Law and religion round-up – 1st March

And apart from the resignation of the Permanent Secretary of the Home Department…

we wish our readers Dydd Gŵyl Dewi Hapus, a day which also marks the start of celebrations to mark 800 years of worship at Bristol’s St Mark’s Church. This is claimed to be only place of worship in the UK belonging to a Lord Mayor and Commonality, and is designated a “Civic Peculiar”. We note that its peculiar status arises from the Lord Mayor’s jurisdiction over the chapel rather than his/her ownership of it. The Lord Mayor’s Chapel was built in 1220, originally as a monastery, and was purchased by the city in the 16th Century after a theological dispute with Bristol Cathedral.

Brexit

The Government has published The Future Relationship with the EU: The UK’s Approach to Negotiations, setting out its approach to the forthcoming negotiations with the EU. It does not deal with issues relating to the implementation of the Withdrawal Agreement and it reiterates at paragraph 5 that

“Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK.”

Further:

“6. The parameters for that future relationship are set out in the UK / EU Political Declaration of 17 October. As that Declaration makes clear, a Comprehensive Free Trade Agreement (CFTA) should be at its core. This Agreement should be on the lines of the FTAs already agreed by the EU in recent years with Canada and with other friendly countries, and this paper sets out the structure and the policy content of such a CFTA in some detail. The CFTA should be supplemented by a range of other international agreements covering, principally, fisheries, law enforcement and judicial cooperation in criminal matters, transport, and energy, and once again this paper sets out the content of such agreements in detail. All these agreements should have their own appropriate and precedented governance arrangements, with no role for the Court of Justice.

7. The Government will work hard to agree arrangements on these lines. However, if it is not possible to negotiate a satisfactory outcome, then the trading relationship with the EU will rest on the 2019 Withdrawal Agreement and will look similar to Australia’s” [emphasis added].

Religion in Parliament?

The All-Party Parliamentary Humanist Group has published a report, Time for Reflection, which (unsurprisingly) calls for a review of how the pastoral needs of members and staff to Parliament is met, the repeal of the Bishoprics Act 1878 and the Lords Spiritual (Women) Act 2015 (thereby removing the automatic right of the various bishops and Archbishops to sit in the House of Lords), an end to awarding peerages to individuals “by virtue of being representatives of any religion or denomination” and the replacement of prayers before the start of business by a Scottish-style “inclusive time for reflection”.

More generally, it argues for an end to the role of Parliament in the governance of the Church of England and proposes that  Church Measures “should cease to be recognised as part of UK law, instead, becoming private rules of the Church of England which it may amend if it so wishes”, that the Government and Crown should have no part in appointment of the Church Commissioners and that the management of assets should become a purely internal matter for the Church, “with no special accountability to Parliament”.

Down’s syndrome, abortion and human rights

The Sunday Times (£) reports that lawyers acting for two mothers of children with Down’s syndrome have written to Matt Hancock, the Health Secretary, seeking a change in the 1967 Abortion Act to prevent terminations after 24 weeks for all non-fatal disabilities, including Down’s syndrome. The claimants believe children like theirs are being discriminated against because they could be aborted at any time up to their births, while foetuses with no “serious disabilities” are protected after 24 weeks. In 2018, 3,269 abortions were to prevent a child from being born seriously disabled: congenital malformations were reported as the reason in nearly half of those cases and Down’s syndrome was the most common chromosomal abnormality, accounting for 618 cases.

Safeguarding and “due regard”

On 27 February, the Church of England published Duty to “have due regard” to House of Bishops safeguarding guidance, prepared by Legal Office of the National Church Institutions following a recommendation in IICSA’s Anglican Church Case Studies: Chichester/Peter Ball Investigation Report.

There have been errors by both the IICSA and the Church in addressing this issue. IICSA recommended that

“The Church of England should amend the current canon requiring clerics to comply with the Bishop’s Guidance on Safeguarding. The use of the words ‘due regard’ in Canon C30 is an acceptable term of art, but lacks sufficient clarity.”

Equally, there seems to have been a lack of understanding by very senior clergy of this term as defined in the Church’s safeguarding provisions.

