Religion and law round up – 30th March

The week that saw the first same-sex marriages in England and Wales also saw controversies about sharia and hospital incineration practices 

Channel Islands deaneries

On Tuesday the Archbishop of Canterbury, the Bishop of Winchester, the Bishop of Dover, the Dean of Jersey and the Dean of Guernsey signed an agreement to give effect to the interim oversight arrangements that were put in place in January. The press release announcing it quoted the Archbishop to the effect that it was an important part of the agreement that he would appoint a Commission to inquire and report to him in detail on “the long and complex history of the Islands’ relationship to the Church on the mainland”. However, it is probably the timeline of more recent events, commencing with the introduction of Jersey’s revised canon law on 18 January 2011, that will provide an insight to current issues.

Cremation, incineration and the foetus

Channel 4’s Dispatches programme, Amanda Holden: Exposing Hospital Heartache, which was broadcast on 24 March, led to some understandable but not entirely well-informed comment in the media and in the blogosphere about incineration of foetal remains. It is a complex issue; and we attempted to tease out some of the practical issues involved and the problems caused by the relevant legislation.

Law Society’s practice note on sharia-compliant wills

We noted the controversy surrounding the Law Society’s new practice note for solicitors on the sharia succession rules and Christopher Luff kindly supplied a guest post on some of the context around freedom of testamentary provision. We suspect that this particular controversy will continue to rumble on for some time yet.

Misconduct in public office

It was widely reported that Bishop Peter Ball, former Bishop of Gloucester, is to be prosecuted for, inter alia, misconduct in public office. The Crown Prosecution Service’s guidance on the offence of misconduct in public office states that:

“The prosecution must have evidence to show that the suspect is a ‘public officer’. There is no simple definition and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved”

and suggests that the case-law

“contains an element of circularity, in that the cases tend to define a public officer as a person who carries out a public duty or has an office of trust … A person may fall within the meaning of a public officer where one or more of the following characteristics applies to a role or function that they exercise with respect to the public at large:

    • Judicial or quasi-judicial
    • Regulatory
    • Punitive
    • Coercive
    • Investigative
    • Representative (of the public at large)
    • Responsibility for public funds

This list is not exhaustive and cannot be determinative of whether a person is properly described as a public officer, when acting in a particular capacity. The characteristics should be treated only as a guide and considered in the context of all the facts and circumstances of the particular case”.

For obvious reasons we make no comment on the facts surrounding the particular case; but we did wonder whether a diocesan bishop of the Church of England holds “public office” for the purposes of the offence.

Same-sex marriage in England & Wales

The first same-sex marriages in England and Wales took place on 29 March. In anticipation, the Equality and Human Rights Commission published guidance on the provisions of the Marriage (Same Sex Couples) Act 2013 and how they relate to equality and human rights law.

The implications to the Church of England have been covered by many commentators and are reviewed on Thinking Anglicans and Anglican Mainstream. However, in terms of the legislative issues, the more important observations are those of the Rt Revd Dr Alan Wilson, Bishop of Buckingham, and the Right Revd Nick Holtam, Bishop of Salisbury, since as bishops they are directly involved in the implementation of the House of Bishops’ Pastoral Guidance. Both are supportive of broader formal acceptance within the Church.

The Bury Free Press carries comment and video of an address by the Most Revd Justin Welby, Archbishop of Canterbury during the launch of the St Edmundsbury & Ipswich Diocese centenary celebrations in Bury St Edmunds, during which he says, inter alia:

 “It is unbelievably difficult, unbelievably painful and unbelievably complicated.

“I haven’t got a quick one-liner that solves the problem – I wish I had and I would dearly love there to be one but there isn’t.

“The church does look very bad on this issue to many people in this country particularly younger people and we’re mugs if we think anything else.

“We need to be really blunt about that. We need to listen to them but we need to listen to Christians around the world and we need to listen to each other and in the discussions rather than shouting that one side’s homophobic and the other side’s betraying the gospel – we need actually to listen to each other as human beings.”

To these observations should be added the post from the Very Revd Kelvin Holdsworth, Provost of the St Mary’s Cathedral, Glasgow,  in which he examines the “postcode lottery” nature of the Churches’ recognition of same-sex relationships, which is shaped by national legislation, church law, and the beliefs of the clergy concerned.

Women in the episcopate

As indicated last week, the diocesan synods of Bristol, Hereford, Lincoln, Norwich, Portsmouth voted on 28 March on the motion that would permit women to be ordained to the episcopate.  [All five] voted for the motion, and now that a simple majority of dioceses has been exceeded, the draft legislation will now return to General Synod.  A breakdown of the voting figures has been provided by Peter Owen. The next diocesan synods to vote are Blackburn (3 April), Southwell & Nottingham (5 April) and Worcester (30 April). The Diocese of Europe had indicated that it was unable to meet the timetable to convene its synod within the three month timetable.

The proper Roman Ordinary for England and Wales

In a missive of 17 March entitled Mass Settings — End of Transitional Period, the Catholic Bishops’ Conference of England & Wales stated

“[…] from Pentecost Sunday, 8 June 2014 only settings of the Ordinary of the Mass using the new translation are permitted to be sung at Mass. Settings using the previous translation or paraphrased texts may no longer be used in our parishes, schools and communities.

