Abortion guidance and procedures revised

On 23 May, the Department of Health issued a Press Release announcing the publication of two new documents relating to abortion:

The former is new guidance “for all those responsible for commissioning, providing and managing service provision” which clarifies [our emphasis]:

  • that abortion on the grounds of gender alone is not lawful;
  • the expectation that two doctors, when certifying that an abortion meets the criteria set out in the Act, must consider the individual circumstances of the woman and be prepared to justify their decision;
  • that it is good practice for at least one of the doctors to have seen the pregnant woman before reaching a decision about the termination;
  • that pre-signing of statutory abortion certificates prior to consideration of a woman’s circumstances is not compliant with the Act; and
  • that doctors have a legal duty to report all abortions to the Chief Medical Officer.

Apart from the last two bullet points, the practice and procedures are based upon non-statutory guidance rather than the statutory provisions and there appears to be no commitment to ensure that either is enforced more rigidly than at present.

The latter document was produced following the Department of Health consultation Procedures for the Approval of Independent Sector Places for the Termination of Pregnancy on which we posted earlier. The principal objections to the proposals within the consultation were summarized in the Christian Medical Comment post, Department of Health officials attempt to bring in nurse and home abortion through back door.

Comment

The Department of Health’s publications have been criticized by the Society for the Protection of Unborn Children (SPUC), “Government abortion guidance ‘weak’ and ‘fails to uphold law’”, more strongly by the Christian Institute, “Biggest abortion liberalization confirmed in new guidance”, and others. In its new guidance to healthcare professionals, the Department of Health quite correctly states that:

“The guidance does not, and indeed cannot, change the law in relation to abortion, which is governed by the criminal law and the Abortion Act and is ultimately a matter for Parliament and the courts to determine. However, the intention is to provide support for doctors by setting out how the law is interpreted by the Department of Health.”

However, it continues

“More detailed guidance for health professionals on abortion is also available from the General Medical Council (GMC), British Medical Association (BMA), Royal College of Obstetricians and Gynaecologists (RCOG) and the Royal College of Nursing (RCN),”

and readers will recall the Director of Public Prosecution’s assessment of the BMA guidance stating that its treatment of gender-specific abortion was “far from clear”. Without changes to the legislation or guidance with statutory authority, combined with a commitment to enforce rather than monitor these provisions, there are clearly limitations as to what might be achieved by this new guidance.

Seminal cases on freedom of religion?

A colleague recently asked me for a list of what I thought were the half-dozen or so seminal UK and European cases on freedom of religion. It’s a very interesting question and I replied in terms of the modern case-law rather than delving into the historical stuff. Inevitably, my answers were somewhat subjective: for example, I wondered about including Watkins-Singh in the list but decided that the key case on religious dress was Begum. I also thought very hard about including Laws LJ’s judgment in McFarlane but decided that it was about the priority of secular law rather than about freedom of religion.

I came up with the following:

  • Arrowsmith v United Kingdom [1978] ECHR 7: What is a “manifestation”?
  • Re South Place Ethical Society [1980] 1 WLR: What is a “religion”?
  • Campbell and Cosans v United Kingdom [1982] ECHR 1: What is a “philosophical belief”?
  • Kalaç v Turkey [1997] ECHR 37: Can an employer restrict an employee’s religious activity?
  • R (Williamson & Ors) v Secretary of State for Education and Employment & Ors [2005] UKHL 15: How far must religious convictions be respected?
  • R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15Education and the right to manifest: how far can you go?
  • R (E) v Governing Body of JFS & Anor [2009] UKSC 15Does the religious definition of a particular religious identity trump the secular one?
  • Eweida & Ors v United Kingdom [2013] ECHR 37What kinds of “manifestation” are protected by Article 9 ECHR?
  • R (Hodkin) & Anor v Registrar General of Births, Deaths and Marriages [2013] UKSC 77: What is a “religion”?

So those are my picks: what’s yours?

FC

Anatomical teaching & research and the law

The annual service of thanksgiving to commemorate people who donate their bodies for medical teaching and research took place this year at Southwark Cathedral on 16 May, and the Erasmus blog Anatomy, funerals and the church observed that the service was attended by:

“[n]ot just robed clerics from the Anglican and other churches and representatives of other faiths: there were also medical students of many ethnic and religious backgrounds and some of their teachers, plus a larger group of Londoners who were moved by the proceedings even if they did not very often frequent cathedrals.”

