Jam-jars: the last word

Recent web usage statistics reveal that visitors to the site have been searching for material on re-use of jam-jars and looking at earlier posts which (like some of the jam) have passed their sell-by date.

This post consolidates the relevant material from earlier ones – which have now been removed.

When the Churches’ Legislation Advisory Service first contacted the Food Standards Agency after an enquiry from one of its members about the legality of reusing jam-jars, the FSA replied that though it was legal to re-use jam-jars at home and for private gifts to friends, it was not permitted under the terms of Article 3 of the Food Contact Material Regulations EC 1935/2004 to re-use them for food that was to be “placed on the market”: that is, sold or even given away at a public event such as a church fête or charity bazaar.

The result was a lot of press comment and various statements and counter-statements, not all of them entirely consistent with one another. The European Commission’s Representation in the United Kingdom got particularly heated, with a piece entitled In a jam over non-existent EU rules which conceded that there was indeed “a body of EU food safety and hygiene legislation” but contended that it did not apply to “charity events such as church fetes or school bazaars” and dismissed the whole thing as yet another piece of ignorant Euro-bashing. To which the obvious response is that perhaps the EC’s Representation in the UK could usefully have talked to the FSA.

On 22 October 2012 Anna Soubry, a junior minister at the Department of Health (not, it should be noted, at the Department of the Environment, Food & Rural Affairs), published the following response to a Commons Written Question from John Spellar: To ask the Secretary of State for Health what the Government’s policy is on the re-use of jam jars by individuals; and if he will make a statement. [123376]

 “We are advised by the Food Standards Agency (FSA) that there is European Union legislation in place, that applies to food businesses, that are designed to protect consumers from the migration of materials that may be used in the manufacture of containers used to store food. These rules do not apply to subsequent re-use by individuals. The FSA is not aware of any evidence that reusing jam jars presents a food safety concern for consumers in terms of materials which may migrate from jam jars into food. Separately, good hygiene needs to be observed in cleaning jars and food preparation. It is for local authorities to decide how they enforce the rules with respect to charities and the like. The FSA’s view is that the legislation needs to be applied with common sense and it is clear that local authorities are doing so. The FSA is not aware of any prosecutions for reusing glass jars for jam making since the legislation was introduced in 2004”.

Nothing in Ms Soubry’s reply appeared to contradict the position in the original Circular from the Churches’ Legislation Advisory Service:

  • there is EU legislation that applies to re-use of food packaging materials (including jam-jars) by “food businesses” (however defined) though not by individuals;
  • it appears to forbid re-use except by individuals purely for private use;
  • precisely what constitutes a “food business” is not entirely clear; and
  • enforcement is a matter for local authorities.

However, given the somewhat confusing responses of the Food Standards Agency and the Department of Health to various queries from the media and questions in Parliament, the Churches’ Legislation Advisory Service then wrote to the new Chief Executive of the FSA, Catherine Brown, asking for a considered, definitive statement of the position. The substance of her reply is as follows:

“There is a minimal, theoretical risk that a Local Authority could seek to enforce the regulations on food contact materials against an individual or organisation selling preserves in reused jam jars for charitable objectives. In order to do so, the Local Authority would need to decide that the individual or organisation constituted a “food business”.

The Food Standards Agency position on this remains … that there is very small or no risk associated with the responsible reuse of clean jam jars, and that the FSA are not aware of any local authority taking action against an individual or church organisation re-using jam jars for charitable purposes.

In terms of your request for a formal statement, I know from your letter and your comment on the European Union representation observation that you appreciate that there is a limit to the clarity that can be formally given in this area. I hope the following is of some help.

There is no intention on the part of the Food Standards Agency to over-regulate or prevent the very good work undertaken by church volunteers or other charities and organisations such as the Women’s Institute.

The regulations on food contact materials and the EU hygiene rules apply mainly to businesses, not to private individuals. New domestic enforcement regulations relating to contact materials, which come into force on 20 November, make this clearer.

General food law, which includes a requirement not to place unsafe food on the market could apply to private individuals or to organisations that are not businesses. lt is for this reason that we stress the importance of hygiene; for example we would suggest that if jam jars are re-used they should be free from chips and cracks, sterilised and with good-fitting lids, so as to minimise any hygiene risks to the food they contain.

 We consider it unlikely that any local authority will take action against the reuse of jam jars but if there are people who remain concerned, they could contact their local authority and seek reassurance. I am confident that they will find that the common sense approach which has been taken to this issue for a number of years, in discussion with organisations such as churches, local Wls and country fairs, will continue.”

Comment: The conclusion seems to be this:

  • the matter continues to be governed by EU law which is cast in very general terms;
  • the Food Standards Agency cannot simply declare that that law does not apply to private individuals;
  • enforcement remains a matter for local authorities; and
  • it is now extremely unlikely that any local authority would seek to prosecute an individual purely for selling or giving away preserves bottled in a re-used jam-jar.

In short, the general reaction to the original news seems to have removed any threat of enforcement even though the EU rules themselves have not changed.

