Religion and Law round up – 31st March

Was such a quiet week worth rounding up at all?

Lord Carey and “persecuted Christians”

Just when we had concluded that there had been hardly anything worth reporting in the last week, the former (or should that now be “former former”?) Archbishop of Canterbury, Lord Carey of Clifton, sought to enliven Holy Saturday by sounding off in the Daily Mail about Christians feeling that they were a “persecuted minority”. He quoted a poll by ComRes (also reported in the Mail) to the effect that two-thirds of Christians feel that they are part of a persecuted minority; and though he conceded that their fears may be exaggerated “because few in the UK are actually persecuted” he nevertheless said that “the Prime Minister has done more than any other recent political leader to feed these anxieties” and cited same-sex marriage as an example. We will post on the matter at greater length later in the week.

Prison chaplaincy and the C of E 

Section 7 of the Prisons Act 1952 requires that every prison establishment in England shall have a chaplain who “… shall be a clergyman of the Church of England”. Mutatis mutandis, the result of section 53(3) is that every Welsh prison must have a chaplain who is a cleric of the Church in Wales even though it is no longer the Established Church. There are lots of prison chaplains of other denominations and other faiths but the other chaplains are not statutory officers of the prisons in which they work.

While Ken Clarke was Secretary of State for Justice it was apparently decided in principle to open the post of Chaplain-General of the Prison Service in England and Wales to all faiths. At one minute past midnight on Good Friday, however, The Times (safe behind its paywall so no link) reported that the current Lord Chancellor & Secretary of State for Justice, Chris Grayling, has decided that the post will continue to be filled by an Anglican, apparently on the grounds that the C of E is the established Church. There has been not a peep (nor even a tweet) out of the MoJ Press Office.

Women in the C of E episcopate

On Tuesday the Church of England Media Centre issued an update on the progress of the legislation to allow the consecration of women as bishops. The consultation document generated 376 responses by the closing date of 28 February. Of these responses, 10 were from organisations and three from bishops, and of the remaining 363 submissions 154 were from General Synod members and 209 from others. The working group has met twice in March and has further meetings scheduled for April and May. It remains on track to report to the House of Bishops before its meeting on 20/21 May, when the House will be deciding what proposals to bring to the Synod in July. At its April meeting the group is having further facilitated conversations with those who joined it for the earlier discussions at the beginning of February.

As the work of the group progresses, we note that other initiatives within the Church and Parliament formed with a view to expediting the consecration of women into the episcopate have faltered.

Women and the Mandatum

Few, other than liturgical traditionalists and canon lawyers within the Roman Catholic Church, would have considered as unusual the actions of Pope Francis at the Coena Domini Mass in the chapel of Casal del Marmo prison, which he celebrated with about fifty or so of its young inmates.  At the start of the Easter Triduum, many religions include the foot-washing rite, referred to as the Mandatum, as a re-enactment of Jesus’s washing of his disciples’ feet at the Last Supper as a gesture of humility.  This was re-introduced into the Catholic liturgy by Pope Pius XII in 1955, and revived for the first time in 400 years in Canterbury Cathedral in 2003 by Archbishop Rowan Williams, (although it had been practised in the Church of England prior to that date: when Frank was an undergraduate at St Chad’s, Durham, at the College Easter retreat in 1964 the Principal, Theo Wetherall, washed the feet of the twelve youngest students at the Maundy Thursday Mass).

According to Roman Catholic liturgical law, the non-obligatory rite is restricted to adult males (viri selecti) and it has been noted that “someone … washing the feet of any females (or, it seems, even of males under 18, per 1983 CIC 97) …  is in violation of the Holy Thursday rubrics”. Nevertheless, it is know that permissions have been granted to individual bishops to permit women to have their feet washed, and this was the practice of Cardinal Jorge Mario Bergoglio, Archbishop of Buenos Aires, before he became pope.

However, no pope has ever washed the feet of a woman before, and Francis I’s gesture sparked a debate: conservatives and liturgical purists suggest that he set a “questionable example”; liberals have welcomed the move as a sign of greater inclusiveness in the church.  At this early stage in Pope Francis’ papacy, it would be premature to attempt to interpret the significance of this and other less divisive issues.  Nevertheless, in view their worldwide implications and the issues that these have continued to raise on an annual basis, it would be timely to revisit and clarify the Mandatum rubrics. Unlike other more pressing canon law issues, such a decision has a one-year lead-in.

Dead Kings: the Richard III saga drags on and Alfred the Great heaves into view…

The Guardian reported on Tuesday that the Plantagenet Alliance, fifteen living relatives of Richard III, is making an application for judicial review of the decision to rebury his remains in Leicester Cathedral instead of York Minster. According to the report, the relatives are bringing the action against the Ministry of Justice, which granted the archaeological excavation licence to Leicester University in the first place, claiming that they were not consulted and that their rights have been breached.

