Britain Leads in Natural Burials, but . . .

A new study by Durham University suggests that ‘Britain is leading the way globally in ‘natural– or woodland burials where people are typically buried in a woodland setting, field or meadow in wicker, cardboard, or other ecologically appropriate coffins’.  The findings of the work are published in the book Natural Burial: Traditional-Secular Spiritualities and Funeral Innovation by Professor Douglas Davies, Director of the University’s Centre for Death and Life Studies and Dr Hannah Rumble, a Research Associate at Durham based at the University of Bath.  The book will be formally launched at an event in Durham on 7th September to coincide with the opening of Britain’s newest woodland burial site on South Road, Durham City.

Comment

The concept of environmentally-friendly, ‘green’ funerals is relatively new, and ‘woodland’ or ‘natural’ burials were unknown prior to 1993 when Carlisle City Council opened the first burial ground of this type in the UK in a woodland site on an unused part of the municipal cemetery.  Since then there has been a significant increase and there are now over 260 sites many of which are members of the Association of Natural Burial Grounds (ANBG) which was established by The Natural Death Centre in 1994.  The Durham research found a number of reasons why people choose natural burials including:

  • Environmental concerns about other forms of funeral such as cremation;
  • Reconnecting with nature and ‘returning to the earth’ in a peaceful woodland setting;
  • Reducing the burden on families to tend more traditional graves; and
  • The cost of traditional funerals.

Doe has observed that ‘the disposal of human remains is regulated by a complex tangle of state-made and church-made law’, [N Doe, The Legal Framework of the Church of England, (Clarendon Press, 1996, Oxford), Chapter 14].  Unlike Church of England churchyards and municipal cemeteries, ‘green burial’ is not subject to specific statutory legislation and Ministry of Justice Guidance notes that whereas:

‘most burial law is directed at particular types of burial grounds and various burial authorities who own the burial grounds’ . . . .

‘privately owned natural burial grounds are not covered by the Local Authorities Cemeteries Order 1977 (LACO) provisions and are largely unregulated’.

Nevertheless, ANBG Members are subject to its Code of Conduct, and to the general legislative provisions associated with: burial law; authority for burial; health and safety; contract and employment; planning regulations; and the environmental legislation, including that relating to wildlife.  Of the ~260 natural sites only those of the St Albans Burial Trust and Much Hoole Woodland Burial Ground include consecrated areas, and these will additionally fall within the faculty jurisdiction of the Church of England.

Although cremation has long been favoured over burial, the UK is facing a major shortage of burial space and a 2004 Home Office Report indicated that there was further capacity for only 20 to 25 more years.  Successive administrations have been aware of the problem which has been considered by a Select Committee in 2001, surveys in 2004 and 2007, and a consultation in 2004.  However, they have been anxious to maintain the control of municipal burial within local control, and an increasing number of local authorities are seeking assistance from the private sector within the financing and management of cemeteries and crematoria.

Whilst the trend towards green burials is to be welcomed, there remain serious legal, financial and operational issues to be addressed for the whole sector.

Child protection (or the lack of it) in the Diocese of Chichester

Bishop John Gladwin and The Revd Chancellor Rupert Bursell QC have published a damning interim report on their visitation in relation to safeguarding in the Diocese of Chichester.

The BBC News report explains that visitation arose out of concerns surrounding the cases of Colin Pritchard and Roy Cotton. Pritchard, Vicar of St Barnabas, Bexhill, was arrested in 2007 and in 2008 pleaded guilty to sexually abusing two boys and was jailed for five years. Cotton was ordained in 1966 despite having a conviction for indecently assaulting a choirboy in the 1950s and, it was alleged, went on to abuse at least 10 boys from Eastbourne – but  the Crown Prosecution Service decided there was not enough evidence to charge him and he died in September 2006. In January 2012 Pritchard and Cotton were the subjects of a historic cases review by Baroness Butler-Sloss, former President of the Family Division. She recommended, inter alia, that

“it should be clearly understood that the decision of the police not to pursue an investigation or not to investigate at all or of the CPS not to prosecute does not relieve  the Diocese of its duty to assess, on the civil standard of proof, any potential risk to children in the Diocese and to act appropriately” (9.2).

