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Law & Religion UK is intended as a forum for academically-rigorous exploration of the interactions between law and religion, together with the associated human rights issues. We welcome pertinent guest posts and comments on current developments that reflect the views and opinions of their respective authors and meet the General Conditions applying to the site. Those that do not meet these criteria or which are otherwise unidentifiable are unlikely to be published

Frank Cranmer and David Pocklington

 

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Balancing mission, aesthetics and heritage of parish churches

The Church’s consistory courts are frequently required to weight up the relative merits of proposed building work for repair or modification, in terms of their impact on the heritage and aesthetics of the a building against its overall mission within the community. This exercise is easier to perform in relation to petitions concerning uncontroversial works to “unremarkable and utilitarian buildings” such as that in Re St Richard Crowborough [2014] Chichester Cons Ct, Mark Hill Ch or the disposal of redundant or dilapidated items as in Re St Mary Magdalene South Bersted [2014] Chichester Cons Ct Mark Hill Ch. Nevertheless, the exercise is undertaken in each case regardless of their apparent merits.

Different aspects of this dilemma have been explored recently in three essentially unrelated contexts: two recent court judgements; the publication of English Heritage’s annual Heritage at Risk Register; and the latest Westminster Faith Debate which will consider whether there are creative ways of managing the Church’s material assets, so that they help rather than hinder its work

Consistory Court Judgements

The two recent cases of Re Christ Church, Brixton Road [2014] Southwark Cons Ct, Morag Ellis Dep Ch and Re St John the Baptist, Penshurst [2014] Rochester Cons Ct, John Gallagher Ch provide examples where significant reordering was proposed and the court was required to consider objections from amenity societies, and place the changes in the context of the on-going development of the building. Whilst readers do not have access to the materials presented to the court or evidence from site visits, some of the context can be gauged from prudent use of internet images, church web sites &c.

Reordering Art Nouveau/Byzantine Revival, Grade II* listed church, built in 1902

Betjeman’s Best British Churches describes Christ Church, Brixton Road as:

“By Beresford Pite, 1899-1902, an unmissable and highly original Byzantine-style cruciform church in brown bricks with Portland stone stripes. The interior is domed, and there are careful details throughout”.

The Petitioners’ Statement of Need indicated:

“There is an urgent need to develop the Christ Church building for the future, and in the process streamline some of the confusion in the electrical and heating systems and building layout resulting from the earlier developments [in the 1980s and 1990s]”

The Parish considered that the “most pressing need which should be tackled now is the requirement to tackle the Brixton Road (liturgical west but geographical east) end of the building”. During the course of the development, the Local Planning Authority, the London Borough of Lambeth, (“LBL”), English Heritage, (“EH”), and the Victorian Society, (“VS”), had been consulted. LBL was satisfied with the proposed works, and the DAC supported the petition, although the VS informally objected to one aspect: the form, although not the principle, of the replacement of two pairs (of three) lobby doors at the entrance from Brixton Road. There was general agreement on the need for their replacement since they had become warped as a result of the heating system.

Nevertheless, the area of disagreement was narrow: whereas the Petition proposed that the replacement doors should be glazed between the glazing bars from top to bottom, the VS considered that “further glazed panels would alter the careful balance of wood to glass and change the character of the inner lobby”. The petitioners expressed concerns of the safety issues, [visibility of wheelchair users, children and those of shorter stature}, and also wished the interior of the church to be visible at a glance from the street.

The Chancellor considered that although the newly-constructed elements would reduce the symmetry of the building, its composition was already compromised by the 1980s/1990s interventions: the late twentieth century screen was undistinguished and was “not suggested by anybody to be inherently valuable”. Furthermore, the changes were necessary and would improve its functionality, aesthetics and certain aspects of safety; all of the changes were reversible.

