Law and religion round-up – 25th June

Factual rather than “patriotic” coverage of the week’s events…

EU-UK Brexit talks

Whilst it is premature to comment extensively on the Brexit talks between the UK and the EU, one outcome of Monday’s meeting was agreement on the EU’s insistence on “sequencing”. Article 50 TFEU envisages two agreements: an exit agreement concerning issues relating to the departure of the UK from the EU and an agreement on future relations, which for the UK essentially means trade. David Allen Green comments: ”The UK want(ed) both to be negotiated together, in parallel. The EU wanted a number of preliminary issues discussed before the parties moved on to discussing future trade relations”. The UK’s insistence on “sequencing” was likely to be, in the words of David Davis, “the row of the summer”. However, the EU chief negotiator, Michel Barnier, stated:

“In a first step, we will deal with the most pressing issues. We must lift the uncertainty caused by Brexit. We want to make sure that the withdrawal of the UK happens in an orderly manner. Then, in a second step, we will scope our future relationship.”

This was confirmed by the Department for Exiting the European Union.

The Queen’s Speech and the Great Repeal Bill

The Government’s intention as announced in the Gracious Speech on Wednesday is that the (evidently no longer “Great”) Repeal Bill will allow for a smooth and orderly transition as the UK leaves the EU, ensuring that, wherever practical, the same rules and laws apply after Brexit as before it. The Bill will:

  • repeal the European Communities Act 1972 and convert EU law into UK law;
  • give Parliament temporary secondary legislation powers to enable corrections to be made to the laws that do not operate appropriately once we have left the EU and allow changes to be made to domestic law to reflect the content of any withdrawal agreement under Article 50; and
  • replicate the common UK frameworks created by EU law in UK law and maintain the scope of devolved decision-making powers immediately after exit.

The third element will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed. The Bill will not impose any constraints on the withdrawal agreement and further legislation will be introduced to support that agreement if and when required.

The most sensitive issue is likely to be the creation of temporary powers for Parliament to make secondary legislation, given that the Government does not have an overall majority. Yvette Cooper made that point very forcibly in an interview on BBC television on Wednesday morning: her message was that the Government, having failed to win the Election, cannot expect carte blanche to legislate in a way that gives only minimal scope for review by Parliament.

The new Lord Chancellor

David Lidington has been sworn as Lord Chancellor. In the course of his speech at the ceremony, he put very welcome emphasis on the importance of protecting human rights and helping to uphold the rule of law in countries across Europe and on his duty to defend the independence of the judiciary. As to the performance of his immediate predecessor, we could not possibly comment…

General Synod Papers

This week, the Church of England published the second tranche of papers for its General Synod in the University of York from Friday July 7 to Monday July 10. In addition to the full circulation of papers and agenda, the Archbishops have used their legal powers to change the published schedule to include an urgent debate on the state of the nation. Entitled “After the General Election: a still small voice of calm” it will take place on the opening afternoon of Synod, Friday July 7.

Independent report on handling of Peter Ball case

On 22 June, the Church of England issued a Press Release on the independent report into the Church’s handling of the Peter Ball case by Dame Moira Gibb. The report has 11 recommendations for the Church focusing on a range of issues including focusing on getting the right support in place for survivors, the leadership of bishops, strengthening guidance, reviewing the Archbishops’ Lists and the effectiveness of its disciplinary measures with regards to safeguarding related cases.

Caste discrimination

Two years ago we wrote Caste discrimination legislation – a (long) timeline on the continued procrastination of both the [then] present Government and the previous Coalition, highlighted in previous posts in L&RUK. This week the National Secular Society urged its supporters to respond to the current Government consultation on caste discrimination; the Society has assisted with launching a new website aiding those who support specifically outlawing discrimination based on ‘caste’ to respond to the consultation. The consultation closes on Tuesday 18 July.