And what rights, one wonders, might those be? As we have pointed out previously, in Rudewicz, R (on the application of) v Secretary of State for Justice & Ors [2012] EWCA Civ 499 the Court of Appeal was called on to decide an exhumation and reburial case to which there was an objection by the closest living relative of the deceased, a first cousin, once removed. A strong Divisional Court (Hallett LJ and McCombe J) had already dismissed an argument based on Article 8 ECHR (respect for private and family life) on the grounds, inter alia, that “family life” could not subsist after death. Delivering the judgment of the Court of Appeal, Lord Neuberger MR said that he had

“… some difficulty in seeing how Article 8 is engaged. It might have been different if there had been a close personal relationship, or even a close familial relationship, between Ms Rudewicz and [the deceased], but they never met, and she is a distant relative. It is difficult to see how her family life or private life can fairly be said to be involved on the facts of this case” (para 39)”.

A fortiori (as they used to say before the Woolf Reforms) in the case of the relatives of someone who died almost 500 years ago and whose familial links are extremely tenuous at best. A statement from the University of Leicester notes that

“Richard III is believed to have no living descendants. Any distant relations are therefore descended from his siblings. Statistically speaking, many tens of thousands of individuals alive today are descended in this way.”

In addition, we noted the exhumation under faculty of remains in a grave in St Bartholomew’s Church, Winchester, which, it is thought, might be those of King Alfred the Great and his family. (Frank – ever the cynic – wondered whether Noggin the Nog might be next.)

And a Happy Easter to all our readers…

Alfred the Great’s Remains Exhumed?

On 10 February we reported that as a result of interest generated in Leicester University’s positive identification of the remains of Richard III, attention has been directed towards other “lost” English monarchs, of which King Alfred the Great (849–899) heads the list of likely possibilities.  There is no secret as to where his remains are currently thought to be been buried, although their movement between earlier sites introduces a degree of uncertainty[1].  On the Church of England’s excellent web site A Church Near You, the entry for the United Benefice St Bartholomew & St. Lawrence w. St. Swithun-upon-Kingsgate, Winchester states:

“St. Bartholomew’s was founded over 900 years ago and lay within the forecourt of Hyde Abbey (1110). It was enlarged with a tower built from stone from the Abbey after it was demolished at the Reformation. Visitors can view 5 original capitals and 1 springing stone thought to have come from the cloisters. These are some of the finest surviving examples of mediaeval sculpture in England.

Hyde Abbey was the final resting place for the bones of King Alfred the Great, his Queen Aelswitha and their son Edward the Elder. An unmarked grave outside the east window is disputed as the place where Alfred and his family were re-buried after the Abbey vaults were excavated in the mid 19th century.”

St Bartholomew’s and its local community has been undertaking research over the last three years, and in February 2013 it was reported that the University of Winchester was seeking permission to examine the grave and subject the bones to radiocarbon dating. The BBC reports Dr Katie Tucker of the University of Winchester saying:

“If the bones are from around the 10th Century then that is proof they are Alfred and his family because Hyde Abbey was not built until the 12th century and they would be no reason for any other bones from the 10th century to be there”

“This is a long shot because unlike with Richard III there is no complete skeleton. We only know they are five skulls and some bones and we also don’t know if the bones are monks from the abbey.”

This week events took a new turn when at the request of St Bartholomew’s PCC, the remains within the grave were exhumed under the authority and advice of the Chancellor of the Diocese of Winchester, Judge Christopher Clark QC, whose order imposes a confidentiality measure for reasons of security.  A news release from the Diocese of Winchester states:

“the immediate decision to carry out this exhumation was made by the PCC (Parochial Church Council) of St Bartholomew’s to counter the risk of theft from or vandalism to the grave; this is in light of heightened risk owing to widespread recent speculation about the significance of its contents”.

A diocesan spokesperson is reported as saying

“Although no application has yet been made to carry out any scientific investigation, we do acknowledge that there is local interest in learning more about the remains found in this grave.”

“This would be possible by means of a faculty application to the Consistory Court of The Diocese. This could be made by St Bartholomew’s Church, or by a private applicant, which could be the Hyde900 community group.”

“Of course, that would only be granted if the Court were satisfied with everything proposed, both legally and ethically. Whatever happens, the remains will stay in the care and protection of the Church and the Consistory Court until they are reinterred.”


The exhumation of the remains from St Bartholomew’s is different in law from that relating to Richard III as it falls within the Church of England’s faculty jurisdiction, although the rites under which they are re-interred will need to address similar issues.  Past case law suggests that unless there are special circumstances such as those in St Mary Sledmere (2007) 9 Ecc LJ 343 or Re Radcliffe Infirmary Burial Ground (2012) 14 Ecc LJ 139-140, archaeological interest per se is unlikely to form the grounds of a successful petition for a faculty to exhume and examine remains: see Re St Nicholas, Sevenoaks [2005] 1 WLR 1011, and Re Holy Trinity, Bosham [2004] Fam 125.