Of Vesture – I

As the 5th December deadline approaches for the submission of theses for the Cardiff LLM (Canon Law) and this year’s six candidates begin to ponder on whether to purchase the academic hood (Oxford style, Cardiff Red hood, lined with Royal Blue silk), they might extend a degree of sympathy to another groups of six:

James Harvey, the American head of the Papal Household; His Beatitude Bechara Boutros Raï, patriarch of the Maronite Church in Lebanon; His Beatitude Baselios Cleemis Thottunkal, head of the Syro-Mankar Church in India; Archbishop John Olorunfemi Onaiyekan of Abuja; Archbishop Rubén Salazar Gómez of Bogota, Colombia and Archbishop Luis Antonio Tagle of Manila in the Philippines,

who were appointed cardinals by Benedict XVI last weekend on 23rd November.

The appointment is not without its financial implications and using the current prices list of Gammarelli, (traditionally tailor to the Pope, but with a nice line in silk cassocks for Anglo-Catholics), Vatican Insider has estimated that the price of the Cardinal’s ‘tat’ can be €4,000 to €5,000.  It is customary for Cardinals to purchase two sets, for which

‘[t]he red mozzetta which cardinals wear with their choral vestments, costs about 200 Euro, but the price goes up if one chooses cord buttons – which are hand-made and more sought after (they cost 20 Euro each) – instead of cloth buttons. The red cassock costs approximately 800 Euro, while the three-cornered hat without a bow, which is typical for cardinals, can cost between 80 and 120 Euro. The red and golden cord for the pectoral cross costs around 80 Euro: the price varies according to how elegant it is and the size of the bow on the back. The red fascia which is worn with the red cassock and the black cassock with red piping, costs about 200 Euro. A black cassock with red piping costs approximately 600 Euro, while the cardinal’s red zucchetto is priced at around 40 Euro. Finally, the red socks cost about 15 Euro for a pair.’

In contrast, Lambeth Palace has announced that Archbishop Rowan has returned the robes given him by the people of Wales on his enthronement ten years ago.  All items of the robes – the cope, mitre and stole, morse and rochet – were designed and made in Wales and funded by an anonymous donation.  They have remained the property of the people of Wales and have been handed to the President of the National Museum Wales, where the robes will be a leading exhibit to demonstrate contemporary Welsh craftsmanship.

No doubt some will question the justification or need for senior churchmen to wear costly vestments and others will draw significance from those of the Archbishop ending in a museum.  These may also be among the 12 million people who visit English cathedrals and royal peculiars every year, or who will boast of ‘how well we do ceremonial in England’.  This is an area of easy headlines but a difficult balancing of priorities.

Church responds to Assisted Dying Bill Consultation

In recent posts we have covered the case law concerned with those seeking assistance in dying, in particular that relating to Mr Tony Nicklinson and an anonymous claimant, who were unsuccessful in their application to allow doctors to end their lives without fear of prosecution, R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors [2012] EWHC 2381 (Admin).  Subsequent to the Nicklinson ruling, the BBC reported that the anonymous claimant, “Martin” is seeking leave to appeal against the refusal of the Court to grant him

 “… an order that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist Martin to commit suicide through the use of Dignitas, would know, one way or the other, whether they would be more likely than not to face prosecution in England” (para 9).

In both of these cases the claimants suffered “locked in syndrome”.  Neither was terminally ill and at the time of the judgement, both faced the prospect of living for many years, although tragically during the following week Mr Nicklinson refused to take food and died shortly afterwards, here.

On 3rd July this year, the All-Party Parliamentary Group (APPG) on Choice at the End of Life, in partnership with Dignity in Dying launched a consultation on a draft Bill  

 “to enable competent adults who are terminally ill to be provided at their request with specific assistance to end their own life, and for connected purposes”.

The consultation is based upon the recommendations of the Commission on Assisted Dying, which published its findings in January and was chaired by the former Secretary of State for Justice, Lord Falconer QC.  The consultation closed on 20th November 2012 and the APPG and Dignity in Dying intend to publish a report on the responses in Spring 2013.

Background

Whilst addressing similar issues, it is clear that the APPG proposed Bill would not assist those with “locked in syndrome” or similar conditions for which those suffering are not considered as “terminally ill”.  However, it would be applicable to cases such as those of Debbie Purdy who was suffering from primary progressive multiple sclerosis, sought the courts’ guidenace on whether her husband was likely to be prosecuted if he assisted her to die by helping her end her life in Switzerland: see Purdy, R (on the application of) v Director of Public Prosecutions & Ors [2009] EWCA Civ 92 (19 February 2009)

It is important, therefore, to clarify the terms that are used – assisted dying, assisted suicide, and voluntary euthanasia – which are not synonymous.  Although the consultation provides a degree of clarification, it is more instructive to use the definitions of the National Health Service which concern current, rather than prospective legislation.  The NHS guidance states

  • Euthanasia is the act of deliberately ending a person’s life to relieve suffering.  A doctor who gives a patient who has terminal cancer an overdose of muscle relaxants to end their life would be considered to have carried out euthanasia.
  • Assisted suicide is the act of deliberately assisting or encouraging another person who commits, or attempts to commit, suicide. If a relative of a person with a terminal illness were to obtain powerful sedatives, knowing that the person intended to take an overdose of sedatives to kill themselves, they would be assisting suicide.