In addition to the historic cases, three retired priests resident in the Diocese are currently facing charges of sexual offences against children.

Bishop Gladwin and Chancellor Bursell were appointed by the Archbishop of Canterbury on 21 December 2011 as commissaries for a visitation of the Diocese of Chichester with the following mandate:

(i) examining progress made in implementation of and actions taken upon the Diocesan Safeguarding Guidelines (The Care and Protection of Children, 2009), the current House of Bishops‟ Guidelines (Protecting All God’s Children, 2010) and the recommendations made by Dame Elizabeth Butler-Sloss in her report of 19 May 2011; and

(ii) making such further recommendations as may appear necessary and expedient.

They describe the Diocese as “dysfunctional” and conclude that

“… the authorities in the diocese were very slow to recognise what was happening and did not act with the rigour and expedition vital to all safeguarding work. A whole series of investigations and reports across nearly two decades bears witness to a profoundly unhelpful and negative culture in parts of the diocese that led to its failure to take the action needed”.

In short:

“… the history of safeguarding in the diocese of Chichester has in the past fallen woefully short of what should be expected of any institution with a ministry and care for children and young people”.

They make a series of detailed recommendations, the most important of which is that the governance of the diocese should be reconsidered. Though the commissaries recognise the necessity of delegation:

“If final responsibility for safeguarding rests finally on the diocesan bishop – involving as it does appointments, the conduct of clergy and the policies in the parishes – it is essential that the bishop’s authority is both recognised and effective throughout the whole of the diocese. In these circumstances we have no doubt that the area scheme should now be reconsidered; indeed, we believe that this is essential for the well-being of safeguarding throughout the diocese.  In the context of the history and culture of the diocese we believe the new diocesan bishop should in any event resist taking on an area of his own; it must be recognised that the whole diocese is his own episcopal area”.

Responding to the interim report, the Archbishop of Canterbury said that it

“… confirms that there have been many and longstanding failures in implementing a robust and credible safeguarding policy in the Diocese of Chichester.  The guidelines laid down by the national Church and the agreed standards of best practice have not been consistently followed and the flaws in safeguarding practice have put children and others at risk.

In the last couple of years much has been done to improve the situation but there remain several areas of concern.  In the light of this, I have decided that the visitation should continue and that both safeguarding and appointments matters should be conducted under the supervision of this office until uniformly better practice can be assured” [emphasis added].

Watch this space.

‘Priest-less Parishes’ in Ireland, Wales and England

The Irish Catholic has reported that the Roman Catholic bishops in Ireland are ‘drawing up radical new plans for parishes to hold Sunday services led by laypeople as more-and-more communities are set to be left without a priest for the first time.’  The news item appears to have been triggered by a communion service the previous weekend at Co Wicklow which was led by a nun, who did not have the permission of the Archbishop of Dublin Dr Diarmuid Martin.  However, the underlying issue – an ageing clergy population whose average age is 64 with few newly-ordained priests to take their place on retirement – is not restricted to Ireland, and on 20th July the Church in Wales an independent ‘root and branch’ review of its activities and vision for its future, Arolwg yr Eglwys yng Nghymru / Church in Wales Review, reported here.

Within the Church of England, the ‘supply and demand’ of stipendiary clergy is monitored annually by the House of Bishops who take into account not only retirements and those training for ordination but estimates of other factors, which is the greatest source of uncertainty: some resign and leave completely; for others, there is two-way exchange with self-supporting ministry, chaplaincy, other provinces and the Diocese in Europe; and other clergy are remaining stipendiary but for altered hours.  Recently reported figures show that against the actual figures for 2010 baseline of 6,350 men and 1,770 women ‘full time equivalence of stipendiary clergy’, the numbers in 2015 are projected to reduce to 5,450 men and 1,730 women.

Comment

Unlike the Church in Wales report, the plans in Ireland are at an early stage and a ‘discussion document’ is expected to be circulated to senior Church leaders within the next few weeks.  The Irish Catholic reports that this will:

‘set out plans for what parishioners can do when there is no priest to say Mass. Lay people will be expected to take a lead role. However, married deacons, eight of whom have already been ordained, will also co-ordinate liturgies in the absence of a priest.’