Applying the principles laid down by the Court of Arches in Re Duffield: St Alkmund [2013] 3 WLR 854, the Chancellor found “there is clear and convincing justification for the proposals in terms of the benefits to the mission of the church. The benefits outweigh the very limited harm which I have identified to the significance of the listed building.” Commenting on the necessary removal of the doors, she said:

“[t]he reordering which took place a quarter of a century ago, as well as the uncontroversial proposed changes considered above, reflect more modern notions of mission. Whereas, in 1907, the means of drawing people to the gospel was seen as an external pulpit, and the entire basilica was devoted to worship, the emphasis now is on welcome, openness and facilitating community activities. This is a building which has moved with the times and the effect of the proposals on heritage significance . . . must be tested against the baseline of the altered building. In this case, the original doors have to be replaced – the only controversial question is as to the style of their replacement. I conclude, on the Duffield questions 1 and 2, that there would be some harm to significance but that harm would be very slight. I am reinforced in the second of these conclusions by the facts that the lobby and doors do not feature in the listing description and, more weightily, that EH does not object.”

On the Duffield Questions 4 and 5, the Chancellor stated that the changes proposed would lead to public benefit in terms of marginal safety advantages, and more significantly, the greater freedom of use in the Holland Room, [the area divided from the central worship area] . . . Making the church as “user friendly” as possible is a valid missional consideration”.

Faculty granted.

Reordering Grade 1, 13th Century Church

Re St John the Baptist, Penshurst also addresses changes relating to the on-going mission of a church, although in this case, one that was considerably older. A petition filed on 14 August 2013 sought permission to carry out substantial works to the church, and at a preliminary hearing on 18 December a Faculty was issued in respect of those works which all parties agreed were uncontentious. The present hearing concerned: the removal of the Bodley and Garner screen between the chancel and the nave of the church (“the chancel screen”); re-ordering of the chancel, to include the removal of the choir stalls and their platform; relocation of six ledger stones in the chancel (choir); laying of a new Clips ham stone floor to the chancel (choir); and re-ordering of the sanctuary, to include the extension of the sanctuary westwards, although in the event, this was not pursued for financial reasons.

Central to all of these was the removal of the 1897 chancel screen, a comparatively recent addition in the on-going life of this church dating from the 13th century. This was supported by the PCC, the Church Buildings Council (“CB”) and the DAC, and no objections were raised by the Society for the Protection of Ancient Buildings or as a result of the public notices. However, the Victorian Society, (“VS”), objected to the removal of the chancel screen, and was added to the petition as a party opponent.

The petitioners described their desire to use the building for more musical events, such as concerts, which was not practicable with the presence of the chancel screen. The Chancellor noted that “Messy Church” and “Fresh Expressions of Church” would likewise be impracticable, with the chancel screen being daunting, and providing a physical and psychological barrier between the chancel and the nave. Furthermore, a potential recipient of the screen had been identified, St Michael and all Angels Church in the diocese of Leicester, and an appropriate faculty granted.

Although the Victorian Society had attempted to reach some form of compromise with the petitioners, all their proposals were predicated upon the chancel screen remaining in situ. The Chancellor considered these as “the worst of all options”, and was most critical of the “highly partisan” evidence given by the expert witness for the Victorian Society, of whom he stated:

“it was clear from the thrust of his evidence, and the manner in which it was given, that he had no interest in the wants or needs of the church. Effectively, the only consideration for him was the preservation of the chancel screen.”

He added:

“[c]ourts these days expect and require experts to be free of bias and to be unaffected by the effect upon their clients of the exigencies of litigation. This, I regret, could not be said of [the VS witness]“.

The Chancellor noted [40]

“Not all change is bad: far from it, and whilst there is a rebuttable presumption in all faculty proceedings in favour of a status quo, such can be rebutted more or less readily, depending on the nature of the proposals, as was made clear by the Court of Arches in In re St Alkmund, Duffield [2013] Fam 158 at para. 87. There the Court of Arches stressed the need for the Consistory Courts to be; “freed from the constraints of the Bishopsgate questions” previously applied. Where, as in the instant case, a listed church is involved, the benefits need to be greater.”