The renewal of the Church’s music for the new translation has required much effort and cooperation by composers, musicians, priests and congregations which is now bearing fruit in the celebration of the liturgy. As the wisdom from tradition reminds us: ‘Whoever sings well, prays twice over [1]’.”

Although aware of some of the controversies there have been within the Roman Catholic Church concerning its music post-Vatican II, this is not an area on which we are in a position to comment.  We note that to date there has been no statement from the Latin Mass Society, although its post on 24 March reporting the interview with Archbishop-elect Malcolm McMahon suggested that those in the Archdiocese of Liverpool “who are attached to the Extraordinary Form of Mass” have “no need … to feel nervous.” It has also been pointed out to us that the Papal decree of St Pius V of 19 July 1570 Quo Primum established the validity of the Roman Missal in perpetuity.

 Archaeology and Crossrail

Twenty-five skeletons were uncovered in London’s Charterhouse Square, Farringdon, in March 2013 during construction works on the Crossrail project, and new research has revealed that many died of plague during the 14th Century Black Death pandemic, while others died during later plague outbreaks. As with the exhumation of any human remains, a licence from the Ministry of Justice must be issued under section 25 of the Burial Act 1857, and this will set conditions for the exhumation and subsequent treatment of the remains, generally within a 2 year timeframe.

This is not an unusual occurrence for railway development projects in London: more than 300 burials from the 1500s to 1700s were discovered by Crossrail at the New Cemetery near the Bedlam Hospital, Liverpool Street; and 674 skeletons was exhumed from the Cistercian cemetery at St Mary Stratford Langthorne, London, during work on the extension of the London Underground Jubilee Line. In this latter case, the remains were not reinterred “in the nearest consecrated ground” – a criterion supportive of the burial of Richard III in Leicester – but 122 miles away at the Trappist Mount St Bernard Abbey in Leicestershire, the first permanent monastery to be founded in England since the Reformation.

And finally … so was it Richard III?

Professor Michael Hicks, head of history at the University of Winchester, and Martin Biddle FBA, archaeologist and director of the Winchester Research Unit, have raised doubts about the identity of the skeleton found in the Leicester car-park and thought to be that of Richard III. They have reservations about the DNA testing, the radiocarbon dating and the damage to the skeleton. The BBC History Magazine carries the full interviewShock, horror if they’re right.

[1] According to Fr Z, what St Augustine really said was: Qui enim cantat laudem, non solum laudat, sed etiam hilariter laudat; qui cantat laudem, non solum cantat, sed et amat eum quem cantat. In laude confitentis est praedicatio, in cantico amantis affectio…For he who sings praise, does not only praise, but also praises joyfully; he who sings praise, not only sings, but also loves Him whom he is singing about/to/for. There is a praise-filled public proclamation (praedicatio) in the praise of someone who is confessing/acknowledging [God], in the song of the lover [there is] love.

Perhaps “Whoever sings well, prays twice over” is easier to remember.

[And presumably if you can’t sing, tough – FC]


Our thoughts and prayers are with Dame Catherine Wybourne OSB following her surgery earlier this week. 

Some reflections on the sharia wills controversy

In an earlier post we suggested that it was settled law that the courts of England and Wales would not normally upset the intentions of a will so long at its terms were not for an illegal purpose or wholly unreasonable. In the following guest post, Christopher Luff takes the matter further.

The Law Society’s guidance

On 13 March 2014, the Law Society published new guidance for practitioners on draft sharia-compliant wills. This resulted in some very pejorative reporting in the press, with warnings that sharia had been adopted by “British legal chiefs” and that sharia was being “enshrined” in British law for the first time: see The Telegraph, 22 March 2014)

An earlier post on this blog noted that secular courts have upheld religious arbitration decisions, citing an example from the Jewish Beth Din, and invited readers to consider to what extent secular courts should uphold such decisions. It went on to ask how far testamentary freedom should be respected as a matter of public policy. What follows attempts to address that second point.

The freedom on testamentary disposition

The starting point is to acknowledge the general proposition that “a testator may make whatever testamentary disposition he or she wishes” and then to ask if there are any exceptions to that rule. Three spring to mind.

Firstly, the will might be subject to the possibility of challenge under the Inheritance (Provision for Family and Dependants) Act 1975; an acknowledgement expressly made in the Law Society guidance. Secondly, it might be challenged for reasons of uncertainty, which is what the Law Society guidance seems to be directed at avoiding. Finally, it might be challenged because the terms are contrary to public policy, which is where the controversy seems to lie.

Some interesting parallels can be drawn between the sharia-compliant wills envisaged in the guidance and past British practice – by which I mean specifically relating to the law of England and Wales, where no one has a legal right to inherit. (Scotland is different.)

Sharia wills, according to the Law Society guidance, demonstrate several characteristics. Some seem to be uncontroversial. Burial costs and debts must be accounted first. The testator may freely dispose of one-third of his assets. It is the remaining two-thirds of the estate (which must be disposed of according to strict rules predetermining the shares) that is at the root of the arguments. It includes such provisions as:

  • non-Muslims cannot inherit from this portion of the estate,
  • male heirs receive twice the amount of female heirs,
  • only Muslim marriages are recognised,
  • divorced spouses do not count as heirs,
  • descendants of deceased heirs cannot inherit from this portion of the estate,
  • illegitimate and adopted children are not heirs,
    and finally,
  • the freely disposable one-third may not be used to bolster the share received by an heir according to the rules applying to the two-thirds rules.

