Law and religion round-up – 14th March

Easing the lockdown in Scotland

On Tuesday, Nicola Sturgeon announced that communal worship may resume in Scottish places of worship from Friday 26 March, with the limit on congregations increased to 50 persons (from 20 just before lockdown). Updated guidance and Regulations were published on Friday to reflect these and other changes. This is an important clarification of the earlier announcement.

The judicial review hearing on the legality of ordering the closure of places of worship during the pandemic took place on Thursday and Friday in the Outer House before Lord Braid. According to a report in The Herald, Lord Braid said that he would hand down his written judgment within two weeks.

Easing the lockdown in England

In England, some churches have continued to hold in-person services, consistent with the current guidance, and others have announced a resumption on Palm Sunday. The Diocese of Oxford notes “We are still waiting for more detailed guidance from the Church of England for churches. The national Church is waiting for further detail from the Government and is pressing for this … Circumstances may change, but we would hope that every benefice will now be planning to begin public worship in something like the normal patterns by Step 3 of the road map. At present, this will begin not earlier than 17 May: just before the Feast of Pentecost”.

On 10 March, there was a meeting between representatives of faith communities and the Minister for Faith and officials from the MHLGC. John Stevens, of the Federation of Independent Evangelical Churches, summarises it here.

Hate Crime and Public Order (Scotland) Bill

On Thursday, the Scottish Parliament passed the Hate Crime and Public Order (Scotland) Bill. The substantive provisions will come into force on such day as the Scottish Ministers may by regulations appoint. Even though the Bill was subject to a considerable degree of amendment in the course of its passage, some aspects still remain controversial; the BBC has a helpful summary of the various criticisms.

“Chained wives” and the Domestic Abuse Bill

On Monday, during the Report stage of the Domestic Abuse Bill, the  House of Lords considered amendments moved by Baroness Altmann which, in brief, would have brought within the scope of the Bill unreasonably preventing the dissolution of a Jewish religious marriage with a get, as “abusive behaviour”. The Parliamentary Under-Secretary of State at the Ministry of Justice, Lord Wolfson of Tredegar, resisted the amendments butt said that the refusal of a get would be included in the statutory guidance – which would also include a new section on spiritual abuse “a particular form of abuse where perpetrators use the victim’s faith or other belief system to control them”.

Office-holders and whistleblowing

In October 2019, we made a brief mention of the Supreme Court’s judgment in Gilham v Ministry of Justice [2019] UKSC 44, in which it held unanimously that a district judge qualified as a “worker” or a “person in Crown employment” for the purpose of whistle-blower protection under Part IVA of the Employment Rights Act 1996 and that the Act (and the parallel provisions in the Employment Rights (Northern Ireland) Order 1996, as amended) should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office. We mentioned the case because, for the purposes of employment law, a significant proportion of clergy – for example, Church of England incumbents with freehold tenure and Methodist ministers – are, like judges, office-holders rather than workers or employees.

The decision by the Supreme Court meant that she could take her claims of harassment and disability discrimination to an employment tribunal. The Times reported last week that she had settled her claim for what she says is a “substantial sum”. An MoJ spokesman  said that it did not recognise al her allegations “as being part of the grievances and employment tribunal proceedings which were settled without admission as to liability.”

Where next for the GDPR?

The Government has signalled its intention for UK data protection laws to diverge from the General Data Protection Regulation. In a Financial Times article a fortnight ago, the Secretary of State for Digital, Culture, Media and Sport, Oliver Dowden, said that he would use the appointment of a new Information Commissioner to focus on the use of data for “economic and social goals” – the current Commission, Elizabeth Denham, is due to step down in October. He said that while the UK Government was committed to “maintaining world-class data protection standards now that we’re outside the EU”, it did not need to copy and paste the GDPR in order to do so:

“Countries as diverse as Israel and Uruguay have successfully secured adequacy with Brussels despite having their own data regimes. Not all of those were identical to the GDPR, but ‘equal’ doesn’t have to mean the same. The EU doesn’t hold the monopoly on data protection.”

On 19 February, the European Commission began the process towards adopting two adequacy decisions for transfers of personal data to the UK, one under the GDPR and the other for the Law Enforcement Directive. The process involves obtaining an opinion from the European Data Protection Board (EDPB) and approval from a committee composed of representatives of the EU Member States

“Contested heritage”, the Charity Commission and the National Trust

The Charity Commission has concluded its compliance case involving the National Trust, finding that there are no grounds for regulatory action against the charity; however, the Commission has welcomed the Trust’s commitment to learning lessons from its recent experience and its ongoing commitment to take into account a wide range of views and opinions within its membership and wider society.

The Commission opened a regulatory compliance case in September 2020, after the Trust had published its interim report examining links between its properties and histories of colonialism and slavery, which led to public criticism of the charity and questions as to whether, in undertaking the work, it had acted outside its charitable purposes. The Commission concluded that the Trust had provided a well-reasoned response to the question of how the publication of the report furthered the charity’s purposes and was satisfied that the trustees had carefully considered the potential negative reaction that could result from the publication of the report. The Commission believes that the Trust could have explained the link between the report and the Trust’s purpose more clearly but, overall, it acted in accordance with its charitable purposes.

