Law and religion round-up – 26th September

We pondered on whether adding a reference to Kermit the Frog would add gravitas to our views on climate change, but decided that it wouldn’t…

Vaccine passports: England

On Thursday 23 September, the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office was asked “[w]ith reference to his Department’s COVID-19 Response: Autumn and Winter Plan 2021, if [it] will publish scientific evidence in support of the efficacy of mandatory vaccine passports. Nigel Adams, Minister without Portfolio, replied, inter alia:

“The autumn and winter plan published this month set out the Government’s position, which is that we will keep mandatory certification in reserve in case it is required to help prevent unsustainable pressure on the NHS and to enable venues to remain open more safely.”

Alistair Carmichael (Orkney and Shetland) (LD) observed:

“The Government have had no fewer than 13 different positions in relation to vaccine passports. They have said “yes” three times, “no” four times, and “maybe” or “we are having a review” six times. Rather than just asserting that the evidence is there, will the Minister commit himself to publishing it?”

On the views in Scotland and Wales, the Minister commented: “We work closely with the devolved Administrations because there must be a four-nations approach to this”. On this point, readers will be aware that on 1 September 2021 the First Minister for Scotland announced the introduction of vaccine passports and on 17 September the First Minister for Wales announced the introduction of a COVID Pass to help control the spread of coronavirus. Should any measures be introduced in England, they are likely to be similar to those for Scotland and Wales, and places of worship will be excluded from the requirement for vaccine passports.

This is not the situation outside the UK. Some Episcopal cathedrals in the United States and churches have begun to require proof of vaccination as a condition of attending services, “though this is far from common”. However, the Pontifical Commission for Vatican City State has announced that from 1 October 2021, all persons wishing to enter the territory must present a COVID-19 passport upon their arrival. Authorities in the Vatican have clarified that persons participating in liturgical celebrations will be exempted from the current rules; however, they will be obliged to follow the health regulations imposed to stop the virus’ further spread.

Legal challenge to Charity Commission Chair recruitment process

Frank’s recent piece, Saturday musings -The (former) Culture Secretary and charity governance, noted that the then Culture Secretary, Oliver Dowden, (who has now been replaced) published an op-ed piece in the Sunday Telegraph on the recruitment of a new Chair of the Charity Commission. Dowden’s piece drew a trenchant response on Twitter from the National Council for Voluntary Organisations, which noted:

“The role of the Commission is to regulate in line with the laws made in Parliament. Within that framework, it is not for the Government or Commission to tell trustees what is best for their charity or those they serve.”

The NCVO followed this up with a more detailed rebuttal of his arguments. The Good Law Project has also begun a legal challenge in view of its concern about political interference in the recruitment of a new Charity Commission Chair. A spokesperson said:

“We don’t think it’s the Charity Commission’s job to muzzle or ‘cancel’ charities that want to tell the truth about Britain’s past. But ministers want to turn charity law on its head. Charities that help their political agenda will be left alone and charities that resist it will be punished,”

Lawyers have now written to the new Culture Secretary, Nadine Dorries, demanding that the process be paused and the instructions Dowden sent to candidates withdrawn. If this does not happen, the Good Law Project will seek an interim injunction to pause the appointments process and move forward with proceedings for a judicial review. The Good Law Project has given the Government until Friday 24 September to respond. A crowdfunding campaign to support the action has received pledges of £49,042 towards its £100,000 “stretch target”.

Sex discrimination and adoption: Cornerstone

On Friday, in R (Cornerstone (North East) Adoption and Fostering Services Ltd) v HM Chief Inspector of Education, Children’s Services and Skills (OFSTED) [2021] EWHC 2544 (Comm), an adoption agency that only accepts heterosexual evangelical Christians as potential carers lost its appeal against the rejection of its petition for judicial review of Ofsted’s finding that its recruitment policy contravened the Equality Act 2010 or the Human Rights Act 1998 and Ofsted’s conclusion in a report issued in draft on 12 June 2019 that Cornerstone’s leaders and managers were ‘Inadequate’. We hope to post a note on the case later this week.