One of the difficulties faced by a testator wishing to draft a sharia-compliant will is that the status of heirs according to sharia is not finally known until the testator dies. That factor starts to get us to the heart of the controversy. The will must be worded prospectively such that it excludes certain classes of people by certain characteristics, and includes others on the basis of other criteria; characteristics and criteria which wider society might see as morally repugnant. It is one thing for a testator to leave gifts to Alan, Brian and Charles, where it may be possible to discern characteristics according to gender, race, religion or circumstances of birth, when compared with Amy, Betty or Callam, to whom the testator chooses not to leave gifts. It appears quite another matter to specify those characteristics in advance.

However, the attitude of the courts seems to be very strongly weighted in favour of the testamentary freedom to do just that. Here is a brief summary of three cases that deal with testamentary freedom from the religious angle, which address, in turn, whether the testator might specify a positive qualifying religious criteria, whether the testator might specify a negative criteria by way of a forfeiture clause based on religious criteria, and how easy or not it is to have a will modified to remove such a clause.

Testamentary freedom as regards religion

In Re Allen, decd, Faith v Allen (No 1) [1953] Ch 810, the Court of Appeal had to decide whether or not conditions of forfeiture in a will were void for uncertainty. They provided that the beneficiary shall (i) be a member of the Church of England and (ii) an adherent to the doctrine of that Church.

While a majority decision, there was unanimity that the first question was not void for uncertainty. Membership of the Church of England had been recognised in earlier cases, “the words have long been understood as conveying a clear and definite meaning” (Birkett LJ).

Defining that meaning was a little more difficult; but baptism, confirmation and whether the person would ordinarily be regarded as a member were all facts capable of demonstration to sufficient certainty. It should be possible for an intended beneficiary to adduce evidence of such membership.

That seems to me to be relatively uncontroversial. It should always be possible to adduce evidence of a person’s membership, by way of membership records or witness testimony of attendance and participation in particular religious events. All three judges struggled, however, on the question of adherence to doctrine.

Lord Evershed posited an example of a church dignitary or office holder, and suggested that there should be no doubt as to that person’s adherence. Therefore the clause cannot be void for uncertainty. He came to the conclusion that:

“the designated beneficiary […] should have to prove to the satisfaction of the trustees (or, if necessary, the court) that his membership of the Church was conscientious; […] it is not, I think, useful or possible, to attempt further exposition in the absence of the evidence.”

Lord Justice Romer, on the other hand, felt there were two levels of uncertainty to the second question: what is the doctrine of the church, and how is one to go about ascertaining another’s adherence to it? “I have no idea as to the degree or manifestation of adherence which the testator had in mind.”

“Some of the tenets of the church may be said without irreverence to be contrary to all established scientific experience. Does a man “adhere” to such tenets if he accepts them merely as imagery or allegory, or does nothing short of absolute and literal belief constitute adherence? Does outward acceptance of a doctrine suffice whatever the degree of mental reservation ? Must the doctrine be accepted in its entirety or may certain exceptions be permitted, and if so, what?”

Both make persuasive points – if there are clear-cut cases then the test cannot be void for uncertainty. But how clear cut is the adherence to doctrine of a church office-holder, and are we talking about outward or inner adherence? It seems to me the questions raised by Romer LJ are getting into that otherwise non-justiciable area of theology that Lord Carey invited the courts to enter in McFarlane v Relate Avon Limited [2010] EWCA Civ 880, which presumably leaves only outward adherence.

This seems to me to be rather more unsatisfactory, and I do question the ability of a secular court to assess something as subjective as adherence to doctrine. Nevertheless, it is reasonably clear that the courts will treat both questions of membership and adherence to a faith, while controversial and open to argument, as not automatically void for uncertainty.

Second is the case of Blathwayt v Cawley [1975] AC 397, where the House of Lords had to consider a forfeiture clause which provided that any intended beneficiary who became a Roman Catholic would lose their inheritance. While the outcome was by bare majority on the facts, there was unanimity on the question of the validity of the forfeiture clause itself.

Was it void for uncertainty? Not according to precedent:

“Clauses relating in one way or another to the Roman Catholic Church, or faith, have been known and recognised for too many years in both Acts of Parliament and in wills and settlements for it now to be possible to avoid them on this ground.” (Lord Wilberforce)

To hold otherwise would be “an affront to common sense.” (Lord Cross of Chelsea)

Again, that seems relatively uncontroversial. If membership of the C of E can be ascertained, that should presumably follow for any church or similar organisation.

What about public policy? Lord Wilberforce considered the moves society was taking against discrimination, citing the Race Relations Act 1968 and the European Convention of Human Rights of 1950.

“But acceptance of this does not persuade me that we are justified […] in introducing for the first time a rule of law which would go far beyond the mere avoidance of discrimination on religious grounds. To do so would bring about a substantial reduction of another freedom, firmly rooted in our law, namely that of testamentary disposition. Discrimination is not the same thing as choice: it operates over a larger and less personal area, and neither by express provision nor by implication has private selection yet become a matter of public policy.”

