Churches, charities and lobbying

The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill was presented to Parliament on 17 July 2013, the day before the House rose for the summer recess, and is expected to have its second reading debate on 3 September 2013. The Committee stage is planned to be taken on 9, 10 and 11 September in Committee of the whole House.

Although the Bill includes the anticipated provisions for a statutory register of lobbyists, as envisaged in an earlier consultation, it also introduces some unexpected proposals that could have an effect on the ability of churches, charities and other groups to campaign on “political issues” in the 12 months before a general election, here.  Under the Fixed-term Parliaments Act 2011, for the next general election this would be in the 12 months before 7 May 2015, providing that other provisions within the Act are not activated to trigger an earlier date. (Though, presumably, since one can only calculate a period of 12 months in advance of a certain date, if by any chance an election should be called earlier than 7 May 2015, it will surely be impossible to impose the restriction retrospectively.)

The current rules on non-party campaigning apply to individuals and organisations who spend money on distributing “election material” such as adverts, leaflets, websites and other materials that could reasonably be seen as intended to influence voting choice at the election. This may include material which has the intention of raising awareness of a public policy issue, particularly where this is strongly associated with some parties or candidates and not others.

The proposed legislation extends these provisions to include: the regulation of a wider range of activities that are deemed to be undertaken for “election purposes”; mandatory registration if an organization anticipates spending in excess of £5k in England and £2k in each of Scotland, Wales and Northern Ireland on such activities in the year prior to a UK general election; and changes to the way in which spending above a specified level by a non-party is treated for the purpose of party spending limits, when this is targeted at achieving the electoral success of a political party. The Bill also introduces geographical limits on the amount that non-party campaigners can spend in a particular constituency.

Non-party campaigning falls within the Political Parties, Elections and Referendums Act 2000 and under clause 26 of the Bill it is proposed to make a number of modification to section 85, including the following sub-sections,

(3) “For election purposes” means for the purpose of or in connection with—

(a) promoting or procuring electoral success at any relevant election for: (i) one or more particular registered parties; (ii) one or more registered parties who advocate or do not advocate) particular policies or who otherwise fall within a particular category of such parties; or (iii) candidates who hold (or do not hold) particular opinions or who advocate (or do not advocate) particular policies or who otherwise fall within a particular category of candidates, or

(b) otherwise enhancing the standing: (i) of any such party or parties; or (ii) of any such candidates, with the electorate in connection with future relevant elections (whether imminent or otherwise).”

(4) In subsection (4), at the end of paragraph (b) insert “and” and for the words after that paragraph substitute: “(c) a course of conduct may constitute the doing of one of those things even though it does not involve any express mention being made of the name of any party or candidate.”

Whereas under the current legislation only activities designed with the intent of influencing an election result are regulated, the proposed changes will instead regulate activities that may affect the result of an election.  Government has produced an Explanatory Note of the proposals and impact assessments relating to third party campaigning in elections and the statutory register of lobbyists. Detailed guidance on the application of the 2000 Act to third-party/non-party campaigning as it now stands, and a critique of the new proposals, are available from the Electoral Commission, here and here.

Comment

The major concern of churches, charities and similar organizations will be whether any of their activities might fall within Part 2 of the Bill: Non-Party Campaigning etc. The establishment of a mandatory register for certain lobbyists with Part 1, is primarily directed at “consultant lobbying” as defined within clause 2:

(1) For the purposes of this Part, a person carries on the business of consultant lobbying if: (a) in the course of a business and in return for payment, the person makes communications within subsection (3) on behalf of another person or persons; and (b) none of the exceptions in Part 1 of Schedule 1 applies.

[…]-

(3) The communications within this subsection are oral or written communications made personally to a Minister of the Crown or permanent secretary relating to: (a) the development, adoption or modification of any proposal of the government to make or amend primary or subordinate legislation; (b) the development, adoption or modification of any other policy of the government;

(c) the making, giving or issuing by the government of, or the taking of any other steps by the government in relation to: (i) any contract or other agreement; (ii) any grant or other financial assistance: or (iii) any licence or other authorisation; or

(d) the exercise of any other function of the government.

The legislation will not include in-house lobbyists of groups such as the CBI, RSPB and larger companies and it has been suggested that it will exclude 95% of lobbyists’ activities. Reflecting concerns over the Bill, the Chair of the Political and Constitutional Reform Select Committee, Graham Allen, (Lab, Nottingham North) arranged a special evidence session involving leading practitioners within the UK lobbying industry on 29 August, and a further session on 3 September when Jenny Watson, Chair of the Electoral Commission and the Rt hon Andrew Lansley MP, Leader of the House, will give evidence. [There is now a link to the written evidence presented at the Thursday session, here, and an analysis of both sessions will be posted next week].

Although trades unions will be subject to new statutory obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 relating to their membership registers within Part 3 of the Bill, they too have significant concerns regarding the operation of Part 2 of the Bill, here.

With regard to non-party campaigning, although in May 2013 the Electoral Commission was supportive of the proposals to amend the Political Parties, Elections and Referendums (Civil Sanctions) Order 2010 [1], in a private briefing sent to interested parties, it is reported to have expressed “significant concerns” on Part 2 of the Bill, stating

“[i]n our view, it is not at all clear how that test will apply in practice to the activities of the many third parties that have other purposes beyond political campaigning. For instance, it seems arguable that the new test could apply to many of the activities of charities, voluntary organisations, blogs, think-tanks and other organisations that engage in debate on public policy”

It believes that the proposed rules concerning spending at constituency level “may be unenforceable”, partly because “it will often be hard for campaigners to identify with a reasonable level of confidence when an activity has ‘no significant effects’ in a given constituency”.

With the growing involvement of religious groups in “the public square”, engagement in activities that potentially fall within the scope of the Bill seems inevitable. Currently, this would involve groups with concerns over fracking, the HS2 rail route and the badger cull, to name but three. And what about concerns that have less-specific policy targets, such as the alleviation of poverty or concerns about the treatment of illegal immigrants, in both of which the Churches are heavily involved?

David Pocklington


[1] To enable the Commission to impose a fixed monetary penalty or discretionary requirement on a registered party, third party or permitted participant in circumstances where a party office holder or responsible person has committed a prescribed offence.

Exhumation of correctly buried body

Despite the apparent uncomplicated nature of recording past and prospective burials, it is not uncommon for errors to occur, particularly in the case of reserved burial plots. This is acknowledged in the Department of Constitutional Affairs’ Guide for Burial Ground Managers (2005) which notes [at para. 3.2]

Double-bookings of the same space, and burial in the wrong grave, are sadly not uncommon. They reflect very badly on the burial ground managers, incur additional trouble and expense to put right . . . . . . and cause unnecessary and avoidable distress to the friends and relatives of the deceased. The orderly burial in the correct grave of the correctly-identified individual is the least the bereaved can expect.”

