Election of new pontiff: events leading to the sede vacante

Today is the last day of the pontificate of Benedict XVI, and after a morning meeting with the cardinals in Rome, he will make his farewells in the San Damaso Courtyard at 4.55pm before leaving by helicopter for Castel Gandolfo, landing at 5:15pm.  There he will be received by the president and secretary general of the Governorate of Vatican City State along with Bishop Marcello Semeraro of the Diocese of Albano, and civil authorities of the locality.  Pope Benedict’s abdication and the resulting sede vacante does not commence until 8-00pm when the Vatican Gendarmerie will take over the role of the Swiss Guards assigned to him at Castel Gandolfo in ensuring his safety.  [A physical manifestation of the sede vacante (“the seat being vacant”) is the cathedra of Saint John Lateran, the cathedral church of the bishop of Rome. Further details may be found here.]

Regarding the beginning of the Congregations of Cardinals, the Dean of the College of Cardinals is expected to send a letter to all the cardinals on 1 March calling them to Rome. The congregations are likely to begin the following week.  These will be held in the new Synod Hall, and the prelates will only be housed in the Casa Santa Marta residence on the evening of the beginning of the Conclave.

A guide Conclave: Step by Step through the Papal Interregnum was published in 2013 by the Catholic Truth Society, the publishers to the Holy See, but reflective of the unexpected nature of the Pope’s resignation, the procedures described deal principally with the death of a pope and there is little consideration of those following a resignation.

Legislative issues leading up to the sede vacante

Canon lawyer Ed Peters sums up the position in his blog

“Beyond the barest of canonical points (Canon 332 §2), almost everything about Benedict’s future—his status under law (canonical and international), title(s), appropriate dress, relations with peers (assuming he has any), and so on and so on and so on—must be fashioned practically from scratch. One should not assume that any announcements being made about Benedict’s future are based on the authority of some arcane-but-accessible protocol tome for dealing with ex-popes, because there is no such tome. We’re making most of this up as we go,” [Emphasis added].

The legislation associated with the issues leading up to the sede vacante is derived from three sources: i]  the 1983 Code of Canon Law;  ii] specific decisions of Benedict XVI associated with his papal authority; and iii] norms of the Apostolic Constitution ‘Universi Dominici Gregis’. 

1983 Code of Canons

Within the 1983 Code, Papal resignation is dealt with explicitly in Canon 332 §2 which states

“If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone”.

Consequently, in announcing his resignation, Benedict XVI stated formally

“ . . . . . .For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome, Successor of Saint Peter . . . . . “

This also explains references to Pope Celestine who voluntarily resigned in 1294 whereas Gregory XII agreed to relinquish the papacy in 1415 at the request of the Council of Constance to end a dispute with a rival claimant to the Holy See.  In 2010, the book “Light of the World: The Pope, the Church, and the Sign of the Times” contained an interview with Benedict XVI in which he said

”Yes, if a pope clearly realizes that he is no longer physically, psychologically and spiritually capable of handling the duties of his office, then he has a right and, under some circumstances, also an obligation, to resign.”

More general aspects of resignation from any ecclesiastical office are contained in Canons 187 to 189 of which Canon 187 is most relevant to the present situation, viz.

Anyone responsible for oneself (sui compos) can resign from an ecclesiastical office for a just cause.”

The sui compos provision of Canon 187 is important, for whilst the physical incapacity to undertake an ecclesiastical office would be regarded as a “just cause”, anyone suffering a mental incapacity would not be deemed capable of resigning. In the New Commentary on the Code of Canon Law (Paulist Press, New York 2000), J H Provost states:

“someone suffering from severe mental illness, a mentally disabling stroke, a coma, or otherwise lacking the use of reason, (Canon 99), is not capable of resigning an office”.

Acknowledging the “strength of mind and body” necessary to undertake the obligations of the pontificate, Benedict XVI resigned at a time when he was permitted to do so by canon law.  A major problem would have arisen were he to be temporarily or permanently incapacitated, since there are no adequate provision addressing these possibilities.  Although  Canon 335 states

“When the Roman See is vacant or entirely impeded, nothing is to be altered in the governance of the universal Church; the special laws issued for these circumstances, however, are to be observed”,

no “special laws” have been enacted to cover this situation and as Cathy Caridi observes, under Canon 331, the Pope alone has supreme, full, immediate and universal ordinary power in the Church, and as such

“there is nobody on earth who has the authority to make an official determination that the Pope is incapacitated and must be removed, or that somebody else should henceforth govern in his place.”

In the past, former Popes have drawn up documents of resignation, dependent upon the occurrence of certain events – Pius VII (1800–1823) and Pius XII (1939-1958) – and John Paul II (1978-2005) is reported to have written a letter of resignation conditional on a future incapacity to exercise his apostolic ministry.  However, these were never enacted and remain hypothetical  possibilities, untested in the light of Canon 331. Following the example of Benedict XVI’s resignation, however, it would be prudent for the new pope to address these lacunae.

Exercise of Papal Authority

Following the resignation announcement, Vatican sources indicated that in the remaining weeks of his papacy, the Pope would continue to exercise his authority through new appointments and legal developments, Vice-Prefect of the Vatican Apostolic Library, Ambrogio Piazzoni, stating:

“the Pope remains the supreme legislator until 19:59 on 28 February and can make changes to laws to do with the Conclave as well, [because] the Holy Father is the only one who can modify legislation concerning the Conclave. . . . [and] only the Pope can interpret the law up until he resigns”.