Lord Cross agreed with him:

“it does not follow from that that it is against public policy for an adherent of one religion to distinguish in disposing of his property between adherents of his faith and those of another.”

The thrust of this is clear. Governments should not discriminate; individuals may do so in their private affairs.

Thirdly, we look at the enforceability of a testator’s wishes. In Re Remnant’s Settlement Trusts [1970] Ch 560, a High Court case, Mr Justice Pennycuick was invited to approve the variation of a will trust that included a forfeiture clause. The forfeiture operated to exclude beneficiaries who practised the Roman Catholic faith or who married a Roman Catholic. One of the testator’s daughters fell within the forfeiture, as likely would some of her children.

The variation, under the Variation of Trusts Act 1958, was supported (as it had to be under the Act) by all the beneficiaries; but the judge had also to be convinced that the variation was to the benefit of those beneficiaries.

The underlying issue of the case seems to be the testator’s wish to direct his descendants’ religious choices from the grave, as it were. The judge seemed to find no difficulty in approving the variation, in spite of the financial implications for those who stood to gain from the forfeiture. The family was united in having the forfeiture removed and the judge was alert to the possibility of problems in the family if the forfeiture clause stood.

The point in our context, however, is the non-starter such a variation would have been without the agreement of all of the beneficiaries. The courts are very strict on the rule, in the VTA 1958, that all beneficiaries must agree to the variation, (see Knocker v Youle [1986] 1 WLR 934).

There was a question raised in Re Remant’s about the validity of the forfeiture clause per se and a challenge to Faith v Allen seems to have been contemplated. However, in light of Blathwayt v Cawley, such a challenge seems most unlikely to have succeeded.


Are there wider issues of public policy that might prevent a sharia will? It is only since the Family Law Reform Act 1969 that it has even been possible to constitute a trust in favour of an “illegitimate” child. Prior to that, such a trust was void for offending public policy. But I have found no suggestion that it would be unlawful to exclude such children from a will, albeit subject to any subsequent challenge under the 1975 Act.

Finally, the differential treatment of women, specifically. Well, it was only with the enactment of the Trusts of Land and Appointment of Trustees Act 1996 that it ceased to be possible to create a will that passed real property by means of a “fee tail male”, whereby one’s male offspring would inherit the family land. To my knowledge, such wills that were validly created prior to the Act will continue to be upheld by the courts. The will in Blathwayt v Cawley had such a provision and seems to have caused no embarrassment, albeit that was several decades ago now.

So the law of England and Wales appears to recognise, quite unequivocally, a testator’s freedom to distribute his assets as he wishes, whether directly by name or more controversially by class of beneficiary. In ways practised until quite recently, it was possible, and even common, to distribute estates in ways not dissimilar to those required by sharia. Compared with a “fee tail male”, a sharia will might even be considered generous to the female beneficiary.

The crux of the controversy seems to me to come back to whether, and if so to what extent, the State should regulate testamentary freedom per se. The difficulty with getting into that argument is that, even so, there are means of getting around what is said on the face of a will. Restricting testamentary freedom that appears immoral, unjust or discriminatory will presumably only encourage the use of secret and half-secret trusts – themselves used in the past to overcome the public policy restrictions forbidding trusts for the benefit of illegitimate children.

In my opinion, encouraging the use of secret and half-secret trusts is not the way to go, with all the uncertainty, lack of transparency, difficult evidential problems and scope for quarrelling that would involve; with the inevitable litigation to follow.

Given the sensitivities involved in the execution of wills that is something to be avoided.


The above has been cross-posted on Christopher’s blog.

Same-sex Marriage (Priests) – Church Commissioners’ Questions

On 27 March, Sir Tony Baldry (Banbury, Con) representing the Church Commissioners, provided the House with the following information relating to priests of the Church of England who enter same-sex marriage, [HC Hansard, 27 Mar 2014 : Vol 578 Col 457]:

Mr Ben Bradshaw (Exeter) (Lab): What the Church of England’s policy is on priests entering a same-sex marriage; and what guidance has been given on what would happen to a priest who did so.

Sir Tony Baldry: Clergy and ordinands remain free to enter into civil partnerships. The House of Bishops in its pastoral guidance distributed on 15 February said that it was not willing for those in same-sex marriages to be ordained to any of the three orders of ministry—deacon, clergy or bishops—and that

“it would not be appropriate conduct for someone in holy orders to enter into a same-sex marriage, given the need for clergy to model the Church’s teaching in their lives”.

As with any alleged instance of misconduct, each case would have to be considered individually by the local diocesan bishop.

Mr Bradshaw: In light of the recent Pilling report, does the right hon. Gentleman believe it would be sensible if a hard-working, popular priest got married with the full support of his or her parish and congregation and was then disciplined, sacked or defrocked?

Sir Tony Baldry: The situation is clear. The Church of England’s understanding of marriage remains unchanged: marriage is a lifelong union between one man and one woman, and under the canons of the Church of England marriage is defined as being between a man and a woman. The canons of the Church of England retain their legal status as part of the law of England and I would hope that no priest who has taken an oath of canonical obedience would wish to challenge canon law and the law of England.


No surprises then for readers of this blog, but there is now a clear formal statement in the public domain.  Not perhaps the clarity that was being sought by Mr Bradshaw and the priests mentioned in Pink News, but as we have indicated earlier: there are a number of uncertainties relating to the law in this area; these will be addressed on a case-by-case basis; discussions between bishops and their clergy have only just commenced.