Both euthanasia and assisted suicide are illegal under English law.  Depending on the circumstances, euthanasia is regarded as either manslaughter or murder and is punishable by law with a maximum penalty of up to life imprisonment.  Assisted suicide is illegal under the terms of the Suicide Act 1961 and is punishable by up to 14 years’ imprisonment. Attempting to commit suicide is not a criminal act in itself.”

The NHS uses the term ‘assisted suicide’ to cover some practices that the APPG would classify as ‘assisted dying’.  The APPG’s understanding of these terms is laid out in the FAQs within its guidance on the consultation:

  • Assisted Dying, as legalised and regulated in the US states of Oregon and Washington, ‘provides terminally ill, mentally competent adults with choice and control over the timing and manner of their death. It allows a dying person, who has met strict legal safeguards, to self-administer life-ending medication’;
  •  Assisted Suicide, which is legal in Switzerland, ‘is a wider practice than assisted dying, and may allow chronically ill and disabled people help to end their lives’; and
  • Voluntary Euthanasia, legal in the Luxembourg, Netherlands and Belgium, allows a doctor to directly administer life-ending medication to a patient at their request.”

Comment

At the launch of the consultation, Archbishop Peter Smith reiterated the opposition of the Roman Catholic Church to the promotion of ‘legislation of assisted suicide’, here,and on 15th November, the Mission and Public Affairs Council of the Church of England issued a press release in which it rejected the assisted dying proposals as too damaging.  Although the Consultation includes 20 Questions, its purpose is not to seek approval for assisted dying, but “to assess the robustness of the safeguards.” Consequently, this is only addressed in the one question,

“If adequate safeguards can be found to allow assisted dying (assistance to die for terminally ill, mentally competent adults only) and no healthcare professional is obliged in any way to assist a patient to die, would you support a change in the law on assisted dying?”

The Church of England’s position on assisted suicide was stated in a motion passed at General Synod in February 2012., which included the clause that Synod:

“affirm the intrinsic value of every human life and express its support for the current law on assisted suicide as a means of contributing to a just and compassionate society in which vulnerable people are protected”.

Consequently, the MPA response considered only Question One, and

“while acknowledging that the draft bill seeks genuinely to meet the stated wishes of a small number of people, we believe that it fails sufficiently to recognise its potentially damaging consequences.” [para. 2.1]

“A change in the law would negatively redefine the concept of health care in England and Wales and would significantly and detrimentally alter the nature of the relationship between health professionals and patients, a point pertinently made by a number of professional bodies.” [para.2.3]

The latter point echoes the MPA’s comments in its response to the NHSBT Consultation on the introduction of presumed consent for organ donation in the UK, which we reported here.  It also expressed concern for “the obvious vulnerability of more than 300,000 elderly people who suffer abuse each year in England and Wales, very many of them at the hands of their own family members, often for pecuniary reasons” and posed the question:

“might a change in the law place more vulnerable people at increased risk of neglect, marginalisation or abuse? Unless the answer can be a demonstrable and convincing ‘no’ it would be negligent in the extreme to contemplate such a change.”, [para. 3.1]

Expressing the views of the Roman Catholic Church, Archbishop Smith said:

“[t]he existing law serves a vital purpose in upholding the human dignity of all and gives protection to the most vulnerable members of society. Far from prematurely ending a person’s life, what is needed for those with terminal illnesses is a properly funded and universally accessible palliative care service. In helping the terminally ill to face their fears with tireless and dedicated support, and by relieving their pain and suffering, palliative care workers are integral to respecting and securing the dignity of those nearing life’s end.”

The APPG in partnership with Dignity in Dying reports that Lord Falconer QC has committed to tabling an assisted dying Bill as a Private Members Bill in the House of Lords.  However, as fellow co-blogger Frank Cranmer commented earlier,

“quite apart from the basic moral issue, even if one agrees that there are circumstances in which it would be morally-right to help someone die, the problem remains of making sure that any change in the law would be hedged around with adequate safeguards.”

Ireland and abortion – the debate continues

The Irish Government has published the Report of the Expert Group on the Judgment in A, B and C v Ireland chaired by Sean Ryan J which was established by Government to recommend a series of options on how to implement the ECtHR’s judgment in A, B and C v Ireland 25579/05 [2010] ECHR 2032 (16 December 2010).

In A, B and C the Grand Chamber found that there had been a violation of C’s right to private and family life contrary to Article 8 ECHR because of Ireland’s failure to implement the existing constitutional right to lawful abortion. Under the Group’s terms of reference, it was not its function to specify how the judgment should be implemented but rather to provide options. Further background details can be found in a Department of Health press release.