Although there are some exceptions, the majority of religious groups have few objections to the donation of bodies for medical research[1], and many view this as a personal decision to be made by those wishing to do so[2].  In terms of secular legislation, this is a relatively settled, uncontroversial area, which is regulated through a combination of statutory legislation and guidance.  However, in view of the recent interest in the disposal of foetal remains and stillbirths which we covered here and here, it is pertinent to make some observations on how the law works in these two areas which have as a common feature, the absence of persona iuris, a “legal personality”.

Legal framework

Consent

The Human Tissue Act 2004 was introduced to provide a consistent legislative framework for issues relating to whole body donation and the taking, storage and use of human organs and tissue.  With regard to anatomical examination, whilst the Act and relevant HTA Code of Practice are primarily concerned with the conduct of this and related activities within the medical schools, such procedures may not be undertaken unless the “appropriate consent” has been granted.  This is detailed in Part 1 of the Act, section 3(3) to (5), and for anatomical examination (and also public display[3]) the critical component is for the consent to be in writing and made whilst the person is still alive, either:

– signed by the person concerned in the presence of at least one witness who attests the signature;

– at the direction of the person concerned, in his presence and in the presence of at least one witness who attests the signature, or

– contained in a will of the person concerned made in accordance with the requirements of: section 9 of the Wills Act 1837 (c. 26); or Article 5 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 (S.I. 1994/1899 (N.I. 13)).

Non-testamentary consent can take the form of the potential donor having completed an appropriate consent form, either under the Anatomy Acts 1832 or 1984, or the Human Tissue Act 2004[4]. However, the power of attorney does not afford the attorney the right to decide on the donation of a body, even if this is believed to be the wish of the deceased.  Although section 2 of the Act provides for the written consent of a child, the London Anatomy Office states “donors have to be deemed to be mature enough to make an informed decision about such a donation, hence there is a minimum age limit of 17.”

Donation and its acceptance

Whilst it is unlawful for anatomical examination to take place in the absence of the “appropriate consent”, the existence of such a consent is no guarantee that the body will be so used: this is dependent on both an offer of the donation by the person having the common law “custody and possession” of the body; and its acceptance by the medical school, which takes into account both physical attributes of the body and practical issues such as non-acceptance during holiday periods.  Although the Human Tissue Authority, (HTA), regulates the use of bodies donated for anatomical examination, it does not play a part in these practicalities associated with their procurement: HTA Code of Practice 1 deals with the general aspects of consent for all activities within its remit, and HTA Code of Practice 4 is concerned with anatomical examination.

Comment

Donation of bodies for anatomical examination involves a mix of statutory and common law, as well as statutory Codes of Practice issued with Parliamentary approval[5].  The deemed age of discernment is notable in that quasi-legislative provisions, such as those issued by the London Anatomy Office, supra, impose more restrictive conditions than the 2004 Act. The stipulation of 17 as the “age of discernment” contrasts with recent Belgian legislation on euthanasia which, in removing all age restrictions, goes beyond event Dutch law that set a minimum age of 12 for children judged mature enough to decide to end their lives.

(One might also argue that it is slightly odd that the “age of discernment” for organ donation is 17 while one may marry at 16 with parental consent in England and Wales and without it in Scotland. While there is no conceivable reason why everything should be subject to an identical age of consent, some of the variations seem to have little obvious rationale.)

As indicated above, although donation for anatomical examination is not automatic, it may only be initiated when the person concerned is deemed capable of giving appropriate consent.  With regard to unborn babies, however, they are not considered to have a legal personality, and their treatment is dependent upon gestational age, with the 24 week limit in section 1(1)(a) Abortion Act 1967 necessarily (i.e. for legal consistency) providing the threshold[6] for a number of legal provisions, including: registration of birth; and treatment of foetal remains.

Again there is a degree of irrationality, for although decoupled from the Abortion Act 1967 by the Human Fertilisation and Embryology Act 1990, section 1(2) Infant Life (Preservation) Act 1929 retains the legal presumption that “evidence that a woman had at any material time been pregnant for a period of twenty eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive”.  However, the legal concept of “capable of being born alive” within the 1929 Act is broader than, and differs from the medical concept of “viable” upon which the 24 week criterion is based[7].