Other information from the Second Church Estates Commissioner

The following are extracts of the other information provided by the Second Church Estates Commissioner.

Cost of cathedral repairs

Martin Vickers (Cleethorpes) (Con): What the current estimated cost is of necessary repairs to cathedrals in England; and what steps are being taken to ensure that cathedrals remain open to the public.

The Second Church Estates Commissioner (Sir Tony Baldry): The current estimated shortfall in the cost of repairs to cathedrals is £87 million over the next five years, over and above what the cathedrals are currently spending on repairs annually.

Return on investments

Mr David Nuttall (Bury North) (Con): What the anticipated return is on the Church Commissioners’ investments for the current financial year.

Sir Tony Baldry: The Church Commissioners are finalising their asset valuations and anticipate the total return for 2013 to be about 15% to 16%. The continued steady return will enable the Church Commissioners to continue the level of support that they give the ministry of the Church of England.

Diocesan Support

Miss Anne McIntosh (Thirsk and Malton) (Con): How much money the Church Commissioners anticipate they will be able to distribute to dioceses across England to support their mission in 2014.

Sir Tony Baldry: The Church Commissioners support the mission of each diocese depending on its need. Each diocese generally receives between £1 million and over £3 million, but that covers only a small proportion of the cost of running the Church. We must never underestimate the importance of the generous giving of church congregations, which accounts for most of the rest.

Church Growth Research Programme

Andrew Selous (South West Bedfordshire) (Con): What steps are being taken to help dioceses and parishes engage and take action with reference to the Church growth research programme.

Sir Tony Baldry: The findings from the Church growth research programme have been disseminated widely within the Church, and are informing diocesan strategies and practices at parish level. Further practical online resources are being developed and events are being planned to help dioceses and parishes to engage with the research and take action.

The role of the Second Church Estates Commissioner

For those uncertain on the role of the Second Church Estates Commissioner, during the Westminster Hall debate Women’s Contribution to the Ordained Ministry (Church of England) reported here, Sir Tony Baldry described his position as follows, [HC Hansard 20 Mar 2014 : Vol. Col. 374WH]

“…. For anyone reading the debate in Hansard, I should explain that, although I am effectively responding to the debate, I am not a member of the Government. I am by statute appointed by the Crown as Second Church Estates Commissioner, so I am accountable neither to the Government nor to the Archbishop of Canterbury. Indeed, as the Bishop of London pointed out to me shortly after I was appointed, I am, like the Dean of Westminster, accountable only to God and the Queen—that is how he put it. This is not a ministerial response, then, but one I make in my capacity as Second Church Estates Commissioner.”

A useful insight into the practicalities of how this works was revealed in a Twitter exchange reported by Thinking Anglicans:  Peter Ould asked “Who gives Tony Baldry MP the steer on what to say in response to questions in the Commons?” and churchstate (the Church of England Parliamentary team) answered “Process in a nutshell: we make suggestions after consulting senior colleagues & specialists. He then decides what to say.”

With regard to the follow-up question, in which Peter Ould asked “So how much am I to read into his response to Ben Bradshaw?” the Parliamentary team replied “Sorry Peter, but we don’t give out guidance on such things”.  Neither do we, but would observe that he is a practising barrister and head of chambers at 1 Essex Court, and as stated above, provided a clear formal statement of the law as it stands: no more, no less.

Equality and Human Rights Commission on the Marriage (Same Sex Couples) Act 2013

The Equality and Human Rights Commission has published guidance on the provisions of the Marriage (Same Sex Couples) Act 2013 and how they relate to equality and human rights law. The guidance is being published ahead of the first legally-recognised marriages of same-sex couples in England and Wales, which are expected to take place on 29 March. The accompanying key points explaining the basics of the Act, briefly, are as follows:

“The Act makes the marriage of same sex couples lawful in England and Wales. Religious organisations are free to choose whether to opt in to marrying same sex couples according to their rites and marriage procedures. Scotland and Northern Ireland both have different legislation covering marriage.

The guidance, produced by the Commission as part of its statutory remit under the Equality Act 2010, provides information about the Act targeted towards a range of groups, including employers, employees and service providers, public authorities, and religious organisations.

Under the new legislation:

  • Same sex couples will be able to get married in England and Wales and those marriages will be recognised in law (subject to meeting legal requirements).
  • Same sex married couples will be treated in the same way as opposite sex married couples in most circumstances.
  • Religious organisations can choose to opt in to conduct marriages for same sex couples. But no one can compel the organisations or their officials to participate in religious marriages of same sex couples if they do not wish to do so. Religious freedom is specifically protected under human rights law.
  • All civil marriage register offices are now designated and required by law to conduct marriages of same sex couples.
  • Commercial service providers cannot treat customers less favourably, for example by refusing to provide services on the basis that the customer is married to or intends to marry a person of the same sex. That would constitute unlawful discrimination.
  • Individuals are free to hold whatever belief they choose on marriage of same sex couples. The expression of those views can be limited, for example where it’s necessary to protect the rights and freedoms of others. Employees will need to be mindful of relevant workplace and professional policies and rules; employers should apply rules and policies consistently with individuals’ civil liberties.
  • Schools must teach the facts about marriage during relevant lessons in an objective, sensitive and professional way, especially where the national curriculum and statutory guidance applies. Schools with a religious character can continue to teach about marriage according to their religious doctrines or ethos”.