Appointments and resignations

Important appointments include: Ernst von Freyberg to head the troubled Vatican bank (the Institute for Works of Religion); the replacement of the Vatican’s “foreign affairs minister” by Antoine Camilleri; and promotion from that post of Mgr Ettore Balestrero to the post of Apostolic Nuncio of Colombia.

In addition to the high-profile early resignation of Cardinal O’Brien, Archbishop of Saint Andrews and Edinburgh, agreed nunc pro tunc in November, Rorate Caeli reports that on 27 February 2013, the Pope accepted the resignations of: the Archbishop of Liverpool, Patrick Altham Kelly, following a slight stroke, (Canon 401 §2) and the Auxiliary of Armagh, Bishop Gerard Clifford, also on grounds of ill-health, (Canons 411 and 401 §2). In a related move, Pope Benedict appointed Archbishop Philip Tartaglia of Glasgow to be apostolic administrator of the Edinburgh archdiocese.

The resignation of diocesan bishops is covered by Canon 401, the second part of which leads to uncertainty in the present climate,

Can. 401 §1. A diocesan bishop who has completed the seventy-fifth year of age is requested to present his resignation from office to the Supreme Pontiff, who will make provision after he has examined all the circumstances.

§2. A diocesan bishop who has become less able to fulfill his office because of ill-health or some other grave cause is earnestly requested to present his resignation from office.

Archbishop Miguel Maury Buendia, apostolic nuncio to Kazakhstan, Kyrgyzstan, and Tadjikstan has recently claimed that Benedict XVI has removed two or three bishops per month throughout the world because either the accounts in their dioceses were a mess or their discipline was a disaster.  Where persuasion was ineffective, legal measures were applied.  An analysis of these claims suggests that there may be some substance in this perception, which has been noted by other commentators.

Society of St Pius X, (SSPX), “Lefebvrians”

On 21 February, the Vatican Information Service stated

“Regarding the issue of the Society of St. Pius X, he reaffirmed that the date of 22 February to decide the issue is pure hypothesis and that Benedict XVI has decided to entrust the matter to the next Pope, therefore, a definition of relations with that society should not be expected by the end of this pontificate”.

See also here.


In addition to its coverage of motu proprio Normas nunnullas, (see below), Vatican radio reported the conclusion of the Commission of Cardinals investigations into the leaking of the Pope’s private information to the press. The three cardinals on the Comission – Julián Herranz, Jozef Tomko and Salvatore De Giorgi – were received by the Pope on Monday morning:

“The Holy Father wished to thank them for their fruitful work, expressing satisfaction for the results of the investigation. In fact, their work made it possible to detect, given the limitations and imperfections of the human component of each institution, the generosity, honesty and dedication of those who work in the Holy See at the service of the mission entrusted by Christ to the Roman Pontiff. The Holy Father has decided that the facts of this investigation, the contents of which are known only to himself, will be made available exclusively to the new Pontiff”.

Fr. Lombardi added that the three cardinals “will participate fully in the General Congregations, where they too will have the occasion to express their own convictions. But it was also pointed out that participants in the Congregations are also bound to secrecy”.

Other issues

Pope Benedict decided that he will: be referred to as “Pope Emeritus” or “Pontiff Emeritus”, (but not the Bishop of Rome); keep the style “His Holiness Benedict XVI”; and continue to wear a simple white cassock but with no papal mozzetta (or red papal shoes).  However, he was only empowered to make these decisions until the start of the sede vacante, i.e. 8-00pm on 28th February 2013.  From then until the election of the new Pontiff, no one has the requisite authority, and when appointed, the new pope may reverse these decisions and/or impose new conditions.

Apostolic Constitution ‘Universi Dominici Gregis’

The conduct of papal elections is governed by Universi Dominici Gregis, On the Vacancy of the Apostolic See, and the Election of the Roman Pontiff, (UDG), are primarily concerned with the situation following the death of a pope, rather than one resulting from his incapacity.  The age limit of 80 for participation in the Conclave itself is contained in Canon 349.

In Universi Dominici Gregis, John Paul II detailed the election process, which was changed to permit election by an absolute majority if successive votes fail to give the 2/3 majority.  Benedict XVI abolished this through Constitutione apostolica returning to the 2/3 majority irrespective of the number of ballots necessary.  Benedict XVI’s resignation on 11 February raised a number of uncertainties some of which have been resolved in his motu proprio Normas nunnullas, issued on 25 February.  This is in Latin and Italian, but an English translation is available on the Rorate Caeli blog. .

As Ed Peters points out, the 17-day delay between the resignation announcement and effective date of the resignation, followed by a minimum 15-day delay before the conclave could legally begin would mean that the Church would be leaderless for over a month.  Provisions within UDG included a nine-day period of mourning for the deceased pope, and Normas nunnullas overcomes this through permitting a derogation authorizing an earlier start of the conclave if all the electors are present. Peters notes

“Such a decision now falls squarely within the pontifical provisions for a conclave, and one may leave the choice of a start-date to the competent authority without further concern for the legality of the assembly.

