Law and religion round-up – 9th February

As a result of our recent little local difficulty, this is two weeks’ worth…

Changes to L&RUK

During the time when the site was off-line, in addition to addressing the immediate issue of the hacking, we instituted other measures for updating security and backup. Sharp-eyed readers will note that our URL is now https://lawandreligionuk.com, although the old address (http://) should automatically redirect to the new one. If this does not occur, as sometimes happens, and one is directed to our Home Page, the addition of an “s” (after “http”) to the old URL will provide the desired link. As W S Gilbert’s Lord Chancellor would have said:

“The thing is really quite simple – the insertion of a single [letter] will do it … and there you are, out of your difficulty at once!”

For future posts in which we refer to earlier L&RUK publications, we will seek to update earlier URLs.

Consistory court judgments – January 2020

Reviews of the seventeen consistory court judgments that were circulated in January will be posted next week in two parts. Since it is necessary to insert the cross-linkages between judgments on-line, it was not possible to have an “oven-ready” version for instant publication. Of interest in the Part II cases is Re St Francis of Assisi Bournemouth [2020] ECC Win 1 in which one of the objections to the inclusion of video cameras within the proposed IT installation was concern regarding privacy/data control [7(d)]. Chancellor Ormondroyd noted:

“[12]. I see no reason for concern in terms of data protection from the provision of the camera, which will not be used routinely to record the congregation. If there are concerns then there is separate legislation to deal with them”.

Indeed: this is covered in our post Parishes and the “GDPR” in which we noted, “By incorporating the [direcrtly applicable EU Regulation on] GDPR into UK law, the majority of its provisions will remain post-Brexit”. This is reinforced by the recent statement from the Information  Commissioner’s Office, below.

Channel Islands transfer to Diocese of Salisbury

The Church of England General Synod in February 2020 will consider a Measure which will enable the transfer of episcopal oversight of the Channel Islands to the Diocese of Salisbury. Unusually, the Synodical component of the transfer process is planned to take place within a single group of sessions, and time has been allocated to its consideration as follows: Monday 10 February for First Consideration; Tuesday 11 February for the Revision Stage; and Thursday 13 February for Final drafting and Final Approval. On Saturday we posted a “cut and keep” items on the main areas to be covered.

Veganism as a protected philosophical belief

Employment Judge Postle’s ex tempore preliminary judgment in Casamitjana v The League Against Cruel Sports [2020] UKET 3331129/2018 – that ethical veganism is a philosophical belief qualifying as a protected belief within the meaning of s.10 Equality Act 2010 – has now been published.

Compulsory religious education in Wales?

As readers will be aware, after consulting last October on the new curricula for religious education and relationships and sexuality education, the Welsh Government decided to end the parental opt-out from religious education – to be renamed “Religion, Values and Ethics”.

The BBC now reports that Professor Sir Malcolm Evans, a member of the Commission on Religious Education, is suggesting that ending the opt-out could be in breach of Article 2 of Protocol 1 ECHR (right to education). Humanists UK has also expressed concerns. According to the report, however:

“In response to the concerns, the Welsh Government said the proposed legislative framework and guidance would be compatible with the rights protected by the Human Rights Act 1998.”

For what it’s worth, we aren’t so sure. We would have thought that the obligation on states parties under A2P1 ECHR to “respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions” says what it means and means what it says.

Assisted dying

One we missed: in R (Newby) v The Secretary of State for Justice [2019] EWHC 3118 (Admin), the Divisional Court refused the renewed application by Mr Newby, who has motor neurone disease, for judicial review. He sought a declaration of incompatibility under s.4(2) of the Human Rights Act 1998, arguing that the current law on assisted suicide in s.2(1) Suicide Act 1961, as amended by the Coroners’ and Justice Act 2009, is incompatible with Articles 2 and 8 ECHR.

Safeguarding in faith settings

Another one we missed: on 29 January, the All-Party Parliamentary Group on Safeguarding in Faith Settings (established in September 2018) published its second inquiry report on the extent to which the current provisions of the Sexual Offences Act 2003 in relation to “Positions of Trust” and the offence of abuse of a position of trust adequately protect young people receiving services and support in faith settings.

Positions of Trust: It’s time to change the law makes five specific recommendations and calls on the Government to amend the 2003 Act so that the application of the definition of “Positions of Trust”  is not limited to the professions listed in the Act but is extended to any adult to which that description applies.

Sharia weddings again

In MM v NA (Declaration as to Marital Status) [2020] EWHC 93 (Fam), the couple had married in the Republic of Somaliland in 2012 in a religious ceremony, in a further ceremony attended by family and friends, and finally by registration in the local district court in Hargeisa. The position was complicated by the fact that, at the time their marriage was celebrated, the Republic of Somaliland was not recognised by the United Kingdom as a State. Nevertheless, the High Court granted a declaration that their marriage was valid, subsisting, and entitled to formal recognition according to the law of England and Wales.

