Law and religion round-up – 13th September

Although we seldom give advice per se, we would have no hesitation in recommending that ecclesiastical law should not be broken, even in a “specific and limited way”…

New social distancing rules

On Thursday, the Health and Social Care Secretary Matt Hancock made an oral statement to the Commons on new social distancing rules which are due to take effect tomorrow, 14 September. From then on, it will be against the law to meet people you do not live with in a group larger than six (unless you are meeting as a household or support bubble). The police will have the powers to enforce these legal limits, including to issue fixed penalty notices of £100, doubling for further breaches up to a maximum of £3,200.

These changes raised concerns that the limits on “social gatherings” of more than six people might extend to places of worship, and the Archbishop of Canterbury was quick to tweet a confirmation that “worship” did not constitute a “social gathering”. Later in the day, a further announcement of new ‘rule of six’ restrictions to help limit the spread of coronavirus was posted on the Church’s web pages by the Bishop of London, Sarah Mullally, who chairs the Church of England’s recovery group.

Bishop Sarah’s carefully-worded statement followed an earlier tweet of Robert Jenrick, Secretary of State for Housing, Communities & Local Government, in which he additionally indicated that the limits on weddings, funerals and life-cycle events would not change. The guidance on these new rules, Coronavirus (COVID-19): Meeting with others safely (social distancing), was published by the Cabinet Office on 9 September, but the full details will not be known until the new Regulations are available.

As we indicated in our re-posted Church of England: Places of worship and new restrictions, “[t]he Church of England is engaging with the Government and will provide new advice to churches but [it does] not expect to be in a position to provide that until the week beginning September 14.”

Church of England (Miscellaneous Provisions) Measure 2020

The Church of England (Miscellaneous Provisions) Measure 2020 Commencement (No. 1) Order 2020 is the first Commencement Order bringing into force provisions of the Church of England (Miscellaneous Provisions) Measure 2020.

Sections 12 to 16 (provisions concerning the validity of certain leases, pensions, the constitution of the General Synod, cross-references in the Mission and Pastoral Measure 2011, and the short title, commencement and extent of the Measure) came into force at Royal Assent. The Order brings most of the remaining provisions into force on 1 September 2020. The exceptions are section 1(4) and (5) (which provide a definition of “religious community” by reference to Canonical provision yet to be enacted) and section 8 (which amends the Parochial Registers and Records Measure 1978 to take account of register books of services kept in electronic form in accordance with Canonical provision yet to be enacted).

Clergy Discipline Measure 2003

On Wednesday, the Ecclesiastical Law Society published the interim report of its working party,  under the chairmanship of HH Peter Collier QC, which is reviewing the Clergy Discipline Measure 2003. The working party acknowledges the widespread recognition that the CDM is not working well and is in need of replacement. We noted the report here.

IICSA report on the Church of England and Church in Wales

IICSA will publish the report of its inquiry into the extent of any institutional failures to protect children from sexual abuse within the Church of England and Church in Wales at midday on Tuesday 6 October. The report is based on public hearings held during July 2019, which examined the response of the two Churches to allegations of child sexual abuse and as the adequacy of current safeguarding policies and practices. As well as evidence heard during the hearings, the report will consider common themes and issues identified by the Inquiry in relation to the Anglican Churches as a whole.

“Abuse of spiritual power and authority”

On 11 September 2020, the Diocese of Oxford published the findings of the Independent Case Review of the diocesan safeguarding response to allegations of spiritual abuse in the case of the Revd Tim Davis. In December 2017, the Revd Tim Davis was found guilty of conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders through the abuse of spiritual power and authority over a person then aged 15-16. A penalty imposed under the Clergy Disciplinary Measure (CDM) was immediate cessation of office and prohibition from the exercise of holy orders for a period of two years. The Diocese of Oxford published a summary briefing and recommendations of the Independent Case Review, along with the full report.

The independent chair of the Oxford Diocesan Safeguarding Panel prepared a briefing document outlining seven themes arising from the independent report, viz.

  1. We need to better hear valid concerns about the behaviour of clergy.
  2. It is the responsibility of all to create church environments that are safe for everyone.
  3. Better support is needed for Victims and Parishes during a CDM (Clergy Discipline Measure) process.
  4. Spiritual abuse should be considered as abuse.
  5. We need to raise awareness of the current CDM process.
  6. Support for clergy wellbeing is required throughout the CDM process.
  7. Surviving abuse – victims need long term support.

With regard to spiritual abuse, the report stated inter alia:

“5.3 This was the first CDM case to have raised issues of spiritual abuse. It is important to note that the absence of the legal definition of spiritual abuse caused particular uncertainty to those involved in this case. There is still very little case law about this. Fortunately the Archdeacon had the assistance of [Redacted] an experienced ecclesiastical lawyer, who provided her with legal advice. This included the assessment of the evidence, the formulation of the complaint, and the handling of questions of confidentiality. Such assistance will not always be readily available. The Diocesan Registrar cannot provide it by reason of conflicting functions under the Measure. It is therefore essential that in potentially complex CDM cases like the present, dioceses should arrange and pay for competent legal advice for the benefit of archdeacons acting as complainants.”

