A week when the AZ vaccine became a European issue, and lessons were learned on electronic redacting
End of life care and “best interests”: a further update
We have previously noted the proceedings the case of RS, a Polish citizen, who had had a heart attack in November 2020 and had suffered serious brain-damage as a result of oxygen deprivation. In brief, his wife and the NHS Hospital Trust caring for him wanted him to receive palliative care only rather than life-sustaining treatment, while his birth family, from whom he was estranged, had argued – unsuccessfully – that, as a Roman Catholic, RS would wish to be kept alive: see JB v University Hospitals Plymouth NHS Trust & Anor  EWCA Civ 1772 and Z v University Hospitals Plymouth NHS Trust & Ors  EWCOP 69.
On 18 January, the case returned to the Court of Protection yet again as Re RS  EWCOP 6. The only formal application before the Court was from the Trust but it was, in effect, an application prompted by RS’s birth family. The family: (i) sought that RS should be visited by the Polish Consul General in hospital, (ii) wanted a Dr S to be permitted to conduct a remote assessment of RS from Poland so that (iii) the Polish Government could, if it felt it appropriate, approach the UK Government to seek to protect the rights of RS and (iv) sought an order to restore feeding and hydration for a fourth time unless the hospital voluntarily agreed to do so.
Cohen J declined to make the order sought: ‘To force this visit upon his unwilling wife with the attendant stay … is in my judgment the very opposite of what he would want and the opposite of what would be in his best interests’ .
RS died on 25 January.
The Government laid the first Statutory Instrument before the UK Parliament to address the COVID-19 pandemic on 28 January 2020. More than 350 Coronavirus-related SIs have followed at an average rate of 7 per week over the past year. The full list with links and information on the powers, procedures and Departments involved is available on the Hansard Society Coronavirus Statutory Instruments Dashboard.
Also marking this first anniversary, FullFact published Fix information failures or risk lives: the Full Fact Report 2021, with the strapline “The pandemic exposed dangerous gaps in public data and communication systems – the Government must act now to protect the public”. The 81-page report makes 10 recommendations which are divided into three sections; the first two sections focus on setting the right groundwork, while the third focuses on transparency and accountability.
Unusually, there was little new legislation to report this week; however, The Health Protection (Coronavirus, Restrictions) (All Tiers and Self-Isolation) (England) (Amendment) Regulations 2021, SI 2021/97 came into force at 5 pm on 29 January 2021, introducing an £800 ‘house party’ Fixed Penalty Notice (the “Large gathering offence”) and giving police access to “track and trace” date. With regard to the latter, however, Adam Wagner points out that the latter does not extend to data caught by the NHS phone App, which is stored on the phone.
Independent review of Prevent programme
On Tuesday, the Government announced that William Shawcross, Chair of the Charity Commission between 2012 and 2018, has been appointed as the new Independent Reviewer of Prevent. The independent review will consider the strategy and delivery of the Prevent programme and will make recommendations for the future The terms of reference will be published shortly.
The Independent Review of Prevent was announced in January 2019. The previous Independent Reviewer, Lord Carlile, resigned in December 2019.
Closure of churches in Scotland – déjà vu
Last week we reported that a group of church leaders in Scotland, supported by the Christian Legal Centre, had sent a pre-action letter to the Scottish Government calling for the reopening of places of worship during the current lockdown.
The Church of Scotland (notwithstanding the inaccurate report in The Scotsman) and the Scottish Episcopal Church had both stated that they did not support the proposed action. The Kirk tweeted, “We do not think this is the right course to take when the country is under threat from COVID-19. We fully accept that the latest pandemic restrictions mean that we have to close churches again for the time being. The vast majority of our members understand and support these temporary restrictions.” The Piskies were equally distanced from the legal action: “The Scottish Episcopal Church would like to make clear that it is not among church leaders threatening the Scottish Govt with legal action over the closure of places of worship during lockdown”.
The United Reformed Church (URC) National Synod of Scotland has stated that it profoundly disagrees with the threatened action, believing not only that the Scottish government is acting legally, but that it also is the duty of all Christians to act in ways which limit the spread of the virus. This view is shared by all of the Moderators of the URC’s 13 Synods. It notes “[t]he closure of places of worship is also a longer term commitment to the wellbeing of the communities which our churches serve”.
Review of Clergy Discipline Measure
In answer to a Written Question on the progress of the review of the Clergy Discipline Measure 2003, the Second Church Estates Commissioner said that because of the pandemic, the public consultations that had been planned to take place at the end of 2020 had only just taken place:
“A wide range of individuals and groups have responded to the interim proposals that the Working Group has put forward. The review group are now collating those responses and intend to formulate their proposals into a new piece of legislation. This new Measure will include an early triaging process, an alternative route for mediation, and ensure that adequate resources are made available to make the administration of discipline more efficient and transparent for all involved.”
“A Betrayal of Trust“
A Betrayal of Trust, the independent report into the Church’s handling of the allegations concerning the late Hubert Victor Whitsey, former Bishop of Chester, was first published on 22 October 2020 but was subsequently withdrawn. It has now been republished following the resolution of a legal issue; the Press Release includes a joint statement from David Pearl and Kate Wood, who undertook the review; the Church of England’s lead safeguarding bishop, Jonathan Gibbs; the Bishop of Chester, Mark Tanner; and the Archbishop of York, Stephen Cottrell.