He also notes that in a move possibly directed at media claims on the legitimacy of certain cardinals involvement in the conclave, Normas nunnullas reiterates that no otherwise-eligible elector can, for any reason, be barred from participation in the conclave..

Strasbourg, eccentric religious views and parental access rights

Earlier this month, in Vojnity v Hungary [2013] ECHR 131, the European Court of Human Rights handed down judgment on an interesting case about the degree to which religious views may be taken into account in deciding issues of child custody and access after divorce.

The facts

The applicant, Mr Péro Vojnity, belonged to Hit Gyülekezete (The Faith Congregation). In 2000, following their divorce, his ex-wife was given custody of their son. On two occasions the domestic courts rejected his request for revision of his access rights. In 2006 the courts withdrew custody from the mother but refused to give custody to Mr Vojnity. A psychologist concluded that the boy had strong emotional ties to his siblings and to his mother but none to his father: he also concluded that Mr Vojnity was unfit to provide his son with a normal upbringing because he had unrealistic educational ideas marked by religious fanaticism and he forced his beliefs on his son to an extent that alienated him. The court placed the boy with his older brother instead. In 2008 the court took away Mr Vojnity’s access rights altogether: the ground for doing so was that he abused his access rights by imposing his religious convictions on his son.

Before the Second Section Mr Vojnity argued that the complete withdrawal of his access rights was an unjustified and disproportionate interference with his right to respect for family life, contrary to Article 8 ECHR (private and family life) taken alone and with Article 9 (thought, conscience and religion) and 14 (discrimination).

The decision of the Court

The Court recalled that the enjoyment by parent and child of each other’s company was a fundamental element of family life. The removal of Mr Vojnity’s access rights based on his religious beliefs was a difference of treatment in comparison with other parents in a similar situation who did not have any strong religious convictions. The Hungarian courts, taking the child’s best interests into account, had held that Mr Vojnity’s allegedly-irrational worldviews and proselytism would endanger his son’s development; however, there had been no convincing evidence adduced to show that Mr Vojnity’s religion had exposed his son to dangerous practices or physical harm.

In the opinion of the Second Section, strict scrutiny was called for when restricting parental rights; but the national courts had applied an absolute ban without explaining what real harm an “irrational worldview” could cause. Moreover, they had taken away Mr Vojnity’s access rights altogether without considering any possible alternatives, such as access under controlled circumstances.

In short, the circumstances of the case had not been so exceptional as to justify severing all form of contact between Mr Vojnity and his son. Though the measure had pursued the legitimate aim of protecting the child’s best interests,

“… the approach adopted by [the] authorities amounted to a complete disregard of the principle of proportionality, requisite in this field and inherent in the spirit of the Convention” (para 42).

Mr Vojnity had therefore been discriminated against on the basis of his religion in the exercise of his right to respect for family life, in violation of Article 14 taken together with Article 8. No separate issues arose under Article 6, under Article 8 taken alone or under Article 9 taken alone or in conjunction with Article 14.


In the event, because the Court found a violation of Article 14 in conjunction with Article 8 it decided that it did not need to analyse the Article 9 point any further. In a sense, however, that was the most crucial issue: in short, how eccentric do religious views have to be before they become a legitimate reason for interfering with the parent-child relationship?

In Eweida & Ors v United Kingdom [2013] ECHR 37 the Fourth Section declared that

“[t]he right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance… Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed” (para 81).

In spite of it having been handed down a month earlier the judgment in Eweida was not mentioned in Vojnity at all; however, Vojnity is very much in accord with the line taken in the previous case. In short, Article 9 rights cannot be capriciously overridden – however misguided or ill-informed they may appear to be.

Austria, same-sex adoption and respect for family life


Last week, the Grand Chamber of the ECHR handed down its judgment in X and Ors v Austria 19010/07 – HEJUD [2013] ECHR 148. The case concerned the complaint by two women in a stable same-sex partnership about the Austrian courts’ refusal to grant one of them the right to adopt the son of the other without severing the mother’s legal ties with the child (“second-parent adoption”). The Grand Chamber held as follows:

  • by  ten votes to seven, that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights on account of the difference in treatment of the applicants in comparison with unmarried opposite-sex couples in which one partner wished to adopt the other partner’s child; and,
  • unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared with that of a married couple of which one spouse wished to adopt the other spouse’s child.

The Court found that the difference in treatment between the applicants and an unmarried opposite-sex couple in which one partner sought to adopt the other’s child had been based on their sexual orientation. No convincing reasons had been advanced as to why that difference in treatment was necessary for the protection either of the family or of the interests of the child.

The facts

The applicants were two Austrian women (“the first and third applicants”) and the son of one of them (“the second applicant”), who was eleven or twelve at the time the application was made to the ECHR. The boy was born out of wedlock in 1995 and his mother had sole custody of him. The three applicants live together and the two women jointly care for the “child” (though the mills of Strasbourg grind very slowly and by now he must be seventeen or eighteen).

