Law & Religion 2017 and 2018: retrospect and prospect

That was 2017, that was…

The General Election, Brexit and human rights

Inevitably, much of 2017 was dominated by the General Election and by Brexit – the second of which led directly to the first, when David Cameron resigned in June 2016 after losing the referendum and was succeeded by Theresa May. Mrs May decided that she needed her own mandate and the rest, as they say, is history: her small working majority was converted into a small working minority and she retained power only by negotiating a “Confidence and Supply” agreement with the Democratic Unionist Party.

The Conservative Manifesto said that a Conservative Government would not incorporate the EU Charter of Fundamental Rights into UK law but that the Human Rights Act 1998 would not be repealed or replaced while the Brexit process was under way. Crucially: “We will remain signatories to the European Convention on Human Rights for the duration of the next [ie the present\ parliament” [p 37].

The European Union (Withdrawal) Bill was published on 13 July. Not, as it turned out, “the Great Repeal Bill”: presumably wiser counsels – or perhaps wiser Parliamentary Counsel – prevailed. How it will fare in the Lords is one of the minor imponderables of 2018.

Niqab and burqa bans – and the Government’s response

In March, the Grand Chamber of the CJEU handed down judgments in two hijab cases after two rather conflicting opinions by Advocate General Kokott and Advocate General Sharpston:

  • Achbita & Anor v G4S Secure Solutions NV [2017] EUECJ C-157/15, in which it held that because G4S’s internal rule against wearing visible signs of political, philosophical or religious beliefs and covered any manifestation of such beliefs without distinction, it did not introduce a difference of treatment directly based on religion or belief for the purposes of the Equal Treatment Directive; and
  • Bougnaoui and ADDH [2017] EUECJ C-188/15, in which it concluded that it was not clear from the order for reference whether the question on which it had been asked for an opinion related to a finding of a difference of treatment that was direct or indirect and whether the difference in treatment arising from an apparently neutral internal rule on religious dress was appropriate, necessary and objectively justified by the pursuit of a policy of neutrality: otherwise, it would have to be determined whether the employer’s willingness to take account of its customer’s wish no longer to have the employer’s services provided by a worker wearing a hijab was justified for the purposes of Article 4(1) of the Directive.

The judgments, which we noted here, provoked some fairly ill-considered media reactions and somewhat divided academia. It proved such a hot issue that there was an Urgent Question in the Commons, to which the Parliamentary Under-Secretary of State for Women and Equalities (Caroline Dinenage) replied:

“The Government are completely opposed to discrimination, including on grounds of gender or religion, or both. It is the right of all women to choose how they dress, and we do not believe that the judgments change that. Exactly the same legal protections apply today as applied before the rulings.”

From a practical employment law point of view, perhaps the wisest comment was from Amy Wren on Farrer & Co’s WorkLife website:

“where does this leave employers in the UK? Actually, not far from the advice I would usually give in these sort of situations: unless it can clearly be shown that the wearing of religious items is genuinely interfering with employees’ ability to carry out work safely and properly, then just don’t go there.”

Then in July – to no-one’s surprise – in Belcacemi and Oussar v Belgium [2017] ECHR 655 and Dakir v Belgium [2017] ECHR 656 the ECtHR upheld the Belgian ban on wearing the niqab or burqa in public. We noted the judgments here.

AMiE and episcopi vagantes Britannici 

Newcastle got its very own wandering bishop when the Revd Jonathan Pryke, curate at Jesmond parish church, was consecrated by bishops of the Reformed Evangelical Anglican Church of South Africa (REACH-SA): to do exactly what, remained unclear. He was later joined by the Revd Canon Andy Lines, consecrated in Wheaton, Illinois, under the authority of the Anglican Church in North America – initially, according to the Primate of ACNA, to provide “a missionary bishop for Scotland”. The Primate said that he regarded it as “an honor to serve the Scots in this way”.

Whether Scots wish to be so served is another matter; and they certainly will not have been enamoured by the subsequent AMiE announcement welcoming the ordination of nine men by Andy Lines, “an English bishop”. Nevertheless, the Scottish Anglican Network reported in November that the congregation of Christ Church, Harris, had announced that they would seek episcopal oversight under the Rt Revd Andy Lines as they could no longer remain under that of the Bishop of Argyll & the Isles. And perhaps we shouldn’t forget the consecration of former Queen’s chaplain Gavin Ashenden by the Christian Episcopal Church of Canada and the USA in 2013, although he himself had not mentioned that fact for four years.

The high-profile nature of the AMiE ordinations was reflected in our page-view statistics for the last quarter of 2017, but in terms of ecclesiastical law, this was clearly not the most important event over that period.