The Expert Group offers four options:

  • Non-statutory guidelines – which the Group appears immediately to have dismissed on the grounds that guidelines in isolation will not fulfil all the requirements set by the judgment in A, B and C because they are, by their nature, non-binding and do not have force of law, nor would they resolve the legal uncertainties arising from the Offences Against the Person Act 1861 (which is still in force in Ireland).
  • Regulations issued by the Minister for Health – but while this might satisfy the requirements of the Grand Chamber judgment, the Minister could not issue regulations without enabling primary legislation.
  • Primary legislation de novo or amendment of an existing Act to regulate access to lawful termination of pregnancy in Ireland in accordance with the Attorney General v X [1992] 1 IR 1, the requirements of the ECHR and the judgment in A, B and C:  in this option, all the details on the assessment of entitlement to a lawful termination of pregnancy would be enacted in legislation, enabling the Oireachtas to scrutinise all its provisions and leaving no significant matters to be dealt with by regulations – but that process would take considerable time.
  • A combination of primary legislation with detailed regulations “to deal with detailed and practical matters relevant to the issue, such as changing medical practices and scientific advances, as well as addressing emerging challenges to implementation” – again, that would be a slow process.

The Group also considered two legislative sub-options: wholesale repeal of the 1861 Act and its replacement with a full restatement of the law on abortion, or retaining the 1861 Act and amending it to take account of the judgment in the X case. The Group seems to prefer the former course.

The Government is considering the report and the Health Minister has said that a decision on what action to take will be made by the end of next month, with implementation early in the New Year. The Irish Times reports that Minister for Justice Alan Shatter, speaking in the Dáil on the Private Member’s Bill proposal brought forward by Clare Daly TD calling for abortion legislation, said that for three decades Ireland had had “a deeply dysfunctional and obtuse legal architecture badly in need of reform” but insisted that the Government was “not considering in any shape or form abortion on demand”.

As things have turned out, the timing could hardly have been more unfortunate. Whatever option the Government chooses to pursue, the subsequent debate is bound to be influenced by the tragic death of Savita Halappanavar on which we reported in our roundup on 18 November.

The House of Lords “doing God” – or, at any rate, debating religion

On Thursday 22 November Lord Singh of Wimbledon (better known to Radio 4 Thought for the Day listeners as Dr Indarjit Singh) initiated a short debate in the House of Lords on Religion in the United Kingdom. Following is a summary of some of the more interesting contributions.

Lord Singh felt that the pressure to keep religion out of public debate was bad in itself; but what was worse was the fact that some within the different religions reacted by withdrawing from involvement in daily life. That disconnect between the practice of religion and the challenges and concerns of daily living was totally contrary to the central teachings of religion – though the fact that some misused religion to pursue power or to justify cruel or discriminatory behaviour made it easy to understand why religion had such a bad public image.

For some life had never been so good; but for others that was not the case – witness the record prison population and the number of children in community care every year. Limited amounts of money could address social problems but the real problems went much deeper: an example was the rising rate of divorce and separation. Nor was better citizenship training necessarily the answer: “citizenship” looked at society as it was and taught children to conform to transient and sometimes questionable social norms. Religion, however, frequently challenged such norms. For example, in the 1950s accommodation adverts in shop windows would often say: “No blacks or coloureds”. That was accepted by the culture of the time but opposed by religious teachings.

In a multi-faith society we had to move beyond superficial “niceness” to active promotion of common values that benefited society. The one God was not interested in religious labels but in the way people behaved. The well-being of society started with the family and a recognition of the importance of marriage as a committed relationship in which the couple was prepared to endure difficulties to ensure a stable and positive environment for children. Though different lifestyles were rightly respected, we could not afford to ignore the harm done to children by transient and selfish relationships.

In recent years the Government had made tentative attempts to engage with faith-groups through various committees. Unfortunately, the nature of that engagement was often reflected in the name of the initiatives: “Prevent”, for example, had been geared to preventing religions making nuisances of themselves. What was needed was a greater enabling focus that helped religions to work more fully with secular society.

Several contributors talked about the charitable work of religious organisations and their contribution to social cohesion. Perhaps Lord Popat was nearest the mark when he suggested that the debate on the role of religion in society was, in effect, asking three questions:

  • What do people think the current role of religion in society is?
  • What is the actual role of religion in society?
  • What do people want the role of religion in society to be?

His own answer was that the nature of faith and religion inspired people to be better human beings but, though religion could have a very positive impact on society, far too many conflicts had their roots in religion and far too often the tone of religious organisations was divisive, exclusive and outdated. Religions needed to make sure that they were relevant to society.

Lord Bilimoria, a Zoroastrian Parsee, noted with sadness that religion was declining in the United Kingdom. He was suspicious of talk about “tolerance” of faiths and communities. People should be celebrating each other’s religions and faiths; and no relationship could exist without mutual trust and respect. He understood that the present Government “did do God”. But was it doing enough to encourage and promote religion and religious faith? Could it do more? What religions did more than anything else was to promote integrity and values. Religions were not about rituals or “doing things right” but about “doing the right thing”.

Various contributors mentioned the current dispute about the charitable status of the Preston Down Trust but Baroness Berridge devoted her speech to it.

