Law and religion round-up – 19th November

A week in which Aussies voted in favour of same-sex marriage, a report on charity trustees confirmed what we already knew and the C of E ran into an unexpected storm…

New research on charity trustees in England and Wales

The Charity Commission has published a report into trusteeship, Taken on Trust: the Awareness and Effectiveness of Charity Trustees in England & Wales which calls for changes in the way boards are recruited and supported. The report, which is based on research carried out by a team led by Professor Stephen Lee, of the Cass Business School, concludes that there are 150,000 fewer trustees in England and Wales than was previously believed, that payment of trustees remains relatively rare, with only 2,000 charities – 1.6 per cent – paying their trustees, and that boards of trustees are still disproportionately middle-class, white, male and elderly. [Full disclosurethis item is written by a white, male, elderly, middle-class charity trustee…]

The database from which the questionnaire sample was constructed does not, however, appear to include trustees of excepted and exempt charities: excepted charities do not appear to be mentioned in the report at all. Given that there is still a large number of congregations in the excepted denominations with an income below the £100,000 threshold for registration, we suspect that that omission might account for a good proportion of the “missing” 150,000.

The response of the Charity Commission is available here.

C of E updated guidance on homophobic bullying

On Monday, the Church of England published an updated version of Valuing All God’s Children: Guidance for Church of England schools on challenging homophobic, biphobic and transphobic bullying. The accompanying press release explained that the updated guidance aimed to prevent pupils being bullied because of their perceived or actual sexual orientation or gender identity.

The media coverage was almost entirely predictable, ranging from a melanophilippic in The Times, “The Church of England is sowing the seeds of its destruction”, the Mail Online‘s Let little boys wear tiaras: Church of England issues new advice to comabat [sic] transgender bullying for teachers and the Express‘s “Transgender ROW as Church of England causes OUTRAGE after saying ‘let boys dress in tutus'”, via a much more measured piece in the Telegraph, “Let boys wear tutus and high heels if they want to, Church of England says”, to the New Statesman‘s “If you’re scared of a boy in a tutu, ask yourself whose side you’re on”.

Our own view, for what it’s worth, is a very simple one: the updated guidance was endorsed by the Archbishop of Canterbury himself and no-one wants to encourage small children being bullied because they have doubts about their gender identity. Or do they?

And while we’re on the subject of gender identity…

A rather convoluted story emerged about a maths teacher who appears to be facing disciplinary action at his school after he referred to a transgender pupil as a girl, although the student identifies as a boy.

The story seems to be that the teacher, Mr Joshua Sutcliffe, who is also an associate pastor at the Christ Revelation church in Oxford, accidentally used “girls” in the plural when addressing a group which included a girl who identifies as a boy. The transgender girl-to-boy corrected him and Mr Sutcliffe apologised. The pupil’s parents then complained about that particular incident and also that their child had been given a disproportionate number of detentions for poor behaviour. Mr Sutcliffe was suspended from teaching, pending an investigation.

The subsequent events as reconstructed by Daniel J Hill – to whom our thanks – seem to be as follows:

  • The investigation does not uphold the complaint about detentions, but does uphold the complaint that he included the transgender pupil in the collective term “girls”.
  • The investigation adds two extra grounds: (i) “avoidance of using gendered pronouns”, which “contravenes the school’s code of conduct with regard to demonstrating an awareness of sexual and cultural diversity of students and use of insensitive comments towards young people”; and (ii) “the use of religious comments in maths lessons’, which demonstrates a failure to comply with school policies.”
  • Mr Sutcliffe admits that he called the student by the student’s first name, rather than by the student’s chosen pronoun, but denies that this is in breach of the school’s code of conduct.
  • Mr Sutcliffe denies that he made religious comments in maths lessons and said that he had made the comments in his tutor group.

And there, so far as we are aware, the matter rests for the moment

Re-launch of Church of England website

Shortly after we posted CDM Decision and Penalty: Re Huntley (2), the Church of England re-launched its website; as a consequence of the redesign, the URLs of a number of links used on this post and others on L&RUK (and elsewhere) have changed and the old links are no longer active. Today’s post has also been revised in line with these changes, and when in the future we refer to earlier posts, we will endeavour to replace or remove any “dead links”. One of the features heralded for the new CofE site is a “simple navigation, an improved search engine, improved website accessibility”, although we remain to be convinced. On the overall layout, it has been suggested elsewhere that the changes may have been introduced to fulfil the biblical principles enunciated in Galatians 6:11.

