Copyright and religion: an idiot’s guide


An (Anglican) congregation posted on its website a poem of “sympathetically expressed religious thoughts in relation to human anxiety”. The church then received a demand from the publisher for £7,000 in compensation for breach of copyright. After three months’ stressful negotiation, the PCC paid £1,500 in an out-of-court settlement. The moral of the story is this: almost everything published since 1900 may possibly be copyright – and the newer the publication, the greater the likelihood that it is copyright material.

And because churches tend to use rather a lot of copyright material it is just as well to know the rules.

What is copyright?

Copyright is the intellectual property right belonging to the creators of original musical, literary and dramatic works. The Copyright, Designs and Patents Act 1988 gives copyright owners economic and moral rights in their work – which means that they can charge anyone who wishes to copy, perform or record their work for any commercial or non-commercial use.

The basic rule for literary, dramatic, musical or artistic works is that copyright persists for 70 years from the end of the calendar year in which the last remaining author of the work dies. The UK Copyright Service has a useful fact-sheet which sets out the precise term for each type of publication or work under the 1988 Act.

Breach of copyright is illegal. It may result in:

  • an injunction/interdict to prevent repetition of the breach;
  • an order for payment of damages for past breaches; and
  • an order to pay the costs of the legal proceedings.

In general, it is no defence for those who are sued to argue that their copying or public performance was for church, charitable or other public purposes.

Copyright/intellectual property organisations

Copyright is managed on behalf of the copyright-owners by a vast array of collection societies, each with different functions. The most important for churches and charities are these:

  • PRS for Music (an amalgamation of the Performing Right Society and the Mechanical  Copyright Protection Society) licenses organisations to play, perform or make available copyright music on behalf of its members;
  • PPL (which used to be Phonographic Performances Ltd) licenses recorded music broadcast or played in public;
  • the Copyright Licensing Agency licenses organisations to copy and reuse extracts from print and digital publications on behalf of the copyright owner – the most obvious church use is photocopying copyright material.

It is likely, therefore, that a church or faith group will require a number of different licences to cover the range of activities normally undertaken that are subject to copyright, and it may be convenient to use the services of an organization such as Christian Copyright Licensing International (CCLI) which can provide most of  these. However, it is important to note the exact scope of each licence and the items that are not covered.

Is a particular piece copyright or not?

Johann Sebastian Bach died in 1750 and all his music as he wrote it is long out of copyright. But if someone discovers a lost Bach motet, prepares a performing edition and publishes it, the resulting printed edition will be copyright. Similarly, if someone (William Walton and Leopold Stokowski come to mind) arranges one of Bach’s organ pieces for orchestra the arrangement will be copyright even though the original work is not. So you need to be very careful indeed before assuming that a particular piece is out of copyright.

Moreover, in (eg) a sound recording there may be several elements of copyright:

  • a copyright in that particular performance;
  • a separate copyright in the underlying musical composition;
  • a further separate copyright in the words; and, possibly
  • a further separate copyright in the musical arrangement.

Activities that may involve copyright issues

  • reproducing the words of hymns (eg in service sheets, or projected on a screen) to store them electronically and to print out the documents;
  • photocopying music or words from hymnbooks;
  • use of audio/visual recordings of music (eg at weddings);
  • performing live music or playing music from a sound recording;
  • photocopying from non-music publications and magazines for use in church activities; and
  • reproduction and electronic storage of copyrighted material such as photographs, songs, music, poems, literature and maps downloaded from the Internet.

Live music performed during “divine service” or at weddings or funerals is exempt. One of the organisations involved in the provision of licences to churches, and others, Christian Copyright Licensing International, states that in relation to its PRS for Music Church Licences, an “act of divine worship” “is generally taken to mean Sunday and mid-week congregational services, plus any other occasion, such as study groups or prayer meetings, where hymns and worship songs are sung”. However, it cautions that “having a hymn at the start of a social event, film night or youth club does not make that event an act of divine worship and a music performance licence may still be required if other music is performed”.

Some dos and don’ts

  • Do check that you have the correct, current licences for what you want to do.
  • Don’t merely assume that any picture on the Internet is fair game: it isn’t. If you need a photograph, either take it yourself or use something from the huge range available at Wikimedia Commons – which is what we always do on this blog. 
  • Do be careful with quotations: brief quotes are acceptable but long ones may involve breach of copyright. The UK Copyright Service states that “there is no magic figure or percentage that can be applied as each case must be viewed on its own merit”.
  • Don’t just assume that no-one will notice if you ignore the rules: pictures on the Internet are often watermarked electronically and organisations such as Getty Images (formerly the Hulton Picture Library) operate web-crawlers to look for unauthorised use. Similarly, the Copyright Licensing Agency has been known to send employees to carol services to check for unlicensed photocopying.