Hard copies of any of the relevant documents are available from the Commission at:

Cremation, incineration and the foetus

Channel 4 broadcast its Dispatches programme, Amanda Holden: Exposing Hospital Heartache, on 24 March:

“Actress and presenter Amanda Holden has suffered both a stillbirth and a miscarriage but was helped through the trauma by caring treatment from compassionate professionals, as are many parents. But, in this Channel 4 Dispatches, Holden investigates the treatment of some couples whose pregnancies end in failure.

She meets a number of mothers who tell her their experiences in the aftermath of their loss left a great deal to be desired, and seeks answers from those in authority in the NHS about the problems she hears. Along the way, she revisits her own difficult memories to try to understand what these parents are going through.”

Part of the programme concerned the insensitive approach of some hospitals on their treatment of the parents and their use of hospital incinerators rather than crematoria in the cases of stillbirths, miscarriages and abortions. This was reflected in comments made by bloggers and the media, whose headlines included: Burning Babies, Peter Ould; What’s wrong with using aborted foetuses for central heating?, Archbishop Cranmer; Aborted babies are being used to heat UK hospitals. This is the culture of death, Tim Stanley, (Daily Telegraph); Remains of unborn children incinerated to heat hospitals, Madeleine Teahan (Catholic Herald); Let’s Kill Babies and Put Them To Good Use, Bill Muehlenberg, (CultureWatch).

All commentators decried the use of hospital incinerators, a sentiment that we fully support in this blog. However, whilst their observations relating to the use of an incinerator as a means of disposing of foetal remains are valid, linking this to providing the heating for hospitals is, at best, tenuous. The programme in fact stated [1] that Addenbrooke’s hospital is heated by the combustion of clinical waste which includes the remains of miscarried babies, which is not quite the same.

Where hospitals’ “energy from waste” incinerators are used to supplement their heating, this relates to the recovery of waste heat from the incineration process, not to that released on burning human remains as a fuel, as suggested by many of the headlines – a supposition that is supported neither by the thermodynamics of the process (since incineration/cremation requires an input of energy) nor by the logistics.(in terms of the 797 foetal remains incinerated at Addenbrooke’s Hospital, the total would amount to a very small percentage of other material treated in its incinerator [2]). It is therefore unlikely to make any significant contribution, positive or negative, to the heating of the hospital.

Earlier posts have noted that prior to 24 weeks gestation, foetal remains do not have legal personality, here and here, the corollary of which is that they are not subject to the provisions relating to cremation, i.e.the Cremation Act 1902 or Cremation (England and Wales) Regulations 2008 SI 2841 [3], but fall within those relating to incineration [4]. Furthermore, there is no statutory requirement to register the death of a non-viable foetus, although the Regulation contains specific provisions for the cremation of stillborn babies, which under common law must be buried or cremated [5].  Guidance for practitioners is available which indicates the options available to hospitals and the operators of cemeteries and crematoria [6].


The purpose of this post is to examine the dilemmas facing parents and hospital staff in the sensitive treatment of pregnancy loss before 24 weeks gestation; it is not to discuss the legal and ethical issues associated with abortion, nor to explore those surrounding the legal personality of the foetus. However, these dilemmas have been overshadowed in some of the recent media coverage which has focussed on the fuelling of heating systems with dead babies; not a new concern, having been reported by the London Evening Standard in 2006, and one that does not stand close scrutiny.

Nevertheless, this has prompted expressions of concern and promises of action from Prof Sir Bruce Keogh, Medical Director of NHS in England; Dr Dan Poulter, Health Minister; and Professor Sir Mike Richards, Chief Inspector of Hospitals, Care Quality Commission.  A spokesperson from Sands, the stillbirth and neonatal death charity, is quoted as saying the practice of incinerating pre-24 week foetuses is unacceptable and that whenever possible, cremation should be used instead.

The requirement for a sensitive approach is quite explicit in the guidance currently available, but one that is not assisted by the associated legislation or by the practical issues involved.  Operators of crematoria are not obliged to provide a service to dispose of foetal tissue, and do so at their discretion.  Likewise, not all cemetery operators offer the option for burial, and although shared or communal cremation/burial is permitted, this is not always available or appropriate for those concerned.

Whilst hospitals and crematoria are faced with logistical issues of treatment, the options available to women and couples are not straightforward as indicated in guidance from the Human Tissue Authority:  “some … may not wish to know about the disposal of the foetal tissue”; “the cremation of foetal tissue does not often produce any ashes … to scatter”; and, their requirements may vary according to “the values and beliefs of a wide range of cultures and religions”.  Aside from these practicalities, there are also the requirements for support, such as that provided by the stillbirth and neonatal charity Sands, hospital chaplains, and others.

The Channel 4 programme has raised awareness of issue, and there will no doubt be further debate and consideration in Parliament, the NHS and by the operators of crematoria.

[1] at ~27 minutes from the start.