However, St Bartholomew presents the Consistory Court with a quite different situation:

  • the exhumation has already taken place, inter alia to protect the remains from unauthorized attempts at removal;
  • the exhumation was undertaken under the Church’s faculty jurisdiction, and whilst the protection of the bones remains with the church, their eventual reinterment is the only permitted  long-term solution.

Typically, the “long shot” nature of any proposed archaeological investigation would otherwise have precluded an application to exhume and investigate.  However, in the case, it might be argued that such work should now be authorized in order to distinguish between the different sets of bones, if possible, and to ensure appropriate levels of security when the remains are re-interred. However, this is not an easy task as the possibility of a definitive result, such as that in Leicester, seems doubtful.

[1] The BBC report states that “Alfred’s remains are known to have been moved several times since he was buried in the city’s old minster in 899 AD. They were moved in 904 to a new church to be alongside his wife and children, before being moved again to Hyde Abbey in 1110. The abbey was destroyed during the dissolution of the monasteries in 1539 and studies indicate the tomb was robbed. It is believed some bones were put on display in the 19th Century before being buried at St Bartholomew Church”.

Press regulation, the blogosphere and possible implications for churches (and us)

The following would appear to have only a fairly marginal relevance to “law & religion” were it not for the fact that there are a lot of religious blogs about. Many of them emanate from church congregations: my own Quaker Meeting is on the point of starting one.

The Crime and Courts Bill (which started in the Lords) is taking forward the recently-agreed press regulation proposals on exemplary damages. An amendment (131) made by the Commons inserted a new Schedule into the Bill to provide a series of exclusions. It has now been agreed to by the Lords, but with a further amendment – paragraph 7A in the following [our bold]:



1 The British Broadcasting Corporation.

2 Sianel Pedwar Cymru.

3 The holder of a licence under the Broadcasting Act 1990 or 1996 who publishes news-related material in connection with the broadcasting activities authorised under the licence.

Special interest titles

4 A person who publishes a title that-

(a) relates to a particular pastime, hobby, trade, business, industry or profession, and

(b) only contains news-related material on an incidental basis that is relevant to the main content of the title.

Scientific or academic journals

5 A person who publishes a scientific or academic journal that only contains news-related material on an incidental basis that is relevant to the scientific or academic content.

Public bodies and charities

6 (1) A public body or charity that publishes news-related material in connection with the carrying out of its functions.

(2) “Public body” means a person or body whose functions are of a public nature.

Company news publications etc

7 A person who publishes a newsletter, circular or other document which-

(a) relates to a business carried on by the person, and

(b) only contains news-related material on an incidental basis that is relevant to the person’s business.

Small-scale blogs

7A A person who publishes a small-scale blog.

Book publishers

8 (1) A person who is the publisher of a book.

(2) “Book” does not include any title published on a periodic basis with substantially different content.”

Paragraph 6(2) defines “public body” but not “charity” – presumably on the basis that there is no simple definition, given the continuation of excepted status in England and Wales and the fact that registration has not started in Northern Ireland. Evidently the Government prefers to leave the matter to the courts.

Paragraph 7A was inserted without division and the insertion was a Government amendment to its own Schedule. However, it still remains to be seen what will happen to it when the amendment is considered by the Commons, given that the whole issue of press regulation has split the Coalition. What if Labour and the Lib Dems decide to oppose it?


Quite apart from whether or not it survives the Commons (for which, watch this space) the drafting of inserted paragraph 7A – though presumably done by the Parliamentary Counsel Office – looks extremely suspect. Exactly what is “a small-scale blog”? One that has no more than fifty entries? One that only gets a hundred hits a week?  I cannot imagine that the PCO drafted it like that except on a direct ministerial instruction that it was to be intentionally vague.

Nevertheless, in principle charity blogs – which should cover the vast majority of blogs emanating from church congregations – should not be covered by the new regulatory system, either because they are produced by charities or (possibly) because they may be regarded as “small-scale”. To be on the safe side, however, I would suggest that any congregation that operates a blog should make a formal minuted decision to that effect, so that the person actually in day-to-day editorial control is seen to be acting on behalf of the charity and not merely operating as a freelance.

More generally, of course, all this has considerable relevance to the activities of this blog. Unsurprisingly, the proposals for regulation have caused considerable anxiety in the blogosphere – see, for example, this from the Open Rights Group  and ObiterJ’s very useful summary of the current state of play – and it’s an anxiety I share. Are we a “small-scale blog”? The answer is, we just don’t know – and while we try very hard indeed to avoid “abusive or defamatory comments against identifiable person(s), the authors of the site or other commentators”, we nevertheless have concerns on the application of the proposed legislation.