Switzerland votes to ban the niqab and burka

In a referendum on Sunday, Switzerland voted in favour of banning face coverings in public, including the burka or niqab, by a narrow margin of 51.2% to 48.8%. About 5 per cent of Switzerland’s population of 8.6 million people is Muslim. The proposal was put forward by the right-wing Swiss People’s Party (SVP), which campaigned with slogans such as “Stop extremism”. The Swiss Government had argued against the ban, saying it was not up to the State to dictate what women wear. The BBC reports that, according to research by the University of Lucerne, almost no-one in Switzerland wears the burka and only around 30 women wear the niqab.

Marriage law: forthcoming events

“Everything you wanted to know about marriage law, (but were confused by some of the ill-informed speculations on Twitter)” is to be addressed by two forthcoming events organized by the Ecclesiastical Law Society: the Thirty-Third Annual Conference which will take place this coming Saturday, 20 March, and will consider issues concerning the solemnization of marriage. With speakers Rebecca Probert, Nick Hopkins and Russell Sandberg, the conference will include the covenantal and contractual nature of marriage from a historical perspective; the proposals for reform emerging from the Law Commission’s ongoing review of marriage law in its Weddings Project; and shortcomings in the current law of marriage, together with proposed solutions.

On 8 July, there will be a webinar – Religion and Marriage Law: The Need for Reform  – when an expert panel will mark the launch of Professor Russell Sandberg’s new book of the same title. The discussants will be Professor Gillian Douglas, formerly Dean of the Dickson Poon School of Law, King’s College, London, Baroness Hale of Richmond, formerly President of the United Kingdom Supreme Court and Professor Jane Mair, Professor of Private Law, University of Glasgow. The Moderator will be Professor Mark Hill QC, Chairman, Ecclesiastical Law Society.

In such august company, attenders will wish to be up to speed with the latest information, and UK marriage legislation provides updated links to all marriage-related posts on L&RUK, in which there is now a section on royal marriages.

Book launch

On Wednesday, there was a virtual presentation of the book “COVID-19 y libertad religiosa” (Coordinated by Javier Martínez-Torrón and Belén Rodrigo Lara), Iustel, 2021, published a few weeks ago, to which Frank and David contributed the chapter COVID-19 and religious freedom in the UK. 

The significance of the publication is that our chapter (which has been translated into Spanish) covers the impact of the COVID-19 pandemic from 31 January 2020 until 9 October 2020 and, as first conceived, it was anticipated that it would address, generically at least, the relationship between the legislation and guidance introduced to combat the pandemic and the exercise of religion. However, the continuing impact of coronavirus has been accompanied by frequent changes in the legislation in the four countries of the UK, to which there has been a range of responses from the faith communities. Readers of the blog will appreciate that our interest in these issues is continuing, and further update(s) may be necessary before matters “return to normal” as closely as practicable.

Another week, another index

This week we posted An Index of L&RUK Posts – Reduction of carbon emissions, put together in preparation for the forthcoming post “Net zero” and the faculty jurisdiction. In addition to our compilation COVID-19 Coronavirus: legislation and guidance and the associated Weekly Updates of developments in this area, there are also indices of our posts on UK marriage legislation and monthly & annual consistory court judgments.

Quick links

And finally…

With regard to GDPR, supra, Gerrarrdus (a.k.a. the Revd Garry Alderson) quoted Behrens “Practical Church Management“, which stated: “Cases have arisen where the parish priest has entered a code onto the record showing whether or not the couple has been sleeping together”. However, the resulting Twitter thread indicated that such cases were few and far between: “In 13 years of taking marriages I don’t remember any that didn’t have the same address on the Banns”; “In 25 years of taking marriages I have only married three couples who were not sleeping together before their marriage. Gerrarrdus added “it’s not something I would dream of asking”, so the good people of Barnack with Ufford, Bainton, Helpston and Wittering can rest easy.

5 thoughts on “Law and religion round-up – 14th March

  1. And finally…
    For those interested, the reference is from the 3rd edition (2014) of James Behrens’ book at pages 227-228 (in chapter 14 about ‘Computers’). Behrens does add “It is not necessary to keep this information for administration or for pastoral care, and so it should not be recorded.” (with emphasis on the ‘not’). What would be of interest to learn are the coded ‘cases’ Behrens refers to and how he knows about them!

    • But is it contrary to GDPR legislation to keep this information for administration or for pastoral care, and how would the priest concerned explain the coding on the cases when asked by the person concerned?

  2. All Church of England clergy on Common Tenure are also office-holders – not just those with freehold. It has never been just those with freehold.

    • I wrote that bit. Sorry: I thought that Reg 33 of the Ecclesiastical Offices (Terms of Service) Regulations 2009 didn’t apply to incumbents with freehold.

      • Common tenure does not apply to freeholders; you are quite right. So freeholders cannot apply to an employment tribunal, but all office holders on Common Tenure can. I think the sentence might benefit from re-writing so it makes that clear that some office holders (those on common tenure) are able to access employment tribunal while some are not (those on freehold). But with this decision, I wonder how long that will be judged equitable.

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