The women concluded an adoption agreement in February 2005 when the boy was nine or ten. Though the boy’s father had not consented to the adoption without giving any reasons they nevertheless submitted the agreement to the district court for approval. They were aware that the Civil Code could be understood to exclude the adoption of the child of one partner in a same-sex relationship by the other without severing the relationship with the natural parent; and they therefore sought a declaration from the Constitutional Court that those provisions were unconstitutional because they discriminated in relation to sexual orientation. The Constitutional Court rejected the request as inadmissible in June 2005 pending the decision of the district court. In October 2005 the district court refused to approve the adoption agreement, holding that the Civil Code envisaged that in the case of an adoption by one person the adopting parent replaced the natural parent of the same sex, thus severing the child’s relationship with him or her. In the instant case, the boy’s adoption by the first applicant would sever his relationship with his mother, not his relationship with his father.

The applicants appealed to the regional court without success, the court observing that though Austrian law did not give a precise definition of the term “parents” it plainly envisaged an opposite-sex couple. In September 2006 the Supreme Court dismissed a further appeal on points of law, holding that the adoption of a child by the female partner of his or her mother was legally impossible and that the relevant provisions of the Civil Code were not unconstitutional.

The complaint before the Grand Chamber

The Austrian Civil Code does not contain provisions specific to adoption by same-sex couples; however, though the law allows adoption whether or not the adoptive parent is married to the biological parent, the domestic courts interpret the Code to exclude the adoption of one partner’s biological child by the other partner in a same-sex relationship.

The applicants complained under Article 14 taken in conjunction with Article 8 that they were being discriminated against on account of the first and third applicants’ sexual orientation. They argued that there was no reasonable and objective justification for allowing one partner in an opposite-sex relationship to adopt the other’s child while prohibiting the adoption by one partner of the other’s child in the case of same-sex couples, contrary to Articles 14 and 8 ECHR. The Grand Chamber confirmed that the relationship between the three applicants amounted to “family life” within the meaning of Article 8 and that Article 14 taken in conjunction with Article 8 applied in their case – nor did the Austrian Government disputed that.

Comparison with a married couple in which one spouse wished to adopt the other spouse’s child

In a recent judgment in another same-sex adoption case, Gas and Dubois v France [2012] ECHR 108 the Court had concluded by six votes to one (Villiger J dissenting) that the position of a same-sex couple in which one partner wished to adopt the other’s child without severing the mother’s legal ties with the child was not  on all fours with the situation of a married couple and there had therefore been no violation of Article 14 taken in conjunction with Article 8. The Grand Chamber saw no reason to deviate from the finding in that case and reiterated that the Convention did not impose an obligation on states parties to grant same-sex couples access to marriage: moreover, where a state chose to provide same-sex couples with an alternative means of legal recognition it enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified a difference of treatment (Schalk and Kopf v Austria [2010] ECHR followed). Furthermore, marriage conferred a special status on those who entered into it, giving rise to social, personal and legal consequences.

The Court concluded that the first and third applicants in the present case were not in a relevantly similar situation to a married couple. Consequently, there had been no violation of Article 14 taken in conjunction with Article 8 when their situation was compared with that of a married couple in which one spouse wished to adopt the other’s child. Furthermore, their submission was to be distinguished from the judgment in Gas and Dubois because, under French law, second-parent adoption was not open to any unmarried couple, whether homosexual or heterosexual.

Comparison with an unmarried opposite-sex couple in which one partner wished to adopt the other’s child

The Court took the view that the applicants were in a similar position to an unmarried opposite-sex couple in which one partner wished to adopt the other’s child. The Austrian Government had not argued that a special legal status existed which would distinguish an unmarried heterosexual couple from a same-sex couple, conceding that same-sex couples could in principle be as suitable or unsuitable for adoption, including second-parent adoption, as opposite-sex couples.

Austrian law allowed second-parent adoption by an unmarried opposite-sex couple. Nothing in the relevant regulations of the Civil Code prevented one partner in an unmarried heterosexual partnership from adopting the other’s child without severing the ties between that partner and the child. In contrast, for a same-sex couple second-parent adoption was legally impossible because the Civil Code provided that any person who adopted a child replaced that child’s biological parent of the same sex. Because the first applicant was a woman, adoption could not, therefore, create a parent-child relationship between her and the child in addition to the relationship with his mother.

The Grand Chamber was not convinced by the Austrian Government’s argument that the applicants’ adoption request had been refused on grounds unrelated to their sexual orientation and that the applicants were therefore asking the Court to carry out an abstract review of the law. The Austrian courts had made it clear that an adoption in the terms desired by the applicants was impossible under the Civil Code and both the district court and the regional court had essentially relied on the legal impossibility of the adoption requested by the applicants. They had not carried out any investigation into the circumstances of the case. In particular, they had not dealt with the question of whether there were any reasons for overriding the refusal of the child’s father to consent to the adoption. By contrast, the regional court had underlined that in Austrian family law “parents” meant two persons of opposite sexes and had stressed the interest of the child in maintaining contact with two opposite-sex parents. The Supreme Court had confirmed that second-parent adoption as requested by the applicants was legally impossible.

Given that the Austrian courts had concentrated on the legal impossibility of the adoption, they had been prevented from examining in any meaningful manner whether or not the adoption would be in the child’s interests whereas, in the case of an unmarried different-sex couple they would have been required to examine whether or not an adoption served the child’s interests. The applicants had therefore been directly affected by the legal situation of which they complained; moreover, since they enjoyed “family life” together for the purpose of Article 8, all three could claim to be victims of the alleged violation.