In view of the central importance of the Mass to Roman Catholic worship, it is hardly surprising that this issue has been addressed earlier.  The Congregation for Divine Worship and the Discipline of the Sacrament published Directory for Sunday Celebrations in the Absence of a Priest in 1998 and the Instruction Redemptionis Sacramentum: On certain matters to be observed or to be avoided regarding the Most Holy Eucharist, [at Chapter VII] in 2004.

Paragraph 12(c) of the former emphasizes the importance of the priest, stating:

‘the celebration of the Eucharistic sacrifice, by which the paschal mystery is expressed, and which is carried out by the priest in the person of Christ and offered in the name of the entire Christian people.’

The distinction between the role of the priest and deacon was emphasized in the 2009 modification of Canons 1008 and 1009 by Pope Benedict VI through his motu proprio Omnium in mentem.  Under the 1998 Directory, [paras. 28 ot 30], when Mass cannot be celebrated, the pastor is required to ensure that holy communion is given by the deacon, acting as his ‘primary assistant’ or in the absence of priest or deacon,

‘to appoint laypersons, who are to be entrusted with the care of these celebrations, namely, with leading the prayers, with the ministry of the word, and with giving holy communion’.

This principle has been applied in the Roman Catholic Archdiocese of Liverpool where twenty-two Lay Funeral Ministers, men and women, have been commissioned to lead funeral services in circumstances in which there is no Requiem Mass and no priest available.  These provisions, which come into effect in the autumn, were prompted by a combination of the declining number of priests and the large number of funerals that take place in parts of the archdiocese.

By contrast, the review of the Church in Wales addressed both organizational as well as spiritual issues and will include:

  • Replacement of parishes by much larger ‘ministry areas’, served by a team of clergy and lay people, which mirror the catchment areas of secondary schools, where possible;
  • Creative use of church buildings to enable them to be used by the whole community;
  • Training lay people to play a greater part in church leadership;
  • Investing more in ministry for young people;
  • Developing new forms of worship to reach out to those unfamiliar with church services;
  • Encouraging financial giving to the church through tithing.

The Report and its 50 recommendations will now be considered by the Church’s Governing Body.

Within the Church of England, the projected decline in priest numbers, although significant, is not as high as in Ireland.  Nevertheless, this will be one of the issues for consideration by the new Archbishop(s).

Religious circumcision, the rights of the child and the ECHR

In July David Pocklington posted on the ruling of the Cologne Regional Court (Landgericht) regarding the legality under German criminal law of circumcising minors, in light of the prosecution brought against a Muslim doctor who performed a circumcision on a 4-year-old Muslim boy. Durham Law School has provided an English translation of the judgment.

The Court held that under the saving in section 17 (Mistake of law) of the German Criminal Code the defendant was not to be deemed criminally liable because he had made “an unavoidable mistake of law” as to the wrongful nature of the act: in short, that there was an absence of mens rea. Nevertheless, what he had done was in principle illegal:

“According to s 1627 1st sentence of the German Civil Code (BGB), the right of care covers only educational measures which are in the best interests of the child.  According to the prevailing opinion within academic commentary … the circumcision of a boy unable to consent to the operation is not in accordance with the best interests of the child even for the purposes of avoiding a possible exclusion from the religious community and the parental right of education.

The fundamental rights of the parents in Art. 4(1) and Art. 6(2) of the Basic Law (GG: Grundgesetz) are restricted by the fundamental right of the child to bodily integrity and self-determination in Art. 2(1) and (2) 1st sentence GG … The infringement of the bodily integrity caused by a circumcision for purposes of religious education is unreasonable in the sense of proportionality, even if necessary to that end… Moreover, the circumcision changes the child’s body permanently and irreparably. This change runs contrary to the interests of the child in deciding his religious affiliation independently later in life. On the other hand, the parental right of education is not unacceptably diminished by requiring them to wait until their son is able to make the decision himself whether to have a circumcision as a visible sign of his affiliation to Islam…”

Needless to say, the decision of the Cologne Regional Court caused utter consternation among Germany’s 200,000 Jews and  4 million Muslims  – so much so that Chancellor Angela Merkel’s spokesman, Steffen Seibert, subsequently made a statement reported by the BBC  in which he upheld the right to practise religious circumcision and declared that the Government would look urgently at establishing legal certainty:

“For everyone in the Government it is absolutely clear that we want to have Jewish and Muslim religious life in Germany. It is clear this cannot be put on the back burner. Freedom to practise religion is a cherished legal principle”.

