Law and religion round-up – 8th October

A typical eclectic mix of news from the world of law and religion…

Organ donation – presumed consent

One aspect of the Prime Minister’s speech to the Conservative Party Conference on Wednesday that received relatively little media attention was her announcement of plans to move to a system of presumed consent for organ donation under which everyone would be presumed to agree to the removal and reuse of body parts after their death unless they opted out, rather than the present situation in which it is necessary to opt in to organ donation. However, the issue is not straightforward and the approach of different faith groups to organ donation complicates the matter.

We considered the legal issues to be addressed in Opt-out organ donation: UK, following a Westminster Hall debate in 2014, prior to the introduction of the opt-out scheme in Wales. Whilst welcomed by transplant doctors and health charities, it should be borne in mind that announcements at Party Conferences, policies in election manifestos, or even undertakings to Parliament are not always carried out.

No-fault divorce?

At her first press conference since her appointment as President of the Supreme Court, Lady Hale has suggested that the Government should look again at the legislation on no-fault divorce. Currently, under the Matrimonial Causes Act 1973 there are five grounds on which an opposite-sex marriage in England and Wales may be held to have “irretrievably broken down”, three of which are fault-based: adultery, unreasonable behaviour and desertion. Lady Hale told the press that, because the current grounds for divorce are “open to interpretation”, no-fault divorces already go through the courts – but she still wants to “turn practical reality into legal reality”.

Although not precisely in point, the UKSC is due to hear an appeal in Owens v Owens [2017] EWCA Civ 182, in which Mrs Tini Owens is seeking a divorce from her husband on the grounds that their marriage has irretrievably broken down because of his unreasonable behaviour – which he successfully disputed at first instance. The Court of Appeal dismissed her appeal with, in the words of Hallett LJ at [99], “no enthusiasm whatsoever”.

Sexual orientation and religious belief at the Bar

The Law Society Gazette reports that there was a proposal before the Bar Standards Board at its meeting on 28 September to review the rule under which a chambers may not disclose the sexual orientations and religious beliefs of its members unless every member agrees to publication. The BSB says that the rule has resulted in “very low disclosure of sexual orientation and religion and belief data”. Coincidentally, the news comes in a week in which the Northern Ireland Court of Appeal held in JR20 v Facebook Ireland Ltd [2017] NICA 48 that, in effect, a person’s religious affiliation is not normally a private matter in the terms of Article 8 ECHR. We noted the case here.

All of which suggests that the criteria for sensitivity under the data protection legislation are stricter than for protection under Article 8 ECHR.

Limitation (Childhood Abuse) (Scotland) Act 2017

The three-year time bar for actions in respect of personal injuries in Scotland has been removed from 4 October for claims relating to childhood abuse. An order has been made bringing into force the Limitation (Childhood Abuse) (Scotland) Act 2017, which amends the Prescription and Limitation (Scotland) Act 1973 to provide that cases arising from childhood abuse on or after 26 September 1964 will no longer be time-barred.

The Act extends to claims arising from neglect as well as from physical abuse. It also enables cases previously raised but unsuccessful due to time bar to be relitigated, whether they were determined by the court or settled by the parties without damages being paid, subject to appropriate safeguards where that would be incompatible with the defender’s Convention rights. [With thanks to the Journal of the Law Society of Scotland]

Episcopi Vagantes

This week, an article in Christian Today by Ruth Gledhill provided some interesting insights into the consecration in the Christian Episcopal Church of Gavin Ashenden as missionary bishop to the UK; the Christian Episcopal Church is not part of the Anglican Communion. In this, bishop Ashenden is quoted as saying:

“There was a distinction however between ontology and function…I might be consecrated a bishop elsewhere, but canon law [of the Church of England]would only be contravened if I practised or exercised episcopacy in some way.’

The validity of this view was in fact (and much to my interest) tested recently by an assistant curate in the parish of Jesmond, the Rev Jonathan Pryke, receiving consecration at the hands of reformed Anglicans in South Africa. When it was announced his diocesan bishop wrote to him saying that no action would or could be taken, unless and until he acted episcopally within her jurisdiction, and she advised and counselled him not to. To date, he hasn’t”,

To us, the “distinction however between ontology and function” seems to be somewhat of a “Catch-22” situation. We were also interested to note that this year he exercised the provisions of the 1870 Clerical Disabilities Act and relinquished his Anglican orders; as a consequence, from this point onwards, he has not been subject to the jurisdiction of the Church of England.

At the conclusion of the Primates Meeting in Canterbury this week, 2 to 6 October, a Communiqué was issued by the Anglican Communion office which stated inter alia [our emphasis]:

“It was confirmed that the Anglican Church of North America is not a Province of the Anglican Communion. We recognised that those in ACNA should be treated with love as fellow Christians.

We discussed difficulties arising from cross-border interventions, agreeing that the principles were clearly stated from the Council of Nicaea onwards and in the 1998 Lambeth Conference. We recognised that there were opportunities for joint initiatives and mission partnerships for the benefit of the Gospel where these are agreed between Provinces. However consent was critical to any inter-provincial collaboration and it was essential that courtesy and love should be extended to Provinces at all times.

Attempts to deal with breaches of consent and courtesy should be made in regional Primates’ Meetings and only referred to the Secretary General and the Archbishop of Canterbury as a last resort. We recognised that persistent and deliberate non-consensual cross-border activity breaks trust and weakens our communion”.

We note that Kelvin Holdsworth, Provost of Glasgow Cathedral commented “[r]ather than relying on media reports of the Primates Meeting – here’s what they said in their own words”, an approach we adopted in our reporting; however, in our post we have included links to other comments to give readers the opportunity of gauging the range of opinion on this contentious area.

