Law and religion round-up – 25th March

As Brexit begins to take shape, the IICSA hearings on the Anglican Churches conclude and Canon Pemberton loses his appeal…

Brexit: the Joint Draft Withdrawal Agreement

Brexit negotiators have reached a political deal on the terms of a Brexit transition period in a new draft withdrawal agreement. Under the proposed deal, which was adopted by the European Council on 23 March, the UK’s transition period for departure will last 21 months, ending in December 2020; and EU citizens who arrive in the UK during the transition will have the same rights as those arriving before Brexit. Negotiators have said that differences remained over Ireland and Northern Ireland and the UK has agreed that the EU’s “backstop” option for avoiding a hard border (which would include Northern Ireland remaining in the EU’s customs territory) should remain in the draft legal withdrawal text pending the UK bringing forward alternative solutions for avoiding a hard border.

Michel Barnier issued a press statement and the European Parliament’s Brexit Steering Group published its own reaction to the Draft Agreement.

IICSA hearings on the Anglican Churches

The final evidence session of the IICSA three-week public hearing into the extent of any institutional failures within the Anglican Church took place on Wednesday 21 March; giving evidence was the Most Revd Justin Welby, Archbishop of Canterbury, and the Rt Revd Peter Hancock, Bishop of Bath and Wells and the Church’s lead bishop on safeguarding. We posted a summary of the Archbishop’s evidence session and in a future post will be analysing the legal issues raised. 

At the conclusion of the hearing, the Church of England posted the closing statement from Mr Nigel Giffin QC on behalf of the Archbishops’ Council, in addition to the full transcript of all closing statements. The Chairperson of the IICSA, Professor Alexis Jay, concluded the hearing by indicating that the IICSA would not be in a position to draft those sections of the report that relate to Peter Ball and complete this report until after the further case study hearing which will take place in July of this year. It was hoped that the IICSA would then be in a position to publish a single report concerning the Chichester and Peter Ball case studies in the autumn.

Also on Friday, for the start of Holy Week and at the conclusion of the IICSA hearing, the Diocese of York published a joint pastoral letter from the two Archbishops. However, this was  “Steady the Buffs” in tone rather than a proactive statement on how safeguarding will now be undertaken in the light of the IICSA hearing.

[The preface to the widely-tweeted Survivor’s Reply to Archbishops’ pastoral letter indicates that today, the Pastoral Letter was being read in churches across the country. The York web page states that the letter is “for wide circulation” and “Archbishops Sentamu and Justin hope that their letter can either be read out or distributed this weekend and at the start of Holy Week”. Those linking to the letter via the CofE web page, either directly or through the CofE Daily Digest, arrive at the letter, not the associated rubrics. Within the Diocese of London, the letter is being treated as an Ad Clerum]

Same-sex marriage and C of E clergy

Canon Jeremy Pemberton lost his latest appeal: we noted the Court of Appeal judgment here. The Court of Appeal held that HHJ Eady had not been wrong in law and that the post of Chaplaincy and Bereavement Manager with the Sherwood Hospitals NHS Trust “was in part, ‘for the purposes of an organised religion’ ” [61]. Moreover, he had not been subjected to harassment: in his concurring judgment, Underhill LJ observed that “Not all opposition of interests is hostile or offensive” [89].

Data protection and safeguarding

Owen O’Rorke of Farrer & Co has written a helpful post on safeguarding amendments added to the Data Protection Bill [Lords] during the Commons committee stage. The amendments empower organisations – in the course of their own activities and judgment – to process personal data for safeguarding purposes lawfully without consent, where appropriate.

The Bill will not be reprinted until the committee stage is concluded: until then, in order to see the precise terms of the amendments you will have to consult the committee Hansard, here: the amendments in question are 84, 85, 86, 116 and 117 [scroll down].

