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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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Future composition of the Lords Spiritual

The announcement to both Houses of the Royal Assent to the Bishops and Priests (Consecration and Ordination of Women) Measure completed the parliamentary stages of the legislation and brought to the fore the issue of “fast tracking” women in the episcopate to the Lords Spiritual. The principle of fast-tracking women to the Bishops’ benches of the Lords was considered as part of the Church of England’s deliberations on the House of Lords Reform Bill 2012-13: see paragraphs 27 and 28 of its written submission to the Joint Committee drafting the Bill, GS MISC 1004; and in the oral evidence that the then Archbishop of Canterbury, Most Rev and Rt Hon Rowan Williams, gave to the Committee on 15 November 2011, [in his response to Q435].

The issues that remain, therefore, are: how this is to be accomplished; and what form this fast-tracking/positive discrimination will take. With regard to the former, in his speech to the House of Lords on 20 October, the present Archbishop of Canterbury stated, [HL Hansard, 14 Oct 2014, Vol 756(38) Col 168]

 “Synod did not have the power to include in the Measure amendments to the law on the issuing of parliamentary writs, but there has been consultation with all the main parties on the possibility of a very short and simple government Bill which could be taken through this Session [2014/15] to accelerate the arrival of the first women Lords spiritual. There has been solid cross-party support and I very much hope that the Government will be able to find a suitable legislative slot very shortly.

Whilst it might be argued that the content of the Bishoprics Act 1878, which determines the composition of the Lords Spiritual, would fall within “any matter concerning the Church of England” under section 3(6) Church of England Assembly (Powers) Act 1919, the law relating to the issuing of parliamentary Writs of Summons [i.e. to enable a bishop to take a seat in the Lords] is beyond the scope of this provision[1]. Regardless of these considerations, in practical terms it will be quicker to introduce changes to primary statutory legislation through Parliament than through General Synod.[2]

The consideration is therefore: what will be the procedure for selecting women to serve as Lords Spiritual; and what is the “end point”, or target number to be achieved in the short- and longer-term? Continue reading

Religious discrimination in employment? – only if you’re employed: Halawi v WDFG UK Ltd

We have previously noted the case of Mrs Nohad Halawi, a Christian who had been working as a beauty consultant airside at Heathrow Airport. Yesterday, in Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA Civ 1387, the Court of Appeal  (Arden and Christopher Clarke LJJ and Barling J) handed down judgment in her appeal from the finding of the EAT in Halawi v WDFG UK Ltd (t/a World Duty Free) & Anor [2013] UKEAT 0166 13 0410 that she was not in an enforceable employment relationship with World Duty Free. The issue before the Court, as stated by Arden LJ, was whether a person who provided services through an employee-controlled company to a service company had employment rights. Mrs Halawi sought to establish that, on the particular facts of the case, she was an employee of WDFG UK Ltd, which managed the workplace for the client for whom her services were engaged [1]. The Court held that she was not. Continue reading

Public nudity as a human right? Gough v United Kingdom and the ECHR

Stephen Gough is better known as The Naked Rambler. He believes that the unclothed body is inoffensive and practises social nudity, which he expresses byHomme_de_vitruve being naked in public. In 2003 he decided to walk naked from Land’s End to John O’Groats. In Scotland he was arrested and charged with breach of the peace on several occasions and served several short prison sentences. (He was also arrested and charged in England but what follows does not relate to that.)

The facts

On one of his many court appearances in Scotland, he pled “not guilty” at a short hearing on 21 July 2011 and appeared in court naked at his trial in August. He was warned by the Sheriff that if he refused to dress or otherwise cover himself he might be held in contempt of court. He refused to put on clothes and argued, inter alia, that his arrest and trial violated the European Convention of Human Rights, relying on Continue reading

Seal of confessional: its future in the CofE

In our post CofE to axe seal of confessional? we reported the story in The Mail on Sunday which quoted “a Church of England spokesman” as saying:

“‘The guidelines for clergy are being considered for debate in November at General Synod. The Australian model is one of a number of options which will be considered as part of the on-going discussions”.

We noted the Private Member’s Motion (PMM) that had been tabled by Revd Simon Cawdell of Hereford

“PROVISO TO CANON 113 (July 2014)

That this Synod call on the Business Committee to bring forward legislation amending the proviso to Canon 113 of the Code of 1603 so that a minister who, in the exercise of the ministry of absolution, receives a confession of a serious criminal offence (including in particular a sexual offence involving a child or vulnerable adult) is not required to keep the confession confidential,”

which had attracted 4 signatures[1], but in view of on-going government initiatives on safeguarding &c, suggested that the issue was likely to be considered in detail by the Church, although any changes might take some time to agree and implement.  Whilst Simon Cawdell’s PMM has not been chosen for debate at the November General Synod, other initiatives are in progress within the Church.

At its meeting on 30th September the Archbishops’ Council considered the proposed revision of the Guidelines for the Professional Conduct of the Clergy, and what advice to offer to the Convocations on its treatment of the ministry of absolution (i.e. confession) for which provision is made in Canon B 29, GS Misc 1085: the Annex to this paper sets out the background to the revision process, and states, [emphasis in original]: Continue reading

Religion and law round-up – 26th October

Not a lot of black-letter law this week but quite a lot of comment…

Bar Council statement on the role of the Lord Chancellor

Following the Lord Chancellor’s evidence on 15 October to the House of Lords Committee on the Constitution, the Bar Council issued a press statement as follows:

“Justice is not a service that governments can choose to provide or not. It is a vital part of our constitutional arrangements. It needs to be defended and promoted to make the separation of powers a continuing reality and thereby to safeguard our democratic way of life for the future. The Lord Chancellor must be a champion of the justice system as well as guardian of the constitution. He swears an oath that he will: ‘… respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.’ His role is therefore different from that of the Secretaries of State for other departments.  He is entrusted with lead responsibility in government to maintain the delicate balance between, on the one hand, upholding the rule of law and protecting the independence of the judiciary and, on the other hand, respecting the interests of the executive. Legal expertise is essential to fulfil such a unique role. The Lord Chancellor should be a very senior lawyer.”

Or, indeed, unlike the present incumbent, any kind of lawyer – even a fairly junior one…

Sexual abuse and the seal of the confessional

The report of the independent inquiry commissioned by the Archbishop of York and chaired by HHJ Sally Cahill QC into the Church of England’s handling of reports of alleged sexual abuse by the late Robert Waddington, formerly Dean of Manchester, was published on Thursday. Thinking Anglicans explains that the report will not be made available on-line but in hard copy only, in response to the request of some of those interviewed by the inquiry. Copies are available from Church House Bookshop.

In a statement subsequent to the report’s publication, the Archbishop of York raised the more general question of the seal of the confessional, as follows: Continue reading

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. Continue reading

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.