A week in which we avoided bullying anyone (we think) – though, of course, we may have done so unintentionally…

…and in the consistory courts this week, Chancellor Bullimore noted:

“[39]. One expects all those involved in faculty proceedings, to act with civility towards others, their own advisers, and those who may be viewed as objectors. That does not take away the fact, faculty proceedings can give rise to considerable stress and worry, and consequent strong feelings, which may sometimes be expressed in strong terms, at least privately. If some of those sentiments escape into the wider world, that is unfortunate, but there is no escaping the fact legal proceedings are a ‘contact sport’ and some bruises and abrasions are likely.

Re St Mary Penwortham [2020] ECC Bla 2

As one of the “amenity societies”, the Victorian Society is frequently involved with petitions within the faculty jurisdiction (though St Mary Penwortham was not one on it wished to offer any comments [14]. Nevertheless, there was a timely Northern Province Lecture for the Ecclesiastical Law Society delivered online on 18 November 2020 in which Kate Davey, barrister and trustee of the Victorian Society, spoke on “Victorian architecture, the amenity societies and the parish church – a compatibility guide.”

COVID-19: challenging the lockdown

The week began with the news that an evangelical congregation in North London was planning to defy lockdown restrictions in England by holding a public service, including a baptism. Pastor Regan King, of the Angel Church, told BBC Radio 4 that he believed the ban on collective worship to be unlawful and that the church would combat any challenge: “Our priority is our fear of God … We serve a greater law. Just because something is the law does not make it right.” Which cut no ice whatsoever with the local police: according to the BBC, they halted the proceedings, four officers stood at the entrance stopping people from entering, and Mr King agreed to hold a brief “socially distanced outdoor gathering in the church courtyard”.

This comes hard on the heels of the letter sent to the Prime Minister by the leaders of the faith communities represented on the Government’s Places of Worship Taskforce – headed by the Cardinal Archbishop of Westminster and the Archbishops of Canterbury and York – which called for the continuation of public worship, and an application for judicial review of the English and Welsh lockdown regulations by a group coordinated by Christian Concern alleging breaches of Articles 8 and 9 ECHR, breach of the public law duty of enquiry specific regulations and challenging vires.

Harriet Sherwood has more news in today’s Observer: ‘Let us disobey’: Churches defy lockdown with secret meetings.

Transgender parents and birth registration

In R (McConnell & Anor, R) v The Registrar General for England and Wales [2020] EWCA Civ 559, the Court of Appeal upheld the first-instance judgment of Sir Andrew McFarlane P that, in law, people who have given birth are “mothers” regardless of their gender, and that there was a material difference between a person’s gender and his or her status as a parent. The Court rejected the appeal of Freddie McConnell, a trans man who had given birth after suspending his hormone treatment and wished to be registered as his baby’s father. The Court concluded that the requirement that he be referred to on the birth certificate as the child’s mother did not violate his Article 8 rights or those of the child and that there was no incompatibility between the domestic legislation and Convention rights.

Mr McConnell sought permission to appeal to the Supreme Court on the issues as to whether s.12 of the Gender Recognition Act 2004 should be interpreted as having both retrospective and prospective effect and whether ss.9 & 12 of the Act 2004 were incompatible with his rights under Articles 8 & 14. On 9 November, the Court refused permission to appeal on the grounds that the application did not raise an arguable point of law that “ought to be considered at this time”.

Next stop, Strasbourg.

Article 9 and prison conditions

In two recent cases on similar facts, Neagu v Romania [2020] ECHR 799 and Saran v Romania [2020] ECHR 800, the applicants had converted to Islam while in prison and had asked to be given meals that did not contain pork. Their requests were refused and the domestic courts rejected their complaints because when first imprisoned they had declared themselves Orthodox Christians. The Fourth Section ECtHR noted that, except in very exceptional cases, the Article 9 right to freedom of religion excluded any assessment by states parties of the legitimacy of religious beliefs or how those beliefs were expressed. Nor was the Court convinced that the applicants’ requests for a pork-free diet would have caused problems for the prison authorities or impacted negatively on the other prisoners. The Court concluded that the national authorities had not fulfilled their positive obligations under Article 9 and, accordingly, that there had been violations of that Article.

In a third, Mariș v Romania [2020] ECHR Application No. 58208/14, the applicant, who is Jewish, was jailed in 2002. He realised that he was wrongly listed in the records of the prison in which he was being held as an Orthodox Christian and requested – unsuccessfully – that the entry relating to his religion be corrected. The Fourth Section declared his application inadmissible, principally on the grounds that although he was imprisoned in 2002, he did not submit a request for his record to be rectified until 2013, nor did he allege that the prison administration had prohibited him from “performing acts motivated by his religion” or that he had been subjected to pressure, intimidation or punishment because of his religious affiliation.