The difference in treatment between the first and third applicants and an unmarried different-sex couple in which one partner sought to adopt the other partner’s child had been based on their sexual orientation. The case was thus to be distinguished from Gas and Dubois v. France, in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second parent adoption was not open to either of them.

There was no obligation under Article 8 to extend the right to second-parent adoption to unmarried couples. Given that Austrian law did allow second-parent adoption in unmarried different-sex couples, however, the Court had to examine whether refusing that right to (unmarried) same-sex couples served a legitimate aim and was proportionate to that aim.

The Austrian courts and the Government had argued that Austrian adoption law was aimed at recreating the circumstances of a biological family. The Court accepted that the protection of the family in the traditional sense was in principle a legitimate reason which could justify a difference in treatment, as was the protection of the child’s interests. However, according to the Court’s case-law, in cases where a difference in treatment based on sex or sexual orientation was concerned, the Government had to show that that difference was necessary to achieve the aim.

The Austrian Government had not provided any evidence to show that it would be detrimental to a child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes. Moreover, under Austrian law, adoption by one person was possible whatever that person’s sexuality; and if he or she had a registered partner that person had to consent to the adoption. The legislature had therefore accepted that a child might grow up in a family based on a same-sex couple and that it was not detrimental to the child. Furthermore, there was force in the applicants’ argument that de facto families based on same-sex couples existed but denied legal recognition and protection. There was therefore considerable doubt about the proportionality of the absolute prohibition on second-parent adoption for same-sex couples.

The Government had argued that in the absence of consensus among states parties regarding second-parent adoption by same-sex couples it had a wide margin of appreciation as to how it regulated the issue. However, the view of the Grand Chamber was that the issue before it was not the general question of same-sex couples’ access to second-parent adoption but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of second-parent adoption.

Only ten Council of Europe member states which allowed second-parent adoption in unmarried couples could be used as a basis for comparison: of those, six treated heterosexual couples and same-sex couples in the same manner while four adopted the same position as Austria. The narrowness of that sample did not allow conclusions as to a possible consensus among states parties; however, the Grand Chamber concluded that the Austrian Government had failed to justify the proposition that excluding second-parent adoption for a same-sex couple while allowing it for an unmarried opposite-sex couple was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore discriminatory and there had been a violation of Article 14 taken in conjunction with Article 8.


The potential significance of the case is underlined by the fact that the Court accepted several third-party interventions – including one from  the British Association for Adoption and Fostering. What the judgment does not do is to overwrite the judgment in Gas and Dubois; moreover, the Grand Chamber underlined that the Convention does not oblige states parties to extend the right of second-parent adoption to unmarried couples.  However, it stresses the need for equality of treatment, irrespective of sexuality, once a member state has established the right of second-parent adoption.

It will be interesting to see what impact the judgment has on further consideration of the charitable status of St Margaret’s Children and Family Care Society, the Glasgow-based Roman Catholic adoption agency about which we have posted previously.

There is a longer analysis of the judgment at the International Justice Resource Center.

Pope accepts Cardinal O’Brien’s resignation

At 11-00 am today, the Scottish Catholic Media Office made the following announcement:

“The Holy Father Pope Benedict XVI has accepted on the 18 February 2013 the resignation of His Eminence Cardinal Keith Patrick O’Brien from the pastoral governance of the Archdiocese of Saint Andrews and Edinburgh.   This information will be announced and published in the Osservatore Romano of Monday 25 February 2013.

 The Cardinal had already presented last November his resignation in view of his 75th birthday on 17 March 2013, and it was accepted by the Holy Father with the formula ‘nunc pro tunc’ (now for later).   Given the imminent Vacant See, the Holy Father has now decided to accept the said resignation definitively.”

“Approaching the age of seventy-five and at times in indifferent health, I tendered my resignation as Archbishop of Saint Andrews and Edinburgh to Pope Benedict XVI some months ago.  I was happy to know that he accepted my resignation ‘nunc pro tunc’ – (now – but to take effect later) on 13 November 2012.  The Holy Father has now decided that my resignation will take effect today, 25 February 2013, and that he will appoint an Apostolic Administrator to govern the Archdiocese in my place until my successor as Archbishop is appointed.  In the meantime I will give every assistance to the Apostolic Administrator and to our new Archbishop, once he is appointed, as I prepare to move into retirement”.

The full Press Release may be read here.


Cardinal O’Brien has been an outspoken critic of plans to legalise same-sex marriage and a strong supporter of Catholic teaching on abortion, euthanasia and homosexuality. Recently, he called for the Catholic Church to end its celibacy rule for the priesthood suggesting that many priests struggled to cope with celibacy and should be allowed to marry if they wished.

The Observer reported that in the week before Benedict XVI announced his resignation, three priests and a former priest from the diocese of St Andrews and Edinburgh, lodged a complaint with nuncio Antonio Mennini, the Vatican’s ambassador to Britain, alleging inappropriate behaviour stretching back 30 years.

Cardinal O’Brien’s resignation will have widespread repercussions both in Scotland and in the wider Church as it seeks to address an already difficult situation following Pope Benedict’s unprecedented resignation and the preparations ahead of the conclave.


