of England

On 22 November, the Church of England announced the appointment of safeguarding consultant Jane Humphreys as the independent reviewer into its handling of the allegations relating to the late Revd Trevor Devamanikkam. The Terms of Reference are not yet available, but the Church “[hopes] the review will be completed and published during 2020.”

Readers will recall that three months ago, Keith Makin was commissioned to undertake a review into the Church of England’s handling of allegations relating to the conduct of the late John Smyth QC. Work on this Review was scheduled to commence on 19 August 2019, and it was anticipated that it would be completed “within no more than nine months”. However, the Scripture Union declined to participate in the Review and The Titus Trust has stated that it is restricted in its participation in the review by ongoing legal action and it is not able to engage in the Review until this has been resolved.

Assisted dying

In R (Newby) v The Secretary of State for Justice [2019] EWHC 3118 (Admin), handed down on Tuesday, the Divisional Court rejected an application for judicial review of assisted dying policy. Mr Phil Newby, who has motor neurone disease, had asked the High Court to examine “the mixed ethical, moral and social policy issues” [4] to determine whether or not a blanket ban on assisted dying was compatible with his human rights under Article 8 ECHR (Respect for private and family life). In short, counsel for Mr Newby argued that the Supreme Court’s decision in R (Nicklinson) v Ministry of Justice [2014] UKSC 38, declining to issue a declaration of incompatibility, depended upon the specific facts of the case and was taken in the context of an imminent Parliamentary debate on altering the law in relation to assisted dying and that, as such, the refusal to declare incompatibility was not a refusal on principle [24].

However, Irwin LJ and May J refused his application, stating that

“In our judgment, there are some questions which, plainly and simply, cannot be ‘resolved’ by a court as no objective, single, correct answer can be said to exist. On issues such as the sanctity of life, there is no consensus to be gleaned from evidence. The private views of judges on such moral and political questions are irrelevant, and spring from no identifiable legal principle. We struggle to see why any public conclusion judges might reach on matters beyond the resolution of evidence should carry more weight than those of any other adult citizen” [42].

Further, the Court of Appeal’s decision in R (Conway) v Secretary of State for Justice [2018] EWCA 1431 was authoritative for present purposes and binding on the Court in relation to the issue [48]. The Court was “not an appropriate forum for the discussion of the sanctity of life, or for resolution of such matters which go beyond analysis of evidence or judgment governed by legal principle” [50]. Permission was refused [51].

Collective worship in schools

The Oxford Diocesan Schools Trust (ODST) has settled a case about pupils withdrawn from compulsory school prayers; the ODST stated “at a time when school funds are stretched ODST took the pragmatic decision to avoid wholly unnecessary court cost”. Supported by Humanists UK, Lee and Lizanne Harris had brought an action against the Trust after learning that their children were being made to pray during assemblies at Burford Primary School, an academy with no religious character. The High Court’s Order of Settlement is time-limited and restricted to the Claimants’ children while they are still at the school; it is to be circulated to all the headteachers of other ODST schools, and extends to issues beyond compulsory school prayers.

Civil partnership in Scotland

Following the decision in R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32in which the Court made a declaration that the Civil Partnership Act 2004 was incompatible with the ECHR insofar as it did not permit opposite sex couples to enter into a civil partnership, the Scottish Government consulted on whether to repeal civil partnerships or to extend them to include opposite sex couples. It subsequently announced that it would extend them and it introduced the Civil Partnership (Scotland) Bill into the Scottish Parliament on 30 September.

The Scottish Parliament’s Equalities and Human Rights Committee is scrutinising the Bill and issued a call for views on 8 November. It wishes to establish whether the Bill offers the correct approach to ensure equality for all those wishing to formalise their relationship. It wishes to hear the views of individuals and organisations and, in particular, whether they support the extension of civil partnerships to opposite sex couples and whether the proposal will have any impact on human rights or equalities issues for any particular groups of people.

Church Representation Rules 2020

Hard copies of the Church Representation Rules 2020 are now available from Church House Publishing and elsewhere. On-line copies are available on as Schedule 1 to the Church Representation and Ministers Measure 2019 (“the Measure”). Under The Church Representation and Ministers Measure 2019 (Commencement) Order 2019 of 6 November 2019, the Archbishops of Canterbury and York, in the exercise of their powers under s.3 of the Measure, set the commencement date of those parts of the Measure not already in force as 1 January 2020.

The Church Representation Rules which are in force until the end of 2019 are to be found in Schedule 3 to the Synodical Government Measure 1969, as amended,. However,  the Church Representation Rules online on the Church of England website have now been updated to the 2020 version, as of 27 December 2019.

Court of Arches

On 20 November, Professor Norman Doe, Cardiff University, delivered a lecture on ‘The Court of Arches: Its Jurisdiction and Jurisprudence – Entirely Settled?’, appropriately at St Mary-le-Bow Church, Cheapside. The lecture was followed by a Response and Vote of Thanks by the Right Worshipful Charles George QC, Dean of the Arches and Auditor. Professor Doe presented a wide-ranging and comprehensive review of the development of the scope of the work of the Court, the associated legislation and some of the more notable Deans and commentators.

Charles George recalled the more recent history of the Court and its now restricted appellate function. He also took the opportunity to rebut the suggestion that the Arches Court had been ultra vires in its consideration of Re Blagdon Cemetery [2002] Fam 299, which had been claimed to address an issue of doctrine. As a segue to the event, Charles George is delivering the next ELS London Lecture “Do we still need the Faculty System?” on 19 February 2020.

Canopy Forum – a new law & religion resource

Canopy Forum is:

“a digital publication from the Center for the Study of Law and Religion at Emory University that produces expert analysis for the broader community of digital consumers: citizens, scholars, lawyers, clergy, journalists, policymakers, and more. By taking advantage of contemporary means for content delivery – from short essays and thematic text primers to video interviews and podcasts – this website engages a global network of the top minds in law and religion to produce sophisticated and accessible content for a contemporary age. By providing accurate information, expert analysis, and contextualized explanation of issues impacting America and the world, Canopy Forum addresses the growing concern for an understanding of law and religion, bringing these issues to the forefront of American public discourse in an informed, nuanced, and productive way.”

Included in this month’s articles is “Brexit in Context” by Allen D. Kowalczyk, in which he concludes:

“… three British perspectives on national sovereignty, the rule of law, and the global English language illuminate the value of the non-economic, intangible concerns that are at stake in the Brexit debate. These historical and cultural considerations, combined with economic advantages, international investment, immigration, an equitable welfare system, better quality of life, and the ability to control governing laws, provide helpful insight into the phenomenon of Brexit that should cause others outside the U.K. to reflect on their own historical experiences to clearly orient their current political, social, and cultural developments relative to identified historical causes.”

[With thanks to Christopher Grout for bringing Canopy Forum to our attention.]

Quick links

And finally…I

The Guardian reports that a French nun has been forced to turn down a place in a state retirement home because she was told that if she was living there she would have to stop wearing the habit. The nun, who is in her 70s and has spent her entire adult life in a convent, wanted to retire to her home town, Vesoul in eastern France. When she applied for a self-contained apartment with a communal dining-room at a local authority care home, the Mairie told her that she was on the waiting list for a place but, because of the laws on laïcité, she would not be able to wear her habit and headscarf.

And finally…II

We don’t sweat because of the massive overdose of adrenalin that we both suffered on the Cardiff LLM course..

Leave a Reply

Your email address will not be published. Required fields are marked *