Ritual slaughter in Belgium

In Centraal Israëlitisch Consistorie van België and Others [2020] EUECJ C-336/19 O, the Constitutional Court of Belgium [Grondwettelijk Hof] sought a preliminary ruling on whether or not the Decree of the Flemish Region of 7 July 2017 amending the Law of 14 August 1986 on the protection and welfare of animals, regarding permitted methods of slaughtering – which, in essence, prohibits the slaughtering of animals by means of traditional Jewish and Muslim rites and requires pre-stunning – was permissible under Union law, “not least having regard to the guarantees of religious liberty and freedom contained in the Charter of Fundamental Rights of the European Union”.

Advocate-General Hogan thinks not. In his view, Article 26(2) of Regulation No 1099/2009 permits the adoption of stricter national rules in order to protect animal welfare provided that ritual slaughter is not encroached upon. It does not authorise Member States to prohibit the slaughter of animals as prescribed by religious rites and explicitly permitted by Article 4(4) of that Regulation [72]. The Article 4(4) derogation was a policy choice which the EU legislature was entitled to take; and, in his view, the Court “cannot allow this specific policy choice to be hollowed out by individual Member States taking specific action in the name of animal welfare which would have the substantive effect of nullifying the derogation in favour of certain religious adherents” [87].

He proposes that the Court answer the first and second questions referred to it by the Grondwettelijk Hof as follows:

“Point (c) of the first subparagraph of Article 26(2) of Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 4(1) and 4(4) thereof, and having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU, must be interpreted as meaning that Member States are not permitted to adopt rules which provide, on the one hand, for a prohibition of the slaughter of animals without stunning that also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on condition that the stunning should not result in the death of the animal” [88].

Coronavirus and the Curtailment of Religious Liberty: A Global Review

On Monday 5 October from 16.00-17.30 BST (11.00-12:30 EST), as part of the Notre Dame London Law Program, Mark Hill will be presenting  at a symposium on religion and COVID-19:

“Every nation on earth has been touched by the impact of Covid-19, a deadly pandemic that has changed the manner in which we are governed and live our daily lives. The unique focus for this symposium will be the effect upon the enjoyment of religious liberty as a direct or indirect result of state responses to the threat posed to their citizens by the Coronavirus.”

Presenter: Professor Mark Hill QC. Co-presenters: Professor Arif Jamal, National University of Singapore & Professor Idowu A. Akinloye, Ajayi Crowther University, Nigeria Moderators: Professors Rick Garnett & Stephanie Barclay, Notre Dame Law School.

This is an early notice: we will post Zoom details when they become available.

Can the EU sack an Advocate-General? – round 2

Last week, we mentioned that the General Court of the EU had issued an interim interdict suspending the appointment of Athanasios Rantos as an Advocate-General in place of AG Eleanor Sharpston – who has been sacked and who is contesting her dismissal on the grounds that her tenure does not end until October 2021 and that she is an officer of the court, not a representative of the UK Government. However, the Vice-President of the Court set aside the interdict and AG Rantos was sworn in on 10 September.

AG Sharpston is considering her next move – probably an appeal to Strasbourg.

Quick links

  • Benjamin Bestgen, Scottish Legal NewsMarriage: billed as “an honest look at marriage” in which he seems to come down in favour of arranged marriages.

And finally…

3 thoughts on “Law and religion round-up – 13th September

  1. New social distancing rules: With reference to the observation that “the full details will not be known until the new Regulations are available”, it is disgraceful (though typical of the way the Government has introduced amendments to the Coronavirus restrictions regulations over the past months, and its general contempt for the rule of law, including international law) that the regulations, which will create a new criminal offence (or offences) have still not been published (query whether they have even yet been made) on the website. It is now less than 12 hours before the time it is intended that they will come into force (at midnight tonight.)

    By contrast, the Welsh Government has made the equivalent regulations (as they will apply in the Principality), including the exclusion of children aged under 11 from the ‘rule of six’: The Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 9) Regulations 2020 [SI 2020 No. 985 (W.222)]. They were “made at 4.35 p.m. on 11 September 2020” and “laid before Senedd Cymru at 7.30 p.m. on 11 September 2020.”

    • As you note, this is typical of the way the Government has introduced amendments to the Coronavirus restrictions regulations over the past months, and its general contempt for the rule of law, including international law. The fact that the changes were “all over Twitter” before they were brought to the attention of the House was strongly by Mr Speaker.

  2. Pingback: COVID-19 Coronavirus: legislation and guidance (II) | Law & Religion UK

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