Details of the conclave have been clarified in the motu proprio Normas nunnullas, issued by the Pope today in Latin and Italian, although an English translation is available on the Rorate Caeli blog, [an unofficial translation provided by the Vatican Information Service, modified where applicable].  However, some Roman Catholic canon lawyers have suggested that there is some uncertainty regarding the practical
implementation of the motu proprio, here and here.

Religion and Law round up – 24th February

A fairly quiet week – at least in comparison with the previous one

Qu’ils mangent de cheval…

… as Marie Antoinette almost certainly did not say. However, the unfolding horsemeat fiasco has inevitable implications for members of religious groups with strict dietary laws: some bad, some (perhaps surprisingly) good. As we noted, the Jewish Chronicle reported that the scandal has led to an upsurge in kosher beef sales – presumably not all of them to observant Jews.horse-butcher

Following an initial Gallic shrug at the problem and a suggestion blaming the “English ethnocentric attitude that applies also to rabbit, andouillette, frogs and calves’ heads”, French supermarkets are reported to be withdrawing products linked to the horsemeat scandal.  Nevertheless, France’s equine butchers have seen a 15 per cent rise in sales. Agriculture minister
Stéphane Le Foll said that the rules were simple: “There has to be a correspondence between the container and what’s in it”, presumably stating the Shergar content. Further analysis (and puns) are on David Hart’s post on the UKHR Blog. A more concerning issue, however, is Defra’s proposed derogation (“to serve UK interests”)  in the Food Information Regulations 2013 for minced meat that does not meet the compositional requirements of Part B of Annex VI of Regulation (EU) 1169/2011.

The EHRC on religion or belief at work

The Equality and Human Rights Commission published two documents on religion and belief in the workplace – its guidance for employers and a legal analysis – arising out of the ECtHR judgment in Eweida and Others v United Kingdom [2013] ECHR 37. We felt that some of it could have been explained rather more carefully – and posted about it here. The post was picked up by the Church Times.

Same-sex adoption in Austria 

On 19 February the Grand Chamber of the European Court of Human Rights handed down its judgment in X and Ors v Austria 19010/07 – HEJUD [2013] ECHR 148. In brief, the case was about a complaint by two women who live in a stable same-sex relationship about the refusal by the domestic courts to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child.

The Grand Chamber held by ten votes to seven that the difference in treatment between the applicants and an unmarried heterosexual couple of which one partner sought to adopt the other partner’s child had been based on the women’s sexual orientation. No convincing reasons had been adduced as to why such a difference in treatment was necessary for the protection of the family or for the protection of the interests of the child; and there had therefore been a violation of Article 14 ECHR (discrimination) taken in conjunction with Article 8 (respect for private and family life).

This is a complex judgment and we shall post a considered note on it next week.

Reminder for response to CofE Consultation Women in the episcopate consultation

Responses to the “next steps” consultation paper Women in the episcopate: a new way forward GS MISC 1042 should be sent to the Working Group via women.bishops@churchofengland.org “if at all possible” by Thursday 28 February in advance of its next meeting on 4 March.  A summary of the paper is given here and a more detailed analysis here.


Next week the Roman Catholic world will be watching for developments following the retirement of Benedict XVI at 20-00 on 28 February.  Whilst some sections of the media are focusing their attention on “pope-bashing” and speculation as to the new incumbent, closer attention to developments in the Vatican reveals that in the remaining weeks of his papacy, the Pope is continuing to exercise his authority through new appointments and legal developments.  As Vice-Prefect of the Vatican Apostolic Library, Ambrogio Piazzoni, stated:

“the Pope remains the supreme legislator until 19:59 on 28 February and can make changes to laws to do with the Conclave as well, [because] the Holy Father is the only one who can modify legislation concerning the Conclave. . . . [and] only the Pope can interpret the law up until he resigns”.

With regard to the former, following his announcement he appointed German lawyer Ernst von Freyberg to head the troubled Vatican bank officially known as the Institute for Works of Religion.  Furthermore, in what is described as “unusual last minute nomination and an important one”, the Vatican’s “foreign affairs minister” is being replaced just days before the sede vacante period:  Mgr Ettore Balestrero is being promoted to the post of Apostolic Nuncio of Colombia and is being replaced by Antoine Camilleri, former personal secretary to Dominique Mamberti, the Vatican Secretary for Relations with States.

The Guardian reports that Archbishop Georg Gänswein, (“il Bel Giorgio”), will continue to be Benedict XVI’s private secretary and will accompany him initially to Castel Gandolfo and later to the Mater Ecclesiae convent.  However, he will also continue to be prefect of the Papal Household of the new Pope.

With regard to the Conclave, Vatican Insider reports that the Pope is considering issuing a motu proprio in the next few days, before the sede vacante period begins, to clarify some key points of the Apostolic Constitution on the Conclave (Universi Dominici Gregis).  According to Fr Lombardi, the clarifications made in the Pope’s motu proprio could be to do with “details” such as the “full compliance with another document relating to the Conclave, the “Ordo Rituum Conclavis”, which sets out the rules for the prayers and phrases recited during the election of a new Pope.