In Re Blagdon Cemetery [2002] Fam 299; [2002] 3 WLR 603, the Court of Arches addressed the issue when determining the relevant factors to be considered in granting a faculty for exhumation to rectify such errors, and observed [at para.36(iii)]

“[s]ometimes genuine mistakes do occur, for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else in a churchyard.  In such cases it may be those responsible for the cemetery or churchyard who apply for a faculty to exhume the remains from the wrong burial plot or grave.

Faculties can in these circumstances readily be granted, because they amount to correction of an error in administration rather than being an exception to the presumption of permanence [of burial], which is predicated upon disposal of remains in the intended not an unintended plot or grave.

A mistake may also occur due to a lack of knowledge at the time of burial that it was taking place in consecrated ground with its significance as a Christian place of burial.”

Nevertheless, the ecclesiastical courts continue to be faced with requests for exhumation in these circumstances, which are often resolved through the exhumation and reburial of the “wrongly buried” body.  However, a different solution was sought in Re St Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch) where although a burial plot for Mrs P-W had been reserved and authorized by faculty so that on her death she could be buried alongside her husband, a wholly unrelated person had been buried there.

Whilst one option would have been to petition for the mistakenly-interred remains to be exhumed and re-interred elsewhere, this was not sought by the incumbent and the P-W family since the family of the person buried there was unaware of the mistake and they did not wish to cause them distress.

In these unusual circumstances, the Court granted permission for the exhumation of Mr P-W who had been buried in the correct plot, his re-interment elsewhere in the churchyard and the reservation of a “new” adjacent plot for Mrs P-W.

Comment

An arrangement such as this is dependent upon: the availability of two adjacent plots within the churchyard that are acceptable to the family concerned; and the exercise of the chancellor’s discretion, which in this case was subject to an assessment of the practicability of conducting a seemly exhumation.  The absence of any involvement of the family of the remains buried in the adjacent grave is a further facilitating factor.

With regard to the second point, the chancellor explained the two-stage process laid down in Re Blagdon Cemetery [para. 33], each stage of which required the Consistory Court to have regard to “the straightforward principle that a faculty for exhumation will only be exceptionally granted”.

In considering whether the matters raised were capable in law of amounting to special circumstances, (the first stage), the chancellor identified this as a “classical” type of mistake as in Re Streatham Park Cemetery) (2013), (Southwark); Re St John Walsall Wood (2010), (Lichfield);  Re Jean Gardiner (2004) (Carlisle); and Re St Luke Holbeach Hurn  (1996), (Lincoln).

Although the chancellor has discretion in the second stage – considering whether exhumation is justified in the light of all the circumstances of the particular case – the starting point in exercising that discretion is the presumption of the permanence of Christian burial. Nonetheless, he concluded that this is a case where exceptional circumstances exist justifying an exhumation, the particular factors leading to that conclusion being:

  • the legitimate long-standing intention for Mr and Mrs P-W to be buried alongside each other; and
  • the fact that the use of the reserved plot for the interment of a person other than Mrs P-W was a mistake, and although it would be possible for the mistake to be remedied by the exhumation of the remains currently in this plot, this too would operate against the presumption of the permanence of interments.

The chancellor therefore directed:

  • the faculty reserving the original plot for Mrs P-W to be set aside.
  • a faculty issue authorising the exhumation of the remains of Mr P-W and their re-interment in a different plot.
  • a faculty issue reserving a “new” adjacent plot.

Whilst the judgement in Re Jean Gardiner [2003] Carlisle Cons Ct (Tattersall Ch) would not have been binding, it is interesting to note that in this case a faculty was granted to exhume the “wrongly” buried remains of Mrs Jean Gardiner in an adjacent reserved plot, despite the objections of her family.  In particular, the chancellor rejected arguments in relation to Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol on the grounds, inter alia, that there was no property in human remains.

However, this judgement preceded Elli Poluhas Dödsbo v Sweden [2006] ECHR 38 and R (Burrows) v HM Coroner for Preston [2008] EWHC 1387 (Admin). A similar situation has arisen at St Andrew, Thringstone, and is due for consideration by the Leicester Consistory Court.  However, the current positions of the parties involved suggests that the case might end up in the Court of Arches on appeal.

Quebec, religious symbols and the Canadian Charter of Rights and Freedoms

One of our rare excursions outside Europe…

Quebec’s proposed restriction on displaying religious symbols

The Government of Quebec, a minority administration led by the Parti Québécois, is currently drafting a “Charter of Quebec values”.  A draft version leaked to Le Journal de Montréal last week included a proposal to restrict the wearing of “religious symbols” “ostentatiously” in publicly-funded settings; and media reports suggest that it will prohibit public employees from wearing Sikh, Jewish and Muslim headgear or visible crucifixes at work. (At this point, sharp-eyed readers may have spotted some similarity to the French ban on religious symbols in schools – the Loi n° 2004-228 du 15 mars 2004 – about which, coincidentally, we posted last week.) Concern has already been expressed that if the Government insists on the ban, Quebec’s hospitals could haemorrhage staff as doctors and nurses who wear turbans and hijabs simply vote with their feet.

The Premier of Quebec, Pauline Marois, has said that the Charter will affirm, once and for all, equality between men and women and will reflect not only “universal” values but Quebec values as well:

“We’re moving forward in the name of all the women, all the men, who chose Quebec for our culture, for our freedom, and for our diversity”.

(Oddly enough, religious dress had already been in the Canadian news as a result of a recent ban on turbans by the Quebec Soccer Federation which was only lifted after the Quebec Federation was suspended by the Canadian Federation for non-compliance with FIFA rules. Ms Marois defended the local Federation and accused its detractors of Quebec-bashing.)

Writing in The Globe & Mail, Ian H Henderson, of the Faculty of Religious Studies at McGill, rang alarm-bells about a proposal that he felt was both vague and undesirable:

“The only thing worse than a blanket attack on the expression of religious identity would be a ‘moderate’ attack that secured democratic support by focusing on unpopular religious identity-markers (the burka, for example)”.

He suggested that part of the impetus for the proposal was that, for many Québécois of the generation of Pauline Marois, an important marker of identity is emphatically not practising Roman Catholicism in particular and a general rejection of anything recalling pre-1960 Quebec Catholicism. Moreover, he suggested that

“If there is any concept less clear than ‘Quebec values’, it must surely be ‘religious symbols’. What is a religious symbol and who gets to decide, once wearing them in the public sector has been made illegal? If two women wear identical headscarves, is only the Muslim woman wearing an offensive religious symbol?”

No doubt he, too, has seen pictures of the Queen of Canada wearing a headscarf.