Frank Cranmer

Church and State: Malta and Marriage

Religion in Malta follows the “State Church model”, and under Article 2 of the Maltese Constitution

  • The religion of Malta is the Roman Catholic Apostolic Religion.
  • The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong.
  • Religious teaching of the Roman Catholic Apostolic Faith shall be provided in all State schools as part of compulsory education.

In addition, a number of concordats were agreed between Malta and the Vatican between 1985 and 1995 on a range of issues including: the School of Theology’s incorporation into Malta University; the financing of Catholic schools; Catholic education in public schools; temporal goods of the Church; the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical authorities.

Although the population of Malta is predominantly Roman Catholic, there is a movement for the abolition of the concordats. The Church’s influence over marriage has been particularly contentious and until 2011, along with Vatican City and the Philippines, Malta was one of the few states in which there was no provision for civil divorce. The Marriage Law Amendment Act 1995 recognised the exclusive jurisdiction of ecclesiastical tribunals over Roman Catholic marriages; and though it was possible to obtain a civil annulment the civil courts also recognised Roman Catholic annulments. After a referendum in May 2011 the ban was lifted by the Civil Code (Amendment) Act 2011 and divorce was permitted under certain circumstances. However, under the Concordat “On the recognition of civil effects to canonical marriages and to the decisions of the ecclesiastical authorities and tribunals about the same marriages”:

  • Civil effects are recognized for marriages celebrated in Malta according to the canonical norms of the Catholic Church from the moment of their celebration… [Art.1.1]
  • The Holy See takes note that the Republic of Malta recognizes the civil effects of canonical marriages where there does not exist between the spouses an impediment that, according to civil law, produces the nullity of the marriage and that the said civil law considers as mandatory or not dispensable [Art.1.2].
  • The Republic of Malta recognizes for all civil effects, in terms of this Agreement, the judgments of nullity and the decrees of ratification of nullity of marriage given by the ecclesiastical tribunals and which have become executive [Art.3].
  • For the purposes of the recognition of the civil effects mentioned in Article 3, the Holy See takes note that:

a) from the moment in which notice is given to the Registrar of Courts of the acceptance by the Chancery of the ecclesiastical tribunals of a petition presented by at least one of the parties to obtain the declaration of the nullity of a canonical marriage celebrated after the coming into force of the present Agreement, competence to decide on the matter is recognized solely to the ecclesiastical tribunals, provided that the civil tribunals have not already given a judgement that has become res judicata, based on the same grounds of nullity

  • The Court of Appeal shall order the recognition of the decrees [of the Roman Pontiff] super matrimonio rato et non consummato referred to in paragraph 1 of this Article if it is clear to it that such decrees refer to marriages celebrated according to the canonical norms of the Catholic Church [Art. 7.2].
  • In the exercise of its specific functions as regards the recognition of the decrees mentioned in article 7, as well as of the judgments of nullity or of the decrees of ratification of nullity of marriage mentioned in Article 3, the Court of Appeal does not re-examine the merits of the case [Art. 8]
  • The civil effects flowing from the recognition mentioned in Articles 3 and 7 are regulated by civil law [Art.9].

The Court of Appeal is the final appellate court in civil matters in Malta which, unlike most other jurisdictions, has only a single tier of appeal. The Court

“gives the necessary orders so that decisions delivered by the Ecclesiastical Tribunals in marriage annulment proceedings can be registered and thereby have civil effect. Before giving such an order the Court of Appeal must ensure that certain procedures laid down in the Marriage Act (c. 255) have been followed, and in particular that in the proceedings before the Ecclesiastical Tribunal there was assured to the parties the rights of action and of defence in a manner substantially not dissimilar to the principles of the Constitution of Malta”.

As a result of Malta’s general election on 9 March 2013, the Labour Party won a majority of seats and defeated the Nationalist Party which had been in power for 15 years. An early outcome of the election was for Prime Minister Joseph Muscat to approach the Vatican with a view to revising the 1992 Church-State agreement relating to marriage so that the civil marriage law would no longer be subordinate to the Ecclesiastical Tribunal.


The present situation in Malta is similar to that in England prior to the introduction of the Matrimonial Causes Act 1857 and the secular state formally accepted the Church of England’s doctrine of marriage. The 1857 Act secularised English divorce law by abolishing ecclesiastical jurisdiction over divorce and created a secular court with the power to dissolve marriages.  However, in addition to the supremacy of the civil courts in this area future discussions in Malta are likely to include “civil unions” for same-sex couples, an issue on which the Church and many of its ~450,000 inhabitants are opposed.

