Law and religion round-up – 27th December

So there was a deal after all. Meanwhile, in the world of law & religion…

Sex and relationships education

In R (Colchester) v Secretary of State for Education [2020] EWHC 3376 (Admin), a renewed application for permission to apply for judicial review after permission had been refused on the papers by Lane J, the claimants challenged various items in the Schedule to the Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 made under s.34 of the Children and Social Work Act 2017 and certain paragraphs of the associated statutory Guidance. They also contended that the Secretary of State had failed to comply with his public sector equality duty under s.149 of the Equality Act 2010 [2]. In short, they claimed:

  • that the Regulations were unlawful in that they removed or restricted existing statutory and Convention rights of parents to excuse their children from sex education at school where such teaching was contrary to the parents’ religious or philosophical conviction, and were both ultra vires the 2017 Act and contrary to Article 2 of Protocol 1 ECHR; and
  • that the Guidance was unlawful because it encouraged or led to teaching in schools of moral/ideological views contrary to the parents’ religious or philosophical convictions – again, contrary to A2P1 ECHR or, alternatively, that it encouraged teaching amounting to State-sanctioned “indoctrination” [3].

Permission was refused on the grounds that the application was out of time and the underlying arguments did not have any serious or realistic prospect of success [34, 41].

Prime Minister’s Special Envoy for Freedom of Religion or Belief

The Prime Minister has appointed Fiona Bruce MP as his Special Envoy for Freedom of Religion or Belief in succession to Rehman Chishti MP, who resigned from the position in September because he could not support the Government’s Internal Markets Bill. The PM’s Special Envoy:

  • brings together UK efforts to promote religious tolerance abroad and works on how the UK Government can protect and promote it internationally;
  • works with the members of the International Religious Freedom or Belief Alliance to raise awareness of cases of particular concern, advocating for those worldwide who are discriminated against or persecuted for their faith or belief; and
  • supports the implementation of the Bishop of Truro’s recommendations on Foreign Commonwealth and Development Office support for persecuted Christians.

The appointment was condemned by Humanists UK, which said that Ms Bruce had been “a committed opponent” of freedom of belief for the non-religious in the UK.

The ECtHR and non-exhaustion of domestic remedies

In Bodnariu and Others v Norway [2020] ECHR Application no. 73890/16, the applicants were Pentecostal Christians. In the autumn of 2015, the child welfare services were told that two of the Bodnariu children had said at school that they were smacked at home [3]. In November 2015, the children were taken into emergency foster-care [4]; in 2016 the case was settled and the children returned home [9 & 10]. The applicants complained that the incident had violated their right to respect for their family life under Article 8 ECHR.

The Court pointed out that it was a fundamental feature of the machinery of protection under the Convention that it was subsidiary to the national systems safeguarding human rights; and the Court ought not “take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level” – hence the rule on exhaustion of domestic remedies [19].

The alleged violation relied on by the applicants had not been ongoing when they had lodged their application. They had not contested the Norwegian Government’s contention that they could have applied to the domestic courts for a declaratory judgment on their Convention rights and for compensation for the alleged shortcomings in the child welfare proceedings. They had not done so, nor had they provided any satisfactory explanation as to why not [20]. The application, therefore, had to be rejected pursuant to Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies [21].

Law and religion cases from 2020

  • COVID-19, Article 9 ECHR and judicial review: in R (Dolan & Ors) v Secretary of State for Health And Social Care & Anor [2020] EWCA Civ 1605, the appellants failed in their challenge to the Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350) which introduced the first lockdown in England.
  • Same-sex marriage in Northern Ireland: in Sickles & Anor, Re Judicial Review [2020] NICA 20, the citation of which was later changed to Close, the Court held that by August 2017 the absence of same-sex marriage in Northern Ireland discriminated unjustifiably against same-sex couples – but, in short, that the subsequent legislative developments had rendered the issue academic.
  • Farewell, ‘Flexible’ Fudge: at first instance, Williams J applied what he called a ‘holistic’ and ‘flexible’ approach to hold that an unregistered nikah wedding could be held to have created a void marriage: in HM Attorney General v Akhter & Anor [2020] EWCA Civ 122, however, the Court of Appeal disagreed: in Russell Sandberg’s words, “putting Williams J’s approach back in its box”.
  • Employment Judge Postle held in Casamitjana v The League Against Cruel Sports [2020] UKET 3331129/2018  that ethical veganism – but not vegetarianism –  was a philosophical belief protected belief within the meaning of s.10 Equality Act 2010: the case was subsequently settled, so we shall never know whether the EAT would have upheld the distinction.
  • In R (McConnell & Anor, R) v The Registrar General for England and Wales [2020] EWCA Civ 559, the Court of Appeal rejected the appeal of a trans man who had given birth after suspending his hormone treatment and wished to be registered as his baby’s father, holding that, in law, people who have given birth are “mothers” regardless of gender.
  • Religious slaughter, pre-stunning and the CJEU: in Centraal Israëlitisch Consistorie van België and Others [2020] Case C-336/19, the Grand Chamber of the CJEU, in a ruling that will create enormous problems for observant Muslims and Jews in Belgium, held that Member States may, without infringing the Charter of Fundamental Rights of the EU, require pre-stunning of animals before slaughter – and there is no appeal from the Grand Chamber.

