Law and religion round-up – 10th July

And in other news…

Forstater rehearing

On Wednesday, after rehearing her claim the ET part of Ms Maya Forstater’s complaint in relation to her belief that “biological sex is real, important, immutable and not to be conflated with gender identity”. In Ms M Forstater v CGD Europe & Ors [2022] UKET 2200909/2019, it held that CGD’s decision not to offer Ms Forstater an employment contract and not to renew her unpaid visiting fellowship role in March 2019 had been direct discrimination related to her “gender-critical” beliefs, while her complaint that she had been victimised after being removed from a company website was “well-founded”. The other parts of her claim were dismissed.

We hope to post a full note on the case later in the week.

Religious education in Northern Ireland

In judicial review proceedings brought against the Department of Education on behalf of a seven-year-old girl who attends a school in Belfast, the High Court ruled on Tuesday that the current arrangements for Religious Education and Collective Worship in Schools were in breach of Convention rights.

In Re JR87 (by her mother and next friend) and her father (“G”) for Judicial Review [2022] NIQB, the applicant JR87 (a child aged 7) and her father G sought judicial review of the provisions for Religious Education and Collective Worship, arguing that its total focus on Christianity to the exclusion of all other faiths violated the education entitlements protected by Article 2 of the First Protocol ECHR read with Article 9. The girl’s parents had expressed concerns that its narrow concentration on Christianity might lead her to adopt a specific worldview. They did not object to most of the focus being on Christianity even though they themselves were non-religious; however, they complained that there was no meaningful alternative teaching available in Northern Ireland’s state-funded primary schools.

Colton J upheld the challenge to the current arrangements under the Education and Libraries (NI) Order 1986. It was no answer that the core curriculum was a minimum requirement if it had the effect of failing to provide religious education in an objective, critical and pluralist manner. Further, the Department’s admission that it had no knowledge of whether individual schools provide additional opportunities for pupils to learn about other religions or none emphasised of itself the need for a reappraisal of the core curriculum. Even though there was an unfettered right to exclusion, that right was not a sufficient answer to the lack of pluralism identified by the court. There was a danger that parents would be deterred from seeking exclusion for a child, and exclusion also ran the risk that children who were withdrawn might be stigmatised. Further: ‘on any analysis, the teaching of the syllabus can only have the effect of promoting Christianity and encouraging its practice’ [72].

Russell Sandberg summarises the judgment and comments here.

Clerical abuse again

In D against the Bishop’s Conference of Scotland [2022] ScotCS CSOH 46, the pursuer, a former Roman Catholic priest who had returned to the lay state, sued the Bishop’s Conference of Scotland – the trustees of the Catholic National Endowment Trust which ran a junior seminary for boys intending to become priests in the 1970s. D had been a teenage seminarian at the school and between the ages of 14 and 16 had been sexually abused by Father X, his spiritual director. In 1996, Father X had been convicted of offences unrelated to the pursuer. The defenders admitted liability but contested causation and quantum. They agreed that the sexual abuse had occurred and that they were liable for any loss, injury, or damage caused by it, but disputed that D’s departure from the priesthood had been caused by the abuse and the quantification of the resulting loss.

In the Outer House, Lord Clark assessed damages at £55,000 for solatium and £400,000 for consequential loss arising from D leaving his post as a priest. He was satisfied that the sexual abuse to which D had been subjected as a teenager could never be eradicated from his mind and it was impossible for him to conclude that D had sought laicisation for reasons other than the abuse, or that he would have laicised anyway, even if the abuse had not occurred. [With thanks to Scottish Legal News.]

Assisted dying

On 4 July 2022, assisted dying was considered in a Westminster Hall debate; this took place as a consequence of the e-petition 604383: Legalise assisted dying for terminally ill, mentally competent adults. This afternoon, Sunday 10 July, the General Synod of the Church of England is scheduled to debate a Private Members’ Motion raised by Dr Simon Eyre (Chichester) on Assisted Suicide. Relevant documents are GS2266A and GS 2266B. Pertinent to the debate at General Synod are:

  • The statement of the Under-Secretary of State for Justice, James Cartlidge that in law, there is no difference between “assisted suicide” and “assisted dying”, despite the different terminology used;
  • The sub judice caution by the Chair of the Westminster Hall debate on the need to avoid reference to cases currently before the courts.

Church of England endorses “net zero” target for 2030

On the afternoon of 8 July 2022, General Synod considered the Church’s plans to assist the 16,000 local churches and 4,500 schools to reach carbon net zero by the end of the decade. These plans were announced on 23 June 2022 and are summarized here. The Church has now issued a Press Release on the outcome of the debate.

The Press Release, General Synod welcomes £3.6bn investment in mission and ministry, (9 July 2022), states that “[p]riorities for the spending include £190M to help the Church of England transition to net zero, £20M on work to promote Racial Justice and £400M over the next three years towards achieving the outcomes and priorities that flow from the Church’s Vision and Strategy for the 2020s”. However, the linked document of 11 May 2022 clarifies “Highlights of the 2023-25 spending plan” will include “£30M – to initiate a net zero programme (over the next nine years it is anticipated that a total will be £190M)“.

Quick links

And finally…

… possibly the ultimate in geekery: VAT law meets burial law. In Hodge and Deery Ltd v HMRC [2022] UKFTT 00157 (TC), the claimants installed ready-to-use, flexible vault burial chambers in cemeteries on behalf of a third party to combat ground contamination from adjacent graves. They did not apply VAT, relying on the exemption for “the making of arrangements for or in connection with the disposal of the remains of the dead”. HMRC challenged the VAT treatment, arguing inter alia that the exemption only extended to supplies directly involved with the disposal of the remains of a particular dead person. HMRC lost, the FTT ruling that the installation fell within the definition of the VAT exemption. You can read all about it (if you really, really want to) here.

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