Law and religion round-up – 5th July

The pubs reopened in England and it became possible to holiday in South Georgia or Tristan da Cunha without having to go into quarantine on return. Meanwhile, back in the real world…

Humanist weddings in England and Wales?

On 7 and 8 July, the High Court will be hearing a challenge by six couples to the continuing absence of provision for humanist wedding ceremonies in England and Wales, arguing that the present position discriminates against them because of their beliefs. S.14 (Marriage according to the usages of belief organisations) of the Marriage (Same Sex Couples) Act 2013, which was inserted at a late stage during the passage of the Bill through the Lords, requires the Secretary of State to “arrange for a review” of the current situation and empowers the Secretary of State to make provision for “belief” marriages by order – but no such provision has since been made, unlike the position in Northern Ireland and Scotland.

On Thursday, we published a guest post by Russell Sandberg on the issues raised by the case, here. He has followed it up with a further post on his own blog: Humanist marriages go to court – and Some Further Thoughts on Independent Celebrants. And for the detailed background, see this on the Humanists UK website: Six couples in human rights case for legal recognition of humanist marriages in England and Wales.

Government guidance on the safe use of multi-purpose community facilities

On Tuesday, MHCLG published COVID-19: Guidance for the safe use of multi-purpose community facilities, for those managing community buildings in England such as community centres and village halls – and, of course, church halls, which provide venues for a wide range of community activities that are often not remotely related to “religion”. On Thursday, DHSC published Guidance: Maintaining records of staff, customers and visitors to support NHS Test and Trace, on the requirement for organisations in certain sectors should collect details and maintain records of staff, customers and visitors on their premises to support NHS Test and Trace. It recommended that temporary records of customers and visitors should be kept “in a way that is manageable for your organisation” and recommended that, though consent is not required, it should be sought in sensitive settings, which include places of worship and  “other philosophical/religious groups”.

Singing in churches and cathedrals

Last week there were a number of news items relating to the resumption of singing in churches and cathedral. On Monday, the Vicars Choral of Wells Cathedral and others featured on BBC TV and Radio, and then on Tuesday, ITN news reported “Salisbury Cathedral choir team up with scientists to find safe singing solution”, where “the choir’s professional singers will perform a series of tests in the government science facility at nearby Porton Down to establish how close the choir can stand to each other”. However, more informative was the response by the Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) to a question from the Bishop of St Albans regarding “the progress of research undertaken into singing and playing woodwind and brass instruments, to see how these activities might be safely undertaken while minimising the risk of spreading Covid-19”. Baroness Barran said:

“Our understanding is that…there is a risk of increased transmission involved in singing and the use of wind instruments. That is why non-professional choirs and orchestras will not resume for the time being, although professional orchestras can start rehearsing from 4 July on a socially distanced basis…we have commissioned scientific studies, which are being carried out by SAGE, to try to build a really robust evidence base. That advice will be used to inform future policy and guidelines”.

Whilst the good news is that it appears as though the decision to commence choral singing will be made on the basis of scientific information presented to SAGE, rather than the urban myths that are being perpetuated at present, the Minister gave no indication of the possible timescale.

Consultation on power to depart from retained EU case-law

The Ministry of Justice has launched a consultation on the use of the power in s.6 of the European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal Agreement) Act 2020), under which a Minister of the Crown may make regulations to designate additional courts or tribunals with the power to depart from retained EU case law, the extent to which they may do so and the test they must apply. Based on a preliminary assessment, the Government has identified two policy options:

  • to extend the power to the Court of Appeal of England and Wales and its closest equivalents in other UK jurisdictions (ie the Inner House of the Court of Session and the Northern Ireland Court of Appeal); or
  • to extend the power, in addition to the Court of Appeal and equivalent courts, to the High Court of Justice of England and Wales and its closest equivalents in the other UK jurisdictions.

At the moment, the power will be exercisable at the end of the Transition Period only by the Supreme Court and, in criminal causes, by the High Court of Justiciary. The consultation ends on 13 August.

Which leads us to wonder whether, insofar as EU law applies to the Church of England and the Church of Scotland, the Court of Arches and the General Assembly should have the power to set it aside.