 Furthermore, once born alive, a child can apply retrospective rights for criminal or civil wrong. In her examination of this complex area, “Whose Baby Is It Anyway?” Freeborn observes that “the foetus has the right to protection against intentional termination of life by anyone, save abortion in circumstances permitted by the Abortion Act 1967 with the mother’s consent. However, there is no protection available against the negligent/reckless actions of the mother and no duty of care owed by the mother to foetus.”


[1] The London Anatomy Office, which operates on behalf of seven medical schools, states that donated bodies may be used for: anatomical examination; education or training relating to human health; research in connection with disorders, or the functioning, of the human body. Donated bodies are not used for research into specific diseases and organs will not be donated for transplantation

[2] J and M Green, “Dealing with Death, A Handbook of Practices, Procedures and Law”, 2nd Edn, [2006, Jessica Kingsley Publishers, London].

[3] Section 40 of the 2004 Act provides an exemption in cases where the body of a deceased person, or relevant material from a human body constitutes a religious relic for the purpose of public display at a place of public religious worship or at a place associated with such a place.

[4] Section 10 of the 2004 Act provides that documented and valid consent for anatomical examination given before 1 September 2006 is treated as “appropriate consent”.

[5] In general, the HTA Codes of Practice are issued in accordance with Section 29 of the 2004 Act: they are approved by the Secretary of State following consultation with the Welsh Assembly Government and the relevant Northern Ireland department, have received Parliamentary approval.

[6] However, under section 1(1)(b) to (d) Abortion Act 1967,  an abortion may be carried out after 24 weeks: if it is necessary to save the woman’s life: to prevent grave permanent injury to the physical or mental health of the pregnant woman; if there is substantial risk that if the child were born, s/he would have physical or mental abnormalities and be seriously handicapped.

[7] The term “capable of being born alive” relates to children who may not live after they are born, and are simply “born alive”, whereas a “viable” child is one whom doctors consider will survive and flourish outside the womb.

Religion and law round up – 25th May

A week dominated by elections and Richard III…

Election legal trivia

With Parliament prorogued until 4th June, the thoughts of some of our blogging colleagues turned to the present local and European elections and the General Election on 7th May 2015.  We are not in the business of predicting the outcome or indicating why some would vote for a particular party but we did come across a couple of items of pertinent legal trivia:

  • Whilst the votes of the 26 Lords are unlikely to sway the result of the latter, this week the CofE Parliamentary site addressed the question “Can Lords Spiritual vote in general elections?“, which no doubt will be of interest to anyone fast-tracked to the Lords.
  • Although widely reported in the Netherlands, the UK media carried few reports of the Dutch exit polls in the European elections and the fortunes of Geert Wilders, leader of the controversial anti-Islam, anti-immigration Freedom Party (PVV).  The answer lies within the European Parliamentary Elections Regulations 2004, SI 293 which preclude the publication of the way in which citizens voted in any EU state “before the close of the poll”.
  • Since the majority of Member States do not vote until Sunday, the BBC and several UK-based news organisations took the view that it was not possible to report details of the Dutch exit poll and remain within election law.
  • In a case of possible relevance to the application of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 prior to the General Election, in Brosa v Germany (Application no. 5709/09), the European Court of Human Rights held that an injunction banning a political activist from distributing leaflets targeting a political candidate violated his rights of free expression under Article 10 of the European Convention.
  • By convention, opposition parties are entitled to enter into confidential discussions with senior civil servants in the run-up to a UK general election, and this week the House of Commons Library published a Standard Noteon this convention, indicating that such discussions could take place from October 2014

Leicester Cathedral – a victory for ‘the Devil’

 . . . or more specifically for James Eadie QC of Blackstone Chambers, First Treasury Counsel (a.k.a. the ‘Treasury Devil’) who “is the QC to whom the Government turn first for their major pieces of advice and litigation.”  We produced an early summary of the main points of the full judgement, R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662. The BBC reported

“Philippa Langley, whose efforts kick-started the search for Richard’s grave, said: ‘We were hoping there would be a judgement not just on where he would be buried but also on how he would be buried. I’ve not had a chance to study the judgement closely but there doesn’t seem to be any information on what happens to him now.”