Religion and Law round up – 24th March

A fairly quiet week for law & religion (unless you’re the Pope or the Archbishop of Canterbury)

Pope Francis’s inaugural Mass and Archbishop Justin’s Enthronement  some lessons from Rome and Canterbury

As we noted in our post summarizing some recent canon law issues in Rome and Canterbury, it is unrealistic to compare Pope Francis’s inaugural Mass in St Peter’s Square, attended by 200,000 or so, with Archbishop Justin’s installation in Canterbury Cathedral in the presence of 2,000.  However, the two events focused the attention of a significant proportion of the world’s Christian communities, 1.2bn Roman Catholics and and 80 million within the Anglican Communion, and provide lessons for both groups

  • The use of the Missa de Angelis as the ordinary in both the inaugural Mass and the Mass on the election of a Pontiff provided a setting that is widely known among the faithful and many non-Catholics. Despite the misgivings of those of us who do not particularly like the setting, (i.e. Frank and myself), its use is likely to be more inclusive and hence appropriate for the occasion.
  • Likewise, the “hymn sandwich” format of the enthronement in Canterbury used 9 hymns, many of which would have been familiar to those present. More importantly, it was conducted in English which while not quite the lingua franca, would be widely understood worldwide.
  • The Canterbury service included “The Greeting of the Peace” in a non-Eucharistic setting; and while shorter and less tactile than in some parts of Oxfordshire, it provided an inclusive means of “embracing all Christians and beyond, without diminishing the Christian nature of the event”.
  • Although both events were attended by various heads of states and other religious groups or their representatives, the international nature of the Roman Catholic Church was emphasized on Friday 22 March when Pope Francis addressed members of the Diplomatic Corps (in Italian) – the VIS notes “currently, 180 States maintain full diplomatic relations with the Holy See, to which number are also added the European Union, the Sovereign Military Order of Malta, and a mission of a special nature: the Palestine Liberation Organization (PLO), which is headed by a director”.
  • There were subtle acknowledgements to the sensibilities of other faiths at both services: the papal inauguration Mass was attended by the Orthodox Patriarch Bartholomew I, the first time for Ecumenical Patriarch since the Great Schism of 1054, and in an ecumenical gesture, the Gospel was intoned in Greek instead of Latin; in a similar vein, at Canterbury the Nicene Creed omitted the filioque

The tortoise and the hare

In a recent comparison between the time involved in the election of the Pope and in the selection of the Archbishop of Canterbury, it was claimed that “The Church of England is a tortoise compared to Rome’s hare”

“the two posts are very different; as are the two churches, denominations, ecclesial communities, or whatever you want to call them; but when it comes to comparing them, the Church of England is most definitely a tortoise compared to Rome’s hare.”

The article provides an excellent blow-by-blow of events between Rowan Williams’ announcement on 16 March 2012 and Justin Welby’s installation on Thursday, and supports our view that in most areas with the possible exception of the current initiative on women in the episcopate, the CofE moves at an exceedingly ponderous pace.  We would, however, respectfully point out that in Aesop’s Fable, eventually, the winner was the tortoise, not the hare.

Cohabitation, family life and Article 8 ECHR 

To what extent is the state permitted to set limits on its recognition of unmarried partners as “dependents” for the purpose of matters such as compensation? The Court of Appeal addressed the issue in Swift v Secretary of State for Justice [2013] EWCA Civ 193 (18 March 2013) in a judgment that is not quite “law and religion” but close enough to it to be worth a brief note. (For a more detailed analysis see Damages for death and human rights on UKHRB.)

Ms Swift had been living with her partner for about 6 months when he was fatally injured in an accident at work as a result of the admitted negligence of a third party. Their child, born after his death, was able to make a claim for loss of dependency under section 1(3)(e) of the Fatal Accidents Act 1976, as amended (the FAA); but Ms Swift could not qualify under the FAA because she and her partner had been living together as husband and wife in the same household for less than two years immediately before his death. The issue before the Court was whether the facts fell within the ambit of Article 8 ECHR (private and family life) so as to engage Article 14 (discrimination), whether as a cohabitant of less than two years standing Ms Swift had “other status” within the meaning of Article 14 and whether, if Article 14 was in fact engaged and the claimant had “other status”, the difference in treatment of claimants by the FAA based on the duration of their cohabitation was objectively justified.

Lord Dyson MR, delivering the judgment of the Court, upheld the judgment at first instance and dismissed the appeal. In his view, Parliament had been entitled to prefer a bright-line distinction to an approach that depended on deciding on the facts of each case whether or not a relationship was sufficiently constant or permanent to justify a right of claim under section 1 FAA. Inevitably, wherever Parliament chose to draw a line there would be hard cases falling on the wrong side of it; but that was not a sufficient reason for invalidating it where it produced a reasonable and workable solution. The two-year requirement gave greater certainty as to the scope of the Act and ensured that courts had some evidence of past experience and the nature of the relationship to inform its assessment of damages under section 3(1). Moreover,

“… it reduces the need to conduct an intrusive and intimate inquiry into the nature and quality of the relationship, in order to establish whether it satisfies some objective standard of permanence and constancy”.

So even if section 1(3)(b) of the Act was an interference with Ms Swift’s right to respect for her family life in breach of Article 8(1), that interference was justified under Article 8(2). In short, if a line had to be drawn somewhere, two years was not an unreasonable place to draw it.