In short, don’t simply assume that just because something is old it is out of copyright – and do be careful.

Cite this article as: Frank Cranmer, "Copyright and religion: an idiot’s guide" in Law & Religion UK, 31 October 2013,

Women bishops – what you see and what you don’t

Another guest post from Will Adam, Editor of the Ecclesiastical Law Journal and Vicar of St Paul’s, Winchmore Hill.

The draft Measure, amending Canon and supporting documentation to be brought to the meeting of the General Synod in November were published on Friday 25 October. They were the result of a series of meetings of an enlarged Steering Committee which, unusually, included those who were not, in principle, supportive of the proposed changes. In the end two members abstained from voting to commend the proposals to General Synod but there was no dissenting report; and three of those who had voted against the legislation in November 2012 voted to bring these proposals forward.

So, what do we see?

  1. Essentially a single-clause Measure. The draft Measure contains a principal clause making it legal for the Synod to legislate by canon to enable women to be ordained as bishops and priests. There is a clause stating beyond doubt that the office of bishop is not a “public office” under the terms of the Equality Act 2010 and there are a number of consequential amendments to other legislation.
  2. The Priests (Ordination of Women) Measure 1993 is repealed and along with it Resolutions A and B.
  3. There is an amending Canon, which is complex but essentially tidies up the Canons of the Church of England to put those canons about the ordination and ministry of deacons, priests and bishops on the same footing for men and for women. The Canons of the Church of England will, however, now contain a new Canon C 29. This places a new duty on the House of Bishops to make Regulations (to be approved by a two-thirds majority of each House of General Synod) for “the resolution of disputes arising from the arrangements for which the House of Bishops’ declaration on the Ministry of Bishops and Priests makes provision”. This assumes, therefore, that the House of Bishops will have made such a declaration.
  4. Annexed to the full report of the steering committee are:
    • a draft declaration on the Ministry of Bishops and Priests that the House of Bishops could make; and
    • a set of draft regulations for a system for resolving disputes, introducing an “Independent Reviewer” – rather like an ombudsman.

How will it work in practice?

Once the legislation comes into force it will become possible for women to be considered for and appointed to diocesan and suffragan sees, including the sees of Canterbury and York. As at present, patrons and bishops will be able to present, institute and license women priests to benefices and other offices on the same basis as men. All clergy will be required, as now, to make the oath of canonical obedience to their bishop, whomever he or she is, on taking up office. On the strict legal level, therefore, the Church of England will have clearly made a decision that men and women equally may be ordained and minister as deacons, priests and bishops.

The House of Bishops, as noted above, is required by Canon to have made a “declaration on the Ministry of Bishops and Priests” and to have set up a procedure for resolving disputes about its implementation.

The draft declaration seeks to ensure that each diocese has at least one bishop who will ordain women priests (most recently, and currently, the diocese of Chichester does not have such a bishop: all the others do). The Committee’s report expresses a hope that there should be a Conservative Evangelical bishop in the College of Bishops who shares the views on male headship held by some in that constituency.

The draft declaration sets down a process whereby the ministry of women priests and bishops may be declined. The only body competent to make such a request would be a PCC (cathedrals would not be able to decline the ministry of women priests or bishops). A PCC (and there is provision to make sure that it is a majority vote of the PCC and that the meeting is properly constituted) may pass a resolution requesting alternative episcopal and priestly ministry. The Bishop is then required to arrange such ministry. If there is a dispute as to whether and how that ministry is arranged the PCC will be able to ask for a review of arrangements by the newly created “Independent Reviewer”. This person will act rather like an ombudsman in the public sector: he or she will be empowered to investigate (and to initiate investigations on his or her own authority) and to recommend courses of action that are then sent to the parties concerned and published.

And what do we not see?

The report makes clear that there are different reasons that will prompt a PCC to request “arrangements”. Paragraph 22 of the draft declaration states that the House of Bishops “will provide guidance for bishops and parishes” to help bishops, patrons and PCCs hold conversations to “achieve an outcome that does not conflict with the nature of the conviction on this issue underlying the PCC’s resolution”.

It is not clear what form this guidance will take. There is an aspiration for consistent practice throughout the country (paras 16 and 27) but there is no mention of the scope or limits of such “theological conviction”.

