“The promulgation of law for the protection of a position held purely on religious grounds …”

Per Laws LJ in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 at [22]:

“The promulgation of law for the protection of a position held purely on religious grounds cannot, therefore, be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.”

Sir John Laws died on Palm Sunday: RIP. There is an appreciation by Mark Hill QC, here.

Human rights and COVID-19

In a ‘toolkit’ sent to 47 member states, Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis, the Council of Europe has said that it is for individual states to assess whether or not the measures it adopts during the current pandemic warrant any derogation. It adds that the possibility of derogation is “an important feature of the system, permitting the continued application of the convention and its supervisory machinery even in the most critical times” and points out that derogations may be assessed by the ECtHR in cases brought before it and that the Court has previously granted states “a large margin of appreciation in this field”. However, the guidance also points out that there can be no derogation from Article 2 (right to life) or from the Protocol abolishing the death penalty.

The Law Society Gazette notes that “The toolkit comes in the wake of the Hungarian government’s imposition of indefinite rule by decree”.

Diocesan guidance on funeral ministry

The latest guidance on Coronavirus (COVID-19) from the Oxford Diocese indicated that it is preparing for the possibility of a significant increase in demand for funeral ministry, and the reality that in some places, ministers will not be able to take services because they themselves are needing to isolate. The guidance suggests that funeral directors may come under greater pressure and will need to arrange officiants at short notice, and states: “Though it is not being implemented at this point, we wanted to give you advance warning that planning is underway for the Diocese to support incumbents and funeral directors in the organisation of funerals. Further details to follow but not until week beginning 20th April“.

This echoes revised Government guidance for cremation authorities and crematorium managers in a period of emergency; this guidance includes the comment: “During the period of any coronavirus pandemic where there is increased demand on cremation services, the need to progress cremations in a timely manner will be paramount“.

An earlier post reported that Public Health England (PHE) had published new guidance to ensure that funerals are conducted safely. In addition to this, and the regulations currently in force in England, Wales, Scotland and Northern Ireland, the Coronavirus Act 2020 provides for the introduction of emergency powers in relation to how the anticipated peak in deaths might be managed during the COVID-19 pandemic. These powers have not been enacted and can be used only if a Government Minister in the relevant nation decides to activate them. A post covering these potential measures will be published on Wednesday 15 April [the Secretary of State must review the need for restrictions and requirements (in England) imposed by the Regulations (SI 2020/350) at least once every 21 days, with the first review being carried out by 16 April 2020].

And as in the UK, so in Germany

Deutsche Welle reports that various regional administrative courts in Germany have rejected applications by dissident Roman Catholics to overturn the decision to close churches during Holy Week and Easter.

On Tuesday, the Administrative Court of Berlin-Brandenburg rejected an emergency application from an offshoot of a Roman Catholic congregation that wanted to hold a service limited to 50 persons, ruling that the restrictions in Berlin’s SARS-Co-V2 Containment Ordinance of 22 March did not violate religious freedom. That ruling was confirmed by the Higher Administrative Court on the following day: the Ordinance was not a disproportionate restriction on religious freedom under Article 4 (1) and (2) of the Federal Basic Law [Grundgesetz] and the interference was justified to protect the constitutional rights to life and health. In a separate application, the Higher Administrative Court of Mecklenburg-Vorpommern came to the same conclusion. Earlier, administrative courts in Hesse and Saxony had also declared the bans on gatherings during the pandemic to be lawful. [With thanks to Daniel Hill and Dr Georg Neureither.]

On Good Friday, the Federal Constitutional Court [Bundesverfassungsgerichts] upheld the ban on public worship. It concluded that protection against the danger to life from coronavirus trumped freedom of worship, despite the extremely serious interference with freedom of belief. However, the 19 April time-limit on the Coronavirus Regulation was important for the impact assessment. The Regulation had to be updated taking into account new developments in the pandemic, and with each update of the Regulation, a strict examination of its proportionality had to be carried out, given its extremely serious encroachment on the freedom of worship.

The Faculty Jurisdiction (Amendment) Rules 2019

The new legislation on the faculty jurisdiction came into force on 1 April this year, and the Ecclesiastical Law Society had arranged for its Chairman, Mark Hill QC, to deliver the lecture The Faculty Jurisdiction (Amendment) Rules 2019 during the following week. However, with the cancellation of the lecture due to the COVID-19 public health emergency, he has instead circulated a short note on some of the principal changes and innovations – a “personal Top Ten” – starting with the warning:

“Do NOT read the Faculty Jurisdiction (Amendment) Rules 2019. This way madness lies. They comprise the detailed text of changes to be made to the Faculty Jurisdiction Rules 2015, and require the mental gymnastics of constantly cross-referencing the original”.