Yesterday, Saturday, the Vatican’s Secretary of State issued a strongly-worded communiqué regarding the Conclave, stating inter alia

“If in the past the so-called powers, i.e., States, sought to influence the election of the Pope, today there is an attempt to do this through public opinion, which is often based on judgments that do not capture the typically spiritual aspect of this moment that the Church is living.

It is deplorable that, as we draw closer to the moment that the Conclave will begin and the Cardinal electors will be held—in conscience and before God—to freely express their choice, there is a widespread distribution of often unverified, unverifiable, or even completely false news stories that cause serious damage to persons and institutions.

Never before as at this moment are Catholics focusing on what is essential: praying for Pope Benedict, praying that the Holy Spirit might enlighten the College of Cardinals, and praying for the future Pope, confident that the future of the barque of Peter is in God’s hands.”

Scrap Metal Dealers Bill becomes law

Richard Ottaway’s Scrap Metal Dealers Bill passed its third reading in the House of Lords on 12 February, and as no amendments were made is now awaiting Royal Assent, at a date yet to be set. The Chair of the Church of England’s Cathedral and Church Buildings Council welcomed the new legislation as the outcome of a two-year-long campaign led by the Council. She noted the assistance of “a number of organisations and individuals whose hard work has led to the successful passage of this Bill, not least the Bishop of London, Lord Faulkner of Worcester and the Second Church Estates Commissioner, Sir Tony Baldry MP.”

And finally, a judgment to watch out for

In January the Inner House of the Court of Session heard argument in the reclaimer by Roman Catholic midwifery sisters Mary Doogan and Concepta Wood against the first-instance rejection of their conscientious objection to supervising Glasgow Health Board staff taking part in abortions. The appeal judges are currently considering their decision (or, as they say in Scotland, making avizandum). Whichever way it goes, it will be extremely important judgment.

Liabilities for church visitors: a checklist

Churches of many denominations are anxious to open their premises to visitors and for private prayer, and although advice is readily available on the security of the buildings and contents, information on the liabilities associated with permitting unsupervised access is less accessible.  Nevertheless, the importance of this aspect should not be underestimated, as the information on the  ChurchCare web site of the Church of England indicates.

“[t]he estimated value of church visits to the tourism economy could be at least £350 million each year. In 2002 Visit Britain recorded 13 million visits to places of worship, with these visits representing one fifth of all visits to major historic attractions”.

Many of the issues relating to visitors are similar to those which are applicable to a church’s other activities – health and safety; disabled access; fire safety, &c – some of which we have covered in a number of earlier posts: Health and Safety and the PCC; Health and Safety and the Church – the FFI Scheme; Health and Safety in the churchyard: national guidance and local interpretation; and Are wood chips the new jam-jars?.  Issues specific to visitors includes: the use of volunteers for “church watching”; and allowing unsupervised visits within a church.

Whilst on www.lawandreligionuk.com we do not provide legal advice, readers may find the non-exhaustive check list below useful in highlighting some of the issues that should be considered in relation to visitors.  A number of links to other sources of guidance are also provided, although again, these links are not being recommended as sources of legal advice.

1. Why would a visitor wish to visit the church?

This is a useful point at which to start since it assists in identifying specific points ofIMG_1717 (2) interest within the church, the churchyard and any associated buildings that visitors are likely to wish to access.  There may be particular features of the church itself, identified in  tourist or specialist  literature, [e.g..Simon Jenkins England’s Thousand Best Churches, (1999)] or associations with current events or television series, St Mary’s Bampton with its links to Downton Abbey, pictured right. These will assist in highlighting issues of access, security and other potential risks that need to be addressed.

2. What general liabilities exist?

It is important to consider both land and buildings associated with the church, and the statutory, contractual and other provisions that define who has responsibility for them.  In addition to common law liabilities in tort, such as the duty of care in negligence, statutory provisions such as the Occupiers Liability Acts of 1957 and 1984 are relevant since these extend the duty of care to both “lawful visitors” and “non-lawful visitors” such as trespassers.  There is extensive case-law including considerations of who constitutes “an occupier” and has “occupational control” when there is more than one occupier on the premises.  Some of these issues are addressed here

A number of tombs and memorials in churchyards have listed status and as such may be the focus for some visitors.  The Church of England has issued guidance on the maintenance of monuments, with specific reference to closed churchyards.  In summary

Ardington“The primary responsibility for the safety of a monument in a churchyard closed by Order in Council rests with the owner of the monument. If the owner defaults, a secondary responsibility is imposed upon the body having the duty to maintain the closed churchyard. This may be the PCC, pursuant to Section 215(1) of the Local Government Act 1972. Where, however, a local authority has taken over the maintenance of the churchyard under Section 215(2) its maintenance obligation extends to the safety of the monuments there.”

3. Others using church buildings

In some cases, non-church groups may have the use of part of the building not accessible to visitors, under a licence or leasing agreement.  It is important that legal advice is sought when drawing up these agreements and the roles and responsibilities of all parties involved are clearly outlined.

4. Health and Safety Legislation

The Health and Safety Executive, (HSE), has developed guidance for voluntary organisations and the management of low risk, here, and that relating to the management of a village or community hall is of possible relevance, here.  This includes a helpful checklist covering the most common areas of risk, and is applicable to all users of church premises including visitors.  The guidance addresses the applicability of civil law and health and safety law, here, and notes that in general

“health and safety legislation does not . . . . . . impose duties upon someone who is not an employer, self-employed or an employee”.