To take some examples of issues that will need clarification:

  • would a parish be able to insist on oversight from a male bishop who shared its stance on male headship?
  • would a parish be able to reject the ministry of a priest or bishop who did not accept the ministry of women?
  • would a PCC be able to insist on limiting sacramental ministry in that parish to male priests ordained by male bishops, or, to go one step further, ordained by male bishops in whose consecration female bishops had not taken part?
  • if it is practically impossible to provide ministry that takes into account all the convictions of a particular parish, what will be the threshold at which the Independent Reviewer would reasonably entertain a grievance?

These are questions that will, of course, be answered in time. Whether the answers will come in time to satisfy the various interest groups voting in General Synod remains to be seen. However, the proof of the pudding will be in the eating.


Cite this article as: Will Adam, “Women bishops – what you see and what you don’t” in Law & Religion UK, 28 October 2013,

Religion and law round up – 27th October


Same-sex adoption in Northern Ireland, the Lobbying Bill and more on burials (not excluding burials in car-parks) and women in the episcopate 

Blanket ban on same-sex adoption in Northern Ireland incompatible with ECHR

Possibly the major news item of the week was the refusal by the Supreme Court to take an appeal by the Northern Ireland Executive from the NI Court of Appeal in Northern Ireland Human Rights Commission, Re Judicial Review [2013] NICA 37. This was a sorry tale of flagrant disregard by the NI Executive of the House of Lords judgment in P & Ors, Re (Northern Ireland) [2008] UKHL 38 (also cited, confusingly, as Re G) that the blanket ban imposed under the Adoption (Northern Ireland) Order 1987 on all unmarried couples (same-sex, opposite sex or civil partners) adopting as a couple was illegal. The matter was further confused by the Attorney General for Northern Ireland’s intervention at Strasbourg in X & Ors v Austria [2013] ECHR 148 – made without the knowledge or approval of the Law Officers in London.

Before the Court of Appeal Mr Attorney had contended that the effect of the Grand Chamber judgment in X & Ors  was that the earlier House of Lords judgment in Re P/Re G should be narrowly construed on its own facts since, in his view, “The theoretical underpinning of Re P (Re G) must be in some doubt since the decision in X v Austria” (para 24). The Court of Appeal disagreed that there was anything wrong with the previous House of Lords judgment and, clearly, the Supreme Court was equally unpersuaded.

Criticism of Lobbying Bill echoes that of Commons (and many others)

No-one expected the Lords second reading of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill to go smoothly for the Government, having been roundly criticised on both the content and its handling of the Bill by: the Commons Political and Constitutional Reform Committee, here; the House of Lords Constitution Committee, here; and the Joint Committee on Human Rights, here. The BBC’s Parliamentary correspondent Mark D’Arcy anticipated the debate as being “the day’s real fun”, but in the event, the six and a half hours of debate did not produce any real fireworks. For that we will probably have to wait for the Committee stage on 5 November.

Women in the C of E episcopate – the saga continues

In advance of the forthcoming meeting of the Church of England General Synod it has been announced that the Church is contemplating a system of arbitration with an independent reviewer to adjudicate disputes in relation to the draft Declaration on women bishops. The draft Declaration at Annex A in the Report from the Steering Committee for the Draft Legislation on Women in the Episcopate GS 1924 includes a statement that

“Since those within the Church of England who, on grounds of theological conviction, are unable to receive the ministry of women bishops or priests  continue to be within the spectrum of teaching and tradition of the Anglican  Communion, the Church of England remains committed to enabling them to flourish within its life and structures … Pastoral and sacramental provision for the minority within the Church of England will be made without specifying a limit of time and in a way that maintains the highest possible degree of communion and contributes to mutual flourishing across the whole Church of England”.

To resolve any subsequent disputes the Steering Committee recommends

“… an Ombudsman-type scheme. This is an approach followed in various parts of the public sector, including Whitehall and the Health Service as well as in higher education where there is an Independent Adjudicator for student complaints against universities” (para 64).

 what Swedes might possibly describe as a kyrkansombudsman. The BBC report quotes William Fittall, Secretary General of Synod, as saying that:

“This is an ombudsman-type process, the real power comes through being able to investigate and publish findings. It is not in itself a disciplinary process. Although the fact that the regulations are made under canon law will mean that if a priest or bishop simply fails to engage with the independent reviewer then that in itself could be a disciplinary offence”.

