Law and religion round-up – 26th January

SERO SED SERIO…

… or, shorn of the Latin, very late indeed – but we do appear to be back in business.

Genocide: The Gambia v Myanmar

On 23 January, the International Court of Justice, noting that Rohingya Muslims in Myanmar remained “at serious risk of genocide”, ordered unanimously that emergency measures be implemented to end the campaign against the Rohingya. Under the terms of the order, Myanmar must report to the Court on implementation within four months of the judgment in the first instance, then at six-monthly intervals thereafter until a final decision is issued.

European Communities Act 1972 – “they think it’s all over”

On 23 January, the European Union Withdrawal Agreement Act 2020 – a.k.a. “the Brexit bill” – was given Royal Assent. As Steve Peers observed “the European Union (Withdrawal Act) 2018 had repealed the European Communities Act 1972 (ECA) already from exit day” but the Withdrawal Agreement Act 2020 *revives* the ECA for the transition period.

Blasphemy abolished in Ireland

The criminal offence of blasphemy has been officially abolished in Ireland with the commencement of the Blasphemy (Abolition of Offences and Related Matters) Act 2019. Announcing the news, the Minister for Justice and Equality, Mr Charlie Flanagan, said that the changes were not an attack on religious beliefs, nor were they intended to privilege one set of values over another. Though in practice the offence was no longer prosecuted, its continued presence on the statute book was outmoded:

“The new Act is a simple acknowledgement that the meaning of the concept of blasphemy is unclear in a modern state, and that the concept is rooted in a distant past where fealty to the state was conflated with fealty to a particular religion.”

Gender dysphoria, family breakdown and Ultra-Orthodox Judaism again

In 2017, the Court of Appeal handed down judgment in M (Children), Re [2017] EWCA Civ 2164, disagreeing the judgment of Peter Jackson J’s judgment in J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4.

The couple, who are Charedis, ended their marriage in June 2015 when the father, J, left home to live as a woman. J then had no contact with the children because of the attitude of the Charedi community to transsexuals, though she sought to remain an Orthodox Jew, keeping kosher and attending synagogue when she could. She sought a contact order from the Family Court. While B had been initially opposed to any contact whatsoever, she came to accept that the children should have indirect contact with J. But B opposed any direct contact during their childhoods because, she claimed, it would lead to the children and herself being ostracised by the community. The appeal was allowed and the case was remitted for a further hearing by the Family Court before Hayden J. We noted the judgment here.

J has now withdrawn her application for a contact order. Hayden J was told the children did not want to see her, and the litigation to was drawn to close at a private hearing in London on Monday. He ruled that little detail could be reported and that the family could not be identified in media reports of the case, but said that the public should know that the litigation had ended. He issued a brief judgment: A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2020] EWFC 3.

Northern Ireland: same-sex marriage and opposite-sex civil partnership

Following the legalisation of same-sex civil marriage and opposite-sex civil partnership as from 13 January 2020, the Northern Ireland Office (not the Northern Ireland Executive) has opened two consultations on related issues:

The consultations close at 11.45 pm on 23 February. Regulations will follow after the Government has analysed the results. The preferred method for responses is via online surveys: same-sex religious marriage here and conversion entitlements here.

General Synod February 2020

All relevant information, documents and papers for the General Synod’s February 2020 group of sessions are now available on the Church of England web site, here. Links to these pages were included in its snappily-titled pre-Synod Press Release Church of England launches energy rating tool as Synod considers new ‘net zero’ carbon target. This announced that the Church of England is launching an energy rating system similar to those used for household appliances to help monitor the carbon footprint of its almost 40,000 buildings, as General Synod considers a major new proposal to reach ‘net zero’ CO2 emissions. [See Green issues in the consistory courts, below]

A further post will consider specific topics on the Agenda. However, one item of note on the IICSA Recommendations GS 1258 was the comment:

“The Safeguarding and Clergy Disciplinary Measure 2016 provides the requirement for Clergy to have ‘due regard’ to House of Bishops Safeguarding Guidance. The term ‘guidance’ means different things in different sectors of work, and a typical definition uses the terms ‘help’ or ‘advice’. The National Safeguarding Steering Group (NSSG) have agreed that, during the legislative process of amending to the Safeguarding and Clergy Disciplinary Measure 2016, consideration should be given to changing the term ‘guidance’, for example to a ‘code of practice’.

Cosmetic changes to the title of a piece of quasi-legislation such as this will have no legal effect, unless accompanied by changes to the underpinning Measure; the value is in the perception of the Guidance within the Church. Externally, however, it is unlikely to change the views of those advocating mandatory reporting.

Civil partnership and the Church of England

On 22 January, the Church of England issued the Press Release Civil Partnerships for opposite-sex couples. This indicated that following the recent change in the law to extend civil partnerships to opposite-sex couples, the House of Bishops had agreed a pastoral statement for same sex and opposite sex couples. The statement, dated December 2019, concludes:

“With opposite sex civil partnerships, and with those for same sex couples, the Church’s teaching on sexual ethics remains unchanged. For Christians, marriage – that is the lifelong union between a man and a woman, contracted with the making of vows – remains the proper context for sexual activity. In its approach to civil partnerships, the Church seeks to uphold that standard, to affirm the value of committed, sexually abstinent friendships and to minister sensitively and pastorally to those Christians who conscientiously decide to

It has been noted that the language and tone of the House of Bishops reflects its 2017 statement, Marriage and Same Sex Relationships after the Shared Conversations: A Report from the House of Bishops, GS 2055 – of which General Synod refused to “taken note” (by virtue of the voting in the House of Clergy).