Safeguarding and IICSA

The Independent Inquiry into Child Sexual Abuse in England and Wales finally started public hearings in February under its fourth Chair, Professor Alexis Jay OBE. Its first session was on sexual abuse in the British child migration programmes and the associated institutional failings.

A preliminary hearing in the investigation into the extent of any institutional failures to protect children from sexual abuse within the Anglican Church was held on Wednesday 4 October; the hearings into child sexual abuse in the Roman Catholic Church were held over 14 days in November and December.

IICSA is likely to be a very long-term project indeed (possibly even rivalling the Bloody Sunday Inquiry?) and, given its very shaky start, all we can do is to wish it well.

Transgender, parenting and Ultra-Orthodox Judaism

The issue of transgender parenting in an extremely conservative religious community was raised in Re M (Children) [2017] EWCA Civ 2164, in which a transgender father from the Charedi community sought an order for access to his children. The High Court ruled that access should not be permitted but the Court of Appeal reversed that decision and sent the matter back to the Family Court for reconsideration. We noted the judgment at first instance here, and on appeal here. Our general feeling on the matter, however, was “who would ever want to be a judge in the Family Court”?

Humanist weddings in Northern Ireland

In June, Colton J took the rather unusual step of granting specific authority for Ms Laura Smyth to marry her fiancé, Eunan O’Kane, in a humanist ceremony. The Marriage (Northern Ireland) Order 2003 recognises civil marriages and religious marriages, but the General Register Office was not prepared to authorise a “belief” wedding conducted by a humanist celebrant on the grounds that such a ceremony was not “religious”. The judgment is here: Smyth, Re Judicial Review [2017] NIQB 55 and we noted the case here. The Northern Ireland Court of Appeal subsequently granted interim authority for the wedding to proceed; however, it has yet to rule on the substantive appeal against Colton J’s judgment.

Access for Northern Ireland women to free abortion in England

In one of the most important law and religion cases of 2017 (broadly defined, as we always do), by a 3-2 majority the Supreme Court dismissed the appeal in R (A and B) v Secretary of State for Health [2017] UKSC 41. The matter at issue was whether or not it was lawful to refuse termination of pregnancy in England to a woman from Northern Ireland. At the time, we imagined that the next stop would be Strasbourg; however, in June the Government announced a change of policy in order to head off a possible defeat in a vote on the Queen’s speech and, in October, published plans to provide free abortion services in England for women from Northern Ireland.

Clergy discipline and Strasbourg

In a judgment that attracted relatively little comment, Károly Nagy v Hungary [2017] ECHR 782, the Grand Chamber of the ECtHR upheld the right of the Hungarian Reformed Church to dismiss one of its parish ministers for what it perceived as misconduct, holding that the domestic courts’ conclusion that his pastoral service had been governed by ecclesiastical law had been neither arbitrary nor manifestly unreasonable. These cases almost invariably turn on the facts; however, the judgment appears to tip the balance ever so slightly towards non-interference in the decisions of religious tribunals and away from secular employment rights. We noted it here.

The Great Irish Bake-Off #2

Dublin got its own “gay cake” case when an unnamed man placed an order with a bakery in Dublin for a cake decorated with the (slightly garbled) declaration:

“BY THE GRACE OF THE GOOD LORD, I (name redacted), ORIGINALLY OF (address redacted) and c/o (other addresses redacted) that in my honest opinion – ‘GAY MARRIAGE’ IS A PERVERSION OF EQUALITY and the 34th Amendment to the Irish Constitution should be REPEALED.”

For various reasons, his order was refused; and he took a complaint to the Workplace Relations Commission, which deals with complaints about discrimination in access to goods and services – on grounds which include religion. He lost: see Adjudication Reference: ADJ-00004390. We noted the case here.

An (ecclesiastical) law glossary

Prompted by the initiative of the Prayer Book Society (PBS) in publishing a new glossary to assist their understanding of The Book of Common Prayer, we have published our own (ecclesiastical) law glossary of terms used in the consistory and secular courts, which we will supplement as appropriate.

Queries and Comments

Following the examples of Cathy Caridi’s Canon Law Made EasyChurch Law for Normal People and Fr John Zuhlsdorf’s Quaeritur/Ask Father, in our 13 August round-up, we included some “quick answers” to questions that had arisen via the search facility on the blog. This format was adopted in subsequent posts which examined further “Queries and Comments”, appearing every one or two weeks, depending upon the information sought. At an early stage, these were separated into general searches for information, and those pertaining to specific case law; they also carry links to sources of frequently-sought data, selected Q&A that have arisen in other areas of ecclesiastical law, and some links to relevant parts the re-launched website of the Church of England. To date, a total of 170 answers have been published.