Richard III – update

In our earlier post Richard III reburial: MoJ to challenge decision for judicial review? we noted that the Ministry of Justice had indicated it was seeking to overturn the Protective Costs Order, (PCO) awarded to the Plantagenet Alliance. At the High Court hearing The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and ors on 18 October 2013, Haddon-Cave J ruled:

  • that the application for discharge or variation of the PCO is dismissed;
  • that the application for Security for Costs is dismissed;
  • that the cost cap is set at £70,000 with Treasury rates;
  • that the application to vary the Disclosure Order is dismissed; and
  • that time for filing First Defendant’s Grounds of Resistance and evidence is extended until 25th October 2013.

A detailed analysis has been made by David Hart QC on the UKHR blog, who considers the judgement in the context of the Ministry of Justice consultation paper on further reforms to judicial review.  He concludes:

“The judge ordered [a £70,000 reciprocal cost cap], large by ordinary standards, but as the judge observed ‘this case will be hard-fought, despite entreaties, with no quarter being given on either side’ – a bit like 22 August 1485″.

Recent consistory court judgments

We expounded at some length on Re St Andrew, Thringstone [2013] Leicester Ch Ct, one of those unfortunate situations in which the wrong person was buried in a previously-reserved grave plot because of an administrative error: a case in which neither family was remotely at fault and, whatever the outcome, one or the other was bound to feel hard done by.

Less dramatically – and in common with Re St. Margaret Horsmonden [2013] Rochester Const Ct reviewed last week – Re St. Mary the Virgin Stansted [2013] Rochester Const Ct, John Gallagher Ch concerned the exhumation of remains that had been buried about 12 years previously – “lengthy but not so lengthy as to be determinative against the Petition”. Both cases were a consequence of third-party action, alleged mistakes by health authorities and a fatal motor vehicle incident for which the driver is serving a custodial sentence. Whilst in the former there were no exceptional circumstances, in Re St. Mary the Virgin Stansted the written evidence of a consultant clinical psychologist attested to the impact on the petitioners of the fatal accident of the their son, its proximity to the churchyard and the necessity to gain access along the road where the driver’s home was located. Following Re Blagdon Cemetery, a faculty for exhumation and re-interment in the churchyard of All Saints, Dulverton was granted, on the ground of exceptional circumstances, i.e. medical reasons.


Although graduates of the University of Wales and of Cardiff University respectively, neither Frank nor David has any grasp of the Welsh language. However, for the benefit of Welsh-speaking internet users, Fr Z has just published Gweddi cyn cysylltu â’r Wê, (A prayer before connecting to the Web). Other language versions are to be found here (including Klingon for Trekkies).

Through a glass, brightly

In Così fan tutte [1] Mozart was one of the earliest to parody the work of Friedrich Anton Mesmer who suggested that a variety of physical and mental ailments could be cured by the application of magnetism. Since then there have many such related claims on the benefits of applied magnetic fields, some of which concern the effects of the physical properties of medieval European stained-glass windows: Australian scientists discovered that these have an air purifying effect as a result of the small particles (nanoparticles) of gold used in the colouring [2]; and in an unrelated study, Danish researchers suggested that this effect might be a means of counteracting the deleterious effects of incense.

St M-t-V Faorford, 2013The latest application of this technology is in the 3D panoramic camera that is to be used in the European Space Agency’s 2019 Mars Rover mission. The absence of fading in medieval stained-glass is attributed to the presence of nanoparticles in the glass matrix: gold to produce a red colour and silver for deep yellow colour. This technology will be employed to counteract the high levels of ultra violet light on Mars, due to the absence of ozone in the atmosphere that would otherwise have caused colours to fade. However, the potential advantages of medieval stained glass is only of limited relevance in English parish churches, since as a consequence of the Reformation, there is little now remaining apart from a few examples such as that in St Mary the Virgin, Fairford, Gloucestershire, (detail of west window, above).

[1] “Egli ha di un ferro, la man fornita, (Act I, Scene XVI).

[2] When energized by the sun’s rays, their electrons oscillate and create a resonating magnetic field 100 times stronger than normally exists around glass, which breaks apart pollutants leaving a small amounts of carbon dioxide. John Naish, “Life-saving light”, The Times, 13th August 2008.

Burial in the wrong grave and what (possibly) to do about it

Stewart Dickson, son of Rose and Charles Dickson, died aged 27 in 2011 and was buried in the churchyard of St Andrew, Thringstone. His parents applied for and were granted a faculty to reserve the immediately-adjacent space to him so that in due course they could be buried next to him; and the faculty was granted on condition that the reservation should be marked and endorsed on an up-to-date plan and marked discreetly on the ground. Unfortunately, the priest-in-charge, the Revd Mr Burgess, marked the plot inaccurately.