She said that she had family members in the Hales Exclusive Brethren, which was not to be confused with any other Brethren group. The Hales Brethren held to the doctrine of separation, so Exclusives could not live in semi-detached houses (because they shared a party wall with non-Brethren), could not eat with non-Brethren or have them as friends, could attend only Brethren schools and work only for Brethren businesses. Attending university was banned. It was a very controlled environment in which to live and grow up and preliminary research suggested that the mental health outcomes for former Exclusive Brethren were poor.

She suggested that there should be a church-led inquiry into the Exclusive Brethren – and since the Brethren maintained that the various assertions about their activities were without foundation she assumed that they would welcome such an inquiry. Groups like the Exclusives could certainly exist in a liberal society; but whether they should be charities was open to doubt. While the Charity Commission’s religion and public benefit guidance needed to be clarified, clarification was also needed on the outer limits of what was acceptable behaviour for religious groups.

Baroness Falkner of Margravine, speaking as a secularist, upheld everyone’s right to their religion or belief as well as their right to change or abandon it. Religions had just as much right to express their views as anyone else; but those views should not be privileged in the framing of law and public policy unless specifically related to policies of non-discrimination. Secularism was becoming more widely understood and recognised as important in a multi-faith society.

Separating religion and the state enabled those of all religions and none to participate as equal citizens. Same-sex marriage was an example. Liberal religious groups, the non-religious and probably many individual Anglicans and Roman Catholics wished to proceed with same-sex marriage but the Churches were seeking to restrict the freedoms of others by opposing it. Similarly, polls taken during the Pope’s visit suggested that only somewhere between 8 per cent and 15 per cent of Roman Catholics agreed with their Church’s official doctrine on issues such as contraception, homosexuality and abortion. She very much regretted the repeated rejection by the House of Lords of assisted dying legislation and stem cell research and was convinced that the rejection had been on religious grounds in spite of the fact that public opinion took the contrary view. Religions should not have privileged positions from which to restrict the freedoms of others – something that they did far too often.

Lord Sacks, the soon-to-retire Chief Rabbi, said that religion was often misunderstood as a strange set of beliefs and idiosyncratic rituals, both of which we could jettison without loss. A better way of understanding religion, even from the outside, was as a sustained education in a life lived beyond the self.

All the world’s great religions taught their adherents the importance of making sacrifices for the sake of others. Religious groups were building schools and hospitals and networks of support long before the state did so; and research showed that regular worshippers were still more likely than others to donate to charity and, generally, to be “active citizens”. Religiosity as measured by attendance at a house of worship was a better predictor of altruism and empathy than education, age, income, gender or race. The social implications of this were immense. Moreover, religions were a counter to a culture that sometimes seemed to value self over others, rights over responsibilities, getting more than giving, consumption more than contribution and success more than service to others.

In reply, the Minister for Minister for Faith and Communities, Baroness Warsi, made the following points:

  • The Government believed that religion played a vital role in British society and celebrated faith and faith communities’ contribution to society.
  • Faith communities made a vital contribution to national life:  she agreed with Lord Singh that the state was there when things in society went wrong but religion was there from the outset to stop them going wrong in the first place.
  • The 30,000 faith-based charities in the UK made a huge difference at home and abroad – for example, research showed that people of religious observance were more likely to be volunteers.
  • The Government wanted to help build effective, co-operative working relationships between people of different faiths, through funding for the Inter Faith Network for the UK and the Faith-based Regeneration Network.
  • The Government was committed to maintaining the status of religious education as a compulsory subject in schools: religious education was fundamental to children’s learning.
  • The Government remained committed to the provision of collective worship in schools.
  • Freedom of religion was a fundamental human right and the Government defended the right of people to follow a faith and to express that faith, free from discrimination, intolerance or persecution.
  • In 2010 the Government made it a requirement for all police forces to record anti-Semitic attacks and was funding tighter security measures in Jewish faith schools.
  • The Government was funding the Measuring Anti-Muslim Attacks programme and had established the cross-government Anti-Muslim Hatred group to respond department by department to the growing problem of anti-Muslim hatred.
  • The Government had changed the law to allow councils to continue to hold prayers at the beginning of their meetings if they so wished.
  • The Government believed that “faith should have a seat at the table in public life”: not as a privilege but as a strong contributor to public debate.

She concluded:

“When I first set the tone for this Government’s faith agenda in 2010, declaring that we would ‘do God’, many warned that this was something that a Government Minister should not say. Two years on, I am heartened to see that so many Ministers have got behind this agenda, and our actions demonstrate the importance that we attach to the role of religion in British society”.

Women as bishops: should Parliament intervene?

The failure of the draft Measure on the consecration of women to the episcopate of the Church of England has generated a massive amount of comment, both among journalists and politicians. Bob Morris, of the UCL Constitution Unit, is the principal author of Church and State in 21st Century Britain: The Future of Church Establishment (Palgrave, March 2009). He has long experience of Church-State relations both as a senior civil servant and as an academic and has kindly contributed the following guest post on the political and parliamentary implications of the vote.