“The HSW Act and the regulations made under it apply if any organisation, including a voluntary organisation, has at least one employee. The Act refers to employers and the self-employed as ‘dutyholders’.

The HSW Act sets out the general duties that employers have towards employees. It also requires employers and the self-employed to protect people other than those at work (e.g. members of the public, volunteers, clients and customers) from risks to their health and safety arising out of, or in connection with, their work activities.”

5. Volunteers

In many churches, volunteers (often referred to as “church watchers”) are used to give assistance to visitors to the church as well as providing a degree of deterrence against damage and theft.  As individuals they are not subject to health and safety legislation, although those directing their activity – a PCC or management Committee – fall within health and safety legislation, as noted above.

Employment rights such volunteers has recently been clarified as we noted in our post of 16 December 2012.  In X v Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59 (12 December 2012), Lord Mance held that Directive 2000/78/EC, relating to the establishment of a general framework for equal treatment in employment and occupation, ”does not cover voluntary activity”, and was not prepared to refer the matter to the Court of Justice of the EU for an Opinion.  Consequently, volunteers are not regarded in law as employees, and do not have equivalent employment rights. Since the often work alone, consideration should be given to their security particulary when the church is in a remote area.

6. Other provisions: Disabled access

Guidance on accessibility and the requirements of the 2010 Equality Act summarized on ChurchCare web site as

“Duties under the Act are placed on ‘service providers’, which include churches and the service they provide for worship and wider activities either in the church or a church hall.

The Act applies to all church premises including clergy housing.

Churches now have to take reasonable steps to change practice, policy, or procedure which makes it impossible or unreasonably difficult for a disabled person to make use of its services.

 Use of premises by a disabled person must be anticipated and not left until the situation arises. It is important that all people are included in the provision of the service. For churches this could include considering access to the church, parts of the interior, use of WCs, noticeboards, churchyards and paths”

The site also includes detailed guidance

7. Insurance

In addition to the general aspects of insurance relating to any organization, it is important that arrangements relating to visitors do not invalidate any aspects of the cover purchased.  Ecclesiastical is a specialist insurance provider and directly insures over 95% of Anglican churches and is a major insurer for many other faiths. Through brokers it provides faith insurance for mosques, Sikh and Hindu temples and Roman Catholic churches, and is also the leading UK insurer of synagogues.

In addition to comprehensive advice on health and safety issues, there is useful on information on church security.  It also contains the following statement:

Locking churches

We encourage all churches to be open during daylight hours so that they can continue to be a dedicated space for public worship and a focus for events and community activities”.

Religion and the horsemeat scandal

The “horsemeat scandal” first became apparent in Ireland and the UK when “traces of horse DNA” were discovered in beef products and as the food supply-chain came under deeper scrutiny, similar issues were apparent in a number of European countries and it became apparent that there was up to 100% horsemeat substitution in some cases.  As Archbishop Justin Welby noted when Dean of Liverpool, “God doesn’t like you eating any of these things [listed in Leviticus 11]”, including the rock hydrax (badger), and for some faiths the presence of potential contamination is a serious problem.

However, the Jewish Chronicle reports  that the horsemeat scandal has led to an upsurge in kosher beef sales and has provided an unprecedented boost for kosher meat suppliers.  Butchers are reporting “booming” business as shoppers who previously bought non-kosher meat have returned to kosher stores following concerns about the threat of contamination of supermarket products.

The head of the Manchester Beth Din has said that the Food Standards Agency and meat companies could “learn a lot” from kosher producers, and there are clearly many checks to ensure transparency in the supply chain of meat and meat products such as salami, viennas and ready-meals. Kosher meat is of UK origin, animals are first checked by a vet prior to slaughter, and every piece of meat is sealed and an inspector later checks they are still intact.

Although the chairman of the Licensed Kosher Meat Traders’ Association is quoted as saying the scandal could be “the best thing” to happen to the kosher meat industry for years, there are some who regard this as a blinkered view of the situation and point to experience in the USA that indicates the kosher food industry has not been without its scandals.


Those of us who have eaten polpette di cavallo in Sicily or unmentionable parts of a horse in Beijing will be bemused at the squeamishness of the UK population to idea of eating equine meat products.  In his article in the Catholic Herald, The British are rather picky about their scandals, Fr Alexander Lucie-Smith identifies the problem as a labelling issue, both within the food industry and at the point of sale, and clearly the religious demands for the production of kosher products are conducive to high levels of transparency and quality control.

However, as the House of Commons Library Standard Note SN/SC/1314, ‘Religious Slaughter’ states

“Much of the meat on an animal killed by Shechita may not qualify as Kosher meat. There is no requirement that it should be labelled as meat from an animal killed without pre-stunning.

The Coalition Government has no intention of making Halal or Shechita slaughter illegal, but it is considering welfare labelling of meat. “

Thus the increased demand for kosher meat products will inevitably lead to an increased amount of non-kosher meat that has been religiously slaughtered, and is likely to rekindle the arguments concerning its identification on product labelling, discussed in an earlier postPerhaps some of the enthusiasm on this increased demand needs to be reined in.