It is too early to draw any firm conclusions; the Canons and Church Representation Rules are now on the website, and we understand that material from the Legal Advisory Commission will appear shortly. Next week we will publish a post of “quick links” to parts of the revised site of potential interest to our readers. However, anyone having specific problems with the new site should raise them directly with the CofE communications team, and not with us.

A side issue of the re-launch was the interim use of CofE documents held on diocesan websites prior to their replacement on the revised site. This brought into sharp focus the need for the Church to tighten up its document control, with publication dates and possibly version numbers on its documents – an issue which we have highlighted on a number of occasions.

English Churches and Cathedrals Sustainability Review

On Wednesday, Lord Beith received an answer to an oral question in the Lords asking when the Government expects to receive the report of the English Churches and Cathedrals Sustainability Review which was announced in 2016.

Lord Ashton of Hyde, Parliamentary Under-Secretary of State at DCMS replied that he understood that the Chair and the Review Panel were currently finalising their report and recommendations in consultation with key stakeholders and it was hoped that they would submit the report to the Chancellor and the Secretary of State for DCMS before the end of the year.

Another candidate for the stool of repentance?

In addressing the issue of “mistakes” leading to petitions for exhumation and reburial, in Re Blagdon Cemetery [2002] Fam 299 the Court of Arches was magnanimous in suggesting [36 (iii)]:

“Sometimes genuine mistakes do occur, for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else in a churchyard. In such cases it may be those responsible for the cemetery or churchyard who apply for a faculty to exhume the remains from the wrong burial plot or grave”.

Such was the case Re Welton Road Cemetery Daventry [2017] ECC Pet 2 which arose “because of a mistake made by Daventry District Council (“the Council”) in permitting the burial of the cremated remains … in a plot in the consecrated section of Welton Road Cemetery, Daventry, reserved for [the second petitioner, who]had purchased the exclusive right to be buried in the plot [1].

However, the error was then compounded by Daventry District Council:

“who after the mistake was drawn to their attention … incorrectly made an application to the Ministry of Justice for exhumation, before appreciating that it was necessary for them to apply for a faculty … There were several errors surrounding the Council’s attempts to remedy the situation, which could, with more care, have been avoided. For example, amongst others, the original letter … specified the wrong plot number and the alternative plot offered was not available” [2].

As the Chancellor indicated at the end of the hearing, whatever decision he reached in this unfortunate case would cause further distress to one of the families involved [5]. Even accepting that the initial error might have been “a genuine mistake”, the effects of this appear to have been exacerbated by the subsequent actions of the Council. Perhaps it should also take heed of his comment:

“[12] I should add that the masterplan produced at the hearing [i.e. on 20th September 2017] appeared to me to be still less than satisfactory.”

Changes sought in registration of marriage

On 14 November, Dame Caroline Spelman, the Second Church Estates Commissioner, presented a Registration of Marriage (No. 2) Bill “to make provision about the registration of marriages”. The Bill was read the first time and is to be read a second time on Friday 1 December (Bill 124). For those seeking further information, a ChurchState tweet explained that it was the “same as @BishopStAlbans Bill in the Lords”; this was introduced on 29 June 2017 and all Bill documents are here. In an overview of the Bill, the Explanatory Notes state that:

“The purpose of the Bill is to reform the way in which marriages are registered in England and Wales, moving from a paper based system to registration in an electronic register. This will facilitate change to the register entry both now and in the future, including a line for the inclusion of each spouses’ mother in the marriage entry, and create a more secure system for the maintenance of marriage records”.

With regard to the continued used of banns &c in the C of E and C in W,

“12.  Those marrying in the Church of England or Church in Wales will still be able to marry by ecclesiastical preliminaries, i.e. banns, common licence or Archbishop of Canterbury’s Special Licence. These preliminaries will continue to act as the authority for the marriage to proceed”.

However, the Bill is at a very early stage, and in view of the policy implications, is unlikely to succeed without Government support.