Jehovah’s Witnesses at Strasbourg

Coincidentally, there has been a clutch of recent cases in the ECtHR involving complaints of discrimination against Jehovah’s Witnesses. Briefly:

• In Kornilova v Ukraine [2020] ECHR 807, the applicant had been hit on the head by a man whom she had been attempting to invite to a JWs’ meeting, as a result of which she spent eleven days in hospital: he was eventually convicted of inflicting a minor injury, fined and ordered to pay damages. The Court held that the authorities had failed properly to investigate whether there had been any religious motive for the assault and to establish whether religious prejudice had played a role in the event.
• In Migoryanu and Religious Community Jehovah’s Witnesses of the City of Izmail v Ukraine [2020] ECHR 809, a group of Orthodox Christians, led by their priest, broke up an evening service held by the JWs. The Court held that in treating the incident as a relatively minor offence of “petty hooliganism”, the domestic authorities had failed to comply with their positive obligation to ensure mutual tolerance between opposing religious groups.
• In Religious Denomination of Jehovah’s Witnesses in Bulgaria v Bulgaria [2020] ECHR 793, the Court upheld a complaint that the domestic authorities had continually prevented a congregation of JWs, unlawfully and without good reason, from constructing a house of worship on land which it owned.
• In Sheveli and Shengelaya v Azerbaijan [2020] ECHR 787, the Court held that the domestic authorities had unlawfully interfered with the applicants’ right to freedom of religion by arresting them at a meeting of JWs in a private apartment and arbitrarily deporting them without an enforceable judicial decision.
• In Zagubnya and Tabachkova v Ukraine [2020] ECHR 808, the Court held that the authorities had failed properly to investigate an alleged assault on the applicants by an Orthodox Christian priest, who had admitted that his actions had been motivated by his opposition to the activities of the JWs.

Dean Martyn Percy

A complaint has been made against Professor Martyn Percy, Dean of Christ Church and of Oxford Cathedral, which will be investigated by the Church of England under the provisions of the Clergy Discipline Measure. A statement has been issued by the Diocese of Oxford.

Independent Faith Engagement Review: call for evidence

Colin Bloom, the Faith Engagement Adviser at the Ministry of Housing, Communities & Local Government is leading a review into how best the Government should engage with faith groups in England. In support of that, MHCLG has launched an online Independent Faith Engagement Review: call for evidence, which poses a series of questions around how those of all faiths, or none, perceive the Government’s engagement with faith groups. MHCLG says that because the review is specifically about faith and religion, priority will be given to responses that fit within those parameters: however, there is space for respondents to share their views in a way that they feel appropriate.

Responses to the call for evidence can only be made online: there is no provision for write-in responses. It closes on 11 December and it applies to England only.

Santa’s clauses are coming to town

At 1.35 p.m. on 20th November 2020, The Health Protection (Coronavirus, Restrictions) (England) (No. 4) (Amendment) (No. 2) Regulations 2020, SI 2020/329 were made, and laid before Parliament at 3.00 pm. The Explanatory Memorandum states: “The policy intention of this instrument is to allow businesses selling or supplying natural Christmas trees to open.” The Regulations came into force yesterday, and not a moment too soon with around 8 to 10 million trees per year waiting to be sold by members of the British Christmas Tree Growers Association alone. [With thanks to Barbara Rich for the pun.]

Quick links

• Elizabeth Clark, Talk About: Law and Religion – Blog of the International Center for Law and Religion Studies: Registration and deregistration of religious or belief communities and security.
• ECtHR: Guide on Article 10 of the European Convention on Human Rights: Freedom of expression: first edition – 31 March 2020.
• ECtHR: Information note on the Court’s case-law – October 2020.
• Mark Hill, Canopy Forum: Christianity and Criminal Law: An Introduction.
• Ralph Jones, New Humanist: Should places of worship have special lockdown status?: spoiler – “No”.
• Diarmaid MacCulloch, Modern Church: Living in Love and Faith: not something we propose to address in this blog, but worth it for the assertion that “There was no such thing as a church wedding in the Western Church until the tenth or eleventh centuries. It took a twelfth-century revolution in ecclesiastical reorganisation from Rome before it became the norm for folk to get married in church.”
• Claire Poppelwell-Scevak & Sarah Den Haese, Strasbourg Observers: The Challenges of Saying ‘I do’ for same-sex couples: The Human Rights Centre submits a Third Party Intervention in transnational same-sex marriage case.
• Charles Wynn-Evans & Jennifer Hill, Lexology: Protection for Philosophical Beliefs in the Workplace: a useful roundup of recent case-law.

And finally…I

An unexpected consequence of streaming services during the coronavirus lockdown is the increase in the number of enquiries received by British Telecom from churches, chapels and other places of worship looking to get a broadband connection. The BBC reported: “Siloh chapel in Chwilog near Pwllheli, Gwynedd, did not have a postcode but needed one in order to have a phone line and broadband installed”. The Reverend Aled Davies said: “After hearing from BT that there was no postcode for us, we went to the Royal Mail. We had to have a post box installed and take a picture to prove it was there…The numbers watching the services at Siloh have doubled during the pandemic as people find it easier to join in from home.”

And finally…II

The spam comments get dafter and dafter: the latest gem described the stuff on our site as “perfectly indited articles”. Obviously generated by a Choral Mattins bot: My heart is inditing…