Niqabs? Not while driving

The German Federal Constitutional Court [Bundesverfassungsgericht] has rejected a challenge to a recent change to the road traffic laws, which now require drivers to have “unhindered all-around visibility”. The amendments, which were approved in September last year, are intended to protect other drivers and require that drivers may not “cover up or obscure their face so that it is no longer recognisable”. Part of their purpose is also to help the police identify and prosecute those who commit traffic violations.

The Court rejected a Muslim woman’s request to suspend the ban on driving while wearing a niqab. She had argued that the face veil ban violated her religious freedom; however, the BVerfG concluded that the woman, who has worn the niqab for seven years, had failed to explain how the law violated her religious freedom or why she faced harm driving unveiled.

Another bishop guilty of sexual abuse

Associated Press reports that on 16 March the Vatican removed from office the suspended Archbishop of Guam, Anthony Apuron, and ordered him not to return to Guam after convicting him of some of the charges in a sex abuse trial. The Vatican spokesman declined to comment and calls to the tribunal judge were not answered. In a statement distributed by his Guam attorney, Apuron said that he had appealed: “God is my witness; I am innocent and I look forward to proving my innocence in the appeals process.”

No restrictions on Apuron’s ministry as a priest were announced. Kurt Martens, Professor of Canon Law at the Catholic University of America suggests that this might be because even if he were removed from the clerical state – as the Vatican has done in hundreds of cases of defrocked priestly abusers – Apuron would still remain a bishop in the theological sense and could continue to ordain priests. Such ordinations would be considered illicit but still valid: “a schismatic conflict the Vatican would want to avoid”.

Secularist of the Year

The CofE’s Daily Digest on Saturday included a link to the Independent’s Report that the National Secular Society had named the Revd Graham Sawyer, as “Secularist of the Year” along with abuse survivor, Phil Johnson. The report states:

“A serving vicar has won the National Secular Society‘s (NSS) ‘secularist of the year’ award after campaigning to expose sexual abuse in the Church of England. Rev Graham Sawyer was praised for his ‘reliable and consistent demands for reform’ in the face of ‘institutional hostility’ inside the church.”

Mr Sawyer was given the award jointly alongside Phil Johnson, a survivor of clergy abuse who now chairs a support group for fellow victims. Details of those shortlisted for the 2018 award are given on the NSS site.

Telecommunications masts on churches

In a recently-published consistory court judgment,  Chancellor Mark Hill QC observed “petitions for a faculty for a licence to introduce telecommunications equipment are amongst the more straightforward matters dealt with by the consistory court. They can be granted swiftly and inexpensively”. Furthermore, as we have noted, the most frequently used objections adopted by complainants – health grounds, transmission of pornography, and aesthetics of the installation – have been addressed in the associated case law and government guidance. However, Re The Venerable Bede Wyther [2018] ECC Lee 3 “represents a perfect storm of ignorance, misinformation, inertia, non-engagement, and stubborn refusal to follow directions”. Our gratitude goes to Ray Hemingray, who ably sorted through the arguments of this re-re-amended petition hearing, and the case will be included in this month’s court round-up post.

Quick links

And finally…I

There seems to have been a recent surge of interest in a post we published two years ago: “Grossly offensive” or merely “offensive”? DPP v McConnell: a note. We can only assume that someone, somewhere, has set an essay on hate-speech and criminal law.

And finally…II

A direction via Twitter from the Rt Revd David Walker, Bishop of Manchester to a church urgently seeking a donkey for today’s Palm Sunday procession: “As it’s an emergency, I give my permission for you to dress the vicar and curate in a pantomime horse costume. If you tell them it’s the latest liturgical gear from Watts & Co, they’ll jump at it”.

3 thoughts on “Law and religion round-up – 25th March

  1. Having a real donkey for Palm Sunday, while it may attract children, is a misunderstanding of how the liturgical symbolism of Holy Week operates – though I don’t suppose this is what lay behind my bishop’s suggestion…
    (It’s akin to insisting on that the wine at the eucharist must be red because it = blood.)

    • When I was at St Chad’s in the 1960s, the College always used white wine at Mass. I always assumed that the reason was precisely to avoid that kind of false symbolism.

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