In March 2013 another parishioner, David Garrett, died; and because the oversight by Mr Burgess he was buried in the plot reserved for the Dicksons. Mrs Dickson and her daughter, Yvonne McIlwraith, were offered the plot next-but-one to Stewart Dickson’s but rejected it. Each family felt sorry for the other; but the Dicksons believed that they were entitled to the plot that they had reserved, while the Garretts held to the view that once David Garrett had been buried he should not be disturbed. Said Ms McIlwraith, “We have said all along the only plot acceptable is the one next to my brother. It is a horrendous mistake by the church and they have to abide by our wishes. We feel for the other family but we have no option but to take our stance”.

The Archdeacon referred the matter to the Chancellor, Mark Blackett-Ord, who ruled on the matter in Re St Andrew, Thringstone [2013] Leicester Ch Ct.

Blackett-Ord Ch was faced with an unenviable choice:

“What is unusual in the present case … is that it is not (as is more usual) the family of the person to be moved who seek the disinterment. Indeed they positively oppose it. It is the Dicksons, not the Garretts, who wish to see the remains of Mr Garrett removed” (para 21).

Whatever was decided, one side or other was going to feel hurt and aggrieved:

“It is a serious matter to order the disinterment of a body in the face of opposition by the family. On the other hand, it seems to me to be an equally serious matter that a family who have been granted by faculty the reserved use of a burial space beside a beloved family member, should lose any right to that space if another person is wrongly buried there” (para 22).

He saw his task as one of resolving the case in the manner that would cause the least injustice (para 23). He concluded that justice required that the rights over the grave space should remain with the Dicksons – who had reserved it and paid for it – rather than with the Garretts (para 29). He therefore ordered:

  • that the remains of Mr Garrett should be exhumed and reinterred within the churchyard;
  • that the reinterment should be performed by experienced funeral directors with a priest present; and
  • that Mr Burgess should take no part in the proceedings.

Since Mr Garrett had already been committed in a funeral service, a second service would not be required.

The Chancellor also suggested that, in future:

“(a) the standard faculty order reserving a grave space should in future cases state clearly that the obligation to mark a reserved plot is an obligation on the PCC or on the incumbent and churchwardens and not on the petitioners; (b) no interment in any graveyard should take place unless the officiating priest has satisfied himself or herself that the proposed grave space is not a reserved plot” (para 35).

Costs were awarded against Mr Burgess, who had admitted that he had been at fault.


Sadly, “wrong” burials are by no means unknown. As we noted in a previous post, a similar mix-up occurred in Re St Peter Dunchurch [2013] Coventry Cons Ct, in which a wholly unrelated person had been buried in the plot reserved for Mrs P-W so that on her death she could be buried alongside her husband. In the Dunchurch case, however, the family did not petition for the mistakenly-interred remains to be exhumed and reinterred elsewhere because they did not wish to distress the family of the person already buried there, who were unaware of the mistake. Instead, Chancellor Eyre 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.

But no such solution was possible in the Thringstone case, which aroused considerable local publicity in the Leicester Mercury: here and here. Possibly the nearest recent parallel is Re Jean Gardiner [2003] Carlisle Cons Ct, in which a faculty was granted to exhume the wrongly-buried remains of Mrs Jean Gardiner and to reinter her in an adjacent reserved plot, despite the objections of her family.

If there is any lesson to be learned from Re St Andrew, Thringstone (and, indeed, from similar cases in the past) it is that PCCs and incumbents need to be ultra-careful in marking out and recording plots. No “blame” could possibly attach to either family: both were merely victims of circumstance – and one suspects that the Dicksons have emerged from the experience only very little happier than the Garretts.

Access to adoption in Northern Ireland – UKSC refuses leave to appeal

Regular readers may recall the long-running battle over the Adoption (Northern Ireland) Order 1987, which imposes a blanket ban on all unmarried couples (whether same-sex, opposite sex or civil partners) adopting as a couple. In P & Ors, Re (Northern Ireland) [2008] UKHL 38 (18 June 2008) the House of Lords declared this illegal – but precisely nothing was done to remedy the situation and the Northern Ireland Executive has simply ignored the judgment.

Immediately following that judgment, in July 2008, the NI Human Rights Commission wrote to the Minister of Health asking about his plans for implementing it and did not receive an answer. Eventually, in April 2010, the proposed Adoption and Children Bill (which, it was assumed, would deal with the issues raised in Re P) was postponed indefinitely by the NI Executive.