The Vatican, the Mafia and the law

On 15 June, the first “International Debate on Corruption” took place in the Vatican attended by the current members of an advisory board of the Dicastery for Promoting Integral Human Development dedicated to this global problem, also in its interrelations with mafias and organized crime. The Press Release states “[t]he group is working to draft a joint text that will guide further work and future initiatives. Among these, at present there is a need to further explore at international level and in relation to the legal doctrine of the Church, the issue of excommunication for corruption and mafia association”.

Humanist wedding in Northern Ireland

We previously noted Re an application by Laura Smyth for Judicial Review, in which Ms Smyth, alias Lacole, sought leave to marry her fiancé Eunan O’Kane in a humanist ceremony. Colton J quashed the General Register Office’s refusal to authorise a humanist marriage on the grounds that it breached her Convention rights and ordered the GRO to grant the application – which would give temporary authorisation for a humanist celebrant to perform a legally valid and binding humanist wedding ceremony.

He concluded that the unlawful interference with the applicant’s Convention rights had no objective justification in law. As to the question of remedy, he decided to echo the approach taken in Scotland by reading the words “or belief” into Articles 14, 15, 16 and 17 of the Marriage (Northern Ireland) Order 2003 in each reference to “religious marriage”, so that the Order would read “religious or belief marriage”. He declined to make a declaration of incompatibility in respect of the 2003 Order or that the Department had failed to discharge its statutory obligations pursuant to s 75 Northern Ireland Act 1998. He did, however, consider that the Department should introduce Regulations to remedy the breaches of Convention rights identified in his judgment – which, incidentally, has still not been published either on the Northern Ireland Courts and Tribunals website nor on BAILII.

Almost inevitably, the Attorney General for Northern Ireland appealed, and on Monday the Court of Appeal granted interim authority for the wedding to take place and be given legal recognition, though the full hearing was adjourned until after the summer recess. The Lord Chief Justice directed the local registration authority to appoint British Humanist Association celebrant Isobel Russo to solemnise the wedding, without prejudice to the outcome of the appeal.

“Undue spiritual influence” again

In April 2015, as we noted at the time, Mr Lutfur Rahman had his election as Mayor of the London Borough of Tower Hamlets on 22 May 2014 set aside on the grounds that he and his agents were guilty of corrupt and illegal practices, including “undue spiritual influence”. He is currently seeking judicial review of that decision and sought permission to amend the grounds of his claim initiated on 2 July 2015. In R (Rahman) v The Local Government Election Court [2017] EWHC 1413 (Admin), permission to amend was refused.

Private Peers’ bills

The ballot for private Peers’ bills was held on Thursday. The bills that may possibly be of interest – widely interpreted – to readers are as follows:

No. Member Short Title introduction
11 Baroness O’Loan Conscientious Objection (Medical Activities) Bill 28 June
12 Lord Elton House of Lords Bill 28 June
16 Bishop of St Albans Registration of Marriage Bill 29 June
18 Lord Deben Ecumenical Marriage Bill 9 June
21 Lord Cormack Bat Habitats Regulation Bill 3 July
22 Lord Lexden Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill 3 July
23 Baroness Deech Divorce (Financial Provision) Bill 3 July
25 Lord Berkeley of Knighton Children Act 1989 (Amendment) (Female Genital Mutilation) Bill 3 July
26 Lord Hayward Assisted Dying Bill 4 July
32 Lord Marks of Henley Cohabitation Rights Bill 5 July
34 Baroness Nicholson of Winterbourne Abortion (Fetus Protection) Bill 5 July
43 Baroness Cox Marriage Act 1949 (Amendment) Bill 10 July
44 Lord Warner Right to Die at Home Bill 10 July
49 Lord Shinkwin Abortion (Disability Equality) Bill 11 July
57 Baroness Burt of Solihull Civil Partnership Act 2004 (Amendment) (Mixed Sex Couples) Bill 13 July

The ballot for House of Commons private Members’ bills will be held on Thursday 29 June.