Down’s syndrome: Crowter

In February last year, we reported that lawyers acting for two mothers of children with Down’s syndrome had written to Matt Hancock, the then Health Secretary, seeking a change in the 1967 Abortion Act to prevent terminations after 24 weeks for all non-fatal disabilities, including Down’s syndrome. The claimants believe that children like theirs are being discriminated against because they could be aborted at any time up to their births, while foetuses with no “serious disabilities” are protected after 24 weeks.

On 23 September 2021, R (Crowter & Ors) v Secretary of State for Health And Social Care [2021] EWHC 2536 (Admin) the High Court, sitting as a Divisional Court, dismissed their claim for judicial review seeking a declaration that s1(1)(d) of  Abortion Act 1967, as amended, was incompatible with the European Convention on Human Rights, as well as some other remedies,  The Court stated:

“[5]. The issues which have given rise to this claim are highly sensitive and sometimes controversial. They generate strong feelings, on all sides of the debate, including sincere differences of view about ethical and religious matters. This Court cannot enter into those controversies; it must decide the case only in accordance with the law.”

The Press Summary (which forms no part of the Court’s decision) states:

“The Court rejected the argument based on Article 2 at paras. 48-71 and the argument based on Article 3 at paras. 72-83, saying that there was no precedent from the European Court of Human Rights that a foetus has rights under the ECHR.

The Court rejected the argument based on Article 8 at paras. 84-135, finding that the legislation does not interfere with Article 8 rights. The Court went on to say that, even if there is such an interference, it is in accordance with law and is objectively justified as a proportionate measure which falls within the margin of judgement enjoyed by Parliament in striking a balance between the rights of pregnant women and the interests of the foetus.

For essentially the same reasons, at paras. 136-147, the Court found that any difference of treatment under Article 14 is also justified.”

The Court granted a request from the Claimants to have until 27 September 2021 to make any application for permission to appeal.

Responses to climate change within Church of England

This week, the broad scope of the Church of England’s involvement in climate change has been apparent, including motorway protests, The Queen’s Green Canopy and the use of floral foam (a.k.a. Oasis). The Diocese of Oxford was quick to query the involvement of clergy who brought traffic to a standstill last week with a series of sit-ins on M25 slip roads – an action which may result in legal action following National Highways’ Injunction of 21 September. It said:

“The actions…while arguably well-intentioned, have frustrated many people and we’re unclear how the actions have been productive in encouraging the urgent change required.

“Legitimate protest can play an important part in national debate and decision making, but the actions of Insulate Britain in recent days aren’t helping. Responding constructively to the current emergency is the responsibility of every family, every workplace, every village, town and city, every company, and every public institution. We all need to work together.”

The Church Times article observed that the Oxford diocese was the first in the Church of England to fully divest from fossil fuels, although it did not note the equally important fact that it has set its own “net zero” target for 2035, not 2030, nor that Bishop Steven has praised the results achieved by the Church through engagement with key investment stakeholders, most notably through the Transition Pathway Initiative.

“Although I would prefer a closer horizon to divestment, I also applaud the outstanding work of the team and the clear progress made both with fossil fuel companies and with mining companies. A hallmark of the team’s work is the collaboration with other churches and asset owners to increase and multiply traction and a commitment to continuous improvement and holding companies to account.

“We need to be clear – we all have a part to play in solving the climate crisis and therefore, collegiate thinking and support is key.”

On the level?

Last Sunday, it was announced that the Ministry of Housing, Communities and Local Government is being renamed “The Department for Levelling Up, Housing and Communities”.

You couldn’t make (or level) it up.

Quick links

And finally…I

One of Fr Z’s readers requested that he came to bless/pray/cleanse the Masonic Temple he just purchased at auction. He answered “If burning the place isn’t an option, then ask for permission from the bishop to say “Exorcism of Place”…There are several exorcisms of place in Fr. Ripperger’s bookThe new owner should pray his Rosary there frequently and track any wacky stuff that might happen. If he doesn’t notice anything, great. If he does, the priest can come back and do some more minor exorcisms.”

So now you know!

And finally…II

English Heritage is launching an “hour of contemplation” at its monasteries in a month-long trial this autumn. From 22 September until 22 October 2021, English Heritage will be encouraging visitors to turn off notifications on their phones, finish up their conversations and enjoy the final hour of public access to its abbeys and priories in contemplative quiet, enabling them to experience these spiritual buildings as they were intended”.

‘And put those robes back in the dressing up box, please!’


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