[2] NHS data indicate that at 13 weeks, a baby weighs around 25g. Department of Health statistics for 2011 show that 91% of abortions were carried out at under 13 weeks gestation

[3] The latter contains specific requirements relating to “body parts” which “means material which consists of, or includes, human cells from a deceased person, whether or not separation from the body occurred before or after death; or a stillborn child, defined in paragraph 2(1) as “apply to any child born after the twenty-fourth week of pregnancy and which did not at any time after birth, breathe or show any other signs of life”.

[4] D N Pocklington, The Law of Waste Management, (2nd Edn, Sweet & Maxwell, 2011), 567-9.

[5] HTA Code of Practice 5, paras 118 and 119, [reference [6]].

[6] Including: Code of Practice 5: Disposal of Human Tissue, Disposal following pregnancy loss, (Human Tissue Authority); Sensitive disposal for all fetal remains: Guidance for nurses and midwives, (Royal College of Nursing); and The Sensitive Disposal of Fetal Remains: Policy and Guidance for Burial and Cremation Authorities and Companies, Institute of Cemetery & Crematorium Management. Guidance of the HTA has statutory authority, having been approved by Parliament in July 2009 and brought into force via Directions 002/2009.  The other Codes of Practice referred to do not.

The Council of Europe’s draft document on sects: one Quaker’s perspective

The Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe has produced a report on The protection of minors against excesses of sects. Perhaps the key passage in the draft Resolution included in the report is this: That the Assembly

“… strongly condemns the ‘excesses of sects’, namely acts which have the purpose or effect of creating, maintaining or exploiting a state of psychological or physical submission in an individual, causing harm to that individual or for society. Such excesses may cause human rights violations, particularly in terms of the health, physical and psychological integrity, schooling and social and emotional development of minors, who are often removed from their family environment and/or cut off from any outside contact”.

We have posted previously on the activities of the Parliamentary Assembly of the Council of Europe: on Resolution 1928 (2013), Safeguarding human rights in relation to religion and belief and protecting religious communities from violence (here) and on Recommendation 2023 (2013)Children’s right to physical integrity (here). The first was uncontroversial but the second gave rise to criticism from the worldwide Jewish community, not least complaints that the Rapporteur, Marlene Rupprecht, had produced a draft that was biased in favour of children’s rights over religious rights. As for the Council of Europe’s draft Resolution on sects, a formal complaint has been lodged with the Secretary General of the Parliamentary Assembly alleging bias by the Rapporteur, a French deputy. We have also noted that one of the reasons why the Parliamentary Assembly can sometimes drift into areas of controversy may be the presence of a historic anticlerical strand within the politics of continental Europe. Anticlericalism is particularly strong in France; and the French have an office within Government, MIVILUDES [Mission interministérielle de vigilance et de lutte contre les dérives sectaires], charged specifically with monitoring the activities of sects.

The problem with the draft Resolution is that nowhere in the document is the word “sect” defined, presumably on the basis that you’ll just recognise one when you see it; and that absence cannot go unremarked. In contrast, the Church of England’s policy document, The Church of England in relation to New Religious Movements and Alternative Spiritualities, makes a serious attempt to categorise and explain the difference between the historic world religions, new religious movements and alternative spiritualities. The document explains the Church’s position in relation to the latter two groups like this:

“The Church of England does not have formal dialogue with any group of this kind or provide services to such groups.

The Church of England does not facilitate access, engage in advocacy or provide funds or access to funds.

The Church of England does attempt to listen, to encourage and support informal local contacts with groups, and to provide pastoral assistance where this is requested.

The Church of England uses and supports INFORM at the London School of Economics and some other information groups to resource its knowledge of New Religious Movements and Alternative Spiritualities. INFORM also provides access to legal and counselling services, parents’ and ex-members’ groups.

The Church of England does not act to suppress groups, either directly or by supporting anti-cult or counter-cult groups” [emphasis in original].

A further point made by  Professor Eileen Barker (OBE, FBA and Chair of the Board of Governors of INFORM), in a paper about her own experience as an impartial researcher of “unpopular religions”, Stepping out of the Ivory Tower: A Sociological Engagement in ‘The Cult Wars’, is the nature of some of the reporting about new religious movements:

“Perfectly accurate accounts of undesirable actions by members of an unpopular religion are frequently pointed to by commentators with the implication that such actions are not only typical of, but caused by, the movement in question. An example I have often used in an attempt to demonstrate this potential fallacy is that if the media report two or three instances of suicide by a member of a ‘cult’, it is not uncommon to start to wonder what it is about the cult that causes people to kill themselves, without recognising that the media are unlikely to report an Anglican’s suicide – or at least the fact that a person committing suicide was an Anglican”.

No rational person would disagree with the generality of the sentiments expressed in the draft Council of Europe Resolution: certainly not I. But the seemingly-unthinking and undefined use of “sect” is disturbing for a lawyer – and more so for a Quaker. Friends do not indulge in “the ‘excesses of sects’” referred to in the text of the draft Resolution (or, at any rate, I devoutly hope not and if we do it’s certainly news to me); and our somewhat quirky views have been recognised in English law at least since the passing of the Marriage Act 1755. But on any rational definition the Religious Society of Friends must be a “sect”: it’s small, hardly any other religious group (with the possible exception of the Unitarians) shares many of its religious convictions, it isn’t “in communion” with any other ecclesial organisation (nor could it be), its liturgy (or lack of it) is sui generis and it holds tenaciously to some fairly controversial positions on pacifism/conflict resolution, the environment and social issues such as poverty and the distribution of wealth.