David noted that a change in the law as promised by Chancellor Merkel would not be straightforward because it would require reconsideration of the German Criminal Code and the Basic Law of the Federal Republic of Germany. However, the move appeared to have political support; and on 19 July the Bundestag passed a non-binding resolution calling for legislation to put the legality of the practice beyond doubt. The matter is currently under consideration by the National Ethics Council (Nationaler Ethikrat).

And that, I assumed, was an end of the matter – but the issue has since resurfaced.

Reuters reported on 22 August that two months after the decision of the court in Cologne, the subsequent statement by Chancellor Merkel and the debate in the Bundestag, an unnamed doctor had filed charges against Rabbi David Goldberg, of Hof in Bavaria, for circumcising baby boys. The report said that the local chief public prosecutor, Gerhard Schmitt, would review the charges and decide whether or not to open a case against Rabbi Goldberg. Herr Schmitt was quoted as saying that it was too early to say whether or not the case had merit.

The latest move has evoked a shocked reaction both from the Jewish community and from the Government. Marvin Hier and Abraham Cooper of the Simon Wiesenthal Center described it as “an attack not only on one rabbi but against the entire Jewish people”, while the Reuters report quoted the Foreign Minister, Guido Westerwelle, as saying that

“We cannot put Germany’s reputation as a land of religious tolerance at risk. Jewish and Muslim traditions must not be restricted by legal uncertainties.”

Comment: So how, if contested, might the issue play in the UK? So-called “female circumcision” is a criminal offence under the Female Genital Mutilation Act 2003 and the Prohibition of Female Genital Mutilation (Scotland) Act 2005 which, between them, replaced and updated – for all three jurisdictions – the Prohibition of Female Circumcision Act 1985. However, it remains the presumption at common law in England and Wales that non-therapeutic male circumcision is lawful provided that, in the case of a child, both parents consent. The current guidance of the General Medical Council implies that this must also be the common law position in Scotland: see Personal beliefs and medical practice – guidance for doctors paras 12 & 13.

As to the common law position, in Re J (Child’s Religious Upbringing and Circumcision) [2000] 1 Fam (CA) 307 Dame Elizabeth Butler-Sloss P stated that

“The decision to circumcise a child on grounds other than medical necessity is a very important one: the operation is irreversible and should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child” (para 32).

Similarly, in Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 (Fam) the court refused to allow a Muslim woman who had separated from her husband – a Jain – to convert their son and daughter to Islam and to have the boy circumcised. Baron J held that the children should be allowed to decide for themselves which religion, if any, they wished to follow when they were old enough to do so and that it would not be in the boy’s best interests to circumcise him.

It remains the case, however, that there is no statutory authority for the practice in any of the three jurisdictions. In 1995, in Consent in the criminal law: Law Commission consultation paper no 139 at paras 119 & 128 the Law Commission for England and Wales stated that although in its view the practice was lawful, it would be helpful to “put the lawfulness of ritual male circumcision beyond any doubt”  – but that has never happened.

Moreover, the issue is one of considerable controversy, involving the rights of the parents, the right of the child to bodily integrity – and what appear to be increasingly-divided opinions within the medical profession as to whether or not the procedure is has any health benefits or, indeed, is ethically justifiable at all. The current stance of the British Medical Association is set out in considerable detail in The law and ethics of male circumcision: guidance for doctors: the BMA’s position might be characterised as “unenthusiastic but broadly neutral”. The American Academy of Pediatrics, on the other hand, has today announced a revised policy statement – which has been endorsed by the  American College of Obstetricians and Gynecologists – of which the cautious conclusion is that:

“[T]he health benefits of newborn male circumcision outweigh the risks of the procedure, but the benefits are not great enough to recommend routine circumcision for all newborn boys.”

The policy statement and accompanying technical report are now available on-line and will be published in the September 2012 issue of the AAPs journal, Pediatrics.