Charles Taylor, the eminent philosopher, Templeton laureate and Co-Chair of Quebec’s 2007 consultation on accommodating cultural differences which produced Building The Future: A Time for Reconciliation, was highly critical of the proposal on the grounds that it would damage Quebec’s international reputation and debar entire communities from public-sector jobs because of their religious convictions. He argued that it was one thing to ban a teacher from wearing a burqa because of the impediment to clear face-to-face communication, but quite another to impose a blanket ban.

Justin Trudeau, Federal Leader of the Liberal Party, was the first prominent national politician to oppose the ban, soon to be joined by the Federal Multiculturalism Minister, Jason Kenney, who tweeted:

“Freedom of religion is a universal principle. A child is no less Canadian because she or he wears a kippa, turban, cross, or hijab to school. Kids have always worn religious symbols in Canadian classrooms, w/out jeopardizing social cohesion. So why is this suddenly a divisive issue?”

The Canadian Charter of Rights and Freedoms

In any event, would such a ban survive a challenge in the courts? Certainly the Canadian Civil Liberties Association thinks not. Said a spokeswoman, Cara Zwibel:

“On its face, the idea that the government tells individuals that they can’t express their religious beliefs, that they can’t wear religious attire, is … a violation of freedom of religion, which is protected by the Canadian Charter of Rights and Freedoms. And we also need to ask whether we want government to be responsible for deciding what’s a religious symbol and what’s a cultural symbol, what’s an expression of our cultural backgrounds and beliefs”.

Canada’s Constitution Act 1982, the terms of which were set out in Schedule B to the Canada Act 1982 passed by the UK Parliament, begins with the Charter. It includes the following:

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication (c) freedom of peaceful assembly; and (d) freedom of association …

Equality before and under law and equal protection and benefit of law

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Quebec’s proposed ban would appear to engage aspects of two of the fundamental freedoms: freedom of religion and freedom of expression. It is also difficult to see how a ban on religious symbols would contribute to “the amelioration of conditions of disadvantaged individuals or groups”. Moreover, the Charter is federal law, standing in the same relation to provincial law as does the ECHR to national law in Council of Europe member states. Provincial legislators cannot override federal law; and in the event of a challenge the first question before the court would presumably be whether such a ban could be “justified in a free and democratic society” under s 1 of the Constitution Act.

Comment

Perhaps the Government of Quebec will reconsider its proposal – or perhaps its plan is to force a showdown with the federal courts and the Canadian Government in the hope of strengthening its case for an independent Quebec. Not for the first time, we must wait and see.

Religion and law round up – 25th August

A relatively uneventful week . . . .

… but not for 19-year-old engineering student Stefano Cabizza, of Padova, who received a “cold-call” from Pope Francis who was following up a personal letter from Cabizza which was handed to a cardinal at a papal Mass to celebrate the Feast of the Assumption. For the benefit of its readers, the National Catholic Reporter has produced advice on telephone etiquette should any of them receive a similar call. Although non-Italian speakers in the UK may not be concerned with the subtleties of the use of tu rather than lei to address the Pontiff, Fr Alexander Lucie-Smith of the Catholic Herald writes “With the use of one word, Pope Francis is signalling to the Vatican insiders that their day is over”.

Conscientious objection to participation in abortion

Readers may recall the case of Mary Doogan and Connie Wood, the labour ward coordinators at the Glasgow Southern General Hospital who sought to assert their conscientious objection to supervising staff involved in abortions: we blogged about it here. They lost in the Outer House but, on reclaimer, won  in the Inner House: Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36

We now learn that the Health Board is in the process of appealing the Inner House’s decision to the Supreme Court. Apparently the Board announced its intention to appeal in June (but we missed it at the time) and on 25 June the BBC posted a report to that effect; however, the case does not yet appear on the Supreme Court’s permission to appeal applications list. Presumably the application for leave will be decided at the beginning of the new legal year: we shall be watching out for it.

Burqas and niqabs in court

A 21-year-old Muslim woman from Hackney charged with intimidating a witness appeared in Blackfriars Crown Court wearing a burqa. When she refused to remove her veil on grounds of her religion, HHJ Peter Murphy told her that she could not stand trial in a veil which only revealed her eyes because her identity could not be confirmed. The Daily Telegraph reported him as saying that it was necessary for the court to be satisfied that it could recognise the defendant:

“While I obviously respect her right to dress in any way she wishes, certainly while outside the court, the interests of justice are paramount. I can’t, as a circuit judge, accept a plea from a person whose identity I am unable to ascertain. It would be easy for someone on a later occasion to appear and claim to be the defendant.The court would have no way to check on that.”

The woman’s counsel, Claire Burtwistle, suggested that she herself and a female police officer could identify the defendant and confirm to the court that she was the same person as in the police arrest photos, while Sarah Counsell, for the Crown, added that the police officer in charge of the case was content that he recognised the defendant even though she was wearing her burqa. Nevertheless, HHJ Murphy rejected counsel’s suggestion, observing that “the principle of open justice” could not be subject to the religion of the defendant. He adjourned the case for argument as to whether or not the defendant should have to remove her veil. The case will be resumed on September 12.

Safeguarding in the Church of England

Our review in March of the Church’s safeguarding provisions in Jersey concluded:

“… the general recommendations within the [Korris] report have wide application throughout the Church of England and beyond. Although there are legal issues arising from the relationship between Jersey and the United Kingdom, the main issue remains the Independent Report and the subsequent investigation.”

With regard to the former, there have been a number of developments in the Church of England which are summarized on its web page Child Protection and Safeguarding, including:  the final report of the Archbishop of Canterbury’s Chichester Visitation, here, here, and here; a Statement on Safeguarding from the House of Bishops; a debate on safeguarding in General Synod and speeches by Bishop Paul Butler and Archbishop Justin, here and here respectively, and the establishment of an Independent Inquiry into the Church’s handling of reports of alleged sexual abuse by the late Robert Waddington, formerly Dean of Manchester.

On Jersey, early action was taken by Tim Dakin, Bishop of Winchester in setting up an independently-led Visitation into safeguarding procedures in the Deanery of Jersey, (26 March) and the appointment of Dame Heather Steel DBE to lead a separate Investigation into church safeguarding complaints from 2008 (15 May).  However, the involvement of the diocese has met with continuing opposition from the Islanders, here, the latest of which is from “a group of concerned [but unnamed] members of the laity of the Anglican Church”, here and here, who appear to have adopted the basic thesis of noli nos tangere. 

Recent consistory court judgment

The facts of Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch) were summarised concisely earlier this year by Catherine Shelley, (2013) 15 Ecc Law Soc, 120. The full judgment runs to ten pages and is now available via the above link. Paragraphs 8 to 21 contain a detailed account of the arcane law concerning churchyards and, in particular, monuments erected in churchyards. Incumbents would do well to read these, for as the chancellor notes

 “[it] is not well understood even by the clergy and the parish officers who have to deal with it. Its actual content some find surprising, and certainly the parties to the present dispute sometimes made assumptions as to the content of the law which were mistaken.”