The NIHRC took the matter to the High Court in Northern Ireland Human Rights Commission, Re Judicial Review [2012] NIQB 77, when the specific issue was same-sex adoption. Treacy J noted that

“… there is no right to adopt, either in convention law or domestic law … However, statute has created a legal opportunity in the form of the right to apply to adopt. That right or opportunity falls squarely within the ambit of Art 8 and the state is enjoined by Art 14 to secure the enjoyment of the right without discrimination on any prohibited ground” (para 71: emphasis added).


“The justification for retaining the current eligibility criteria when considered from the point of view of a child’s right to be adopted has been demolished by the judgment in Re P” (para 72).

 Following the subsequent remedies hearing he ruled as follows:

“Notwithstanding Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 it does not prevent couples who are not married, or in a civil partnership, from applying to adopt a child pursuant to the terms of that Order. All individuals and couples, regardless of marriage status or sexual orientation are eligible to be considered as an adoptive parent(s)” (postscript to para 83).

Nothing happened; and the Executive appealed and lost. In Northern Ireland Human Rights Commission, Re Judicial Review [2013] NICA 37 provisions of the Order were found unjustifiably discriminatory to those in same-sex relationships, contrary to Articles 8 (private and family life) and 14 (discrimination) ECHR.

Moreover, in a second-parent adoption case at Strasbourg, X & Ors v Austria [2013] ECHR 148 (19 February 2013),  the Grand Chamber ECtHR held by 10 votes to 7 that Austrian law discriminated against a same-sex couple because it prevented them from adopting jointly the biological child of one of them – the discrimination being that if the applicants had been an unmarried opposite-sex couple they would have been permitted to adopt jointly. Apart from the result, the most interesting feature of the case is that Attorney-General for Northern Ireland intervened. He argued:

  • that Article 7 of the 2008 European Convention on the Adoption of Children made it clear that there was no consensus in respect of adoption by same-sex couples (para 84);
  • that the ECHR did not guarantee a right to adopt (para 86); and
  • that Strasbourg had so far exercised judicial restraint, accepting that domestic legislatures were better-placed than European judges to assess questions about family, marriage and the relations between parents and children (para 86).

And the Attorney intervened in Strasbourg without the knowledge or approval of the UK Government. In a written answer in the House of Lords on 22 October 2012 c WA2 the Advocate-General for Scotland said that the Westminster Government had not been consulted before the intervention, had not approved its terms and had made it clear to the ECtHR that the Attorney-General for Northern Ireland was not representing the views of HMG.

The Supreme Court has now refused the Northern Ireland Department of Health, Social Services and Public Safety permission to appeal the judgment of the NI Court of Appeal. The Supreme Court issued an order on 22 October stating that the application did not satisfy the criteria of raising an arguable point of law of general public importance.

So it’s back to the NI Executive which, having done damn-all to implement the initial judgment in Re P and having intervened in a case in Strasbourg that was none of its business, will now – presumably – have to address the issue of incompatibility with an amending Order.

Don’t hold your breath…

Cite this article as: Frank Cranmer, "Access to adoption in Northern Ireland – UKSC refuses leave to appeal" in Law & Religion UK, 25 October 2013,

Lords Second Reading of Lobbying Bill

The second reading of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill was moved by the Viscount Younger of Leckie, Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills.  A detailed analysis of the debate that lasted from 3.23 pm until 9.51 pm might result in a tl;dr response from our readers, and consequently only selected highlighted have been reported.  Likewise, the comments of their lordships on the conduct of named parliamentarians and others have been omitted.

A sustained attack on this Bill, that “will get no positive mentions in anyone’s memoirs”, was led by Baroness Hayter of Kentish Town (Lab), [22 Oct 2013 : Col 897]

“Three years ago, we were promised a statutory register of lobbyists. Instead, we have a skeleton register of only consultant lobbyists, exempting 80% of the industry. The word “transparency” in the title is a misnomer. It misses most lobbyists—HS2, Heathrow, the trade associations, the ABI, the BBA, British Gas, npower and the pharmaceutical, defence, tobacco and sugar manufacturers—as they all have in-house lobbyists; and it misses most of those being lobbied. It covers only Ministers and Permanent Secretaries, not senior civil servants, spads and chairs of Select Committees . . . . . . . so defence firms can continue to lobby senior civil servants behind closed doors, untouched by the Bill.”