The judgement makes many references to the close involvement of Ms Langley and the Richard III Society, from the inception of the project onwards, and it is therefore surprising that such a misconception of the judicial review process should arise. However, it was the involvement of Leicester City Council that came in for a legal ticking off, and in concluding its judgement, the court said, [at 164]:

“The Council’s intervention as the “legal sentinel” of Richard III’s bones was unnecessary, unhelpful and misconceived (as it, itself, ultimately acknowledged). It is clear that the Council had no legal duty to consult nor power to intervene once (a) the licence had been granted and (b) Richard III’s remains had been removed from its land. Accordingly, it was not necessary for the Council to be joined as a defendant to these proceedings.”

Nevertheless, the Court (if not the Justice Secretary) was more gentle with the Plantagenet Alliance and its locus standi, [at para. 82], in which it stated:

“It is fair to say that the relationship of Mr Nicolay and the other collateral relatives to their ancestor, Richard III, is, on any view, attenuated in terms of time and lineage. The Claimant’s interest – indeed, that of the 16th, 17th and 18th generation descendants – may not suffice for personal standing. However, the points raised have a broader public interest sufficient for the Claimant to have standing in this case as a public interest litigant,”

which appears to suggest that on an issue such as this where there is broad public interest, any group, regardless of its links to Richard III, might have standing as a public interest litigant.

The judgement commenced with a potted history of Richard III and the discovery of his remains, [paras 8-27 & 28-71 respectively], and prior to its analysis of the case, the court considered the relevant legal issues – the common law principle of “fairness”; intuitive judgment; public law duties; and the Burial Act 1857 and the associated guidance, [paras  83–119], many of which merit further consideration in a later post.

In a concluding postscript, Lady Justice Hallett said

“Since Richard III’s exhumation on 5th September 2012, passions have been roused and much ink has been spilt. Issues relating to his life and death and place of re-interment have been exhaustively examined and debated. The Very Reverend David Monteith, the Dean of Leicester Cathedral, has explained the considerable efforts and expenditure invested by the Cathedral in order to create a lasting burial place ‘as befits an anointed King’. We agree that it is time for Richard III to be given a dignified reburial, and finally laid to rest.”

Women in the episcopate – update

The synods of 42 mainland dioceses and of the diocese of Sodor and Man met prior to the 22 May deadline[1], and all have voted in favour of the draft Measure and draft Canon for the admission of women to the episcopate.  General Synod will now hold the final approval debate when it meets in York 11-15 July 2014. The Crown Nominations Commission (CNC) meets on two occasions per Vacancy in See to nominate candidates for diocesan bishoprics to the Crown: the list of present/future vacant diocesan Sees is here; suffragan Sees here; and the planned dates for meetings of the CNC for 2014–15 are listed here.

New DH guidance on abortion

On 23 May, the Department of Health published new guidance for healthcare professionals on complying with Abortion Act along with updated procedures for independent abortion clinics. It incorporates the findings of the consultation undertaken earlier this year on the procedures that independent sector abortion clinics must follow in order to be approved to provide services, which we reviewed in an earlier post.

(There’s still no sign of the promised consultation on abortion law in Northern Ireland.)

Recent consistory court judgment

Re St Andrew Shepherdswell [2014] Canterbury Const Ct Comm. Gen. Morag Ellis

The replacement of a “functionally defunct” late 19th century pipe organ[2] with a new Viscount Envoy 23S digital organ was at the centre of the petition for an interim faculty: this would relate to the installation of the digital organ, but leaving the pipe organ in situ, pending the grant of a permanent faculty. The Archdeacon had contacted the Registry to ascertain whether it would be possible to ‘fast-track’ authorization for the project, given that it was “entirely uncontroversial and fully supported in the DAC”.  In the context of interim faculties, the new provisions within the Faculty Jurisdiction Rules 2013 reflect and formalize previous practice as enunciated in the judgment of Re St Mary’s Churchyard, White Waltham [2010] Fam 131.

The Commissary General stated that although the matter would normally be within the Archdeacon’s jurisdiction, its interim nature required it to be dealt with by her, [FJR Rule 7.1(2)]. Furthermore, if it was to be dealt with without a DAC certificate then it would have to be processed as an interim since the Archdeacon and/or Commissary General would otherwise be obliged to await the DAC advice.