However, he also added [41]:

“it is relevant, in my judgement, that what is sought is merely the undoing of what was done about 130 years ago, relatively recently in the life of this church, so as to restore things as they had stood for several hundred years insofar as the nave’s separation (or lack of it) from the chancel, is concerned.”

[Evidence from church architect had indicated that “almost certainly there would have been a screen in place in pre-Reformation times, but that it is likely to have been removed thereafter”, i.e. between 1540 and 1600.]

The presumption in favour of the status quo is rebuttable, and in the Chancellor’s judgement was rebutted by the evidence put forward by, and on behalf of, the petitioners as to the parish’s needs. Even if this were wrong, removal of the screen would result in “Very little harm” to the status quo, ante circa. 1890, and whilst very visible, it was clearly not deemed worthy even of a mention in the Grade I listing. Furthermore, he stated.[45 and 46]:

“[t]he justification for carrying out the proposals is overwhelming. I am wholly satisfied that the church needs them for its requirements of worship and mission. There will be public benefit, including liturgical freedom, in that an altar can be placed below the chancel, bands/groups used to lead the music, Messy Church and the like introduced, and projector screens potentially used, all of which the church requires.”

“The balancing exercise, as must be clear from the above, comes down firmly in favour of the petitioners. Whatever harm there may be to the building is slight, and most certainly not substantial or significant; and the removal of the screen takes away what is a dominating, intrusive, not to say off-putting and gloomy presence.”

Faculty granted.

Ecclesiastical heritage at risk

Coincidentally (and more generally), on 23 October English Heritage published its annual Heritage at Risk Register. For the first time, it includes the results of a comprehensive review of all listed places of worship in England in association with the organisations and bodies who look after them. It suggests that 6 per cent of places of worship are at risk.

In places of worship considered at risk, congregations often face a combination of failing roofs, broken gutters and downpipes and damage to high-level stonework. The necessary remedial works are a huge challenge; and giving congregations the necessary support to help their places of worship come off the register will also require extensive funding. English Heritage says that it is working with the Churches, the Heritage Lottery Fund, trusts and charities on how best to direct resources. 40 per cent of the churches on the Register are already making efforts to deal with the issues; but much more needs to be done.

It should be noted, however, that that is not the end of the story. First, English Heritage is only concerned with buildings in England: churches in other parts of the United Kingdom also face serious heritage funding problems. Secondly, EH is concerned only with listed buildings – but there are many unlisted church buildings that are also of architectural merit, besides providing important resources for their local communities. They, too, need resources to keep them in decent repair.

Westminster Faith Debate

The debate Heritage – how can buildings, endowments and pensions become assets not burdens? is to be held this evening at St Mary’s University Church, Oxford. Speakers will include Andrew Mackie, (Third Church Estates Commissioner), Sir Barney White-Spunner (Executive Chairman of The Countryside Alliance), Dame Fiona Reynolds DBE (Master of Emmanuel College and former Director-General of the National Trust) and the Rt Revd John Pritchard (Bishop of Oxford). A  subsequent post will include a summary.

Women in the episcopate: correction

With regard to the Dispute Resolution Regulations referred to in Commons debate women in the episcopate, these do not require Synodical approval, and simply have to be laid before General Synod.  Subsequent amendments to the Regulations, however, are subject to approval by a two-thirds majority in each house.

Apologies for any confusion that has arisen.

 

Commons debate women in the episcopate

The final parliamentary consideration of the draft Bishops and Priests (Consecration and Ordination of Women) Measure took place on the late afternoon of 20 October, when the Second Church Estates Commissioner, Sir Tony Baldry, (Banbury, Con), proposed the motion

“That the Bishops and Priests (Consecration and Ordination of Women) Measure (HC 621), passed by the General Synod of the Church of England, be presented to Her Majesty for her Royal Assent in the form in which it was laid before Parliament,”[HC Hansard, 20 Oct 2014 Vol 586(45) Col 706].