The case concerned the two headstones which have stood in the churchyard of the parish church of St Thomas, Kilnhurst, over the grave of Frederick Howitt who died on 11 May 1946. The judgment was made against the background of a long-standing family feud, “with allegations and counter-allegations of assault, theft, criminal damage, and the sending of hate-mail”, and a “wholly lamentable record of neglect and inaction by the diocese and some of its office-holders which came close to denying justice to Mr [John] Howitt and which added to the length and cost of [the] proceedings”. (It’s amazing how death and burial seems to bring out all the worst instincts in people.)

A faculty was issued to allow removal of the “second” headstone placed on the grave in 2002 and its replacement with a replica of the original.

Ding, Dong, the King is dead

The timing of Leicester Cathedral’s plans for Richard III may have been set back by the recent decision for a judicial review, but this did not prevent the “Family Fun Fest” on 22nd August to commemorate his death at the Battle of Bosworth, ending with an “Excellent Evensong” sung by the choir of St Barnabas, Nottingham’s Roman Catholic Cathedral. (Would they have advertised a “Totally Crap Evensong”?)

And finally…

BuzzFeed Politics has published a geographical distribution, by religious affiliation, of members of the US House of Representatives. Though the US is normally well outside our sphere of interest, trying to make some sense of the figures helped liven up a wet and uneventful afternoon in mid-August.

The maps themselves only make any sense if you can recognise the unlabelled state outlines (and Frank hasn’t the foggiest idea which state is which except for the ones any fool can recognise, like Alaska, California, Florida and Hawaii); but the basic breakdown in list form is interesting in itself: 136 are Roman Catholics (31% of the House), 66 Baptists (15%), 45 Methodists (10%), 35 Episcopalians (8%), 28 Presbyterians (6%), 22 Jews (5%) and 19 Lutherans (4%). There is a single atheist.

One would expect there to be more Roman Catholics in the House than any other group; but some denominations seem to be over- or under-represented. The widely-respected Pew Research Center’s Religion & Public Life Project estimates that 23.9% of Americans are Roman Catholics, 12% are Baptists of various kinds, 6% Methodists, 4.6% Lutheran, 2.7% Presbyterian, 1.7% Jewish and only 1.4%  Anglican. On that basis (and given that there are bound to be distortions across a group as small as 435) there are rather more Roman Catholics than one would expect, twice as many Presbyterians, about the right proportion of Baptists, rather fewer Methodists and Lutherans – and about five times the expected number of Anglicans.

So why are the Episcopalians so massively over-represented? Social class/personal wealth, given that national politics in the US tends to be a rich person’s sport? Education? Social awareness? And why are 21 of the 35 Piskies Republicans? Given that the views of the majority of the Anglican Communion about the Episcopal Church seem to range from “theological liberals” to “a bunch of heretics”, one would have expected Democrats to predominate. (It should surprise no-one that the single Unitarian Representative and the single Quaker are both Democrats, though it should also be remembered that the last American Quaker politician that anyone has heard of was the appalling Richard Milhous Nixon.)

Rather than answers on a postcard, try leaving a comment.

Richard III reburial: the decision for judicial review

On 16 August 2013, Haddon-Cave J granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester on all grounds raised in its petition: see Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin). The substantive hearing of these proceedings is set down for next (legal) term and is expected to take one day. This post analyses the arguments leading to this decisions, some of which may be rehearsed again at the substantive hearing.

Permission was granted on two grounds:

  • The archaeological discovery of the mortal remains of a former King of England after 500 years is without precedent [para 1].
  • There was a duty at common law to consult widely as to how and where Richard III’s remains should appropriately be reinterred [para 2].

Few will dispute the first point and some parallels may be drawn with the potential identification of the mortal remains of another former King of England after over 1100 years [1]. With regard to the second, judicial considerations centered around the consultations which should, or should not, have taken place prior to the exhumation once it was “beyond reasonable doubt” that the remains were those of Richard III. Haddon-Cave J did not venture into the legislation associated with the reburial per se because that will be subject to ecclesiastical jurisdiction. Other important issues were the standing of the Plantagenet Alliance and whether or not Article 8 ECHR was engaged.

Standing and amenability

The planned changes to judicial review and standing are unlikely to have an impact on the current action by the Plantagenet Alliance, for which section 31(3) of the Senior Courts Act 1981 sets out a test for legal standing based upon a requirement of “sufficient interest” in the matter in question: see Mark Elliott’s post of 29 July 2013 on his Public Law for Everyone blog.

Haddon-Cave J indicated [para 15 ] that he was

“satisfied that the Claimant, and its subscribers, have sufficient interest and standing to bring these proceedings on all Grounds, both on conventional principles, and in the unusual circumstances of this case which involve the discovery of the proven remains of a former monarch”.

This is supported by the authorities cited [2], which relate to examples, inter alia, of

  • the concept of “associational standing” whereby a pressure-group was allowed to issue a claim on behalf of its local members;
  • a claimant company that had been incorporated by objectors to a scheme several weeks after the planning permission was granted (to avoid personal liability for costs); and
  • an incorporated action group having  sufficient interest to mount a challenge to a grant of planning permission which affected its members despite the fact that, unlike its members, it did not have a direct interest in the affected land.

However, there is a possible caveat, since in Walton v The Scottish Ministers [2012] UKSC 44 Lord Reed states [at paras 83 to 84] that although the words “person aggrieved” are of wide import and should not be subjected to a restrictive interpretation,

“Lord Fraser of Tullybelton made clear in Arsenal Football Club Ltd v Ende [1979] AC 1, 32 the meaning to be attributed to the phrase will vary according to the context in which it is found. It is therefore necessary, as Lord President Rodger observed in Lardner v Renfrew District Council 1997 SC 104, 108, to have regard to the particular legislation involved, and the nature of the grounds on which the appellant claims to be aggrieved” [emphasis added].

With regard to accommodation, the judge was satisfied that the University of Leicester is, for present purposes, acting as a public authority and amenable to judicial review in respect of its Decision under challenge: see Ali v Head Teacher and Governors of Lord Grey School [2004] QB 1231.

The merits of the Claimant’s challenge were held to be clearly arguable [paras 17 to 21] and, in particular, the following propositions [para.22]:

(1) There was a legitimate expectation that the Secretary of State would, prior to granting a Licence, consult widely to how, and where, Richard III’s remains should be appropriately reinterred, in the event that they were discovered during the proposed archaeological dig.

(2) The category of appropriate consultees is potentially very wide and includes those listed by the Claimant, namely (i) the citizens of this country who have an interest in the place of reburial of the remains of a King of England; (ii) the living collateral descendants of Richard III; (iii) the wishes of Richard III himself, in so far as they can be ascertained or inferred; together with (iv) ecclesiastical bodies with an interest in the resting place of the remains of Richard III; (v) civic bodies with an interest in the remains of Richard III; and (vi) HM The Queen.