Although happy in principle to proceed under Part 14, the Commissary General noted that: she was required to impose a condition requiring the submission of a faculty petition within a set period of time; was content in principle to dispense with public notice as it was expedient in view of the need for a functioning instrument for the forthcoming visit of the Archbishop; and granted an interim faculty.

One objection was raised to the petition, relating to: the expense of the new organ (some £15,000), in comparison to a digital keyboard instrument (at ~£5,000) and the handling of the interim Faculty application. However, having considered these objections seriously, the Commissary General did not find them persuasive, and granted the interim faculty.

The facts of the case reflect the problems faced by small congregations, not only in the upkeep/replacement of pipe organs but in the availability of skilled organists and choristers. Also worthy of further general consideration is the Commissary General’s observation that there is “a certain profligacy inherent in worship”.

Non-story of the week?

The Western Gazette in West Dorset reported that Bishop of Salisbury had indicated he would not intervene following complaints regarding the “forthright views” of Canon Eric Woods, Vicar of Sherborne Abbey concerning the “invasion of halal meat” in the UK.  The item giving rise to the complaint was Canon Woods’ column (in the Western Gazette) in which he said:

“So although I would defend to the hilt the right of any community to follow their own rules relating to food and other products, I do not believe that the rest of us should have halal meat foisted on us by stealth … The scandal is that none of the supermarkets or restaurant chains are prepared to label their products as either halal or non-halal.”

Not particularly strong stuff and one suspects that the paper was talking up the story to boost its readership.  However, in the context of the “Protect the Pope” situation, perhaps the story should be retitled “Anglican Bishop permits priest to express his opinion”.

Or perhaps this?

The Sun reported (£) that the Welsh Christian Party wants the current Welsh flag replaced with the flag of Saint David: a gold cross on a black field. Apparently the party leader, The Revd George Hargreaves, said that the red dragon should not “reign over Wales for another moment” because it was a symbol of the devil. Bishop David Yeoman, former Assistant Bishop of Llandaff, was quoted as saying: “I doubt whether most Christians would see it as demonic”.

Our guess is that most Christians might not see it as any kind of issue at all, not least because there are no such things as dragons. But when did “facts” ever get in the way of a good old religious rant? Or maybe Mr Hargreaves has just been reading too much Harry Potter.

And finally . . . .

On Friday 23 May, the Church of England Daily Digest of news led with the story “Giant inflatable whale banned from Royal Parks”. Originating in the Daily Telegraph and the Daily Mail this concerns the banning of a giant inflatable whale used for pirate shows and re-enactments of the story of Jonah has been banned from the Royal Parks because of its “religious” undertones.  Officials are said to have turned down applications by the Bible Society to hold a children’s fun day based on the Jonah story at either Hyde Park or Greenwich Park in London claiming it could be classed as an act of “religious observance”. The Royal Parks are managed by a Government agency, but owned by the Queen, who also patron of the Bible Society.


[1] The dioceses of Bradford, Leeds and Ripon, and Wakefield voted before the formation of the new diocese of Leeds and the Dales.  The diocese of Europe was unable to arrange a meeting of its synod in the allocated three-month time slot.

[2] According to the Victorian Society, para. 5.2.

 

Richard III reburial: judicial review application fails

The Divisional Court of Queen’s Bench has handed down its judgment in the judicial review proceedings on the proposed reburial in Leicester Cathedral of the remains of Richard III.

In R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 the claimant challenged the following:

  1. the Secretary of State for Justice’s decision of 3 September 2012 to grant a Licence to exhume the remains “without consulting, or attaching conditions requiring the licensee to consult, as to how [or where] the remains of Richard III should be appropriately  re-interred in the event that they were found”;
  2. the Secretary of State’s decision from 4 February 2013 onwards “not to revisit the grant of the Licence once it became clear that the University would not carry out an appropriate consultation”;
  3. Leicester City Council’s decision in February 2013 “either to begin making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral or to accede to University’s arrangements in that regard”; and
  4. Leicester University’s decision on 4 February 2013 “to begin making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral” [para 75].