…and within the consistory courts,

there have been a number of judgments which have attracted media attention, and are considered in our posts, including:

  • “They don’t exhume fonts, do they?”the discovery of a 16th Century font at St Andrew’s Church, Chippenham, during construction work in the churchyard: the font was replaced by the Victorians when they reordered the church “a couple of hundred years ago”.
  • A dismantled organ, a deceased organ builder, and a digital dispute: the events surrounding the restoration of its organ resulted in somewhat of a dilemma which was resolved legally (if not to everyone’s musical satisfaction) in Re St Mary Bampton Proper[2020] ECC Oxf 6 – the church, but not the organ, featured in Lady Mary’s wedding in Season 3 of the TV series Downton Abbey. 
  • Poisoning pigeons in the porch?: in Re St Mary the Virgin Redcliffe [2020] ECC Bri 1 the Chancellor granted a faculty to authorize the installation of an electronic bird deterrent, in order to discourage pigeons from nesting in the north porch of the church and fouling the stonework.
  • Stained glass attitudes – a tale of two windows: an analysis of Re St Mary the Virgin North Aston [2020] ECC Oxf 3 and Re All Saints Hesketh with Becconsall [2020] ECC Bla 1.
  • The “elderly actress” and the first petitioner: in Re St Mary Chithurst [2020] ECC Chi 1, an incongruous reference to Sarah Miles as “the elderly actress”, but certainly not a re-run of  Blow Up.
  • Captain Flinders navigates the law of burial: the final chapter, in Re St Mary and the Holy Rood, Donington [2020] ECC Lin 1, in the journey of explorer Captain Flinders, whose remains were discovered during the archaeological investigation at Euston Station, London, as part of the HS2 preparations.
  • Carbon neutrality and the consistory courts: the practical issues of reducing GHG emissions were considered in Re St. Mark Mitcham [2020] ECC Swk5, which concerned the replacement of an existing gas fuelled heating system. Mindful of Synod’s commitment, Chancellor Philip Petchey expressed a hope that those who involved in achieving the carbon reduction targets  would find the judgment helpful. Indeed.
  • Irish Gaelic on memorials?: in Re St Giles, Exhall [2020] ECC Cov 1, (in a judgment of which Frank was rather critical) a faculty was refused for an inscription in Irish on a memorial stone, Eyre Ch requiring that the Irish be accompanied by an English translation: the petitioners have been given permission to appeal to the Court of Arches.
  • Of graves, headstones and offensive” inscriptions: Re St Margaret’s Rottingdean [2020] ECC Chi 4: the issues raised by the two headstones of G H Elliott and Alice Banford, music-hall entertainers who wore blackface makeup…

… and coming soon, “I told you it wasn’t deep enough”:  Re St John Washborough  [2020] ECC Lin 4 – another error in burials at this church.

Quick links

And finally…

For those with an hour or two to spare, there are the 1256 pages of COM(2020) 857 final, a.k.a

“ANNEX to the Recommendation for a Council Decision approving the conclusion, by the European Commission, of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the European Atomic Energy Community for Cooperation on the Safe and Peaceful Uses of Nuclear Energy and the conclusion, by the European Commission, on behalf of the European Atomic Energy Community, of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part”. 

However, this would be stretching too far our remit of “issues of law and religion in the United Kingdom – with occasional forays further afield”. 

2 thoughts on “Law and religion round-up – 27th December

  1. I am disappointed that the judgment of 23rd December in the CA, Re RS wasn’t considered worthy of a mention in this weekly round-up, given that religious arguments were the main focus, and the matter was one of life or death for one of the parties. For my part, I spent considerable time blogging about this case on Christmas Day, here: Dying for a drink.

    Regarding Colchester, it is a sorry state of affairs indeed that there is a judge sitting in England today so cynical that he sees no serious or realistic prospect of parents successfully persuading a court to defend their children from a government so authoritarian that it has “removed or restricted the … rights of parents to excuse their children from sex education at school where such teaching was contrary to the parents’ religious or philosophical conviction” and/or has “encouraged … teaching in schools of moral/ideological views contrary to the parents’ religious or philosophical convictions”.

    That is why I stood with Afsar, Afsar and Ahmed against Birmingham in the “our children, our choice” trial, and secretly rejoiced when schools sent children home to be educated there by their parents during the coronavirus lockdown.

    I shall read the judgment in Colchester with interest. I am especially interested to know how one can be “out of time” applying for JR of guidance (or regulations or legislation) that is still in force on the day on which one applies, or which has been withdrawn less than three months before one applies. This sounds reminiscent of a certain controversial “out of time” ruling in Pennsylvania, to do with the disputed presidential election.

    Merry Christmas and a Happy New Year.

    • Merry Christmas and a Happy New Year to you too. As to the RS case, JB v University Hospitals Plymouth NHS Trust & Anor [2020] EWCA Civ 1772, it was handed down on 23 December so I missed it. Having now seen it, thanks, I’ll do a note.

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