Law and religion round-up – 15th May

The Queen’s Speech and human rights

The Queen’s Speech included various announcements of potential interest to law and religion specialists, the most important of which was probably the proposed new Bill of Rights that will reform the Human Rights Act 2010. Russell Sandberg comments that though the exact nature of the reform remains to be seen, responses to the recent consultation largely rejected the need for any of the reforms that it proposed. He suggests that “There is a real risk that reform may weaken rather than strengthen rights. And that it could have a significant effect on terms of freedom of religion or belief”.

The Government’s justification for the Bill (will it be called the Bill of Rights Bill?) is that it will “ensure [that] our human rights framework meets the needs of the society it serves and commands public confidence” and will “end the abuse of the human rights framework and restore some common sense to our justice system”.

Hmm. When people – especially political people – start pleading “common sense”, to our suspicious minds it always sounds as if they simply can’t be bothered to conduct a rigorous analysis of their own proposals. But of course HMG wouldn’t be so remiss – would it?

David Allen Green and Joshua Rozenberg are extremely unimpressed.

Safeguarding and independent schools

Jewish News reports that the Department for Education has announced proposals to close unsafe, illegal schools in England under new powers to be included in the proposed Schools Bill. The Background Notes to the Bill describe one of its aims as “Improving safeguarding by expanding registration requirements for independent educational institutions, enhancing enforcement, and working with Ofsted to expand investigatory powers”. The intention is that the DfE would be able to suspend the registration of an independent school where there were “serious safeguarding failings which pose a risk of harm to students”. Responding to a previous consultation, the DfE said that while certain faith groups, such as Charedi Jews, “may be disproportionately affected by the proposals, the benefit it brings to children’s quality of education, and in providing oversight of safeguarding through the regulated activity is of greater importance”.

Under the new powers, the DfE would be able to suspend the registration of an independent school where there were “serious safeguarding failings which pose a risk of harm to students”. Suspension would be enforced through a new criminal offence under which the school’s proprietor would be held responsible if a school was kept open before it had been registered. Ofsted’s powers to investigate illegal schools would also be increased to include support for criminal prosecution of illegal unregistered full-time schools. In 2019, Ofsted estimated that a fifth of unregistered schools were faith schools, including 36 Muslim, 18 Jewish and 12 Christian schools.

Scotland, religious harassment and football

The claimant in Mr P McCue v Civil Nuclear Police Authority [2022] UKET 2415411/2021 was a Roman Catholic police sergeant based at Hunterston B nuclear power station. He complained of harassment on the basis of three incidents: someone had left a document with “UDA no surrender” written on it in his pigeonhole, his wife had found a piece of paper inside his work jacket saying “UDA no surrender”, and someone had scrawled “FTP” on his Celtic supporter’s coffee mug in the police kitchen area – which, said the ET “was understood to stand for ‘Fuck the Pope'”[6c]. It was common ground that all the three incidents had taken place.

The ET concluded in respect of the first two incidents that the Authority had taken all reasonable steps to prevent a reoccurrence [280 and 292]. It found in Mr McCue’s favour on the third incident, however [336 and 388], and a further hearing was to be fixed to decide what remedy if any should be awarded [340].

The Catholic Bishops’ Conference and online worship

On Monday, the Catholic Bishops’ Conference of England and Wales issued Returning to Mass at Pentecost: in short, telling the faithful that “the reasons which have prevented Catholics from attending Mass on Sundays and Holy Days of Obligation no longer apply”. The bishops concede, however, that online worship “may, however, be a source of continual spiritual comfort to those who cannot attend Mass in person, for example, those who are elderly and sick, for whom the obligation does not apply”. The Bishops’ Conference Covid-19 Guidance for Churches, issued on 24 January 2022 and updated on 28 January 2022, remains unchanged. 

Lockdown restrictions in Switzerland

In a judgment last week of at least marginal interest from the point of view of law and religion, Communauté Genevoise d’Action Syndicale (CGAS) v Switzerland [2022] ECHR No. 21881/20, the Third Section ECtHR held by 4 votes to 3 that the Swiss general ban on public meetings for two and a half months at the start of the COVID-19 pandemic had breached Article 11 ECHR (freedom of assembly and association). It should be noted, however, that the sanctions imposed under the Swiss Federal Ordinance O.2 COVID-19, under which any person who deliberately violated the ban on public events could be fined or imprisoned for a maximum of three years, were far more draconian than the penalties for breaking the various lockdown restrictions in the UK.

There is a press release in English here. Our assumption is that the Swiss Government will appeal.

Cemetery pollution in Russia

In Solyanik v Russia [2022] ECHR 359, the cemetery adjacent to the applicant’s house had been gradually expanding towards it since 1991 and after its closure in 1995, burials resumed in 2010. Mr Solyanik and his neighbours complained to the consumer protection authorities and the courts, and although the courts had found that burials at the cemetery were being carried out in breach of health regulations and ordered the city council to create a health-protection zone around the cemetery by 31 December 2014, that order was ignored. Before the ECtHR, he complained under Article 8 (respect for private and family life) that the continued use of the cemetery had led to contamination of his soil and his well, his only source of drinking water. He also alleged emotional distress because of burials being carried out so near his house: the most recent one had been just 34 metres away. The Court held, unanimously, that there had been a violation of Article 8.

What practical good the judgment might do for Mr Solyanik is unclear: Russia was expelled from the Council of Europe on 16 March 2022.

Ecclesiastical Law Journal

The latest issue of the EccLJ is now available, including:

  • Daniel J Hill, ‘Could the State do Without Marriage Law?’.
  • Peter Collier,  ‘50 Years of Safeguarding – 950 Years of Clergy Discipline: Where do we go from here?’.
  • Norman Doe, ‘Faith, Freedom and Family: An Introduction to the Work of John Witte Jr’.
  • John Witte Jr, ‘Law at the Backbone: The Christian Legal Ecumenism of Norman Doe’.
  • Garth Blake, ‘The Constitutionality of Diocesan Legislation Relating to Same-Sex Blessings and Marriage in the Anglican Church of Australia: A Case Note’.
  • Philip Mountstephen, ‘Persecution: Ancient Scourge, Modern Crisis’.

Plus the usual book reviews and casenotes.

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