The Plantagenet Alliance argued that there should have been a public consultation and/or investigation as to the appropriate place for Richard III’s re-interment, either through the appointment of a panel of suitably qualified experts or through a public consultation and that the King’s identifiable living relatives should have had an opportunity to have their views considered:

“It was submitted that this duty arose from the Secretary of State’s settled practice of seeking to obtain appropriate consent from relatives to the exhumation of identifiable remains, or from the unique circumstances of this case. Without such investigation and or consultation the Secretary of State had failed to ensure he was properly informed of all the relevant facts. The Claimant’s Grounds also asserted that Leicester Cathedral was not the most appropriate place for re-interment, but did not assert that the decision was irrational” [para 76].

The Divisional Court [Hallett LJ, Ouseley and Haddon-Cave JJ] rejected the claim. The original proposal to re-inter the remains in Leicester Cathedral had not been irrational; moreover, the fact that some sort of consultation or further inquiries might have been possible or desirable did not mean that no reasonable or rational decision-maker could have been satisfied on the basis of the information already to hand [para 145]. There was no significant new factor of which the Secretary of State would have been unaware and none emerged during the hearing [para 146]. In public law terms, therefore, the Secretary of State had not behaved unreasonably or irrationally when deciding not to revisit the exhumation licence in the light of the information which he already had [para 148]. Nor was there any duty on him to consult [para 159].

As to the claim against the University, it had not been exercising a public function at any stage in relation to the exhumation, retention and re-interment of the remains and was under no public law duty to consult [para 162]. As to the claim against the City Council, its intervention as the “legal sentinel” of Richard III’s bones had been “unnecessary, unhelpful and misconceived” and it, too had no legal duty to consult nor power to intervene once the licence had been granted and the remains removed from its land. It had not been necessary for the Council to be joined as a defendant to the proceedings and the claim against the Council failed also [para 164].

In conclusion, there were no public law grounds on which to interfere with the decisions in question and the application for judicial review was dismissed.

The Church of Scotland and clergy in same-sex relationships

Readers with long memories may recall that at the General Assembly in 2013 the Church of Scotland voted in principle to allow men and women in civil partnerships to be ordained to the ministry and/or inducted as parish ministers. In an attempt to keep the two sides together, the Assembly decided to

“[a]ffirm the Church’s historic and current doctrine and practice in relation to human sexuality nonetheless permit those Kirk sessions who wish to depart from that doctrine and practice to do so”.

On 21 May the matter came back to the 2014 Assembly, which considered a Report from the Legal Questions Committee that included a draft Act of Assembly on the matter. The full text is available as Appendix B to the Committee’s Report but the guts of it are as follows:

“2. (1) The historic and current doctrine and practice of the Church in relation to human sexuality and their application to the ministers and deacons of the Church are hereby affirmed.

(2) For the avoidance of doubt, the historic and current doctrine and practice of the Church in relation to human sexuality, their application to the ministers and deacons of the Church and the provisions of this Act are points on which there is liberty of opinion in accordance with Article Declaratory V Departure from the doctrine of the Church is permitted to this extent.

(3) In recognition of the diversity of views within the Church about the historic and current doctrine and practice of the Church in relation to human sexuality and their application to the ministers and deacons of the Church and in the interests of the peace and unity of the Church, departure from the practice of the Church shall be permitted to Kirk Sessions in terms of sections 3, 4 and 5 of this Act only. In this Act, the term ‘depart’ and its variants shall be construed accordingly.

3. (1) As from the date of this Act, a Kirk Session may decide to depart in order to permit the ordination, induction or appointment of a minister or a deacon who is in a civil partnership”.

Following a lengthy debate on the legal and theological implications of the proposal, the Commissioners voted in favour: 369 for and 189 against. The resulting Overture will now be sent down to the 46 Presbyteries under the under the provisions of the Barrier Act 1697 because the terms of the Overture will engage an issue of “doctrine or worship or discipline”.

If a majority of Presbyteries is in favour, a final vote will be taken at the General Assembly in 2015.

Comment

It should be noted that the Report and resulting Overture are about civil partnership, not same-sex marriage. The Committee explained in a long footnote that the Marriage and Civil Partnership (Scotland) Act 2014 had been passed after the meeting of the 2013 General Assembly and that at the time it was drafting the Report the Act had not yet received Royal Assent; nor would it be brought into force until the appropriate amendments to the Equality Act 2010 had been passed by the UK Parliament.

The Committee explained that its remit had been to draft an Overture addressing the position of ministers and deacons who enter civil partnerships and that it had no power to exceed that remit by addressing the issue of same sex marriage. So it didn’t.