Marriage and Civil Partnership (Minimum Age) Bill

On 27 January, Baroness Hussein-Ece introduced the Marriage and Civil Partnership (Minimum Age) Bill, “to revoke parental or judicial consent which permits the marriage or civil partnership of a child and to criminalise child marriage or civil partnership under the age of 18; and for connected purposes.” The Bill, which would apply only to England and Wales, was read the first time and ordered to be printed.

The Bill failed in the previous Session, and one would imagine that its chances of becoming law are virtually zero – though in Scotland one can marry at the age of 16 without parental consent so it might, if enacted, give a boost to the economy of Gretna Green.

For a review of the current clutch of PMBs in the Lords, see Russell Sandberg’s Private Members Bills on Marriage.

Migration Advisory Committee

The Migration Advisory Committee has published its latest report. On salary thresholds for immigrants, it recommends the following:

“… we recommend retaining the current structure where the relevant threshold is the higher of a general and an occupation-specific salary threshold with the exception of some public sector occupations mentioned earlier. We recommend that the occupation-specific threshold should be set at the 25th percentile of the full-time annual earnings distribution as now. We recommend that the general threshold should be set at the 25th percentile of annual earnings for full-time eligible occupations (at RQF level 3 and above). This is similar to the principle currently used, but the expansion of the route to include medium-skilled jobs reduces the current general threshold by around £4,400, to around £25,600. Both the occupation-specific and general threshold should be updated annually using data, rather than just a percentage increase on the previous year” [emphasis in original].

And in case you’re wondering what this has to do with “religion”, clergy and similar coming to the UK from overseas tend not to be very highly paid.

The House of Bishops and opposite-sex civil partnership

As we noted previously, on 21 January the Church of England issued a press release drawing attention to a pastoral statement from the House of Bishops, Civil Partnerships – for same sex and opposite sex couples. Subsequently, the two Archbishops issued a further statement in which they apologised “for releasing a statement last week which we acknowledge has jeopardised trust. We are very sorry and recognise the division and hurt this has caused”.

Both statements have generated significant comment; this falls outwith the remit of this blog, but they have been comprehensively covered by Steve Lynas (a.k.a. bathwellschap) in Return to Sender, in Thinking Anglicans and elsewhere. With regard to the meeting of the House of Bishops after which the initial Pastoral Statement was issued, General Synod Paper GS 1238 Summary of decisions by the House of Bishops and by its delegated committees gives further information on the topics of discussion; however, the Pastoral Statement is not highlighted per se. 

Furthermore, the original statement also managed to misstate the law. 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“ [emphasis added].

Sorry, but no: the second limb 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: see s.1 Matrimonial Causes Act 1973. Certainly, one set of facts 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. Nor is this merely a bit of technical nit-picking: see Owens v Owens [2018] UKSC 41, the recent debates about no-fault divorce and the Divorce, Dissolution and Separation Bill currently before Parliament.

Sikhs and the 2021 Census

Scottish Legal News reports that Sikhs have threatened to take legal action against the  Scottish Government if they are classified as a religion rather than an ethnic minority on the census. The Sikh Federation points out that Sikhs have been recognised as an ethnic group in the UK since 1983, and a spokesman for the Federation said: “Public bodies in Scotland will only start to systematically collect information on Sikhs if there is a specific Sikh ethnic tick box used by decision-makers in allocating resources and making decisions on the provision of public services.”

Jehovah’s Witnesses and historical sex abuse

The BBC reports that a group of former members is suing the Jehovah’s Witnesses for historical sexual abuse. Thomas Beale, a solicitor representing some of the claimants, said that they had decided to seek compensation after asking the JWs for an apology, only to find them “denying what has happened or refusing to engage”. They are arguing that the organisation is vicariously liable in negligence for the abuse that they claim to have suffered.

Data protection and Brexit

On 29 January, the Information Commissioner’s Office published a statement on data protection during the Brexit transition period. Unsurprisingly:

“During this period, which runs until the end of December 2020, it will be business as usual for data protection.

The GDPR will continue to apply. Businesses and organisations that process personal data should continue to follow our existing guidance for advice on their data protection obligations.”

The International Court of Justice and the Rohingya Muslims

The International Court of Justice in The Hague has imposed emergency “provisional measures” on Myanmar and ordered the country to prevent genocidal violence against its Rohingya Muslim minority. The Order is here.

Perhaps unsurprisingly, Myanmar is refusing to comply.

Quick links

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‘And aside from that, Mrs Lincoln, how was the play?’ 

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