Should the matter ever reach the European Court of Human Rights, proponents will presumably cite the latest AAP policy statement in support of the contention that the procedure is in any case beneficial rather than harmful. At a more basic level, however, there would be a conflict between Article 9 ECHR (thought, conscience and religion) and, possibly, Article 8 (respect for private and family life) as against the criminal law of the jurisdiction concerned. Moreover, in a long analysis of the Cologne judgment at UKHRB Adam Wagner points out that “Article 3 (which prohibits inhuman and degrading punishment) has sometimes been expressed by the courts in terms of the protection of physical integrity”, while the BMA guidance suggests that the issue might also engage Article 5 (liberty and security of the person).

Given the tenor of the recent judgment in Lautsi and Ors v Italy 30814/06 [2011] ECHR 2412 (18 March 2011) one might expect a defendant state to be given a fairly wide margin of appreciation on such a sensitive socio-religious issue – which might mean that a state that had imposed a ban would have it upheld but, equally, that the ECtHR would be reluctant to interfere in the domestic affairs of a country in which the practice remained legal.

But you never can tell: as we all know, Strasbourg is a funny old place.

Cite this article as: Frank Cranmer, "Religious circumcision, the rights of the child and the ECHR" in Law & Religion UK, 27 August 2012, http://www.lawandreligionuk.com/2012/08/27/religious-circumcision-the-rights-of-the-child-and-the-echr/

Commission on a Bill of Rights second consultation: a reminder

Many readers will be aware that the Commission on a Bill of Rights launched a second consultation on 11 July. It builds on the Commission’s 2011 Discussion Paper and, says the Commission, “on the views we have heard so far” in the previous consultation – to which I made a fairly tart response at the time. Further details of the second consultation can be found here: the closing date for responses is 30 September.

I blogged about this in July and included a list of the questions in the consultation document: my own response to the second consultation is here. The importance of the Commission’s deliberations for students of law and religion hardly needs to be stressed – whether, like me, you are on the side of maintaining the status quo (or something very like it) or whether you feel that Article 9 ECHR comes fairly low in the human rights pecking-order. But unless you tell it your views, the Commission will never know what you think about the proposal, so please give serious consideration to sending in a response.

Sunday Observance

An earlier post described the legislation that has been introduced to overcome the restrictions applying to Sunday trading for the duration of the London Olympics.  Now, at the point mid-way between the Olympics and Paralympics, doubts are beginning to be raised regarding the permanence of this arrangement, and the Church Times reports that the government is ‘to reflect’ on Sunday shop hours.  A spokesman for the Prime Minister is reported to have said:

‘there was a specific Act of Parliament passed for the period of the Olympic and Paralympic games – we are a couple of weeks into that. . . . . I am sure that people will want to reflect on the experiences of those weeks. A number of people want to look at this issue.’

The statement has triggered further debate on this contentious issue to which has been added a further political dimension concerning the earlier assurances that were given regarding the temporary nature of the measure.

Comment

The background to Sunday Trading is given in a House of Lords Library Note and the current arguments of those speaking for and against have been summarized in the God and Politics in the UK blog.  Essentially, the positions of the various proponents are:

  • Most churches and faith groups follow the line of the Church of England which strongly opposes ‘any attempts permanently to erode the special nature of Sunday, which legislation still reflects’.
  • Unions representing shop workers have concerns regarding workers’ rights and attempts at coercing them to work on Sundays.
  • Shopkeepers with premises having a relevant floor area less than 280 square metres are not subject to the restrictions within the Sunday Trading Act 1994 and as such are at a commercial advantage whilst these remain.
  • Larger shops are only permitted to open for up to six consecutive hours between 10am and 6pm on Sundays.
  • Some large shops are exempt from these restrictions, including: farm shops that sell their own produce; shops whose business consists wholly or mainly of selling alcohol, or motor supplies and accessories, or cycle supplies and accessories; registered pharmacies (as long as they are only selling medicinal products, veterinary medicinal products and surgical appliances); shops at designated airports; shops at railway stations; service stations and petrol filling stations; and exhibition stands.