Early medical abortion and COVID-19: an update

On 3 June, we reported that, at a rolled-up hearing on 19 May, the Divisional Court (Singh LJ and Chamberlain J) had dismissed a challenge to the decision of the Secretary of State for Health and Social Care to make changes to certain abortion restrictions during the COVID-19 pandemic: the designation by Secretary of State of “the home of a pregnant woman” as an approved “class of place” under s.1(3A) of the Abortion Act 1967 in which to take both Mifepristone and Misoprostol, after they have been prescribed during a telephone consultation, in order to secure a termination.

According to Christian Concern, the Court of Appeal, in a judgment that has not yet been published, has granted permission for judicial review on two grounds: that the action of the Secretary of State in designating “the home of a pregnant woman” as an approved “class of place” was ultra vires the Abortion Act 1967, and that permitting abortions at home frustrated the purpose of the Act, which was to ensure that abortions take place in safe and hygienic conditions. [With thanks to David Lamming.]

Greek caesaro-papalism and Article 9 again 

Arguments about the various requirement in Greek law to state one’s religion continue to rumble on. In Stavropoulos and Others v Greece 52484/18 [2020] ECHR 493, the First Section ECtHR found that recording on a child’s birth registration whether she had been named by her parents or formally baptised breached the parents’ and the child’s Article 9 rights to freedom of religion, and the court awarded the applicants €10,000 damages plus costs. The more fundamental issue of the requirement to state a child’s religion on the birth certificate is the subject of a further challenge in Papanikolaou v Greece, in which the Court is being asked to rule on whether or not the requirement breaches Articles 8 and 9 ECHR: the proceedings have got to the stage of Questions to the Parties.

In what was a very welcome change from writing about COVID-19, we noted both cases here.

ELS Working Party on Revision of the Clergy Discipline Measure 2003

The Ecclesiastical Law Society’s Working Party on Revision of the Clergy Discipline Measure 2003, under the chairmanship of HH Peter Collier QC, has met twice and settled its terms of reference. It has published a consultation paper on which it would welcome responses: they should be sent to cdmconsultation@gmail.com, preferably by 31 July.

41st Province of the Anglican Communion

The Anglican Communion has announced the establishment of its 41st Province: the Episcopal/Anglican Province of Alexandria, formed from the former Diocese of Egypt with North Africa and the Horn of Africa. Its first Primate is Archbishop Mouneer Anis, who also continues as the Anglican Bishop of Egypt until his retirement next year.

Quick links

And finally… I

From The Brief:

“Temple Church in the heart of legal London will tentatively open its doors to celebrate Holy Communion this Sunday [ie today] for the first time since March 23. The lockdown has closed the churches for longer than at any time since an interdict in the reign of King John, when Pope Innocent III banned all services in England between March 1208 and May 1213. Reopened churches must comply with social distancing and hygiene requirements, so pew space will be limited. Government guidance also stipulates that ‘services should be concluded in the shortest reasonable time’. In light of which, the Reader, the Rev Mark Hatcher, assures The Brief: ‘I shall not be preaching a sermon’.”

And finally… II

“Magna Carta has no force of law in Scotland; it is an English document, and at the time of its execution, 1215, England was an independent country from Scotland.”

– per Lord Drummond Young in Appeal by Graham Nassau Gordon Senior-Milne against The Advocate General for Scotland [2020] ScotCS CSIH 39 at [8]. But you already knew that, didn’t you.

4 thoughts on “Law and religion round-up – 5th July

  1. The fact that Magna Carta has no standing in Scotland should be so obvious as to not need stating: the Scottish equivalent document is the Declaration of Arbroath

    Magna Carta is the reason why Scottish judges are called sheriffs, whilst in the Anglo American tradition sheriffs assist the Court but are not judges themselves. Article 24 of Magna Carta says: ‘No sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices.’

    This stopped English sheriffs sitting as judges whilst in Scotland by contrast Sheriff Courts developed as the main judicial structure in the country.

    • Indeed. What amused me, however, was the statement that in 1215, “England was an independent country from Scotland”.

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