The note on the meeting of the House of Bishops on 9-11 December 2019 made no mention of a proposed pastoral statement, although it reported that “The House considered progress to date in the Living in Love and Faith project through discussion, prayer and reflection”. This is to be discussed at General Synod on 10 February, Paper GS Misc 1235.

Finally, the Pastoral Statement misstates the current law on divorce. It says at para 14:

“Thus, there is no equivalent [in the civil partnership legislation] of the marriage law provision either for annulment on grounds of non-consummation or for its dissolution on the grounds of sexual infidelity.“

Sorry, but no: that is emphatically not a “marriage law provision”. The only ground in English law for the dissolution of a marriage is that the relationship has irretrievably broken down. Certainly, one set of circumstances that may be relied on as proof of irretrievable breakdown is the sexual infidelity of one of the parties, but that is not quite the same thing – hence Owens v Owens, the recent debates about no-fault divorce and the Divorce, Dissolution and Separation Bill currently before Parliament.

Grants to the Churches Conservation Trust Order 2020

The draft Grants to the Churches Conservation Trust Order 2020 authorises a grant to the Churches Conservation Trust not exceeding £2,789,000 for 1 April 2020 to 31 March 2021.

Education (Assemblies) Bill

On 23 January, the Education (Assemblies) Bill was introduced in the House of Lords. It seeks to reform the law on religious worship in England and provides that English schools without a religious character would have daily assemblies directed towards furthering the spiritual, moral, social and cultural education of pupils – regardless of religion or belief. Staff or pupils could also arrange voluntary acts of religious worship, but both parents and pupils would have a right of opt-out. The current law on religious worship would be retained in schools with a religious character and in schools in Wales.

Russell Sandberg [to whom our thanks] suggests that, in the unlikely event of this becoming law, there would clearly be similar a reform from the Welsh Government:

“Education Minister Kirsty Williams AM has said that such reform is not possible during this Assembly term given her Department’s need to focus on the new Welsh curriculum. However, if this Bill, suitably scrutinised, does this work for them then there would be no reason for the delay.”

Green issues in the consistory courts

The judgment in the recently reported case Re St Michael & All Angels Blackheath Park [2020] ECC Swk 1 (2) included a discussion of the effect of floodlighting on the carbon footprint of the church. With references to Greta Thunberg, the Archbishop of Canterbury, Shrinking the Footprintand the commitment to be an Eco Diocese in the first five paragraphs, environmental issues were put centre stage. In granting permission, the Chancellor commented:

“29]. The Diocesan Environment Working Group will want to consider this judgment. At an earlier stage of my consideration of these proposals I ascertained that it was not its role to give me advice on specific proposals; that role remained with the DAC. The direct implications for the future of this judgment would seem to be that parishes should carefully consider the effects on the carbon footprint of the installation of floodlighting but that, having done so, the decision on whether to install it is a matter for them. Potentially some Diocesan guidance might be helpful but whether the Working Group feels it appropriate for it to give it is of course entirely a matter for it to decide”.

The Chancellor noted that there was one specific document on floodlighting: Guidance Note Floodlighting issued in 2012 by the Church Buildings Council. Whilst the general principles of floodlighting church buildings are unlikely to have changed, the same may not be the case for the technology and the assessment of the associated carbon footprint, and perhaps an update of the guidance might be considered.

Recent publications

University of Western Australia Law Review, a special issue on law & religion

Ecclesiastical Law Journal

Plus the usual casenotes and conference reports.

Quick links

And finally… bring out the Stool of Repentance – I

Last week The Guardian posted the headline Plan to reuse graves as Highgate cemetery runs out of space with a sub-heading “A private member’s bill in the Lords this week would allow charity trust to reopen long-abandoned plots”. As readers will know (and as Frank certainly knows because he was once Clerk of Bills in the Commons), private Members’ bills are public bills, introduced by MPs and Lords who are not government ministers, whereas private bills are usually promoted by organisations such as local authorities or private bodies to give themselves powers beyond, or in conflict with, the general law.

As a general rule of thumb, apart from a few notable exceptions private Members’ bills seldom progress far unless supported or taken over by Government. Private bills have a better chance of success, although they often take a substantial time to progress through the parliamentary system. The Highgate Cemetery Bill 2019-20 is a private bill, and was covered here and here.

And again…

The Crown at Netflix was subject to widespread criticism from senior ecclesiastical lawyers for the church scene with the priest wearing a fiddleback chasuble back-to-front. In fact, “More or less everything ecclesiastical has been wrong from the beginning of Series 1”: bishops carrying banners at the Coronation; Geoffrey Fisher at home in a purple cassock in Series 2; and Robin Woods being appointed Dean of Windsor about seven years late. Fleabag was no better, although the costume designer claimed that the back-to-front chasuble in the vestry scene was “an intentional detail” in order to show off more of the embroidery!

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