In a concise summary, Baroness Hayter said [22 Oct 2013 : Col 897]

“Part 1 fails to deal with the lobbying problem, Part 2 deals with a non-existent problem and Part 3 deals with a made-up problem. The Government would be well advised to pause as recommended by the Joint Committee on Human Rights, by the churches and faith groups which wrote to the Prime Minister and by just about every commentator. They should think again, consult, listen and then come back with a much better Bill. If they fail to do so, we will work in Committee and on Report to make this Bill better and workable”

This was countered by Lord Tyler (LD), who said, [22 Oct 2013 : Col 900]

“ . . . . in many years of public life I cannot recall a set of proposals that have been so misunderstood and, to some extent, misrepresented. I hope that during this debate, and particularly in Committee, we will be able to reassure the many charities and smaller campaign groups that have been in touch with us that the Bill is not about stopping them contributing to our democracy.  . . . . . . . the target is the very wealthy and powerful interests that would seek to influence executive decisions and our elections, and which evidently feel threatened by greater transparency.”

The criticism of the Bill echoed the points made by Commons Political and Constitutional Reform Committee, here; the House of Lords Constitution Committee, here; the Joint Committee on Human Rights, here; chair of the Equality and Human Rights Commission; and the Electoral Commission, [22 Oct 2013 : Col. 898]. Much of the debate considered specific examples of its proposed operation in more detail.

The BBC Parliamentary Correspondent, Mark D’Arcy noted that there were “many peers serving on the boards of charities and campaign groups”.  Peers generally declare their interests during their speeches, but for reference, a full list is available in the Register of Lords Interests

With regard to charities, Lord Ramsbotham (CB), helpfully brought the attention of the House to relevant, albeit quasi-law, measures, [22 Oct 2013 : Col 905],

“the current system of checks and balances, with regulation by the Charity Commission, including a document called CC9—Speaking Out Guidance on Campaigning and Political Activity by Charities, which sets out clear, sensible and balanced rules; guidance by the Electoral Commission on campaigning in the run-up to elections, including rules about supporting candidates and parties; and the fact that all charities must prepare accounts, which they must make available on request”

The Lord Bishop of Derby noted, [22 Oct 2013 : Col 907]

“Professional lobbying groups with sharp, smart outcomes are filling the space of working politics and ordinary people with political instincts are being excluded. What we lack in politics, it seems to me, is a space for the amateur, those with occasional engagement and people interested in particular issues.”

With regard to the Church of England, its Parliamentary Unit probably falls within the former category as a “professional lobbying group”, (see “Party Conference Season” here), although to an outside observer, the advocacy of the Lords Spiritual might appear to be “occasional engagement and people interested in particular issues”.

In concluding the debate, Lord Wallace of Saltaire said [22 Oct 2013 : Col 994]

“The hour is late and I should like, if I may, to continue these discussions in the Corridors between Second Reading and Committee.”


Having passed its second reading, the Bill was committed to a Committee of the Whole House, where there will be a detailed line-by-line examination of its 44 clauses and 4 schedules.  This is timed for 5th November, although tactically, the subsequent report stage will provide a better opportunity for introducing amendments designed at changing critical aspects of the Bill.

David Pocklington

VAT returns, religious objections to on-line filing and Article 9 ECHR

The BBC reports that a couple in Cornwall has won the right not to file on-line VAT returns after claiming that to do so was contrary to their religious beliefs. Although the appeal in Blackburn & Anor v Revenue & Customs [2013] UKFTT 525 (TC) was heard at First-tier Tribunal level and will most likely be appealed further, the principle involved is sufficiently important as to warrant careful analysis.

The facts

Graham and Abigail Blackburn are beekeepers trading as Cornish Moorland Honey. They registered voluntarily for VAT because, though their supplies of honey are zero rated, registration enables them to recover the input tax on supplies made to them in the course of business, such as the VAT on the cost of jars. They are also Seventh-day Adventists who shun computers, the internet, television and mobile phones (but not fixed-line phones) on the grounds that electronic communications are a corrupting influence.

Regulation 25A of the Value Added Tax Regulations 1995/2518 requires VAT returns to be filed on-line but 25A(6)(a) provides an exemption for a person who is “a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications”. The Blackburns’ claim for a religious exemption from e-filing was an appeal against HMRC’s refusal to exempt them on religious grounds under 25A(6)(a). HMRC stated in its letter of 4 May 2012 that:

“No connection to the beliefs of any individual religious society or order has been shown in the way contemplated by the regulation. The wording in the regulation looks to be a very precise requirement for exemption and has to be construed according to the words which have been used. It is not my belief that there was an intention to broaden the basis of exemption to include constructions of scripture which fall outside the tenets of a definable faith. If that had been so then the statute would not have been worded as it is.”