Background

On 21 November 2012 the Church of England Synod rejected a draft Measure for the introduction of women bishops by a narrow margin of six votes in one of the Synod’s three ‘houses’, that of the laity.  Sufficient two-thirds majorities were attained in each of the other two houses – bishops and clergy. Forty-two of the forty-four Anglican dioceses had previously supported the change.

The amended draft contained a compromise arrangement, linked with a putative ‘code of practice’, that would have permitted congregations opposed to women bishops on theological grounds to retain male only episcopal oversight. The opponents – from both the ‘catholic’ and evangelical groups – felt that the compromise did not go far enough to recognise their views. Ordinarily, Synod’s standing orders would prevent a failed draft Measure’s reconsideration until the next newly-elected Synod – in this case in 2015. There is, however, an exceptional procedure which could bring the issue back for redetermination.

The issues 

(a) For the Church

Having in the past been, if anything, in the vanguard on divorce and homosexual law reform in England, the Church continues to find difficulty in agreeing on issues of gender and human sexuality. These difficulties are not confined to disputes in England: they exist in the wider Anglican community too and now appear to be so irreconcilable as to threaten schism. Addressing these differences will be one of the primary tasks of the new Archbishop of Canterbury, Justin Welby, as they were for his predecessor, Rowan Williams.

The decision to ordain women priests in 1992 carried the implication that at some point episcopal orders would also be made available to them. Granted the strong reservations held by a minority in the Church, agreement to proceed could be reached only as the result of compromise – as had been the case in 1992 when, essentially, female ordination was secured on a basis of conferring a clerical status inferior to that of men. At that time, Parliament – through the Ecclesiastical Committee – was concerned that the minority should be reconciled. The question for the Church now could be whether any compromise satisfactory to the opponents of women bishops could be regarded as compatible with having women bishops at all.

(b) For Parliament

Parliament retains the ability to legislate for the Church. Since 1919, on the other hand, it has in practice ceded the legislative initiative to the Church itself. Above all, even if Parliament did decide to legislate directly, it is difficult to believe that it would be prepared to do so without the consent of the Church. If that consent were forthcoming, then there would, of course, be no reason why the Church should not take the initiative itself. Only if Parliament decided to proceed without the Church’s consent would there be a case for its intervening. But if it did so, it would intervene in the interests presumably of the majority party and negative any possibility of holding all the parties together. Contemplating such a sequence is to remind why Parliament conceded the right of legislative initiative to the Church in the first place.

The Public Worship Regulation Act 1874 was the last time Parliament legislated  for the Church when the latter was divided on an issue. The outcome was not a happy one. Five priests underwent terms of custody, and the bishops in the end vetoed all attempted proceedings rendering the Act a dead letter.

Evidence of the House of Commons’ present mood can be found here. In the BBC studio discussion, Ben Bradshaw, a member of the Ecclesiastical Committee, judged that the mood of Parliament is very different from that of 1992 when it could be argued that it was more concerned to protect the position of the objectors to female ordination than the status of female orders. Whilst that may well be so, it is also the case that Parliament has now in the Equality Act 2010 passed legislation which exempts priestly orders from the non-discrimination rules otherwise applicable. Requiring women bishops would amount to trenching on the religious freedom that the Act’s provisions were meant to protect.

Mr Field’s Equality Act 2010 (Amendment) Bill, which received its first reading on 22 November (and is due to receive its second on 18 January 2013), will presumably attempt to remove a protection permitted under the EU Directives the 2010 Act was designed to implement. If singling out the Church of England for the repeal alone, the Bill will itself be discriminatory: if the repeal is general, then it will be opposed by every other Christian denomination and all other religions as well. It seems unlikely that the bill will, or could ever have been likely to, obtain essential government support. In so far as that is the case, the bill looks more like a gesture of the moment than a credible and viable solution.

(c) For the Ecclesiastical Committee

Any draft Measure from the Synod will have to come through this Committee, and it will be a test of its judgement whether what it feels able to approve is acceptable to Parliament at large. The Committee is not a Parliamentary joint committee but in fact a statutory joint committee with equal Lords and Commons membership in a total of 30. It will no doubt weigh carefully whether it can in the event certify under the 1919 ‘Enabling’ Act “as to the [Measure’s] expediency thereof, especially in relation to the constitutional rights of all [Her] Majesty’s  subjects”. What it approves could be voted down in Parliament and that may temper any Committee enthusiasm to wave through a compromise in flagrant and indefensible default of gender equality. What may be an acceptable price of compromise in the Church may not be automatically acceptable outside so far as the rights of all Her Majesty’s subjects are concerned.

(d) For the Government

There is unlikely to be any Ministerial enthusiasm for intervening. Parliamentary legislation would in practice have to be via a government sponsored bill. No government would want to start intervening in the affairs of a religious body. If it was seen to do so in this case, it would be invited to intervene in other controversies such as theological and property disputes not only in respect of the Church of England but also in the case of other religious denominations, Christian and non-Christian. Parliament last ventured into this territory very gingerly with the Church of Scotland Act 1921 which paved the way for the reconciliation of a major schism that had occurred in 1843. Ministers were careful in 1921 to ensure that the Act merely recognised a compromise reached by the parties rather than forcing one.