Church of England website
The Church of England has announced that as part of the investment into its online platforms, here, the search engine functionality has been significantly updated. The key elements to which changes have been made include: updates to the search results page filters; updates to the search results listings display; the introduction of a spell checker; the highlighting of ‘suggested content’; and a search and filters for liturgical texts.
Following the re-launch of the C of E’s website on 15 November 2017, we posted some “quick links” to pages we considered might be of possible interest to L&RUK readers: Part I – law and policy; Part II – Clergy and General Synod; Part III – Legal Opinions and other guidance. The URLs to these links are still active, as are those to the ChurchCare Guidance Notes.
Alleged violations of Convention rights in Crimea
In Ukraine v Russia (Re Crimea)  Applications nos. 20958/14 and 38334/18, a majority of the Grand Chamber of the ECtHR has declared partly admissible complaints brought by Ukraine against the Russian Federation. The Government of Ukraine alleges a pattern (“administrative practice”) of violations of the Convention by the Russian Federation in Crimea. The complaints found admissible include:
“the alleged existence of an administrative practice on account of the harassment and intimidation of religious leaders not conforming to the Russian Orthodox faith, arbitrary raids of places of worship and confiscation of religious property, in violation of Article 9 of the Convention.”
The decision on admissibility will be followed by judgment at a later date. Marko Milanovic has an interesting analysis of the judgment here.
- Mark Baldock, Three Stone Triannual Review: On Fiduciary Membership of Charitable Companies: on the Supreme Court’s decision in Lehtimäki & Ors v Cooper  UKSC 33 and what it means for charities (which, of course, include religious ones).
- Bench of Bishops of the Church in Wales: A Response to the Law Commission: Getting Married: A Consultation Paper on Weddings Law.
- Charity Commission: Letter To all Trustees of The Dean and Chapter of the Cathedral Church of Christ in Oxford of the Foundation of King Henry VIII, 27 January 2021.
- Council of Europe: The place of the European Convention on Human Rights in the European and international legal order.
- Peter Edge, Edgelawblog: A new PHR and 4 New Directions: yet more on COVID-19.
- Janet Epp Buckingham, Journal of Commonwealth Law: Down a Long and Dimly-Lit Path: Are we there yet with standards of review and religious freedom?
Steven Barrett, of Radcliffe Chambers, suggests in The Spectator that the role of the Court of Justice of the EU is by no means over. English law, he argues, (and he might equally well have mentioned Scots and Northern Irish law) “is a magpie. We pick up shiny bits of ‘good law’ that other places have and we make them ours”. Therefore, in his view:
“the ECJ will have a role in our law going forward. It is not possible, prudent or wise, to cut them out completely. If the ECJ comes out with an outstanding legal argument (and this may well happen in state aid law – which is an area where they have a lot of experience and we have relatively less) then we would be fools not to copy it … Britain may no longer be compelled to follow the ECJ, but that doesn’t mean we cannot choose to follow it. The ECJ is not gone forever.”
In the ICLR Weekly Notes, Paul Magrath (to whom our thanks) adds that the ICLR “has no plans to cease reporting those cases from the ECJ which are likely to interest students and practitioners and to affect the law in our own jurisdiction” – nor, it appears, does BAILII.
1. Review of Clergy Discipline Measure. A statement that the bringing of proposals for reform /replacement of the Clergy Discipline Measure 2003 (CDM) to General Synod is ‘on hold’ to enable wider consultation was made by the chairman of the review group, the Rt Revd Tim Thornton (Bishop at Lambeth), on 20 January, five days before Andrew Selous provided his answer to a question in the House of Commons: see the report in the Church Times on 22 January 2021, page 9. Also of interest is the reported recommendation of the Sheldon Hub, in its formal response to the consultation of the working group, for a moratorium on “all new CDM cases which do not meet the threshold of ‘if proved would warrant prohibition'”. A similar threshold test for referring a CDM complaint to a Bishop’s Disciplinary Tribunal was proposed by Sir Mark Hedley, the recently-retired Deputy President of Tribunals, in his lecture to the Ecclesiastical Law Society on 11 October 2017. Sir Mark added: “Whether that is a threshold that should apply at every stage of the Measure is a matter that we will need to consider further.” The recent CDM complaint filed against the Dean of Christ Church, Oxford, and given wide media publicity, brings this issue into sharp focus. (It is understood that the review group chaired by Bishop Tim held a joint meeting on 28 January with the similar working group established by the ELS under the chairmanship of Peter Collier QC.)
2. A Betrayal of Trust. It is not clear whether the Pearl report into “the handling of allegations that have come to the attention of the Church of England concerning the late Hubert Victor Whitsey” has been revised or redacted since it was first published last October. The statement on the C of E website on 29 January said simply, “The review has now been republished following the resolution of a legal issue – we apologise to those who were affected by this.” A clue that some redaction has taken place is that the report is now 144 pages long compared with the original 145.
One document that has recently been redacted is the Report of Proceedings of the General Synod February 2020 group of sessions, with a substantial section of a speech by April Alexander on 10 February 2020 now blacked out (see page 38). A footnote explains, “Text redacted following legal advice.” Unlike Hansard when reporting verbatim proceedings in Parliament, the Report of Synod’s proceedings would not benefit from legal privilege.
The United Reformed Church, acknowledging that we but a very small presence in Scotland, also opposes the Scottish legal action: