Law and religion round-up – 18th June

And in a week overshadowed by the horrendous fire at Grenfell Tower and the fallout from the General Election …

Access for Northern Ireland women to free abortion in England

On Thursday we posted Frank’s analysis of R (A and B) v Secretary of State for Health [2017] UKSC 41 in which the Supreme Court considered:

  • Was the Secretary of State ‘s failure to exercise his power to require abortion services to be provided through the NHS in England to women ordinarily resident in Northern Ireland unlawful as a failure to discharge his duty under s 3 of the National Health Service Act 2006 to “take such steps as he considers necessary to meet all reasonable requirements” for services?
  • Does the continuing failure to provide free abortion services in England to women ordinarily resident in Northern Ireland infringe Articles 14 (discrimination) and 8 (private and family life) ECHR?

The appeal was dismissed by a 3-2 majority, and we suggested that it is quite possible that the case is bound for Strasbourg.

In her post, Northern Ireland abortion refugees: Supreme Courton the UK Human Rights Blog, Rosalind English observed:

“…It just happens that, occasionally, litigation drawn from ordinary life encapsulates more political debating points than a week’s worth of press analysis. If you want to hear the real deal about devolved government, Northern Ireland, sexual assault, the meaning of ‘England’, abortion, federalism, the power of the state, healthcare, medical tourism, women’s rights, discrimination, nationality, social security or the NHS, you need do no more than read this case. As for the majority judgments and the two dissenters, pay close attention to the language because within the phrasing other truths emerge”.

Her detailed analysis of the judgments is here.

Islamic practice and lack of capacity

One judgment that we didn’t note but which is worth a brief mention is IH (Observance of Muslim Practice) [2017] EWCOP 9 – like almost everything else that comes before the Court of Protection, an extremely sad case. The point at issue was the extent to which the care of a 39-year-old of Punjabi heritage with a profound learning disability who lives in a supported living environment provided by the local authority should be in accordance with Islamic religious and cultural practice. Specifically:

  • IH (by the Official Solicitor) sought a declaration that it was not in IH’s best interests for him to fast during the daylight hours of Ramadan; and
  • IH’s father (‘TH’) sought a declaration that it was in the best interests of IH that his axillary and pubic hair should be trimmed in accordance with Islamic cultural and religious practice insofar as it was safe and reasonable to do so.

Cobb J concluded that the parties were right in agreeing – and he confirmed – that IH should be relieved of the obligation to fast during Ramadan and that it was not in IH’s best interests that his body hair be trimmed in accordance with the custom for capacitous followers of Islam.

Bed and breakfast again

We noted the press release from the Equality and Human Rights Commission in Scotland on the successful conclusion in its case against the owners of Cromasaig Bed and Breakfast, whose website had stated that it was ‘heterosexual friendly’. After a threat of legal action, the offending material was removed. Readers will no doubt recall that, in England, Bull & Anor v Hall & Anor went all the way to the Supreme Court.

Safety and security in church buildings

The document Safety and security in church buildings has now been added to the Church of England web pages and provides links to resources on a number of publicly available resources to help prevent and minimise the impact of attacks or hate crimes. As a consequence of the disparate source material, the document leaves quite a lot to be desired in its composition and presentation. In addition, the Dean of Westminster, Dr John Hall, has written on Facebook about how Westminster Abbey is more professionally protected now than it was ten years ago while remaining open and welcoming to visitors.

The Daily Telegraph reports that the Church of England is currently working with the Metropolitan Police to formulate new detailed security advice, which is due to be published within weeks. We would hope that in view of its importance, it will be displayed much more prominently than the current document. [Dr Hall’s blog is now on the home page of the CofE site].

Golden chairs and “musical” headstones

In writing summaries of consistory court cases, we often look at other sources to provide some background to the issues before the court. This month, two of the cases reviewed have formed the basis for media reports: one concerning the replacement of pews with chairs and the other a wooden headstone of an eccentric design. In the former, the Daily Telegraph focussed on the “Cardinal Fang” aspects [i.e. the “comfy chair” stories favoured by the media] with its headline Church can keep comfortable chairs even though heritage groups say they are ‘cheap’ and ‘dumpy’.

St Nicholas Church, Fundenhall, contrary to the direction of the Norwich consistory court, spent £3,053 on 50 chairs made of brown faux leather with brushed, gold-coloured frames. Photographs of the “before” (i.e. pews) and “after” highlight this aspect of the case, in which the church was granted a confirmatory faculty limited to ten years. Readers may decide for themselves whether they agree with the comments of the Victorian Society, supra. Its Director, Christopher Costelloe, commented that “[the Society] would have appealed the result but for the ‘excellent work’ done by the parish in rescuing the church … This is not the first occasion in we have intervened in a case in which the parish has ignored court rules, and the response of the church court has been to allow them to get away with it”.