(3) The Secretary of State’s duty to consult was non-delegable and, in any event, could not properly be delegated to a party or licensee who was not independent or had a personal interest in the outcome, such as the University of Leicester.

(4) The Secretary of State failed to carry out any, or any proper, consultation regarding the re-interment of Richard III’s remains prior to issuing the Licence on 3rd September 2012.

(5) The Secretary of State failed, thereafter, to revisit his decision to grant the Licence on or after 4th February 2013 once it became clear (i) that Richard III’s remains had indeed been found; and (ii) that there was growing concern and controversy as to where they should be reburied; but (iii) that the University of Leicester nevertheless intended to proceed with a re-interment in Leicester Cathedral without any consultation having first been carried out.

(6) The University of Leicester, as a responsible public body, should not have begun making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral, prior to an appropriate consultation being carried out.

Evidence

In paragraphs 24 to 34, Haddon-Cave J expanded on the particular points that are arguable on the evidence and materials presented.  It is useful to analyse this under the following headings:

  • Guidance and Consultation: “Official” Guidance, [para.24, 25]; failure to apply Guidance, [para. 27]; the Secretary of State’s ‘practice’, [para. 28]; consultation idea to be dropped, [para. 29]; belated attempt at consultation, [para, 32];
  • Importance of case and public response: Secretary of State’s knowledge of importance of issue, [para.26]; public feeling, [para.30]; Parliamentary debate, [para. 31]; unprecedented nature, [para. 34];
  • Article 8 issues: [para. 33].

Guidance and consultation

There are two separate aspects to the duty of the Ministry of Justice to consult: the common law duty to consult and the criteria by which the MoJ was bound.  With regard to the latter, the document Human Remains Excavated from Christian Burial Grounds in England is described [at para. 24] as

“official guidance on the treatment of excavated human remains … issued under the aegis of the English Heritage … drawn up by a panel of experts including personnel from the Home Office”.

Paragraphs 18, 20 and 21 of the Guidance describe the issues which should be taken into consideration when undertaking excavations in this area [para. 25 of judgement].

However: the document is not statutory guidance; it is not one of the principal types of statutory consent listed by English Heritage on which it is required to consult [3]; and it was drawn up between the English Heritage and the Church of England, although Home Office officials contributed to its production. It might therefore be argued that the MoJ was not bound by this Guidance, although the judge stated [paras. 20 and 21]

“Section 25 of the Burial Act 1857 confers an unfettered discretion on the Secretary of State to decide to decide whether to grant a licence on what terms; and, in the absence of special circumstances, it is inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters as being somehow implicitly limited or fettered (per Lord Neuberger MR in R (Rudewicz) v Secretary of State for Justice [2013] QB 410 at paragraph [30]).

“The Secretary of State … however, has a duty when granting such licences to act rationally and in accordance with the general law. A duty arises at common law to consult before making decision law where there is a promise to do so, or a legitimate expectation that there will be consultation” [emphasis added].

However, in Rudewicz Lord Neuberger continued by saying [at para 31] that

“… unless there is some justification for doing so, it is for the Secretary of State to decide on what grounds and in what circumstances to grant a licence, and, apart from an obligation to act rationally, and otherwise in accordance with the general law (including that relating to human rights), there should be no operative fetter or presumption”.

A detailed consideration of legitimate expectations in the context of Cabinet Office consultations was given by Laws LJ in R (Bhatt Murphy) v Secretary of State for the Home Department [2008] EWCA Civ 755, which he noted [at para 3] that “[i]t is a field much trodden in recent years, but its principles are still developing.” David Manknell discusses this case with particular reference to the duty to consult and with procedural legitimate expectations.

The actions of the Ministry of Justice need to be assessed on the extent of its knowledge and the appreciation of the implications [para17].  It is significant, therefore, that in the Application form for authority to exhume buried human remains for archaeological purposes, Section 3, Human Remains, the University states that

“A research excavation is underway to investigate the remains of Leicester’s Franciscan Friary and also potentially locate the burial place of Richard III whose remains were interred here in 1485, although these may subsequently have been exhumed and thrown into the nearby River Soar after the Dissolution in 1538 [4]. It is proposed to exhume up to six sets of human remains”, [emphasis added].

and in Section 4, Archaeological Project,

“Please note: in the unlikely event that the remains of Richard III are located, the intention is for these to be reinterred at St Martin’s Cathedral, Leicester, within 4 weeks [5] of exhumation” [emphasis added].

The resulting exhumation licence of 3 September 2012 refers to the removal of the remains of persons unknown.

Importance of the case and the public response

Underpinning the argument that there was an “obvious duty to consult widely” is the “singular fact” that “this case is unprecedented. It involves the remarkable, and unprecedented, discovery of remains of a King of England of considerable historical significance, who died fighting a battle which brought to an end a civil war which divided this country” [para 34]. As noted above, the MoJ’s level of awareness throughout the timeline of events is an important factor.

With regard to the interest in the exhumation and reburial of Richard III, the court’s attention was drawn to two different e-petitions signed by people who wish to see the burial in York Minster or remaining in Leicester, which at the time of writing this post (19 August 2013) have been signed by 27,752 and 8,282 people, respectively.

It is difficult to assess such e-petitions objectively, either absolutely or relatively, although Parliament has adopted its own criteria: those achieving at least 100,000 signatures are considered for debate in the House of Commons:and those with more than 10,000 signatures are generally provided with a response from the relevant Government department [6]. Currently, the list of e-petitions is headed by “Stop the badger cull” at 263,748 signatures, although current e-petitions pale into insignificance when compared with earlier “conventional” petitions (2 million on road charging in 2007 and 4.5 million on the ambulance strike in 1989).

Although the court noted [at para 27] that “the question of where Richard III should be reburied was considered to be sufficiently important to warrant of a Parliamentary debate”, the debate in question was a Westminster Hall debate, which is intended to give “more time for individual MPs to raise issues of importance to them with a series of Private Members’ adjournment debates” and is not the same as a full-dress debate in the Chamber in Government or Opposition time. The purpose of the debate (which took place on 12 March 2013) was for

“the Government to create a fair, independent process for arbitrating between the claims of York and Leicester, and other places, such as Westminster Abbey, just across the road … where Anne Neville, King Richard’s wife, is buried”.

Although no vote is taken after such debates, Hugh Bayley (Lab, York Central) indicated that he had received a reply from Professor Holger Schutkowski, the chair of the Advisory Panel on the Archaeology of Burials in England, (APABE), saying that

“APABE has no views about where the remains should be re-interred or how the place of burial should be marked. APABE recommends, however, that the views of those that have justifiable close links with the deceased, be they historical, cultural or religions, require balanced consideration as, for instance, set out in recent DCMS, [Department of Culture, Media & Sport], Guidance. Consideration should also be given to the rights, Canon Law and responsibilities of the Church of England as the legal successor of the Church into whose keeping the body was given at burial.”