Is ‘disestablishment’ the answer?

In a situation where religious belief has greatly declined and, where it remains, is much pluralised, church establishment is a hangover from the confessional state – abandoned finally for most purposes in 1828-9 – where everyone in the UK outside Scotland had to be a member of the Church of England or suffer civic penalties. Church and state functioned together, inseparably. But the abandonment of the confessional state was not accompanied by severing that Church’s ties with the state. The disestablishments in Ireland in 1871 and in Wales in 1920 did not affect the position of what was left for England alone.

The key political and constitutional problem is that, although the Church of England now behaves largely as if it is a voluntary society, it remains nonetheless part of the state. The Queen as head of state is ‘Supreme Governor’ of the Church, must be in communion with it, holds the title Fidei Defensor and – nominally – appoints its senior clergy. The Archbishop crowns and anoints the new sovereign, and the Church conducts important public ceremonies and rituals effectively in relation to the UK as a whole. The Church’s courts remain courts of the land, although they lost their public law jurisdictions in the 1850s. Twenty-six bishops continue to sit in the House of Lords – each nowadays actually appointed by a private, unaccountable committee of the Church itself.

These are high matters and could be addressed again by Parliament. However, whatever the degree of change made, none could procure the appointment of female bishops unless Parliament legislated directly to that end. In other words, disestablishment could not by itself resolve the particular question of female bishops. On the other hand, what disestablishment could do would be – a very different matter – to permit the state and Parliament to wash its hands of Church of England affairs altogether.

Conclusion

Since nothing so far suggests that Parliament contemplates such a rupture, it follows that the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining  church/state ties is another question.

Religion and Law roundup: 25th November

Women as bishops or archbishops? – not yet

Readers of this web log need not be reminded of General Synod’s 8-hour consideration of the proposal on the ordination of women as bishops and archbishops, and its narrow defeat by 6 votes in the House of Laity.  This was expected to be a close vote, and it must be admitted that draft title (and the comment) of the post Dies illa had to be changed from ‘Yes’ to ‘No’.  To continue the quotation, it appears that teste David cum Sibylla was equally inappropriate.

Shortly after the announcement of the vote, the Church of England issued a statement, and at 08:30 on the following day the House of Bishops met to consider the consequences of the vote. Pertinent to these considerations is Synod Paper GS Misc 1034 Consecration of Women to the Episcopate: Future Process.  Like the draft Dies illa post, this was available to Synod (and those accessing the CoE web site) and was written in advance of the vote with options for both a positive and negative outcome.

The critical provision within GS 1034 is paragraph 3, which states

‘If the Measure is rejected the effect of Standing Order 61(d) is that it cannot be considered again on the First Consideration Stage in the same form until a new Synod comes into being unless the Presidents, the Prolocutors and the Chairman and Vice-Chairman of the House of Laity give permission for such a motion to be moved and make a report in writing to the Synod setting out a summary of the case for reconsideration and their reasons for giving such permission.”

There has been much comment on the vote, although some salient facts are not always included.

  • The House of Bishops and the House of Clergy overwhelmingly supported the ordination of women as bishops and archbishops; the narrow defeat was in the House of Laity;
  • As with other important issues considered by the Synod, approval required a two thirds majority in each of the three Houses;
  • Typical of synodical debates, all were given an opportunity to speak, and more than 100 speeches,on both sides of the argument, were heard;
  • The proposal had been discussed at Parish, Deanery and Diocesan level.  Here, voting within the dioceses was also on the basis of bishops, clergy and laity, and 42 out of 44 dioceses voted in favour of women bishops;
  • Unless one considers the theological beliefs of those opposing the ordination of women as totally irrelevant, the issue is not solely one of equality.

Of the ensuing debate, Guido Fawkes (a.k.a.  Paul Staines) noted,

“Sir Tony Baldry, resplendent in his bright pink shirt and salmon and cucumber Garrick Club tie, fulfilled his duty in the House today at the Second Church Estates Commissioner (the Church’s representative in Parliament, aside from that constitutional abomination that lets Bishop vote on legislation, of course). Baldry was arguing for women bishops, but as Ann Treneman points out, the Garrick still do not let women join”.

In addition to reporting on Sir Tony’s Q&A session in the House, Archbishop Cranmer (no connection to this blog) reported of MPs “queuing up in a concerted effort to impose equality upon the Church of England”, but significantly, noted

“Anglicans are not freelance theological pundits but a valid part of the One Catholic and Apostolic Church. Like all expressions of ecclesiology, its orders are provisional, and this a theological, not a sociological judgment”.

Readers will draw their own opinions, but three observations that can be made

  • Church leaders have done it few favours by talking down the implications of the vote, dismal though these have been, and providing the media with the headlines advocating disestablishent;
  • Church procedures on the development of its legislation and appointment of senior clergy have been shown to be ponderous and in need of urgent review.
  • Groups within the Church might ponder whether the desire for a particular outome resulted in ‘over-lobbying’ the issue to the point that this became counter-productive.