The motion was passed after a short debate, below, and following Royal Assent, the other remaining legal components will be considered at General Synod 17-18 NovemberContinue reading

Paganism, religion and human rights

In a post in October 2012 on concerts and performances in churches and cathedrals we noted, very much in passing, Caroline Briggs-Harris’s suggestion that the courts:

“… appear to be moving towards accepting a wider definition of religion and faith. Paganism and witchcraft, although not yet specifically identified by the courts, could be deemed to fall within the protection afforded by the human rights legislation” [‘Witchcraft: from Crime to Civil Liberty’ (2011) 167 Law and Justice at 54].

Our conclusion at the time was “But not yet”. But the law has developed fairly rapidly since then and we wonder whether that is still true.

Public authorities seem to have been more accepting of paganism in its various manifestations as “religious” for some time now.  Continue reading

Religion and law round-up – 19th October

A rather miscellaneous week: religious affiliation, assisting suicide, new Article 9 cases, same-sex marriage in Scotland, the conclusion of the Synod in Rome  and  the importance of telling one brand of whiskey from another…

British Election Survey on religious affiliation

The admirable British Religion in Numbers site has posted the latest data released as part of the British Election Study. According to the BES  which started in the early 1960s  current declared religious affiliations in Great Britain (it doesn’t include Northern Ireland) in response to the question ‘Do you regard yourself as belonging to any particular religion?’ are as follows:

  • No religious affiliation: 44.7%
  • Church of England/Anglican/Episcopal: 31.1%
  • Roman Catholic: 9.1%
  • Presbyterian/Church of Scotland: 3.1%
  • Methodist: 2.5%
  • Baptist: 1.3%
  • United Reformed Church: 0.5%
  • Free Presbyterian: 0.1%
  • Brethren: 0.1%
  • Judaism: 0.8%
  • Hinduism: 0.6%
  • Islam: 1.6%
  • Sikhism: 0.3%
  • Buddhism: 0.4%
  • Other: 3.7%

It’s an interesting set of figures but we cannot help wondering how reliable it is: Continue reading

Oaths, the Greek judicial system and Article 9 – again

In January 2013 we posted on what was then the latest case in the saga of the Article 9 implications of the obligation to swear an oath in court proceedings in Greece. The case under consideration on that occasion was Dimitras & Ors v Greece (No. 3) [2013] ECHR 18 [French only]. The issue has come up yet again in Dimitras and Gilbert v Greece [2014] ECHR 1023, when the indefatigable Mr Dimitras returned to the fray.

The facts

Mr Dimitras is the Director of Greek Helsinki Monitor, an NGO working in the field of human rights, and his colleague Ms Gilbert is in charge of Antisemitism issues at the Monitor.

In August 2007 Mr Dimitras alerted the prosecutor at the Athens Criminal Court to an allegedly anti-Semitic article published in the daily extreme right-wing Alpha Ena and the editor and the writer of the offending article were duly prosecuted. At the prosecution in the Athens Criminal Court in January 2009, after confirming she was Jewish Ms Gilbert was joined as a civil party on payment of 30 euros. Mr Dimitras was not joined as a civil party but appeared as a witness. He was asked his religion, pursuant to Article 217 of the Code of Criminal Procedure, and informed the court that he was an atheist rather than an Orthodox Christian so as not to be obliged take a religious oath under Article 218 of the Code. Under Article 220, the judge allowed his application. In the event, the accused were acquitted. Mr Dimitras wrote to the prosecutor asking him to appeal the judgment but he was later told that his application had been rejected.

Continue reading

Quasi-law change to assisted suicide provisions

On 16 October, the Director of Public Prosecutions announced a clarification to the Crown Prosecution Service Policy on cases of encouraging or assisting suicide, following recent comments of the Supreme Court in R (Nicklinson & Anor) v Ministry of Justice and R (AM)  v Director of Public Prosecutions [2014] UKSC 38.

In the judgment, which was handed down on 24 June 2014, the court addressed the lawfulness of the DPP’s “Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide” (“the 2010 guidelines”) which set out the policy in relation to prosecutions under Section 2. The court’s summary of the judgment states, [emphasis added]: Continue reading