Nevertheless, the Society did not appeal. And as for “getting away with it”, the Chancellor noted that it had not been an easy decision; however, the changes are reversible; have no effect on the significance of the buildings; and are for a limited period [30]. Ten years was “at the very outside of the period for which [the chancellor] would have considered granting the faculty; this equated to the manufacturer’s guarantee on the chairs, and reflected “the need for this small parish to raise enough money for appropriate replacement chairs after its hugely impressive fundraising efforts in recent years … the financial constraints set out are a reality which cannot be overlooked”.

With regard to the second case, a Manx Radio headline stuck closer to the outcome of the proceedings with Themed headstone deemed unsuitable, although it speculated that “Singer’s remains could be relocated to Wales”, which was not part of the judgment. The photograph demonstrated the eccentric design of the headstone but not the extent of its deterioration in the two years it has been in situ; the chancellor was unimpressed by the  petitioner’s statements “yes, [the oak] will crack but that is the nature of the material and was always my intention” [13] “I would imagine the wood will age beautifully about 20 years or so” [24].

These two cases – Re St Nicholas Fundenhall [2017] ECC Nor 5 and Re New Lonan Churchyard [2017] EC Sodor 1 – will be included in our June round-up of judgments in the ecclesiastical courts.

Polygamous marriage in Ireland

In HAH v SAA & Ors [2017] IESC 40, the Supreme Court of Ireland ruled on the validity of the marriages of a man with two wives whom he married in his native Lebanon. A seven-judge court held that, while the second marriage was not valid in Ireland, it might have legal consequences. A marriage that was only “potentially” polygamous (where a man had one spouse but the relevant legal system would permit subsequent marriages) was capable of being recognised under Irish law; and public policy did not require that such a marriage should not be recognised because the man had later contracted a second marriage.

In the leading judgment, Iseult O’Malley J held that “that Irish law does not recognise the validity of a second or subsequent marriage while the first marriage is in being. However, this does not necessarily mean that such a marriage can never have legal consequences” [121]. She stressed that her conclusions “must be read as being subject to the right of the Oireachtas to consider and legislate for issues of public policy, subject to and in conformity with the Constitution” [122]. Clarke J, concurring, said that there was

“a very strong imperative that urgent attention be given to the question of whether legislation should be enacted for the purposes of bringing certainty to the question of whether, and if so to what extent, the fact that a marriage may be valid in accordance with the laws of another jurisdiction might legitimately affect some rights and obligations of parties in Ireland even though Irish law would not afford recognition to the marriage in question” [4.2].

The judgments are both interesting and complicated – and when (or if) we get our heads round them, we may post a considered note.

Vegans and discrimination

Central and North West London NHS Foundation Trust published an advertisement for an Occupational Therapist in an Eating Disorders Service in which it said that applicants following vegan diets ‘could not be considered’. The Vegan Society and other challenged the Trust about the legality of the advertisement and asked the Equalities and Human Rights Commission to examine this potentially unlawful direct discrimination against vegans.

According to Jeanette Rowley, a founding member of the IVRA: “The advertisement was explicitly excluding vegan applicants. Under the Equality Act 2010, this is an example of direct discrimination”. According to a report in Plant Based News, the Trust amended the advertisement and issued the following statement: “Thank you for the opportunity to comment. We’re sorry for the offence we caused and yes we did speedily change the advert.”

Quick Links

And finally…I

On Michael Gove’s appointment as Secretary of State for Environment, Food and Rural Affairs:

And finally…II

Falling within the category of “you couldn’t make it up”, the Catholic Herald reported that “Italian police recover St John Bosco’s brain from teapot“. Fingerprints of the alleged thief of a relic of St John Bosco were found on the glass case protecting the reliquary. Italian police tracked down the stolen relic which had been hidden inside a copper teapot in a kitchen cupboard. The relic, a piece of St John Bosco’s brain, was still in its small glass jar tied with red ribbon, its seal of authenticity intact.

The police said “[I]t appears the motive for the theft had nothing to do with a desire to demand a ransom nor was it stolen for a collector”. Apparently, the thief “erroneously” believed the gold-painted reliquary over the glass jar was worth a lot of money – or as some might say, “brainlessly”.

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