ECtHR: request for an advisory opinion on the scope of Article 9

Protocol No. 16 ECHR allows the highest domestic courts and tribunals, as specified by those states parties that have ratified it, to request advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the ECHR or its Protocols.

A Grand Chamber panel has accepted a request from the Belgian Conseil d’État / Raad van State in relation to an application lodged by a security guard before its administrative division. The Ministry of the Interior issued ID cards authorising people to work as security guards and, in the applicant’s case, it withdrew his card. The Ministry’s grounds for doing so were that he was in contact with individuals associated with the “scientific” strand of Salafism and that he had been assessed as a “supporter of this ideology” by the intelligence services. The applicant alleges a breach of Article 9.

The question posed is:

“Does the mere fact of closeness to or membership of a religious movement that is considered by the competent administrative authorities, in view of its attributes, to present a medium- or long-term threat to the country, amount under Article 9 § 2 (freedom of thought, conscience and religion) of the Convention to sufficient grounds for taking an unfavourable measure against an individual, such as a ban on working as a security or surveillance guard?”

The Grand Chamber panel accepted the request on 10 May. At this stage, only the question of the admissibility of the request was examined by the panel: for the outcome, watch this space.

Holocaust Memorial Bill

On Thursday, the Examiners of Petitions for Private Bills reported that, in the case of the Holocaust Memorial Bill currently before the House of Commons, Private Business Standing Orders 4, 4A, 10, 11, 38, 39 were applicable to the Bill and had not been complied with: in short, that the Bill is hybrid. The Examiners’ Report was referred to the Standing Orders Committee, which considers matters relating to private and hybrid bills.

Solar panels: King’s College Chapel

In Re King’s College Chapel Cambridge [2023] ECC Ely 1, reviewed here, the court determined that a faculty would be granted for the installation of solar panels either on both sides of the Chapel roof or only on the south side, depending upon an updated assessment of the potential carbon payback information. These calculations were presented to the court and assessed by the Chancellor, Re King’s College Chapel Cambridge (2) [2023] ECC Ely 2.

Whilst the court’s decision was not problematic per se, it was difficult from the reported judgment to evince details of the information on which the decision was made. Our post, King’s College Chapel, Cambridge – Assessment of data, reviews both judgments and examines the inclusion of embodied carbon. The issue of “embodied carbon” arose again this week in Re St Michael Wandsworth Common [2023] ECC Swk 2 in which the DAC commented [emphasis added]:

“[19]. …as regards earlier DAC advice/comments about factoring in ‘embodied carbon’ (i.e. the carbon emissions involved), there is not yet an agreed methodology to assess embodied carbon objectively and accurately within these types of proposals and to weigh it up against reductions in operational carbon emissions“.

Embodied carbon will not be included within scope of the Church of England’s net zero carbon target until after 2030, although CBC Guidance states “churches can take action now, and it is important to consider when carrying out maintenance and renovations to further aid emissions reduction”. Further consideration of “embodied carbon” will be given in a later post.

Christ Church Oxford: Governance Review

On 17 May 2023, Press Releases were published by the Diocese of Oxford and by Christ Church Oxford announcing the completion of the governance review of Christ Church Oxford by Dominic Grieve KC. The text of the Full Report is here and the Statutes are here. In addition to a review of the leadership, the Governing Body, its Committees, Officers and General Administration, the Review considers the position of the Cathedral:

“33.  The Cathedral, as part of the Foundation, is independent from the Diocese of Oxford. The formal episcopal oversight that would normally occur in the case of other cathedrals is not therefore present and cannot be introduced without that independence being undermined. With a new Head of House, it will be important for the Statutes to state that the Dean remains the Ordinary of the Cathedral. The Crown will remain the Visitor. But to meet the needs of good church governance, the Statutes should specify that in the event of there being a problem specifically concerning the Cathedral only, the Crown would, if appropriate, delegate that matter to the Bishop of Oxford.”

Readers may remember that the Charity Commission issued an official warning to Christ Church in November last year.

Dorchester St Peter, Holy Trinity and All Saints

The judgment in Re Dorchester St Peter, Holy Trinity and All Saints [2022] ECC Sal 4 was the culmination of initiatives within the parish concerning a monument to John Gordon in St Peter’s church and was reviewed in a post in September 2022. The Vicar and Churchwardens petitioned for a faculty to move the memorial to John Gordon from a prominent position inside the church to the County Museum immediately next door and erect a replacement memorial in the church.

BBC News reported on 19 May that the plaque has now been moved to the adjacent Dorset Museum where it will be viewable on request. In the church, it will be replaced by a simple plaque noting details of the life and death of Gordon, whose descendants have been consulted on the replacement.

“You wait for ages for a judgment on lime trees in churchyards…”

… then two are circulated on the same day, Re St Nicholas Kingsey [2023] ECC Oxf 5 and Re St Andrew Sonning [2023] ECC Oxf 6: the former was for the removal from the churchyard of a mature lime tree due to a risk of subsidence damage to an adjoining property, as advised by their retained arboriculturist; and the latter was for a retrospective faculty in respect of the felling of a lime tree in the churchyard which had become dangerous and for which the local authority had approved the felling – as the parish had not sought List B consent from the Archdeacon, it was necessary for them to seek a faculty. Hodge Ch repeated his earlier advice on the felling of trees within the faculty jurisdiction, and observed:

“[15]. …The moral of this unhappy case is that even if a tree poses an immediate and serious danger, so there is not the time to go through the full faculty process before dealing with the threat it presents, parishes need to bear firmly in mind the need for the Archdeacon’s written consent under List B.7 (2). This can usually be obtained extremely quickly, and at the same time as obtaining any necessary local authority consent if this is required because the tree is subject to a tree preservation order or is in a conservation area.”

A faculty was granted regularizing the felling of the lime tree, although the inaction of the Churchwarden/PCC in not seeking approval remains illegal.

Quick links

• Samuel L Bray, SSRN: The Influence of the Catholic Intellectual Tradition on the Common Law.
• Massimo Introvigne, Bitter Winter: France: Female Basketball Player Banned for Playing with Headscarf: not much of a surprise there, then.
• Ausra Padskocimaite, Strasbourg Observers: Execution of the ECtHR’s judgments against Russia: Some legal (and political) aspects.
• David Torrance, House of Commons Library: The Coronation of King Charles III and Queen Camilla: a briefing paper on the preparations for the Coronation of King Charles III and Queen Camilla, its planning, liturgy & associated events: also includes an initial attempt to record everyone present in the Abbey.
• US Department of State: 2022 Report on International Religious Freedom.
• Yolanda van der Vyver, Canopy Forum: Religion, Property Law, and the Crisis of Houses of Worship: a strange story of property and schism in Calvinist South Africa.

And finally…

From the Telegraph: Would you pay £2.50 for a single pickle?

Certainly not: next daft question?