The new guidance on “due regard” now addresses the issues of concern in the use of this term, and its dissemination and understanding by all involved in safeguarding should now be a priority. Nevertheless, this initiative is unlikely to satisfy some of the advocates of mandatory reporting.

Banns, for the first (and second) times of asking

This week, concerns were raised on Twitter regarding the wording of the Marriage Act 1949 as to whether the banns of marriage may not be published until 3 months before a wedding. The relevant section of the Act, S.7, Time and manner of publication of banns, states:

“7(1) Subject to the provisions of section nine of this Act, banns of matrimony shall be published on three Sundays preceding the solemnization of the marriage during either the principal service or both the principal service and another service.”

and S.12 Solemnization of marriage after publication of banns declares:

“12(2) Where a marriage is not solemnized within three months after the completion of the publication of the banns, that publication shall be void and no clergyman shall solemnize the marriage on the authority thereof”.

Whilst the addition of “consecutive” before Sundays in S.7 might have clarified the general practice in reading the banns, potentially, it might also have introduced pastoral complications where this was not possible.

With regard to the forthcoming changes to the registration of marriage, no changes have been announced:

“those marrying in the Church of England or Church in Wales will still be able to marry by ecclesiastical preliminaries, i.e. banns, common licence or Archbishop of Canterbury’s Special Licence. These preliminaries will continue to act as the authority for the marriage to proceed”.

For completeness, it should be noted that the practice of adding “bachelor”, “spinster” &c after the parties’ names in the Banns is not essential. The July 2013 on-line supplement to the Anglican Marriage in England and Wales: a Guide to the Law for the Clergy (2010) indicates that “none of the forms requires the parties’ current marital status to be stated”.

Assisted dying

On Wednesday, Germany’s Federal Constitutional Court [Bundesverfassungsgericht] held that the general “right of personality” in Art. 2(1) (personal freedoms) of the Basic Law [Grundgesetz], taken in conjunction with Art. 1(1), encompasses the right to a self-determined death. The “right of personality” includes the freedom to take one’s own life and, as the case may be, to resort to assistance provided voluntarily by third parties. Where, in the exercise of that right, an individual decides to end his or her own life, on the basis of a personal definition of quality of life and meaningful existence, that decision must in principle be respected by the state and society as an act of autonomous self-determination.

The Second Senate of the Court ruled that the prohibition on assisted suicide services in §217 of the Criminal Code [Strafgesetzbuch] violated the Basic Law and was void. The Court found that, in practice, the prohibition effectively vitiated any possibility for an individual to resort to assisted suicide. It did not follow from the judgment that the legislator was barred under constitutional law from imposing any rules on assisted dying; however, when legislating it had to ensure that sufficient space remained to allow the individual to exercise the right to a self-determined death.

Headscarves again

The Federal Constitutional Court has also held that a ban preventing a female legal trainee (Rechtsreferendarin) in Hesse from wearing a niqab is not unconstitutional. Though the ban was an interference with her freedom of religion, it was justified by the constitutional principles of the state’s religious and ideological neutrality, the proper functioning of the justice system and the negative freedom of religion of others. As well as the Court’s summary of the judgment, there is a long comment by the European Courts blog, here.

Max Steinbeis comments on both cases (in English, and with his usual dry wit) on Verfassungsblog.

Quick Links

And finally…

Latest from Her Majesty’s Government: Implementation of the Whiplash Reform Programme. No, dear readers: it’s not about that kind of whiplash.

2 thoughts on “Law and religion round-up – 1st March

  1. Banns of marriage.
    You say “Whilst the addition of “consecutive” before Sundays in s.7 …”. The words in s.7 are “three Sundays preceding…”. Does ‘preceding’=’consecutive’?
    “Banns must be called on three Sundays (not necessarily consecutive Sundays) prior to the wedding…” appears on http://www.facultyoffice.org.uk/special-licences/general-information-about-marriage-law/preliminaries-to-marriagebanns-and-common-marriage-licences/
    In a rural parish with say only two services a month this is workable. Problems might arise if only a monthly service to comply with ‘solemnized within three months’.

  2. Pingback: Coronavirus COVID-19: Marriage Law Update | Law & Religion UK

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