Prayers at council meetings

A US federal judge has ruled that the denial of requests by atheists to offer opening remarks at the county board meetings of Brevard County, Florida is unconstitutional. As readers may remember, SCOTUS upheld prayers at a town council meeting in Town of Greece v Galloway 572 US (2014), but in Williamson & Ors v Brevard County (2017) Case No: 6:15-cv-1098-0rl-28DCI, District Judge John Antoon II distinguished the cases. In Town of Greece, the town had made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, whereas Brevard County had an explicit policy of barring non-theists. That, he ruled, violated the Establishment Clause of the Constitution; however, he declined to rule as unconstitutionally coercive the practice of asking those attending county board meetings to stand for the invocation. [With thanks to the Baptist Joint Committee for Religious Liberty]

Lords and Ladies

As most readers will now know, the answer to “Who was ‘three times a lady’” in our 2016 Annual Quiz was Baroness Howe, since:

  • When her husband, Geoffrey Howe QC MP, was knighted, she became known as Lady Howe [1992-1999].
  • When her husband was raised to the peerage, she became known as The Rt hon The Lady Howe of Aberavon [1999-2001].
  • When she herself was raised to the peerage suo jure, she became known as The Rt hon The Baroness Howe of Idlicote [2001-].

However, the opposite question might be asked of the new Lord Chief Justice, Sir Ian Burnett. In his Facebook post Why is the new Lord Chief Justice not a Lord?, Joshua Rozenberg explains:

“When Sir Ian Burnett is sworn in tomorrow [2nd October], he will be the first lord chief justice of England and Wales since the 19th century not to be a lord. His appointment as a member of the House of Lords might simply have been delayed, of course, but that seems unlikely: recent predecessors were given peerages before being sworn in if they were not already law lords.

And a peerage would make very little difference in practice. The former Lord Justice Burnett will still be addressed as “My Lord” in court. As a serving member of the judiciary, he would be disqualified (under section 137 of the Constitutional Reform Act 2005) from sitting or voting in the House of Lords. The lord chief justice of Northern Ireland does not receive a peerage on appointment and neither do the next most senior judges in England and Wales. [Nor, adds Frank, does the Lord President of the Court of Session.] If, as expected, Burnett is promoted to the Supreme Court in about five years’ time, he will be given the courtesy title of “Lord” (under a warrant which applies only to members of that court)”.

However, he concludes:

“But one is still left with the uncomfortable feeling that this is yet another way of undermining the judiciary. It would be even worse if ministers were treating the peerage as a reward for not rocking the boat. If that’s what they think, then it’s a bauble that Burnett is better off without”.

… and Lords Spiritual

Following the introduction of the Rt Revd Christopher Lowson, Bishop of Lincoln, to the House of Lords on 14 September, the Rt Revd Martin Warner, Bishop of Chichester, has now become eligible to receive a Writ of Summons following the retirement of the Rt Revd Mike Hill, Bishop of Bristol, last weekend. Since the Lords Spiritual (Women) Act 2015 came into force, the other vacancies have been filled by the Rt Revd Rachel Treweek (26 October 2015) and the Rt Revd Christine Hardman (26 January 2016). Currently, the vacant diocesan sees are London, Truro and Bristol. [That’s enough Rt Revds – Eds.]

Forthcoming ELS conference

The Ecclesiastical Law Society’s Day Conference for 2018 will take place at St Bride’s Foundation, Fleet Street, London on Saturday 17 March 2018. The Conference will focus on the core function of the Society: promoting education in ecclesiastical law. In particular, it will address the training of clergy and others in ecclesiastical law and best practice.

The keynote speaker will be the Revd Dr Andrea Russell of The Queen’s Foundation, Birmingham, who will outline the context for church law education in the wider setting of ordination training and the need for clergy to be aware of the legal framework of their ministry. Other presentations will be given by Stephen Borton, Ecclesiastical Manager at Lee Bolton Monier-Williams, the Ven Simon Baker, Chair of the Society’s Education Sub-committee, and Sue de Candole, Registrar of the Dioceses of Winchester and Salisbury.

Download the flyer for more information.

Quick Links

And finally… I

… an item that links this week’s Conservative Party Conference with one of the less-publicized areas of safeguarding. Christ Church Cathedral’s Additional Safeguarding Children Procedures Pertaining to the Music Department 2010 revised 2015 includes the following:

3.4 Vocal Health: If a chorister feels uncomfortable singing, or has throat problems that he believes will affect his singing, he should present himself to the duty Matron prior to attending choir practice. The duty Matron will record boys as ‘With Care’ for medical reasons or, if she considers it necessary, will place the boys ‘Off Singing … the Duty Organist may choose to put a boy off singing if he feels that his contribution to the rehearsal is being hampered by a vocal or health problem’ “.

Verb. sap.

And finally… II

Legal Services are GREAT, proclaims Lord Keen of Elie in a speech at the UK High Commissioner’s Official Residence in Singapore.

As, no doubt, they ARE – if you can afford to access them.

One thought on “Law and religion round-up – 8th October

  1. With reference to the reported “proposal before the Bar Standards Board at its meeting on 28 September to review the rule under which a chambers may not disclose the sexual orientations and religious beliefs of its members unless every member agrees to publication”, and the statement by the BSB that the rule “has resulted in ‘very low disclosure of sexual orientation and religion and belief data’,” might one ask what relevance this data is to anyone’s practice at the Bar, and what legitimate concern can the BSB have to seek to obtain this data? Is the BSB contemplating a relaxation of the ‘cab rank’ rule based on such data?

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