…and so, as the reality of the Article 50 of time confronts the fantasy of “excruciating detail”, we round off another year of L&RUK with a miscellany of recent news…
What the rule of law is really about
On 22 December, the First President of the Supreme Court of the Republic of Poland, Professor Dr Małgorzata Gersdorf, published an open letter on the recent reforms of the judiciary. President Andrzej Duda has signed into law two bills reforming the Supreme Court and the National Council of the Judiciary: one allows politicians to choose members of the judiciary council, which appoints judges and the other, by lowering the retirement age for Supreme Court judges, would remove about 40 per cent of the current Court.
Dr Gersdorf insists that she is not interested in defending her own position, arguing that
“There is no moral or legal justification … for the destruction of the democratic rule of law in Poland, as stated in Article 2 of the Constitution. Every law which runs counter to the principle of independence of the courts, including the Supreme Court, breaks the basic constitutional right of every citizen…”
The EU recently launched unprecedented disciplinary measures against Poland because of the judicial reforms which, it claims, are contrary to the rule of law. And if the rule of law is extinguished, that threatens not just freedom of religion but every other human right as well.
A score draw for the amenity societies?
The amenity societies have had mixed fortunes in December’s consistory court cases, which will be reported along with the annual index early in the New Year. In Re Bath Abbey  ECC B&W 1, the Chancellor granted a faculty to allow the pews in the nave to be replaced with chairs, subject to the chairs being stained to match the other furniture in the Abbey. The petition was opposed by the Victorian Society; it had argued that the Abbey’s plans for the permanent removal the nave pews, a major element of Sir George Gilbert Scott’s reordering of the church in the mid nineteenth century, were unnecessary and would harm the significance of this listed building. However, after applying the guidelines in Re St Alkmund, Duffield  Fam 158, as further considered in Re St John the Baptist Penshurst  Court of Arches (Rochester), Chancellor Timothy Briden concluded:
“. In my judgment the balance falls firmly in favour of granting the order sought by the Petitioners, even after the listing of Bath Abbey and the strong presumption against change are properly brought into account. Bath Abbey is in many respects an exceptional building. Even if, contrary to my findings, the disposal of the nave pews were to be viewed as causing serious harm, the exceptional set of circumstances relied on by the Petitioners (including a significant element of heritage benefit) would have satisfied the ‘Duffield’ criteria and justified the proposed change”.
The Victorian Society expressed disappointment and its Director, Christopher Costelloe, indicated that the Society would give careful consideration to appealing against the judgment. By way of contrast, in Re Holy Trinity Poynings  ECC Chi 3 the Chancellor refused to grant a faculty for a reordering; the contentious element was the installation of underfloor heating beneath a new stone floor in the south transept of the Grade I church; the provision of a discreet tea point; and the introduction of heritage boards, retaining the historic memorial slabs laid into the floor, but permanently covering them with heating elements and the new floor. Applying Re Duffield, the Chancellor concluded that the harm would be considerable; the justification for the proposals relating to the heating was neither clear nor convincing, and these were unlikely to achieve the parish requirements of heating the whole church. Emma Lawrence, head of casework at the SPAB, commented:
“This was an important case for the SPAB and for the wider sector as it knocks on the head the notion that all schemes to make churches more comfortable for the congregation should be allowed on the grounds of public benefit and mission, outweighing heritage considerations. It shows that alternative, non-invasive proposals need to be given due consideration and that proper expert assessment is required.”
With thanks to Mark Hill QC for bringing these contrasting cases to our attention.
Jewish and Islamic burials again
On 28 December, the Jewish Chronicle carried an article on recent coronial delays in London relating to Jewish burials. It further reported that in a separate case, it had seen an exchange of letters between the Senior Coroner for Inner North London and representatives of the Jewish community in Hackney; in this exchange “the coroner reveals that ‘no death will be prioritised in any way over any other because of the religion of the deceased or family, either by coroner’s officers or coroners’”. A tweet by Adam Wagner provides useful insights and comment on the practical issues involved in such cases.
Both Jewish and Islamic law require that burial should take place as soon as practicable after death and that there should be no desecration of the body. In addition, Jewish law stipulates that a body should not be left alone until it is buried: shemirah — “guarding” — the deceased until burial.
A busy Coroner’s Office is under considerable pressure. However, in the case of Muslims and Jews the issue of retaining bodies for post-mortem examinations engages Article 9 ECHR (thought, conscience and religion), though the issue is qualified by Article 9(2): see Mitting J in R (Rotsztein) v HM Senior Coroner for Inner North London  EWHC 2764 (Admin) (a case challenging a decision to conduct an invasive autopsy) at . And ultimately, “whether or not a post-mortem is ordered by a coroner is a matter for her judgment” .
It is a difficult issue and, further than that, not one on which we would wish to comment.
Law & Justice 179
The Trinity/Michaelmas edition of Law & Justice has just been published.
- Richard Helmholz: ‘Approaches to Law: Catholic and Protestant’.
- David McIlroy: ‘Catholic and Protestant Approaches to Human Rights’.
- John Hicks: ‘Preston: another lap of the circuit or a signpost?’.
- Thomas Glyn Watkin: ‘The Rule of Law and the Church in Wales’.
- Frank Cranmer: ‘Reasonable Accommodation for Employment and Provision of Services?’.
- Jason Krestos on Rafael Domingo: God and the Secular Constitution.
- Sylvie Bacquet on Javier García Oliva and Helen Hall: Religion, Law and the Constitution: Balancing Beliefs in Britain.
- Søren Holm on Holly Fernandez Lynch et al: Law, Religion and Health in the United States.
- Javier García Oliva on Andrew Copson: Secularism: Politics, Religion and Freedom.
- Helen Hall on Ronald Hutton: The Witch: A history of fear from ancient times to the present.
– plus umpteen case-notes.
- Association of American Law Schools: Law and Religion Section 2017 Newsletter: includes a (not entirely accurate) bibliography for 2017.
- DCLG: Cathedrals and their Communities: A report on the diverse roles of cathedrals in modern England: summarises the (rather tentative) findings from the tour of all 42 Church of England cathedrals undertaken by Lord Bourne of Aberystwyth as Minister for Faith at DCLG.
- Neil Foster, Law and Religion Australia: Large fine for refusing to supply same sex wedding cake upheld in Oregon: comment on Klein v Oregon Bureau of Labor and Industries 289 Or App 507 (2017).
- William Kremer, BBC: Dissolving the Dead – a radical alternative to burial and cremation: on resomation (which uses alkaline hydrolysis to reduce the body to ash).
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