In short, by “sect” does the Legal Affairs and Human Rights Committee mean “small, quirky religious group” or, maybe, “small, quirky religious group we disapprove of” or simply “any variety of religious expression, large or small, we disagree with”? As Private Eye would say, “I think we should be told”. Even allowing for my personal prejudices, it seems to me that the rather muddled thinking behind the draft is simply not good enough for the body that has parliamentary oversight of the operation of the ECHR.

Frank Cranmer

Priests and same-sex marriage – further insights from Oxford

At the Oxford Diocesan Synod on 22 March, the Rt Rev John Pritchard was formally asked:

“Following his recent Ad clerum, can the Bishop of Oxford confirm that he and the Area Bishops of the Diocese will adhere to the House of Bishops’ Pastoral Statement on Civil Partnerships, which stated that “The House of Bishops does not regard entering into a civil partnership as intrinsically incompatible with holy orders, provided the person concerned is will to give assurances to his or her bishop that the relationship is consistent with the standards for the clergy set out in Issues in Human Sexuality”,

to which he answered in the affirmative [1]. In addition, during his Presidential Address Bishop John explained the Statement and the role the Church of England is playing, [emphasis added]

“But lay people who enter into same sex marriages will continue to be welcome in our churches, to have full access to the sacraments, have children baptised and so on. Clergy, however, are not in the same position and are urged to honour their ordination promise to accept the discipline of the Church. But I’ve promised there will be no witch hunts in this diocese – we have a serious conversation about to begin and it’s no help to rush to judgement.


Since Bishop John acknowledged that his Statement of Pastoral Guidance on Same Sex Marriage “went viral”, it is probably fair to assume that his Presidential Address, which was published shortly after its delivery, was a very carefully worded document representing his current thinking.  The above statement is therefore important since it suggests a possible approach to clergy who enter same-sex marriage, and appears to be based upon the logic: at ordination all clergy are required to make certain promises regarding “the discipline of the church”; no changes have been made in the Church’s attitude to same-sex marriage; therefore clergy are “urged” to honour this promise. The use of exhortatory language – i.e. “urged” – rather than imperative or prohibitive language initially places the onus on the priest to conform rather than on the bishop to initiate action.  It does not, however, preclude the imposition of sanctions since this is a conversation “to begin with”.

The oath of obedience is also addressed in the Report from the House of Bishops, GS 1932, provided in support of the draft Bishops and Priests (Consecration and Ordination of Women) Measure and draft Amending Canon No 33.  Annex A to the Report deals with: issues of authority, theological conviction and the  exercise of ministry by a priest; and also certain legal issues. Paragraphs 34 to 36 [page 13] relate to the former [emphasis added],


34. At ordination and on taking up any office in the Church of England priests and deacons are required under Canon C 14 to swear or affirm that they will “pay true and canonical obedience to the Lord Bishop of C and his successors in all things lawful and honest.” Bishops are similarly required to take an oath of due obedience to the archbishop of the province. Clergy and bishops also take an Oath of Allegiance to the Queen and make the Declaration of Assent.

35. These Oaths and the Declaration are important because they each involve recognition that a person does not exercise ministry in isolation or on their own authority but within a framework of relationship with others and within the tradition of faith as the Church of England has received it. The House acknowledges that the taking of the oath to the diocesan bishop or the oath of due obedience to the archbishop may, in future, raise issues for those who, for theological reasons, remain committed to a male episcopate and priesthood.

36. Nevertheless, the House believes that all ministers of the Church of England will be able, in good conscience, to take the oath. Doing so adds nothing legally to the duty of canonical obedience, which already exists in law. Rather, it is a recognition of the pattern of relationships which underpins the exercise of ministry by those who make and receive the oath. It follows from the guiding principles set out in paragraph 5 above, and the spectrum of Anglican teaching and tradition which they acknowledge, that the giving and receiving of the oath does not entail acting contrary to theological conviction,

and provide the background to Bishop John’s comments.

Certain legal aspects of complying with a bishop’s directions are covered in footnote 1 of the Annex [Page 8]:

“we are advised that, in the light of the decision of the Privy Council in Long v Bishop of Capetown (1863), the duty of obedience does not require the cleric to comply with any and every direction given by the bishop; rather, it requires the cleric to obey such directions as the diocesan bishop is authorised by law to give.”

However, it is clear from the context of Long [2] that the phrase “authorized by law” relates to the vires of the bishop to act on a specific issue, rather than the legality or otherwise of the issue itself.

[1] This approach contrasts with that of the Roman Catholic Church. On 24 March The Tablet reported that a priest in the Ordinariate has been suspended after it emerged that he had entered a civil partnershipIn this case, however, the circumstances appear to be far more complex than the priest simply entering a civil partnership. The matter came to light following an investigation by The Mail on Sunday.

[2] The Bishop of Capetown had been appointed (actually re-appointed) under Letters Patent, and these did not authorize him to take the action against the Rev Long and suspend him for disobedience.  Philip Jones notes “the bishop had no power to convene the diocesan synod or summon Mr Long to it. He therefore had no lawful cause to suspend Mr Long for refusing to attend, nor to revoke his licence for ignoring the illegal suspension”.