This echoes concluding advice given by the court [para 41].

Article 8 issues

Paragraph 33 of the judgment states that

“[i]t is clear from European jurisprudence that the views of a deceased person as to his funeral arrangements must now be taken into account (per Cranston J in R (Burrows) v HM Coroner for Preston [2008] EWHC 1387 (Admin)). For this reason, and in view of the unusual circumstances of this claim by traceable descendants of a famous Royal figure, it may be said that Article 8 has some role to play” [emphasis added].

Article 8 having “some role to play” is substantially less forceful than “Article 8 is engaged”, particularly since Article 8 is a qualified rather than an absolute right. However, there are more substantial problems when applying R (Burrows) v HM Coroner for Preston

That case concerned issues that a coroner should take into consideration when deciding who might determine where a body is to be buried. This would normally be determined under Rule 22 §1 of the Non Contentious Probate Rules 1987 which, for cases of intestacy, lists a hierarchy from (a) the surviving husband or wife through to (h) uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the half-blood who died before the deceased. In his Guidance for coroners, Cranston J states [at paras 28 and 29]:

“At the present, where there is no executor or administrator, [coroners] will simply apply the order of priority set out in Rule 22 of the Non Contentious Probate Rules to decide who has the right to claim the body of a deceased person. However, if someone lower in that order of priority, or not there at all, advances a claim, they will need to consider it. It may be that in those cases they will be able to effect a compromise.”

[…]

“[w]here a compromise is not possible, coroners need to make a decision. They do this by asking themselves two questions, first, are there any special circumstances which weigh in favour of varying the order of priority set out in Rule 22. Consistently with the jurisprudence of the European Court of Human Rights, special circumstances include the wishes of the deceased person, if there is clear evidence of those wishes. Given that there are special circumstances and these weigh in favour of varying the order of priority in Rule 22, a second question they need to ask is whether it is necessary or expedient to do so” [emphasis added].

Thus, under the circumstances of the case:

(a) the wishes of the deceased person become relevant inter alia where there is no one with the right to claim the body; and, if so

(b) this only becomes effective it there is clear evidence of the wishes of the deceased person.

R (Burrows) v HM Coroner for Preston was guided by the ECtHR judgement in the Swedish case Elli Poluhas Dödsbo v Sweden [2006] ECHR 38. In reviewing the Swedish domestic law, the court noted [para 16] the criteria to be adopted where the deceased’s wishes were not known [7].  However, national authorities are afforded a wide margin of appreciation in such matters [para. 28] and there is no direct read-across of this aspect of Swedish domestic law. But were the Swedish approach to be applicable within the UK, the result would involve a complex balancing exercise of the various claims regarding Richard III’s affiliations that have been made to date.

Comment

As we indicated in a recent news round-up, we would not wish to make any predictions regarding the outcome of the judicial review. However, in view of the different interested parties highlighted in the judgment and elsewhere, we note that it would be pertinent to consider the correspondence that has taken place with the Royal Household, the Richard III Society, and Michael Ibsen, whose genealogical records have been subject to academic scrutiny and whose mitochondrial DNA was instrumental in the identification of Richard III’s remains.

Furthermore, the Members of the Chapter and the College of Canons of the Cathedral of St Martin, Leicester, and the Members of the Chapter and the College of Canons of the Cathedral and Metropolitan Church of St Peter, York are named as first and second interested parties. Given the possibility that the Church of England might need to justify a decision to bury Richard III in Leicester (or York), it would be prudent for it to formulate its position sooner rather than later. The Note prepared by the Rt Revd Christopher Hill, then Bishop of Stafford, on the theology of burial [8] at the request of the Court of Arches in relation to Re: Blagdon Cemetery, provides an example of the “high-level”, non site-specific guidance that might be prepared.


[1] King Alfred the Great, (849 to 26th October 899), is regarded by many as the “first King of England”, although it is believed that he himself did not use this title.

[2] R (Argyll Group plc) v Monopolies and Mergers Commission [1986] 1 WLR 763 and 773; R (Greenpeace Ltd) v Her Majesty’s Inspectorate of Pollution [1994] 4 All ER 329; R (Residents Against Waste Site Ltd) v Lancashire County Council [2007] EWHC 2558 (Admin); R (Blackfordby and Boothorpe Action Group Ltd) v Leicestershire County Council; and Walton v The Scottish Ministers [2012] UKSC 44; 2012 SLT 1211 Lord Reed at paragraphs [83] to [84]).

[3] Consent for Parks, Gardens & Battlefields; Conservation Area Consent; Ecclesiastical Exemption; Listed Building Consent; Marine Planning; Planning Permission; Protected Wreck Sites; Scheduled Monument Consent; Tree Consents.

[4] Under the Suppression of Religious Houses Act 1535 (27 Hen 8 c 28), (a.k.a. the Act for the Dissolution of the Lesser Monasteries), which according to the preamble was introduced to address the “manifest sin, vicious, carnal and abominable living is daily used and committed among the little and small abbeys, priories, and other religious houses of monks, canons, and nuns, where the congregation of such religious persons is under the number of twelve persons” [emphasis added].

[5] This is a somewhat a stretch of the imagination given the time involved in: the positive identification of the remains as Richard III, authorisation of their re-interment under Church legislation and the physical processes involved in re-interment. However, such issues are not of direct relevance to the judicial review application.

[6] This is not the case for the York Minster e-petition, despite its 27,752 signatures.

[7] “The deceased’s own wishes should serve as guidance for the transfer decision. When such wishes are not known, regard should be had to the deceased’s attachment to the place where he or she is buried. As a rule, removal should not be permitted if the deceased is buried in a place where he or she was active for a large part of his or her life. If, however, the cemetery is situated in a place where the deceased lived only temporarily, removal may be permitted.

In addition, the deceased should have had some connection with the place to which the remains are to be removed. According to the explanatory notes (ibid pp 36-37), examples of such a connection could be that the deceased grew up in that place, had relatives or a family grave there, or perhaps had a holiday home there.”

[8] An extended form of the Note is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc Law Soc (35) 447.

France and the burqa ban – are hijabs next?

As readers of this blog will almost certainly be aware, on 11 October 2010 was promulgated the French Loi n° 2010-1192 interdisant la dissimulation du visage dans l’espace public [“prohibiting the covering of the face in public places”]. Belgium followed suit in 2011.

Article 1 of the Loi n° 2010-1192 declares that

“Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage” [“No-one in a public space may wear an outfit intended to hide the face”].

Article 2 defines public places as public roads and places open to the public or where public services are provided and excepts the covering of the face where it is required or authorized by law, if it is justified by health or professional reasons, or if it is done in the course of sporting activities, parties or artistic or traditional events. (So the goalie in an ice-hockey game and the performers in Un Ballo in Maschera are OK.) The penalty for contravention is a fine of up to €150 and/or obligatory participation in citizenship education.