The Seventh-day Adventist Church does not require its members to shun electronic communications and, indeed, has its own website. However, at page 142 of its Manual the Church warns adherents that though radio, television and the internet

“… can be great educational agencies through which we can enlarge our knowledge of world events and enjoy important discussions and the best in music …  modern mass media also can bring to their audiences almost continuous theatrical and other performances with influences that are neither wholesome nor uplifting.  If we are not discriminating, they will bring sordid programs right into our homes…”

Mr Blackburn conceded that his Church used the internet for what it saw as good purposes, such as evangelism and education and did not directly required its adherents to avoid electronic communications. However, the couple’s religion required them to live in accordance with the Bible and he cited a large number of Biblical texts which he interpreted as requiring him to shun computers, television and mobile phones. He believed that each person had to act in accordance with conscience and had no difficulties in dealing with people (such as his suppliers) who used computers because that was their choice. But his own choice was neither to use a computer himself nor to ask someone to use one on his behalf.

HMRC argued that the Blackburns’ choice was a personal preference rather than a fundamental part of their religion because the use of electronic communications was not incompatible with the tenets of their Church; moreover, they did not object to using non-mobile phones so they clearly did not object to all electronic communications as such. Mr Blackburn’s reply was that the most important part of their religion was that at the Second Coming only the righteous would be saved and that in order to be righteous they had to act in accordance with their own consciences – and their consciences told them that the Bible required them to shun computers and television.

The judgment

The appeal was allowed. Tribunal Judge Mosedale found it as a fact (para 32) that the Seventh-day Adventist Church did not consider its beliefs to be incompatible with the use of electronic communications and her conclusion on the application of Regulation 25A(6)(a) to the appellants, “if seen purely as a question of the normal rules of construction and without reference to the effect of the Human Rights Act 1998” (para 33) was that they were not entitled to the religious exemption under Regulation 25A(6)(a). However, section 6 of the Human Rights Act 1998 required public authorities to act in accordance with Convention rights; and though it did not apply either to primary legislation or to secondary legislation which is in the form that it is because of constraints imposed by primary legislation, the Regulations at issue were secondary legislation unconstrained by primary legislation. Section 6 HRA 1998 therefore applied. On that point, Rafferty LJ had observed in Bull & Bull v Hall & Preddy [2012] EWCA Civ 83, obiter, that:

“[28] …  Unless the primary legislation dictates the contents of the Regulations…, any judge can strike down subordinate legislation:  see section 4(3) of the Human Rights Act 1998”.

Judge Mosedale accepted that using a computer or having an agent use it on their behalf was contrary to the Blackburns’ religious beliefs and that by entirely shunning computers they were manifesting those beliefs.

In Eweida & Ors v United Kingdom [2013] ECHR 37 the ECtHR had pointed out (at paras 81 & 82) that though the right to freedom of thought, conscience and religion denoted “… views that attain a certain level of cogency, seriousness, cohesion and importance….” and that “In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief”: nevertheless,

“the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question….”.

Judge Mosedale was satisfied that in the present case there was, in fact, such a close and direct nexus between act and belief and that the Blackburns were acting in fulfilment of a duty mandated by their religion as they perceived it (para 52) Moreover, she rejected HMRC’s contention that they should circumvent the need to use a computer to file on-line by using a terminal in a public library or employing an agent to file on their behalf (para 54). She also dismissed HMRC’s suggestion that the appellants could simply deregister for VAT in order to avoid on-line filing: the right to recover input tax was a fundamental right under European Union law and it was disproportionate that they should be required to give up that right and suffer the financial consequences of doing so as the cost of abiding by their religious beliefs (para 58). The requirement to file on-line was therefore an undue restriction of their rights under Article 9(1) (para 59).


The above is merely a summary and the judgment merits careful reading in full. Possibly its most important feature is that it applies the lower threshold established by the ECtHR in Eweida for determining whether or not there is a “close and direct nexus” between action and belief. It also illustrates that cases of this kind are highly sensitive to the facts. But whether this is now the direction of travel for cases of this kind remains to be seen: perhaps the Tax & Chancery chamber of the Upper Tribunal will tell us.


Postscript: The Tribunal also  heard appeals in LH Bishop Electric Company Ltd, Allan Frederick Sheldon t/a Aztec Distributors and Winston Robert Duff Tay t/a Rhos Filling Station. Of the three appellants, all of whom ran small businesses, two suffer from disabilities that makes it difficult or impossible for them to use computers, while the third  lives in a remote area with unreliable broadband access. Andrew Scott, of Shepherd & Wedderburn LLP, has posted a helpful analysis of the three cases.