Women in the episcopate – Bishops’ update

After its 19-20 May meeting, held in York in advance of the July General Synod, the House of Bishops issued a statement summarizing their discussions.  This post focusses on the issues associated with the admission of women to the episcopate, and provides some context to the relevant part of the statement, viz.

“On the progression of legislation enabling Women in the Episcopate, the House approved the House of Bishops Declaration on the Ministry of Bishops and Priests which sets out arrangements for those parishes who on theological grounds are unable to accept the ministry of women priests or bishops. The House also voted to amend their standing orders so to ensure the Declaration cannot be amended without the majority of two-thirds of each house of the General Synod. The House agreed guidance notes for Bishops and Parishes on the Declaration that will be issued prior to General Synod.

The House of Bishops supported exploring with political parties the possibility of amending existing arrangements for the selection of Lords Spiritual in order that the first women diocesan Bishops will be able to become members of the Bishops’ Bench in the House of Lords more quickly than would otherwise be the case under current arrangements.”

Comment

Fast Tracking: Lords Spiritual

The second paragraph of the Statement above could be taken as suggesting that the discussions with the political parties are about to take place[1].  However, as we noted in our post Composition of the Lords Spiritual, during the Westminster Hall debate Women’s Contribution to the Ordained Ministry (Church of England), the Second Church Estates Commissioner, Sir Tony Baldry, indicated that this process was already in progress.  Furthermore, the CofE was considering this possibility as early as 2011 in anticipation of the House of Lords Reform Bill 2012-13: in its written submission, (GS MISC 1004) to the Joint Committee on the draft House of Lords Reform Bill and the oral evidence of the then Archbishop of Canterbury on 15 November 2011.

In addition to the legal issues associated with fast tracking to the House of Lords, there is the question of whether the new bishop(s) would wish to become Lords Spiritual almost immediately after appointment, given that the diocese is their main priority.  Although Canon C 18 Of Diocesan Bishops provides for the attendance of a diocesan bishop on the Parliament or on the Court [Canon C18 §8], it makes it clear that the primary role is to provide leadership within their diocese as ‘chief pastor’ and ‘principal minister, [Canon C18 §4].

If fast tracking is instigated, this raises the question of whether the potential to contribute to the work of the Lords Spiritual will be an important consideration in the appointment process? Consideration of such issues would provide a further opportunity for the Church to consider how it might best use its representation in the House of Lords, as already considered by the House of Bishops in the context of House of Lords Reform Bill 2012-13.  

Progress of legislation

The Bishops’ statement reports

“the House approved the House of Bishops Declaration on the Ministry of Bishops and Priests which sets out arrangements for those parishes who on theological grounds are unable to accept the ministry of women priests or bishops. The House also voted to amend their standing orders so to ensure the Declaration cannot be amended without the majority of two-thirds of each house of the General Synod. The House agreed guidance notes for Bishops and Parishes on the Declaration that will be issued prior to General Synod.”

Although some synodical discussion has expressed concern regarding the replacement of “legislation” in the form of the Episcopal Ministry Act of Synod 1993 by the House of Bishops’ Declaration, in terms of their legal effect, this is the replacement of one quasi-legislative instrument with another.  Furthermore, the requirement of a two-thirds majority in each house of General Synod for the introduction of amendments further strengthens the Declaration.  Readers will appreciate that we are in deep “quasi-law territory” here, with different degrees of reliance being placed on: the Declaration; Standing Orders; and Guidance Notes.

In Women in the episcopate – further progress we noted that following approval of General Synod in February, the draft Measure and Canon would go to the diocesan synods for approval, and provided it was approved by a majority before 22 May 2014, General Synod will be able to hold the final approval debate in July 2014.  Although two diocesan synods have yet to vote, (and Europe has been unable to arrange a synodical vote within the three month timeslot), the simple majority was exceeded on 29 March.  Details of the voting have been tacked by Peter Owen, here.


 

[1] The Daily Telegraph headline “Women bishops to be fast-tracked into House of Lords” was followed by the statement “Bishops agree to open talks with main political parties to relax rules to allow female clerics onto red benches” and the less certain “[w]omen bishops could be fast-tracked into the House of Lords under plans backed by the Church of England’s current all-male episcopate”, [our emphases].