Charitable status and religion – again

Civil Society reports that the Pagan Federation is taking the Charity Commission to the First-Tier Tribunal over the Commission’s refusal to recognise it as charitable.

Members of the Federation self-identify by reference to three core beliefs: love and respect for nature, a positive morality and recognition of the divine. A Charity Commission spokeswoman was reported as saying that the Pagan Federation was denied charitable status because the basis of its beliefs was too loosely-defined to constitute a “religion” as understood in charity law. The Federation countered that it was appealing the decision because it believed that it had missed the Commission’s criteria by “only a hair’s breadth” and wanted the opportunity better to explain itself.

These decisions are obviously very finely-balanced. In September 2010 the Commission agreed to recognise the Druid Network as “a charity for the charitable purpose of the advancement of religion for public benefit and for no other purpose”, concluding that the Network facilitated and encouraged worship and veneration of a supreme being and that the Network provided identifiable public benefit. If in the case of the Pagan Federation the test turns on public benefit that is a different matter: but if the Commission’s ground for non-recognition of the Pagans is the extent to which they believe in a supreme being, then that criterion verges on the subjective. (And anyway, how many specialists in theology and comparative religion does the Commission employ?)

It will be an interesting case whichever way it goes – but first, presumably, the Tribunal will have to dispose of Preston Down.

Gender reassignment and marriage

The ECtHR was called upon to decide a very difficult case of a woman who had undergone gender reassignment surgery and had changed her first names but whose ID number and passport still showed her as chromosomally male.

In H v Finland 37359/09 HEJUD [2012] ECHR 1916 (13 November 2012) the Court decided that Ms H’s rights under Article 8 had not been interfered with since she could have a male ID and passport always provided that she divorced her wife – possibly an unusually extreme example of the “specific situation rule” so often encountered in employment cases. Unfortunately, however, the couple did not want to turn their marriage into a civil partnership; and the judgment seemed to turn on whether or not obliging the Finnish Government fully to recognise Ms H’s acquired gender without requiring her to divorce would cut across its margin of appreciation on the provision of same-sex marriage. The Court came down on the side of the Government: we wonder whether it got the balance quite right.

Vicarious liability

On Wednesday the Supreme Court handed down what may prove to be a landmark judgment on historic sexual abuse cases. In Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56 the Court held that the Institute was vicariously liable for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St William’s School – a residential institution at Market Weighton for boys in need of care. Though the Institute did not own the school but merely supplied the headmaster and some of the teachers, Lord Phillips concluded that it was  “fair, just and reasonable” for the Institute to share vicarious liability with the school’s managers.

Votes for prisoners

On Thursday the Ministry of Justice  published a Command Paper on the Voting Eligibility (Prisoners) Draft Bill – just inside the ECtHR’s six-month deadline. It includes three options:

  • to maintain the current ban on any convicted prisoner voting;
  • to allow prisoners sentenced to less than 6 months to vote; or
  • to allow prisoners sentenced to less than 4 years to vote.

How Parliament will take it on from there is anyone’s guess – but whatever happens in relation to Strasbourg that might not be the end of the matter. George McGeoch, a convicted prisoner serving life, is challenging the ban not on the basis of Article 3 of Protocol 1 ECHR but on the grounds that the provisions of the Representation of the People Act 1983 which prevent him from being included in the Register of Local Government Electors – and thereby voting in Scottish Parliament elections and in the European Parliamentary elections in 2014 – is contrary to Article 20(2) of the Treaty on the Functioning of the European Union and Articles 39 and 40 of the EU Charter of Fundamental Rights. He lost both at first instance and on reclaimer to the Inner House – see McGeoch, Re Judicial Review [2011] ScotCS CSIH 67 (08 November 2011) – and is now seeking leave to appeal to the Supreme Court.  As BBC deputy political editor James Landale points out, Ministers can in theory disregard a compensation order from the ECtHR – but if an appeal were to go in McGeoch’s favour they cannot simply ignore an order of the Supreme Court awarding him Francovich damages for failure to comply with EU law.

Excita, quaesumus, Domine

And finally, a reminder that today is the celebration of Christ the King – more commonly known as Stir-up Sunday. This is the last Sunday before the start of Advent, when traditionally the preparations for Christmas started with members of the family taking turns to stir the Christmas pudding. The name is derived from the collect Excita, quaesumus, Domine in the 1549 Book of Common Prayer for this Sunday, which may be translated as

“Stir up, we beseech thee, O Lord, the wills of thy faithful people; that they, plenteously bringing forth the fruit of good works, may of thee be plenteously rewarded”

although a corrupted chorister version has

“Stir up, we beseech thee; The pudding in the pot; And when we get home; We’ll eat it all hot!”.

Prior to its popularization by Queen Victoria’s husband, Prince Albert, the mediaeval form of the pudding, known as “Plum Porridge” or “Plum Pottage” was eaten, and this was a semi-liquid, made from meat stewed with dried fruits and prunes, here.

At Wantage, there was no mention of Christmas puddings, mediaeval or traditional, but the clergy left their birettas in the sacristy and joined the congregation wearing paper crowns in a children-focused service with younger members providing everything from the music and readings to the smoke.