Websites, 2017 and 2018

On 15 November, the Church of England announced the re-launch of its website, the Press Release heralding a “simple navigation, an improved search engine, improved website accessibility”; however, this is dependent upon what one is looking for. The Church Times noted that the mobile-friendly site “shifts the emphasis from words to images” and “whereas the old site contained approximately 75,000 separate documents and pages, accumulated online since 2000, the new site has perhaps one-tenth of that number”. “Adrian Harris, who has supervised the rebuild … gave assurances that nothing significant would be lost”.

The revised site has a strongly missional focus and did not initially include essential links to items which are of importance to ecclesiastical lawyers: the Canons, the Church Representation Rules, Legal Opinions from the General Synod’s Legal Advisory Commission, and other formal guidance from the former site. From the Beaker Folk’s post A Litany of Anglican Woe for the New Church of England Website, it appears as though the clergy were no better served; this ended “Public service announcement: Law and Religion UK have published a handy set of shortcuts while the SEO gets itself sorted out”. Subsequently, we posted two additional sets of shortcuts, here and here, and look forward to further improvements and uploads to the CofE site.

Nevertheless, many approved of the new design and the CofE tweeted that it was thrilled that @webusermagazine (£) gave the new website 5/5 stars in its review of ‘best new websites’. Off to a more promising start was the relaunch on 30 November of the CofE’s A Church Near You (ACNY) web pages. This website receives over 13 million page-views annually and is one of the Church’s most popular on-line resources, particularly in the last 72 hours before Christmas Day. Consequently, it went live just ahead of the launch of the Church’s #GodWithUs Advent and Christmas campaign.

ACNY lists every church in the Church of England (i.e. “over 16,000”) and provides maps, contact details, service times and other information. Its compact design facilitates easy navigation and efficient search engine provides links to an appropriate church on the basis of location/postcode and the facilities sought, selected via a drop-down menu. Inevitably, the responsibility of tagging specific church facilities is at the local level and, consequently, the available detail is dependent upon the allocation of appropriate resources to this important task.

At L&RUK our readership continues to grow as we approach our millionth page-view which is expected in early Spring 2018. This increase has necessitated changes to our Comments policy, and we now cease to accept comments on a particular post which are received more than fourteen days from the original day of posting. In addition, as from 24 December, we no longer post unattributable comments; if either of us submits a comment to another blog he always signs it: similarly if either of us publishes a post on this blog which reflects his own views; likewise, a comment.

And for 2018?

Possibly the biggest UK law and religion cases (in the broadest sense) for 2018 will be the Supreme Court appeals in Lee v McArthur & Ors [2016] NICA 39 (aka the “gay cake” case) and Steinfeld & Anor v Secretary of State for Education [2017] EWCA Civ 81 (about the refusal of civil partnerships to opposite-sex couples).

In the meantime, the US Supreme Court has been hearing argument in its very own dispute about the sexuality of comestibles on very similar facts to those in Lee v McArthurMasterpiece Cakeshop Ltd v Colorado Civil Rights Commission: for proper grown-up coverage, see the SCOTUSblog here. And at the close of the year, the Oregon Court of Appeals handed down judgment in yet another cake case, again on similar facts – Klein v Oregon Bureau of Labor and Industries 289 Or App 507 (2017) – in which it dismissed the cakeshop’s appeal.

And apart from that, Brexit will no doubt grind on.

And a Happy New Year from both of us.

5 thoughts on “Law & Religion 2017 and 2018: retrospect and prospect

  1. Brexit I trust will not simply grind but flourish be fecund and give birth to a new Britannia Resurgent
    A happy and blesséd New Year to you n yours!

    • Maybe: maybe not. But whatever the outcome, it’s certainly going to take up an immense amount of Parliamentary time and Government effort.

  2. Re Humanist weddings in Northern Ireland, David Pollock comments as follows (having met a glitch when he tried to post it himself):

    “The ‘humanist’ marriage in Northern Ireland in June was to all appearances humanist but in law was a civil marriage, the Court of Appeal having ordered the Registrar-General to require the appointment of the Humanists UK Head of Ceremonies as an “additional person[s] to solemnise civil marriage[s]” under Article 31(3) of the Marriage (NI) Order 2003.

    The appeal court at a later hearing suggested that this Article might provide a permanent solution, at a further hearing agreed it would not, and is now scheduled to decide the appeal on 15 January.”


Leave a Reply