Religion and law round-up – 2nd August

Not much hard law this week (apart from a case we can’t find) but quite a bit of speculation about an initiation rite for transgender people and a possible accidental ban on incense…

Autopsy and religion

Earlier this week, in the Administrative Court, Mitting J ruled in Charles Rotsztein v HM Senior Coroner for Inner London [2015] that where there was an “established religious tenet” against an invasive autopsy, it should be avoided so long as there was a “realistic possibility” that a non-invasive autopsy, such as a CT scan or blood culture, would establish cause of death. However, coroners must still be able to fulfil the legal obligation to establish cause of death to the best of their ability and the non-invasive procedures should be done “without imposing an additional cost burden on the coroner”.

The judgment was delivered orally. If and when we see a copy of the judgment we shall post a summary.

Incense as an illegal high?

We posted on the concern expressed by Baroness Hamwee in the recent House of Lords debate that one (presumably unintended) effect of the Psychoactive Substances Bill might be to make the use of incense in churches illegal. Continue reading

Incense and the Psychoactive Substances Bill

“The insertion of a single word will do it … and there you are, out of your difficulty at once”[1]

Last week, a report on the House of Lords debate on the report stage of the Psychoactive Substances Bill in the Church Times carried the headline “Incense could be a legal high, peers are warned,” indicating the possibility that “priests using incense could be criminalized under a new law being introduced by the Government to crack down on so-called “legal highs”. Lord Howarth of Newport [Labour] said

The expert committee also warned that closer thought needed to be given to possible unintended consequences of the loose and generalized term “psychoactive substances” used in the Bill. We do not want to criminalize priests. The more vigorously the priest swings the censer, the more incense is let loose into the body of the church … we have to be very careful that we do not unintentionally criminalize either priests or florists because flowers have psychoactive effects”.

HL Hansard 14 July 2015 Vol 764(31) Col 469

Given the antipathy to incense by some on account of its ritualistic use, and by others on aesthetic or alleged health grounds, it is timely to unpick some of the available facts in advance of the development of “urban myths” in this area. Continue reading

Law & Religion in 1,000 posts

“The relationship between law and religion is invariably a delicate one”: Archbishop Welby in the recent Lords debate on religious freedom…

Slightly to our surprise, this is Post 1,000. As we’ve said before, when we first started thinking about doing a regular blog (over a pint in the Maltsters at LLandaff during a break from the LLM course in June 2013) neither of us quite realised what we were letting ourselves in for. We didn’t have much idea of what blogging entailed, still less did we know much about WordPress. Nor did we imagine either that there would be so much material to blog about or that blogging would be such hard work. Continue reading

Disinheriting your children? Ilott v Mitson

The Court of Appeal has handed down an interesting judgment on challenges to wills…

The law

Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 confers the right on, among others, a child of a deceased person in England and Wales to apply for an order under section 2 of the Act if the will of the deceased or the intestacy rules do not make reasonable provision for him or her, while section 1(2)(b) provides that, in the case of a child, “reasonable financial provision” means
 ”such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance” [emphasis added]. The provision is therefore limited to awards of maintenance – which is not the case for awards under the 1975 Act for spouses or civil partners. Section 2(1) of the Act empowers the court, if satisfied that the disposition of the deceased’s estate does not make reasonable financial provision for the applicant, to make an order for periodical payments to the applicant out of the net estate and/or payment of a lump sum.

The facts

In Ilott v Mitson & Ors [2015] EWCA Civ 797 the appellant, Mrs Ilott, was the 46-year-old estranged daughter of Mrs Melita Jackson, who died in 2004 leaving a will by which, apart from £5,000 for the BBC Benevolent Fund, she left her entire estate of some £486,000 to be divided between The Blue Cross, the RSPB and the RSPCA. Continue reading

Consistory court judgments and CFCE Determinations – July

This month’s round up of judgments and determinations concerning churches, cathedrals and churchyards

Our 27 January post reviewed the Church of England’s new guidance which aims to clarify the legal position regarding crematorium funerals and the payments to the clergy. This was, in part, prompted by the judgment Rouch v Hawthorne [2015] Winchester Disciplinary Tribunal, Bursell Ch, in relation to the Clergy Discipline Measure 2003. The more recent case of the Revd Simon Reynolds in the Sheffield Crown Court is a reminder that criminal charges resulting in a custodial sentence can also be brought in such cases. Mr Reynolds was found guilty of stealing more than £24,000 in church fees for weddings and funerals, and at Sheffield Crown Court on 28 July, was sentenced by Judge Julian Goose QC to 30 months for stealing church fees and an additional two months for breaching his bail[1].

The relationship between civil and ecclesiastical law was also a feature of Re Twyford Cemetery, discussed below, which turned on the interpretation of the secular legislation. It was necessary for the Chancellor inform the petitioners that although the matter was being decided in an ecclesiastical court, their assertion that the situation has arisen as a result of what is referred to as “poor church administration” was incorrect. Continue reading

Non-recognition of same-sex couples breaches Article 8: Oliari & Ors v Italy

The Fourth Section ECtHR has held unanimously that the fact that under Italian law same-sex couples are unable to marry or enter into any other type of legally-recognised civil union violates Article 8 ECHR (private and family life).

In Italy same-sex couples are not allowed to contract marriage, as affirmed in the Constitutional Court judgment no. 138 of 15 April 2010, nor does domestic law provide for any alternative type of civil union, either for same-sex or for opposite-sex couples. In Oliari & Ors v Italy [2015] ECHR 716 the applicants complained that they were being discriminated against in breach both of Article 14 (discrimination) in conjunction with Article 8 and of Article 12 (right to marry), taken on its own and in conjunction with Article 14.

Continue reading

Religion and law round-up – 26th July

Parliament is in recess and cathedral choirs have begun their summer tours. Nevertheless there are plenty “quick links” as a respite from…

Laudato si’…

… which is apparently having a negative impact on the popularity ratings of Pope Francis.

Religion New Service reports that “growing conservative disaffection with Pope Francis appears to be taking a toll on his once Teflon-grade popularity in the U.S., with a new Gallup poll showing the pontiff’s favourability rating among all Americans dropping to 59 percent from a 76 percent peak early last year. Among conservatives, the drop-off has been especially sharp: Just 45 per cent view Francis favourably today, as opposed to 72 per cent a year ago. The commentator Art Swift has suggested “his decline may be attributable to the pope’s denouncing of ‘the idolatry of money’ and attributing climate change partially to human activity, along with his passionate focus on income inequality — all issues that are at odds with many conservatives’ beliefs.”

Back in the UK, the BBC’s environment analyst Roger Harrabin, the BBC’s environment analyst observes that Energy Secretary Amber Rudd has been criticised ahead of a climate speech. Whilst Prime Minister David Cameron has promised to lead the world to a climate change deal at a summit in Paris in November, Chancellor George Osborne has announced a slew of policy changes which will increase UK emissions: scrapping of subsidies for onshore wind and commercial solar — the two cheapest forms of clean energy; cutting the energy efficiency budget; ending the tax break for clean cars; abolishing rules on zero carbon housing; lowering taxes on polluting firms; and introducing a tax on clean energy.

These measures will impact on the Church of England in relation to measures for the reduction of its own carbon footprint, and also its investment decisions. More widely, critics have said that previously the UK Climate Change Act has been regarded as a world-leading climate policy but that accolade is now seriously in doubt — if a country as rich as the UK finds clean energy unaffordable, what hope is there for most of the rest of the world?

In the courts

There were three important judgments this week: Continue reading