Law and religion roundup – 21st January

A week in which we were delighted to learn that our friend and mentor, Professor Norman Doe, has been appointed an honorary KC

Muslim prayers in school

Last week, there were various media reports (BBC, The Guardian, The Telegraph) that a Muslim pupil at Michaela community school in north-west London is seeking judicial review of the school’s policy of banning prayer rituals on its premises, telling the court that not being able to pray at school made her feel guilty and unhappy. The prayer policy was introduced in March last year by the school’s founder, Katharine Birbalsingh, when the school found itself the target of abuse and harassment after pupils were seen praying in the school playground by passers-by. According to the reports, about 30 students took part, some kneeling on their blazers because they were not permitted to bring in prayer mats. It is being argued for the claimant that it is, in effect, “a ban uniquely on Muslim prayer” because “their prayer has a ritualised nature rather than being internal”, and it prevents pupils from praying “at a time as required by Islam”. In contrast, it would not prevent a Christian child from sitting and praying quietly in the corner of the playground.

The claimant is challenging the ban on three grounds: that it is a breach of the public sector equality duty, discriminatory under s.19 Equality Act and contrary to Article 9 ECHR. Her counsel argued that pupils should be allowed to pray – usually for around five minutes – during the lunch break on dates required by their faith without interrupting lessons. The hearing continues: watch this space. Russell Sandberg cinnebts here.

Praying near abortion clinics

And while we’re on the subject of praying in public, The Guardian reports (and we missed) that the Home Office’s draft non-statutory guidance on abortion clinic safe access zones includes the following:

“2.7 Prayer within a Safe Access Zone should not automatically be seen as unlawful. Prayer has long received legal protection in the United Kingdom and these protections have not changed as a result of section 9 [of the Public Order Act 2023]. Silent prayer, being the engagement of the mind and thought in prayer towards God, is protected as an absolute right under the Human Rights Act 1998 and should not, on its own, be considered to be an offence under any circumstances. However, where an individual is praying, but their conduct is also intrusive, this is likely to be an offence under section 9.”

The draft guidance is currently out for consultation: it closes on 22 January.

Religious education in schools

On Thursday 18 January there was a short debate in response to the question asked by Lord Harries of Pentregarth “To ask His Majesty’s Government what steps they are taking to improve the quality of religious education in schools.” The Parliamentary Under-Secretary of State, Department for Education, Baroness Barran (Con) concluded: 

“I restate the Government’s commitment to ensure that every school is fulfilling its statutory duty to deliver RE. It is mandatory now and there are no plans to change this. It is the right of every child to receive a well-rounded, comprehensive and high-quality religious education. We recognise some of the challenges that your Lordships have pointed out, but I agree with the noble Lord, Lord Griffiths, about the importance of ‘humanum’, of developing the human, which all our schools strive to do, every day”.

Exhumation and reburial in exceptional circumstances

In Re an Unnamed Burial Ground [2023] ECC Chi 2, the petitioner sought the exhumation of her mother’s body from a consecrated burial ground within the Diocese of Chichester where she had recently been buried in order to re-inter her in another consecrated burial ground, also within the diocese.

The general rule enunciated by the Court of Arches in Re Blagdon Cemetery [2002] Fam 299 is that because of the theological principle that Christian burial is final, a faculty for exhumation will only be granted in exceptional circumstances [5]. In this case, however, the petition was brought because of the proximity of the mother’s grave to those of close family members of the petitioner’s ex-husband, who had been violent and abusive towards her and her children over a period of some eight years [4,7]. Neither the petitioner nor her children could visit her mother’s grave because it caused them flashbacks [8], and the petitioner’s GP confirmed that she was having nightmares and panic attacks and was suffering from anxiety and depression [9&10].

Hill Ch was satisfied on the evidence that the impact upon the petitioner’s mental health and well-being and the distress to other family members were overwhelming. On the balance of probabilities, therefore, there were special circumstances justifying an exception from the theological principle of the finality of Christian burial and he granted the faculty [17]. [With thanks to Ray Hemingray.]

Are bishops becoming younger?

On 19 January, the Church in Wales reported that History is made as Church appoints its youngest ever bishop. The Archbishop of Wales and Bishop of Bangor, Andrew John, has appointed Canon David Morris as Assistant Bishop of Bangor. At the age of 37, he will be the youngest person ever to serve as a bishop in the Church in Wales. His appointment has been approved by all the Church in Wales bishops and he will be confirmed at a Sacred Synod meeting in April. He will be consecrated bishop on May 11 and will adopt the title of Bishop of Bardsey, as well as Assistant Bishop of Bangor.

The appointment marks the reintroduction of suffragan see titles to Wales after nearly a century, following a change in the Constitution of the Church in Wales Chapter V, Section 15 (7) (inserted at the Governing Body Meeting, April 2023) which provided that “[t]he Bench of Bishops may assign a titular See to an Assistant Bishop appointed pursuant to this section”. [With thanks to Matthew Chinery.]

What does a Diocesan Registrar do?

Canon G4 Of registrars sets out the basic canonical requirement for Diocesan Registrars. At the present time, the Diocese of Guildford is advertising the position within their dioceses, and the applicant information here gives a fuller appreciation of the scope of the role. Also appended is a link to The Legal Officers (Annual Fees) Order 2023, which came into force on 1 January 2024.

Vicarious liability

In our roundup on 22 December, we noted the decision in MXX v A Secondary School [2023] EWCA Civ 996, in which the Court of Appeal upheld the High Court’s decision that the school was not vicariously liable for a sexual assault carried out by an 18-year-old former pupil on one of the schoolchildren after his one-week work experience placement at his old school.

The Supreme Court has refused leave to appeal. (Coincidentally, Sofia Crolla has recently published a helpful explainer on vicarious liability in Lexology, here.)

Quick links

And finally…I

“And on June 14, 1946,” reported Donald Trump’s supporters in a video with an AI commentary, “God looked down on his planned paradise, and said, ‘I need a caretaker.’ So God gave us Trump.” And if you don’t believe us, you can see the video here. (L&RUK Health Warning: Mandy Rice-Davies Applies.)

And finally…II

After the judgments on Jaffa Cakes and flapjacks, we now have a judicial consideration of poppadums (and other foodstuffs): Walkers Snack Foods Limited v The Commissioners for HMRC [2024] UKFTT 00031 (TC)

“[39]. The appellants argued that the products were called ‘poppadoms, unlike potato crisps’. We consider that this simply means that the word ‘poppadom’ is not a protected term. Nominative determinism is not a characteristic of snack foods: calling a snack food ‘Hula Hoops’ does not mean that one could twirl that product around one’s midriff, nor is ‘Monster Munch’ generally reserved as a food for monster…”.

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