Freedom of religion: ECtHR fact-sheet 

The Press Office of the European Court of Human Rights has updated its fact-sheet on freedom of religion. The fact-sheet covers all the major cases up to and including Vojnity v Hungary [2013] ECHR 131 (on which we recently posted). For those new to the subject it provides a very helpful brief guide to almost all of the most significant ECtHR cases on religion.

Guesthouses and equality

Readers will no doubt recall the facts in Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012), in which an Evangelical Christian husband and wife, Peter and Hazelmary Bull, were found to have breached the laws on equal treatment when they refused to let civil partners Martyn Hall and Steven Preddy stay in a double-bedded room at their guesthouse in Marazion. The case is currently awaiting oral hearing in the Supreme Court.

The Telegraph now reports that the Bulls have turned Chymorvah House into a not-for-profit organisation providing respite care for Christians only, with articles stating that guests will be expected to abide by the Bulls’ Bible-based beliefs. Whether this approach will circumvent discrimination law remains to be seen  but perhaps the SC might possibly take a view on the matter.

London buses, advertising and controversy 

We noted the judgment in Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) (22 March 2013),  which rejected the Trust’s claim for judicial review of TfL’s decision not to allow an advertisement reading “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” to appear on the sides of its buses. Lang J’s view was that if the Core Issues Trust’s proposed advertisement was “likely to cause widespread or serious offence”, so were those by the British Humanist Association and Stonewall which TfL had already displayed on its buses. That led us to wonder whether, if displaying the disputed advertisement would have breached TfL’s statutory equality duty, the display of the BHA and Stonewall advertisements might also have breached TfL’s statutory equality duty?

Alasdair Henderson at UKHRB suggests that not only does the judgment uphold a serious interference with freedom of expression but that its grounds for doing so are rather doubtful – and that Lang J’s conclusion that Article 14 ECHR (discrimination) was not engaged is “pretty unconvincing”. Leave to appeal has been granted, so we will no doubt be returning to this one in due course.

Pussy Riot – the saga continues 

Back in August 2012 we posted on the Pussy Riot affair and we have continued to report on subsequent developments, mainly in the context of the draft law on offences against religion currently before the Duma. As a result of their “punk prayer” in Moscow’s Cathedral of Christ the Saviour ridiculing Vladimir Putin, Yekaterina Samutsevich, Maria Alekhina and Nadezhda Tolokonnikova were jailed for two years. Samutsevich was subsequently released on appeal but her conviction was not overturned.

Associated Press reported on Wednesday that during the previous week the Praesidium of Moscow City Court had upheld the verdicts against the three – and had done so in spite of an intervention by Russia’s Human Rights Ombudsman, Vladimir Lukin, who filed a petition under Article 29 of the Law on the Ombudsman for Human Rights in the Russian Federation asking for the convictions to be overturned. His petition pointed out that the three had only violated “the internal rules of conduct inside the Cathedral” and that that could not be regarded as a gross disturbance of public order – but to no avail.

And finally…

The Scotsman reports that passengers going through full-body scanners at Edinburgh Airport are being asked their religion. The scanners – which provide operators with a “naked” image of the passenger – were introduced at Edinburgh last September and the questionnaire has been part of the process since then.

A spokesman for Edinburgh Airport said that the purpose of the questions is to make sure that the airport meets  “diversity guidelines set out by the Department for Transport” and that certain groups are not being repeatedly singled out for full-body checks. Moreover,  those selected for scanning are not obliged to answer the questions and “This is clearly stated by our security staff”. The Department for Transport’s body scanner protocol confirms the voluntary nature of the questions: however, one passenger randomly selected for a scan, Iain McGill of Leith, told The Scotsman that afterwards he was asked his country of residence, his age and his religion but “I was absolutely, definitely, one hundred per cent not informed I was not obliged to answer the questions”.

Hmm. Article 8 ECHR, anyone?

‘Ex-gay’ London bus advert ban procedurally flawed – but still lawful

Transport for London decided in April 2012 not to allow an advertisement placed by Anglican Mainstream on behalf of the Core Issues Trust to appear on the outside of its buses. The proposed wording was “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”. It was intended as a response to an advertisement by Stonewall which had earlier appeared on the outside of TfL’s buses: “SOME PEOPLE ARE GAY. GET OVER IT!”. It also had vague echoes of a previous bus campaign by the British Humanist Association for which the slogan was “THERE’S PROBABLY NO GOD. NOW STOP WORRYING AND ENJOY YOUR LIFE”.

The reason given for the refusal was that the advertisement was contrary to TfL’s Advertising Policy because it was

“… likely to cause widespread or serious offence to members of the public on account of the nature of the product or service being advertised, the wording or design of the advertisement or by way of inference … and/or [contained] … images or messages which relate to matters of public controversy and sensitivity”.

In Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) (which was taken as a “rolled up” hearing of the application for permission and the substantive hearing for judicial review), the Trust submitted that TfL had abused its statutory powers for an improper purpose, alleging that the real reason for TfL’s ban was that the Mayor of London, Boris Johnson, disagreed with the views expressed in the advertisement and thought it could be a liability in his bid for re-election as Mayor. The Mayoral election was on 3 May 2012 and the episode occurred some three weeks before polling day. In short, the claimant Trust alleged that Johnson had abused his position as Chair of TfL to advance his re-election campaign. There were press reports that Johnson had intervened – but his principal opponent, Ken Livingstone, supported his action in banning the advertisement.

Lang J came to a series of conclusions. As to the allegation of bias, Boris Johnson had not abused his position as Chair of TfL in order to advance his re-election campaign. Her Ladyship noted that the Trust was not challenging the legality of the decision on free-standing procedural grounds but had argued that the manner in which the decision had been made had demonstrated “an over-hasty reaction to press criticism made without proper consideration of the human rights of Anglican Mainstream and the Trust” (para 67). She agreed that TfL’s decision-making process had been procedurally-unfair, in breach of its own procedures, had demonstrated a failure to consider the relevant issues and “… fell below the standards to be expected of a responsible public body”.


“… the advertisements by the British Humanist Association and Stonewall did not comply with TfL’s own restrictions which prohibit advertisements ‘likely to cause widespread or serious offence’ or which ‘relate to matters of public controversy or sensitivity’. Both advertisements were in the form of confrontational assertions which made no contribution to a reasoned debate. The British Humanist Association advertisement was highly offensive to the religious beliefs of the significant section of the public who believe in God. The Stonewall advertisement was highly offensive to fundamentalist Christians and other religious groups whose religious belief is that homosexuality is contrary to God’s teachings” (para 145).

As to the various human rights issues:

  • Article 10(1) ECHR (expression) was engaged; however, the interference had been prescribed by law. As a public body subject to the equality duty TfL was under a positive obligation to protect the rights of gays and that was a “legitimate aim” under Article 10(2) (para 91).
  • Even though TfL had applied its Advertising Policy inconsistently and partially and had refused the Trust the opportunity to respond, TfL’s decision was justified and proportionate in pursuit of the legitimate aim of protecting the rights of others. Therefore, the refusal had not been a breach of the Trust’s rights under Article 10(1) because the shortcomings had been outweighed by the countervailing factors that made it proportionate to refuse to display the advertisement (para 148).

Interestingly, the Trust also submitted that TfL had discriminated, contrary to Article 14 (discrimination), against ex-gays who, it contended, were a protected class under the Equality Act 2010 falling within the definition of sexual orientation in section 12. The Trust also argued that ex-gays faced hostility and discrimination from both homosexuals and heterosexuals. Lang J disposed of those arguments in fairly short order, on two grounds: that the claim had been brought by the Trust which, as a corporate body, could have no sexual orientation and that, in any case, ex-gays were not protected under the Equality Act.

In her opinion Article 9 (thought, conscience and religion) was not engaged: first, because though Article 9 rights might be enjoyed by religious communities and churches they could not be enjoyed by corporate entities or non-natural persons such as associations and, secondly, because the Trust was seeking to express its perspective on a moral/sexual issue, not the manifestation of a religious belief (paras 160–162).

Nor was the TfL’s decision irrational:

“Its advertising policy expressly prohibited advertisements which were ‘likely to cause widespread or serious offence to members of the public’ or which related to ‘matters of public controversy and sensitivity’. It was reasonable to conclude that the content of this advertisement was likely to cause widespread offence and was sensitive and controversial. The huge number of complaints, and their content, provided TfL with a sufficient basis upon which to make a reasonable decision not to run the advertisement. Even if, as the Trust alleged, the Mayor and TfL personally disagreed with the content of the advertisement, this was not the sole or decisive reason for the decision. Finally, displaying an advertisement of this nature would have been a breach of TfL’s statutory equality duty in s 149 Equality Act 2010” (para 172).

Her Ladyship concluded that the Trust’s case had been arguable and permission was therefore granted but then dismissed the claim for judicial review. However, it was subsequently reported that she had given Core Issues Trust leave to appeal, on grounds that the free expression point merited consideration by the Court of Appeal.

Comment TfL won – but not without the merest soupçon of egg over corporate face. As we have seen, Lang J’s view was that, if the proposed advertisement by the Core Issues Trust was “likely to cause widespread or serious offence”, so were those by the British Humanist Association and Stonewall which TfL had already displayed on its buses. What saved TfL in the present circumstances was that to have displayed the proposed advertisement would have been breached its statutory equality duty under s 149 Equality Act 2010.

Which raises the question, did the display of the BHA and Stonewall advertisements also breach TfL’s statutory equality duty? But we shan’t know the answer because that, of course, was not in play for adjudication.

Unwelcome Guests at Rome (and Canterbury)?