To say that the burqa ban is controversial would be a major understatement and on 22 September 2011 Hind Ahmas and Najate Nait Ali became its first victims: they were fined 120 and 80 Euros respectively for wearing niqabs in public. In December 2011 Ms Ahmas was ordered to attend a 15-day citizenship course by another court for having worn a niqab at a protest outside the Elysée Palace on April 11 and she refused. She told the BBC in 2011 that she had been wearing the niqab for six years and that before she rediscovered her faith she wore mini-skirts and liked to party. She also said that her parents are moderates: moreover, as a divorcée she has no husband to pressurise her. In a New York Times telephone interview in September 2012 she said that she felt that “France has decided to boycott some human rights”. There is a serious possibility that she might end up in prison for her refusal to cooperate and she has declared that she will take the matter to the European Court of Human Rights if need be.

Two issues prompted this post. One is that 2013 has seen the first violent protest against the ban on face-coverings. In July a police check on a Muslim woman in Trappes, south-west of Paris, led to two nights of rioting: said the Minister of the Interior, Manuel Valls,

“The law banning full-face veils is a law in the interests of women and against those values having nothing to do with our traditions and values. It must be enforced everywhere”.

The second, more general issue is that the last few weeks have seen an escalation of the wider debate about religious dress in France.

In 2004 it became illegal to wear any kind of overtly religious dress in French state schools. Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics [“regulating, in accordance with the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in public [primary-]schools, middle-schools and high-schools”] inserted a new article L. 141-5-1 into the State Education Code prohibiting:

“… le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse” [… wearing signs or dress by which pupils overtly manifest a religious affiliation”].

The ban extends not only to the niqab and the burqa but also to items of dress that have nothing to do with covering the face: for example,  the hijab headscarf, the Jewish skull-cap and the Sikh turban and patka

There is now pressure to extend the ban to universities. On 10 August Le Monde leaked a confidential report from the High Council for Integration which said that an extension was needed to counter problems caused by students wearing religious garb and demanding prayer space and special menus. The report observed that higher education institutions were the scene of numerous breaches of laïcité, that in some universities the number of veiled girls was booming, that there was a strong demand to open prayer-rooms, that mixing the sexes and lectures that were not in accordance with a rigorous version of Islam were being challenged and, at the same time, that there was an increase in associations culturelles which were merely a screen for active proselytism.

In its report of Valls’s remarks about the riot in Trappes, The Guardian notes that France has a Muslim population of about five million, yet the Ministry of the Interior estimates that only between 400 and 2,000 women wear the burqa or niqab and only a handful have been fined for wearing them. Which prompts the obvious question, “So why is the French Government making such a fuss about burqas – or, for that matter, about girls wearing hijabs at university?”.

The kindest response would be the traditional French commitment to laïcité. Article 1 of the Constitution states that France is

“une République indivisible, laïque, démocratique et sociale” [an indivisible, secular, democratic and social Republic]

and that it “shall respect all beliefs”. Traditionally laïcité has been interpreted as the almost total exclusion from French public life of any aspect of religion – though viewed from this side of the Channel, the current French obsession with religious dress seems to sit rather oddly with the obligation to “respect all beliefs”. A rather more critical answer would be that the average French citizen of Caucasian heritage feels somehow threatened by the presence of such a large religious minority. The most challenging reaction would be to suggest that Frenchmen and women of a certain age still remember the Guerre d’Algérie of 1954 to 1962 and  have not yet become reconciled to its outcome.

Whatever the reason, the outcome of a possible challenge is uncertain. As to the extension of the ban to French universities, when the issue came before the ECtHR in Leyla Şahin v Turkey [2004] ECHR 299 the University of Istanbul’s ban on Islamic headscarves was upheld as justified in principle, proportionate to its aims and, given the secularist nature of the Turkish Constitution, “necessary in a democratic society”. Recent ECtHR decisions on wearing the hijab in French schools contrary the Law of 2004 have followed a pattern of non-interference similar to that in Şahin: see for example, Dogru v France [2008] ECHR 1579. But regulating religious dress in educational establishments is one thing, while regulating religious dress in daily private life is surely quite another – though that said, recent Grand Chamber judgments such as Lautsi & Ors v Italy [2011] ECHR 2412 and Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646 seem to suggest that the ECtHR is becoming more reluctant than before to interfere in matters involving religious manifestation or the affairs of religious organisations.

Finally, precisely what is a “headscarf” anyway and why should it be automatically assumed to have religious significance? HM sometimes wears one – but is anyone suggesting that the Supreme Governor of the Church of England is a closet Muslim? As Private Eye would no doubt say, I think we should be told…

************************************************

For a recent review of the French burqa ban see Ioanna Tourkochoriti: The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA: 20 Wm. & Mary Bill Rts. J. 799 (2012)

For a critique of the Belgian ban see Jelle Flo and Jogchum Vrielink: The constitutionality of the Belgian burqa ban: Open Democracy (14 January 2013)

HM headscarf

Religion and law round up – 18th August

What we expected to be a quiet week in August proved not so quiet after all

Abortion law in Ireland

We noted the provisions of the Protection of Life During Pregnancy Act 2013, which was signed into law by the President on 30 July and will be commenced by order. In brief, the Act will allow termination to be carried out where there is a threat to the life of the mother or where there is a medical consensus that the expectant mother will take her own life as a result of her pregnancy. But that is unlikely to be the end of the story, since there appears to be some controversy as to whether or not the terms of the Act are fully in accordance with the Constitution.

Inevitably, opinions as to the wider implications of the Act are bitterly divided. The brief on the original Bill submitted by the Irish Catholic Bishops’  Conference argued that its effect would be fundamentally to alter the culture and practice of medical care in Ireland, to accept the premise that abortion was an appropriate response to a threat of suicide and to create “serious moral, legal and constitutional conflicts in the area of freedom of conscience and religious belief”. Doctors for Choice, the Irish Council for Civil Liberties and the National Women’s Council of Ireland, on the other hand, continue to have concerns about the legislation, not least that abortion remains a criminal offence except in the limited circumstances specified in the Act, with the “chilling effect” that this has on both women and their doctors.

Caste discrimination

In our 14 July round-up, we reported that the Government appeared to pulling back from its agreement to include casts discrimination as a protected characteristic within the Equality Act 2010.  The Times of India puts it like this,

“[d]espite outlawing social evils such as child marriage and Sati, the British balked at taking on untouchability during the Raj. Three months ago, in a quirky turn of events, the David Cameron government was forced by the House of Lords to outlaw caste-based discrimination among Indians settled in the UK. Last fortnight, yielding to counter pressure from Hindu groups, the government deferred the enforcement of the law by announcing a two-year-long public consultation for it”.