Recent statements have re-emphasized these positions, with Communities Secretary Eric Pickles, Institute of Directors being in favour of retaining the relaxation, and John Hannett General Secretary of shopworkers’ Union USDAW, joining the Rt Rev John Pritchard Bishop of Oxford and James Lowman Chief Executive, Association of Convenience Stores on the anti-position.  However, Justin King the Chief Executive of Sainsbury’s, a potential beneficiary of extended hours has stated:

“Maintaining Sunday’s special status has great merit for our customers and our colleagues, and relaxing Sunday trading laws is certainly not a magic answer to economic regeneration. The current trading rules play to common sense. Those calling for a permanent change will need to demonstrate a strong economic case for any change to be justified. We will certainly not be calling for change.”

The political argument is summed up by the Shadow Business secretary Chuka Umunna who said:

‘This breaks all the promises made to Parliament, business and to those working in the retail sector. This is a serious matter not least because many of those who agreed to support the Act did so because they were told it would not be used as a ‘Trojan horse’ for further change.’

The extent of the commitment given by government may be assessed from the statement made to the House of Commons by Sir George Young, Leader of the House, [at col. 948];

‘[the changes] will apply only to the Sundays during the Olympics and Paralympics, so it will be strictly confined to that period. It is not our intention at this stage to go for the wider reform’,

and by the Written Answer  by Norman Lamb, Minister for Employment Relations and Consumer Affairs, [at col. 1003W],

‘[t]he temporary suspension of Sunday trading restrictions is not a trial and will assist in ensuring that visitors to the Olympics can take full advantage of all the UK has to offer, including its world-class shops. It is not a pilot for a wider liberalization of Sunday trading, nor will the Bill contain powers for wider liberalization. Should the Government ever decide that a more permanent suspension of the Sunday trading rules is necessary, legislation and a full consultation would be required.’

Both were delivered to allay fears of a more permanent change, but neither categorically commits to a permanent return to the status quo.  In view of its long history, it would be unusual if the prospect were not considered in the short term.  The following statement made by the Salvation Army would be a good starting point,

‘. . . . . all people need a balance of work and rest. Rest is needed on a regular basis for the maintenance of health. The scriptural basis for the weekly day of rest is the teaching given in the fourth commandment (Exodus 20:8-11).  . . . .

 . . . . . in any highly-organised society some forms of labour will be essential but considers that commercialised sport, political meetings and unrestricted trading secularise the day intended for man’s renewal and refreshment.

It is recognised that legislation in itself – in a multicultural and secularised society – cannot safeguard the Lord’s Day, but  . . . the legalising of unrestricted retail trading on Sundays will have adverse social, cultural, economic and psychological effects, and supports the efforts of groups opposed to unrestricted Sunday trading.

 . . . . . .  there must be legal protection against victimisation for those whose beliefs or consciences will not permit them to work on what they see as the Lord’s Day. There should be no jeopardising of job applications, no discriminatory action taken against them, and there should be safeguards against dismissal on the grounds of their unwillingness to work on Sundays.’

EHRC research report on religion or belief in the workplace

Readers may be interested in the news that the Equality and Human Rights Commission has just published research on religion or belief in the workplace and public services. The research, which was carried out for the Commission by London Metropolitan University, found that there were tensions between some religious and secular views on equality and human rights law in these settings (so no surprise there, then) and suggests that most people want ground rules to mediate public debate and want to avoid unnecessary litigation.

The report, Religion or belief, equality and human rights in England and Wales, suggests that though the evidence relating to the religion or belief “landscape” is contradictory, there has definitely been a decline in affiliation to historic churches, a rise in those stating that they have no religion and an increase in faiths associated with post-war and postcolonial immigration, especially Islam. The report also notes the growth of independent and black majority churches and the greater significance  attached to their religion by minority religious communities compared to those who declare themselves to be Christians .

The research found scant evidence about whether  or not there is discrimination against “belief” as such; however, there is greater a prevalence of discrimination (by any measure) against Muslims than against other groups defined by their religion (sections 3.3, 3.4 and 3.5). There did not appear to be evidence to substantiate such claims “at a structural level” of discrimination against Christians.

Specifically, the report suggests that further empirical research is needed to examine the impact of what the researchers describe as “minority legal orders” on those that use them or who are affected by them. It also suggests that there is a need to strengthen the protections presently offered by the Arbitration Act 1996 to users of religious tribunals to ensure that they are not deprived of their right to equality at law.