The events surrounding the papal Conclave and the inauguration of Pope Francis have raised a number of canon and secular law issues concerning attendance and participation.  Some of these were clarified in Pope Benedict’s Normas Nonnullas, issued on 22 February 2013, which introduced changes into Universi Dominici Gregis and these made it clear that

“No Cardinal elector can be excluded from active or passive voice in the election of the Supreme Pontiff, for any reason or pretext, with due regard for the provisions of Nos. 40 and 75 of this Constitution, [37]”.

[para. 40 UDG concerns Cardinal electors who refuse or are unable to take part in the election process; para. 75 UDG, which was amended by Normas Nonnullas, relates to the balloting process].

Prior to the Conclave, CNN reported that the Survivors’ Network of those Abused by Priests, SNAP, had queried the presence of 12 cardinals in view of “their actions and/or public comment about child sex abuse and cover up in the church”.  The groups said that its accusations were based on media reports, legal filings and victims’ statements.  However, it is clear from UDG 33 and 38, that cardinals under 80 have a right and a duty to attend the Conclave, and none of this group refused to attend.  It is possible to plead an impediment against participation but this must be recognized by the cardinal electors.

At the seventh General Congregation, the cardinals considered UDG 38 and noted

“In this case there are two absences: Cardinal Julius Riyadi Darmaatmadja, S.J., archbishop emeritus of Jakarta, Indonesia, for health reasons and Cardinal Keith O’Brien, ex-archbishop of Edinburgh, Scotland, for personal reasons. The College voted to accept the absences for the reasons presented.”

Ed Peters has explored the hypothetical situation of whether an excommunicated cardinal could be allowed to participate in a papal conclave.  Although not applicable in the present situation, readers are recommended to follow his arguments which lead to the conclusion

“since there is no pope to judge a cardinal during a conclave . . . . . a cardinal elector cannot fall under a ferendae sententiae excommunication during a papal conclave.


“an elector under ferendae sententiae excommunication at the time of sede vacante could . . . . . be barred from entering a conclave and, even if he were admitted, could not vote”.; and

“any elector under a latae sententiae excommunication could plead such an impediment and be excused attending, but he could not be barred from entering on those grounds”.

As with the beatification of Pope John Paul II, the presence of Robert Mugabe, President of Zimbabwe, raised concerns but as Fr Alexander Lucie-Smith explained on this earlier occasion, banning him would drag the Vatican into a diplomatic minefield.  Although subject to an EU-wide travel ban, the 1929 Lateran Treaty established a “diplomatic corridor” between the Vatican and the rest of the world, and thus he was again able to travel to the Vatican.  Fr Lucie-Smith noted that it was possible to place Mugabe under interdict for his many sins and misdemeanours, but if one started with Mugabe, where would one finish?

On this occasion, perhaps more controversy was caused particularly in the United States by Vice President Joe Biden and House Democratic leader Nancy Pelosi receiving communion during the Mass marking the installation of Pope Francis.  Some church leaders argue that Catholic politicians who break with church teaching on abortion should be denied the sacraments, and when archbishop of Buenos Aires in 2007, Pope Francis is reported to have opposed giving communion to politicians who supported abortion rights.  Comment on the application of Canons 915, 916 and 1339 is to be found here and here.

China was not represented on account of the presence of the Taiwanese President Ma Ying-jeou and his wife Chow Mei-ching.  Taiwan, (officially “the Republic of China”), has long maintained friendly ties to the Vatican.  Confusingly, the European Union sent its three Presidents: Herman Van Rompuy, President of the European Council;  Jose Manuel Barroso, President of the European Commission; and  Martin Schulz, President
of the European Parliament.


Comparison of the events in Canterbury Cathedral on 21 March with those in St Peters’ Square three days earlier is difficult.  The sequence of events leading to the Mass inaugurating the Petrine Ministry of the Bishop of Rome and to the Installation of the Archbishop of Canterbury and the proceedings themselves were quite different.  With his Supreme Authority enshrined in Canon Law, the decisions made by Pope Francis himself will determine the future direction of the Roman Catholic Church, although early indications suggest that collegiality with the bishops will be more prominent under his papacy.

By contrast, in a Channel 4 interview Archbishop Justin noted that in contrast to the Catholic Church, Lambeth had “influence without authority”.  This is particularly evident in the relation to the Anglican Communion, held together by “bonds of affection” rather than an universal canon law or even the ill-fated “Anglican Covenant”.

As a consequence, there were no open disagreements although there were reports of a behind the scenes struggle over whether orthodox Primates from the Global South would meet with the Archbishop of Canterbury following his installation, given their opposition to the views of the Episcopal Church in the US and Canada.

One of Archbishop Welby’s first official acts was the appointment of Canon David Porter as Director of Reconciliation to “enable the Church to make a powerful contribution to transforming the often violent conflicts which overshadow the lives of so many people in the world.”