Fracking, mineral rights and muddle

The past week saw a certain amount of confusion on the subject of fracking (aka hydraulic fragmentation). The Diocese of Blackburn had published a leaflet suggesting that for Christians, fracking presents “a choice between economic gain and a healthy environment” and, as a result, came in for a degree of criticism in the Daily Telegraph on 14 August. At about the same time the Church of England published a note about its Mineral Registration Programme explaining that it was registering its existing interests “… to protect existing rights and interests made vulnerable by the change in the law. There are no particular plans to mine under any property. The focus is registration and protection”.

On Friday on Friday the Church issued two statements: a Clarification on suggested links with hydraulic fracturing or “fracking” and a Statement from Church of England on fracking. Our latest summary of developments is here.

Persecuted Christians

In April we commented on a piece by Lord Carey of Clifton in the Daily Mail about Christians feeling that they were a “persecuted minority”. Now comes a rather different and, dare one say it, far less sensationalist view from his successor. Speaking at the Edinburgh International Book Festival, Rowan Williams pointed out that being made to feel mildly uncomfortable hardly amounted to “persecution”:

“I am always very uneasy when people sometimes in this country or the United States talk about persecution of Christians or, rather, believers. I think we are made to feel uncomfortable at times. We’re made to feel as if we’re idiots – perish the thought! But that kind of level of not being taken very seriously or being made fun of; I mean for goodness sake, grow up.

You have to earn respect if you want to be taken seriously in society. But don’t confuse it with the systematic brutality and often murderous hostility which means that every morning you get up wondering if you and your children are going to make it through the day. That is different, it’s real. It’s not quite what we’re facing in Western society.”

No further comment necessary.

Religion and private law seminar

Máiréad Enright has sent us details of the latest seminar in the ESCR Public Life of Private Law series, on religion and private law, to be held at the University of Kent (Keynes College Room KS14) on Thursday 19 September :

“Private law is associated with the possibility of individual and group self-regulation. It allows citizens to depart from and supplement public norms. Our focus in this seminar will be on the developing religious use of private law to depart from the norms of state family law. Should we be troubled by ‘privatized diversity’  and the spectre of ‘law without a state’?  Does the emancipatory adage ‘from status to contract’ entirely capture the use of private law by minority groups to defend and sustain territory apart from the state? Does the channelling of religious disputes through private law depoliticize and marginalise them?”

Confirmed speakers include: Emmanuel Melissaris, Emmanuel Voyakis, Samia Bano, Aileen McColgan, Daniel Monk, Aina Khan and Christine Schwoebel. To register your interest in attending please e-mail m.enright@kent.ac.uk, indicating any dietary or access requirements. Further details of the series, including recordings of the first two seminars, are available at publicprivatelaw.wordpress.com.

Recent consistory court judgments

Re St Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch)

Regrettably, it is not uncommon for errors to occur in the case of reserved burial plots.  In this case, the burial of an unrelated person in a reserved plot adjacent to the interment of a widow’s late husband precluded her eventual burial alongside him. Subject to an assessment of practicability of conducting a seemly exhumation, a faculty was granted for his correctly-buried body to be reinterred elsewhere in the cemetery and for the reservation of an adjacent burial plot for the widow.

Re St Bartholomew Binley [2013] Coventry Cons Ct (Stephen Eyre Ch)

St. Bartholomew is a Grade I listed Georgian church was built in the early 1770’s as the estate church for Coombe Abbey. A petition was granted for the installation of a projector, fixed in a box under the balcony, and a screen to be housed in a box across the sanctuary arch. The latter proved the more problematic, particularly to the Georgian Group, but the chancellor agreed with the Diocesan Advisory Committee and the pragmatic approach of English Heritage that the proposed changes would not harm the character of the church.

Richard III: the saga rumbles on

On Thursday Haddon-Cave J handed down an unusually long judgment in the preliminary hearing in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August). Quite contrary to our prediction, he granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester in relation to the intended reburial of Richard III in Leicester Cathedral.

In his concluding comments, the judge urged the parties to avoid embarking on the (legal) Wars of the Roses Part 2, and strongly recommended that the fundamental question as to where and how Richard III is reburied should be referred “to an independent advisory panel made up of suitable experts and Privy Councillors, who can consult and receive representations from all interested parties and make suitable recommendations with reasonable speed.”  Nevertheless, Leicester Council and Leicester University were quick off the mark in issuing statements on the judgement, here, and here.

The substantive hearing of these proceedings is expected to take one day and is set down for next term. Haddon-Cave J has ordered skeletons to be exchanged one week beforehand. How this  will turn out is anyone’s guess but, given our recent track-record, we aren’t guessing.  We will however, post an analysis of Thursday’s judgment.

Over at the St John’s Center for Law & Religion Forum  Perry Dane, of Rutgers Law School, is currently posting a very interesting two-parter on the intended reburial. Part one is here; part two is presumably on its way.

Ecce pecuniam

When we reviewed the attempts of 81-year-old Cecilia Giménez to restore the Ecce Homo fresco by Elijah García Martínez in the Sanctuary of Mercy church in Zaragoza, we noted that whilst Specsavers missed the opportunity to include the “restoration” in their advertising campaign, others had begun to capitalize on its notoriety.  In the first four days, the church realized €2,000 from entry fees, and now one year on, the fresco has drawn more than 40,000 and raised in excess of €50,000 for a local charity in the town of Borja.  The Guardian reports that Giménez and a local council are to sign a deal to share profits from merchandise featuring the image.

Although any suggestion of causality would be misplaced, we can report that the Mona Lisa, (a.k.a. Lisa Gherardini) is probably spinning in her grave, though not at the possibility of a similar disfigurement since La Gioconda is safely behind bullet-proof glass.  However, in yet another tomb opening/DNA examination exercise, it is reported that scientists have opened a tomb in Firenze with a view of extracting DNA in an attempt to identify the model for da Vinci’s famous painting.

And finally, one for the silly season

The BBC reports that a child support magistrate in the US has ordered that a baby’s first name be changed from “Messiah” to “Martin” on the grounds, she asserted, that the only true messiah is Jesus. The parents of seven-month old Messiah DeShawn Martin had gone to court in Tennessee because they could not agree on his surname. The magistrate, Lu Ann Ballew, ordered that the child’s first name should be changed as well because “The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ”. So the baby is now Martin DeShawn McCullough, which gives him both his parents’ last names.

Er, First Amendment, anyone? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech… According to Religion Clause the child’s mother is appealing the magistrate’s decision to the Tennessee Chancery Court and a hearing is scheduled for 17 September. Which is no great surprise: if the decision doesn’t fail on the establishment limb of the First Amendment it probably violates the free speech limb.

(Incidentally re titles, “earl” is also a title – but that did not seem to bother Earl Warren CJ of the US Supreme Court.)