Conscientious objection to abortion in Sweden

In November 2015 we noted the case of Swedish midwife Ellinor Grimmark. Ms Grimmark had been offered jobs by two women’s clinics, but when she explained that she could not perform abortions because of her conscientious objection and her Christian faith, both clinics withdrew their offers and Jönköping District Court dismissed her complaint of discrimination. The Equality Ombudsman also ruled against her and a third clinic turned down for a vacancy. She subsequently appealed to a Labour Tribunal and in April 2017 it was announced that she had lost. The Tribunal concluded that there had been no violation of either of the terms of the Discrimination Act or of her Convention rights.

Linda Steen had a contract with Nyköping Hospital women’s clinic under which the hospital had agreed that she was to work within the clinic for two years after her the end of her midwifery studies. However, Sörmland County cancelled her contract when she told them that she was unable to perform abortions on grounds of her faith and conscience: consequently, she commutes to Norway to work.

It has now been reported that on 14 June Ms Grimmark and Ms Steen filed complaints against Sweden at Strasbourg, arguing violations of their Article 9 rights.

Misgivings about sharia in Texas

The Governor of Texas has signed into law House Bill 45 “requiring the Texas Supreme Court to adopt rules and provide judicial instruction regarding the application of foreign laws in certain family law cases” and known as “American Laws for American Courts” (ALAC). It prohibits the application of any foreign law in the state’s courts to family cases that involve marriage or parent-child relationship matters. The legislation comes into effect on 1 September and requires the Texas Supreme Court adopt its rules by 1 January 2018.

Under the new Act, Texas and US law supersede all other laws state and judges may not apply any foreign law because, it is argued, to do so infringes US and Texas constitutional rights. However, the Texas chapter of the Council for American-Islamic Relations described the legislation as anti-Sharia, saying that “We believe it prevents Muslims from practicing their faith in areas such as Islamic marriage, divorce, funeral procedures, and civil agreements.”

Texas is the twelfth state to enact ALAC: the others are Alabama, Arizona, Florida, Kansas, Louisiana, Mississippi, North Carolina, South Dakota, Oklahoma, Tennessee, and Washington. Two thoughts come to mind. The first is that – presumably – the legislation must also apply to recognition by the state courts of Jewish family law. The second is this: is ALAC a distant cousin of EVEL, maybe?

[Wth thanks to Mark Hill QC.]

Parish Music: organists and choirmasters and church musicians

On Monday we posted Parish Music Guidance: Application, our third piece on
the Church of England’s new and updated Legal Opinion on Canon B 20 – the earlier posts being Parish Music Guidance: Ministers and organists and Parish Music Guidance: employment issues. This latest post was prompted by a comment on the relevance of the new guidance to churches where there is no organist or choir, and concluded that whilst Canon B 20 broadly reflects the current patterns of music in the Church of England, the Opinion might benefit from a degree of modification to provide a closer alignment with present practice. Readers will appreciate that our experience (of which David’s is much more recent than Frank’s) is primarily with a choir with a director of music and assistant organist, and given the paucity of information on the arrangements for “music groups”, we would appreciate comments and observations on the operation of these.

2CEC

On Monday we reported that the Church of England had announced that Dame Caroline Spelman MP had been reappointed by the Crown to serve as the Second Church Estates Commissioner for the new Parliament; how long that Parliament will be is anyone’s guess.

Quick links

And finally…

On the day of the Queen’s Speech, the new Lord Chancellor and Secretary of State for Justice released an open letter on prison reform in which he made the entirely sensible point that “as well as depriving people of liberty, our prisons must also be places of reform and rehabilitation to support offenders to turn their lives around.”

But isn’t part of the problem that we simply jail far too many people in the first place? According to World Prison Brief, the prison occupation rate for England and Wales is 145 per 100,000 population, almost three times greater than for Sweden, where it is 53. Surely the English and Welsh can’t be almost three times more evil than the Swedes.

Leave a Reply