Law and religion round-up – 19th November

When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”

Through the Looking-Glass, Chapter 2

The ECHR: “whatever it takes”?

The biggest legal news of the week was almost certainly the judgment of the Supreme Court in R (AAA (Syria) & Ors) v Secretary of State for the Home Department [2023] UKSC 42, in which the Court held unanimously that the Secretary of State’s policy of sending asylum-seekers to Rwanda was unlawful. One critical issue was that under section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way that is incompatible with a right under the ECHR – and the Secretary of State is a public authority for that purpose. Further, section 2 requires the domestic courts to take account of the judgments of the ECtHR when determining a question that has arisen in connection with a Convention right:

“Domestic courts … have long applied the Human Rights Act in relation to the removal of persons from the United Kingdom to other countries in accordance with the principles laid down by the European Court in cases such as Soering and MSS v Belgium and Greece. Those principles are not questioned by any party to this appeal. It is therefore unlawful, under section 6 of the Human Rights Act, for the Secretary of State to remove asylum seekers to countries where there are substantial grounds to believe that they would be at real risk of ill-treatment by reason of refoulement” [28].

Which, on the face of it, has little to do with “religion”; however, the ECHR also protects freedom of thought, conscience and religion under Article 6 – and at Question Time in the Commons on Wednesday, the Prime Minister told the House that

“if it becomes clear that our domestic legal frameworks or international conventions are still frustrating plans at that point, I am prepared to change our laws and revisit those international relationships. The British people expect us to do whatever it takes to stop the boats, and that is precisely what this Government will deliver”.

But if “whatever it takes” is withdrawal from the ECHR, what then? What about the Belfast/Good Friday Agreement between the UK and Ireland, which requires the ECHR to be part of the law in Northern Ireland, allowing “direct access to the Courts” and “remedies for breach of the Convention”? UK in a Changing Europe argues (correctly in our view) that for the UK to leave the Convention would violate the Good Friday Agreement – and likewise if the ECHR were replaced with a “British Bill of Rights”. And would HMG really want to join Russia and Belarus outside the Council of Europe and the ECHR? (And see Joshua Rozenberg’s take, below.) 

Charities and hate speech

The Charity Commission is assessing a “significant number of serious concerns” about some charities’ activities in relation to the conflict in Israel and Palestine. The Chair of the Commission, Orlando Fraser KC, told the Commission’s Annual General Meeting on Wednesday that the Commission was aware of several “allegations of antisemitic or hate speech” linked to charities in England and Wales. He warned that the Commission would act if it found evidence of wrongdoing and that charities should not “allow their premises or events to become forums for hate speech or unlawful extremism”.

Prevention of terrorism

The King’s Speech included an announcement that the Government would introduce a Terrorism (Protection of Premises) Bill to implement the commitment made in the consultations on the draft Bill of the previous session “to protect public premises from terrorism in light of the Manchester Arena attack”. The draft Bill was subject to considerable criticism by the Commons Home Affairs Committee, and the Government has announced that there will be a further consultation on the duties to be placed on standard tier premises (ie those with a capacity of between 100 and 799) prior to the introduction of the Bill. The Government wishes to ensure that “the Bill’s measures strike the right balance between public protection and avoiding undue burdens on smaller premises such as village halls, churches and other community venues”.

Church of England: blessing for same-sex couples

General Synod has agreed that a trial of stand-alone services of blessing for same-sex couples may go ahead, after an amendment to the main motion on the issue tabled by the Bishop of Oxford, Steven Croft, to bring forward the standalone services was agreed by a narrow majority. The motion as amended was carried on Wednesday afternoon in all three Houses: Bishops 23-10, Clergy 100-93 and Laity 104-100. The motion stated that the Synod “recognise the progress made by the House of Bishops towards implementing the motion on Living in Love and Faith (LLF) in February 2023 . . . and encourage the House to continue its work of implementation”. There is a press release here.

The Archbishop of Canterbury abstained: in a subsequent statement he explained that he had done so because

“Archbishops of Canterbury must always work for the maximum possible unity in the Church, however impossible that may seem and however deep our differences. For that reason, I abstained on yesterday’s vote because my pastoral responsibility extends to everyone in the Church of England and global Anglican Communion.”  

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