He notes that the Legal Office of General Synod has helpfully prepared a composite document comprising the Faculty Jurisdiction Rules 2015 in their form as amended by the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 and the Faculty Jurisdiction (Amendment) Rules 2019. We wholeheartedly agree that this definitive text should be one’s constant source of reference in such matters, and recommend a detailed study of Mark’s paper. For a quick guide to the changes in Lists A and B, we would recommend having a look at GS 2137X (from page 10 onwards), which underlines all the modifications. 

Cardinal George Pell

On Tuesday, in a unanimous decision, the High Court of Australia allowed Cardinal George Pell’s appeal against his conviction on charges of sexual assault. Neil Addison wrote a guest post on the judgment, here. However, there remains the Roman Catholic Church’s canonical process which has been on hold whilst the Australian judicial process was proceeding. Ed Condon of CNN has suggested how events might now proceed. On 7 April, the following Communiqué from the Holy See Press Office was issued:

“The Holy See, which has always expressed confidence in the Australian judicial authority, welcomes the High Court’s unanimous decision concerning Cardinal George Pell, acquitting him of the accusations of abuse of minors and overturning his sentence. Entrusting his case to the court’s justice, Cardinal Pell has always maintained his innocence and has waited for the truth to be ascertained. At the same time, the Holy See reaffirms its commitment to preventing and pursuing all cases of abuse against minors.”

Under the Rescriptum ex audientia SS.mi  of 18 March 2020, judicial activity in Vatican City State was suspended; this deadline, initially set for 3 April 2020, is extended to 4 May 2020.

Female deacons in the Roman Catholic Church?

On Wednesday, the Vatican Press Office announced that the Pope had established a new Study Commission on the female diaconate. The President of the Commission is Cardinal Giuseppe Petrocchi, Archbishop of L’Aquila. This is the second Commission of Pope Francis’s pontificate to study the issue: the earlier one failed to reach any consensus on the issue.

Jewish Chronicle and Jewish News

The Board of the Jewish Chronicle has announced that is has taken the decision to seek a creditors voluntary liquidation of Jewish Chronicle Newspapers Ltd, noting that “it has become clear that the Jewish Chronicle will not be able to survive the impact of the current coronavirus epidemic in its current form”. The liquidation is expected to be finalised in the coming 2 to 3 weeks and every effort will be made to ensure that the paper continues to be published over this period and the website continues to provide regular updates. The voluntary liquidation will also affect the (free) Jewish News. Its owner, the Kessler Foundation, is actively working to secure a future for the Jewish Chronicle and Jewish News after the liquidation.

Quick links

• Gary Alderson, The Beaker Folk of Husborne Crawley: Keep the Churches Closed: “don’t celebrate Easter – the triumph of life over death – by pushing up the death rate”.
• Niklas Barke: Strasbourg Observers: Grimmark v. Sweden and Steen v. Sweden: no right for healthcare professionals to refuse to participate in abortion services, and framing strategies by anti-abortion actors.
• Rosalind English, UK Human Rights Blog: Another skirmish on the boundaries of vicarious liability: data protection this time: on WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12: “… now the Supreme Court has overturned that decision, we’re back with a case to case scrutiny of the particular motive and behaviour of the employee”.
• Faculty Office: Notary News: an update for notaries in relation to their work in relation to COVID-19.
• Neil Foster, Law and Religion Australia: On the Acquittal of Cardinal Pell.
• Lewis Graham: UK Constitutional Law Association: Life Sentences under the Convention: Law or Politics?: on Hafeez v Government of the United States of America [2020] EWHC 155 (Admin) and extradition possibly in contravention of Article 3 ECHR: “The judgment shows that it is often not possible to identify where law ends and politics begins”.
• David Allen Green, The Law and Policy Blog: How to improve the Coronavirus Regulations – some practical suggestions.
• House of Lords Hansard: Smoking in Churches and Cathedrals: thanks to Matt Chinery for reminding us of this exchange in the House of Lords in 2007. Enjoy.
• Institute for Government: Acting prime ministers.
• Dimitry Kochenov, Verfassungsblog: Humiliating the Court? Irremovability and Judicial Self-Governance at the ECJ Today: on the removal of AG Sharpston contrary to the Treaties and the Statute of the Court.
• Jemma Slingo: Law Society Gazette: News focus: what Morrisons means for vicarious liability.

And finally…I

The Mail Online reports, “Thousands of viewers have become hooked on live footage of falcons nesting on the roof of Salisbury Cathedral during the coronavirus lockdown”. Apparently, more than 55,000 people have watched the cathedral’s live footage: wonder how many were Russians?

And finally…II

Tweets of the week?

Can Maundy money be done by BACS?

— Jenny McCullough (@piratejennywren) April 9, 2020

Since normal Maundy Thursday practices are off, I've suggested to our vicar that he gets the congregation to email him photos of their feet and he can then knock a glass of water over his laptop.

— Patrick Kidd (@patrick_kidd) April 9, 2020

AND A HAPPY (IF SOMEWHAT STRANGE) EASTER TO ALL OUR READERS,  FRANK AND DAVID

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