Revised C of E Guidance on safeguarding

On 13 October 2017, three revised documents from the House of Bishops on safeguarding were added to the Church’s Document Library, and are now on the web site’s Safeguarding page:

More on Twitter

Last week we reported on the new 280-character limit in Twitter and our intention to stay as far as possible within the former 140-character limit, given our preference for short, pithy comments. This week there have been two further developments on Twitter: the announcement on Wednesday of new guidelines for verified accounts following strong criticism for granting the coveted “blue tick” to Jason Kessler, the organizer of the deadly white nationalist rally in Charlottesville in August. This does not affect us directly since none of our twitter accounts is verified; however, all Twitter users can find out how they are perceived on-line with the Are You Happy or Grumpy on Twitter? tool. For the record, Law & Religion UK @fcranmer is on the whole “happy”, with an HG score of 5.1, but before we congratulate ourselves, it should be noted that Justin Welby scored 30.8.

Recent publications

Stacie I Strong, Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems (CUP, £80): “Religious liberties are at the centre of many debates on how liberal democratic societies can accommodate diversity. This book considers the interaction between law and religion from a broad international, comparative and jurisprudential perspective and proposes a new theoretical approach to religious liberty that both transcends and transforms current approaches to religious rights. Not only does the discussion draw on the work of a range of legal and political philosophers including John Rawls, Ronald Dworkin and John Finnis, it also tests the validity of the various proposals against actual ‘hard cases’ derived from multiple jurisdictions. In so doing, the analysis overcomes longstanding challenges to existing religious rights regimes and identifies a new theoretical paradigm that specifically addresses the challenges associated with religiously pluralist societies. Through this type of interdisciplinary analysis, the book identifies a religio-legal system that both religious and non-religious people can support.”

Quick links

Forthcoming events

  • Tuesday 21 November, Channel 4: The Truth About Muslim Marriage: Myriam Francois presents the results of a survey which reveal that many Muslim women are unaware that their religious marriages are not recognised in UK law.
  • Wednesday 22 November, Kellogg College, Oxford: The 2017 Vincent Strudwick Lecture: Professor Linda Woodhead MBE,  The Religion of No Religion: Are the ‘Nones’ Religious, Spiritual or Neither? Wednesday 22 November, 17:00, LMH: Based mainly on research in the UK and USA, but looking at other parts of the world (like China) as well, this talk will consider the growing number of those who, when asked on a survey what their religion is, say: ‘None’ or ‘No Religion’.

And finally… I

One wonders how Greggs would feel about the strategic placement of their sausage roll in a traditional Catalan Caganer nativity scene? And various sharp-witted Twitterati pointed out that “Lord Jesus”, spelt backwards, is “susejd rol”…

And finally… II


6 thoughts on “Law and religion round-up – 19th November

  1. Frank can I disagree with your comment that ‘[Muslim] religious marriages are not recognised in UK Law’

    Muslim Marriages are recognised in law provided they are registered under the Marriage Act 1949 Save for some historical anomalies, such as the status of CofE Clergy, all religions have to register their marriages Catholic, Mormon, Sikh they all obey the law and in consequence their marriages are recognised and legal. There are around 120 Mosques registered to conduct Marriages so there is no legal or theological problem. The practical problem is that Imans are performing Muslim marriages [Nikah] but are not registering them under the act and in consequence Muslim wives are being left without legal status or protection.

    The problem is not caused by the law but by a failure to follow and apply the law. I made that point when interviewed for the programme though I understand that bit may have been edited out

    • Yes: though it isn’t my comment – it’s theirs. Maybe I should have put it in quotes.

      And yes, of course you’re dead right: if a mosque is registered the marriage will be valid under the 1949 Act, always provided that the officiants observe the law.

      For a case in which the mosque didn’t do that, see MA v JA and the Attorney General [2012] EWHC 2219 (Fam), in which a Muslim couple were married in a sharia ceremony but – unknown to them – the mosque had failed to comply with the registration requirements of the Marriage Act 1949. They found out that their marriage was invalid when the wife went to the Register Office to get a marriage certificate and was informed that the couple’s marriage was not registered [15]. Moylan J concluded that the ceremony had created a marriage which was entitled to be recognised as valid under English law and made the declaration accordingly [103]. But no-one in his or her right mind wants the hassle of seeking a declaration from the Family Court.

  2. Do you have a link for the Welton Road Cemetery, Daventry, judgment? It doesn’t appear to be on the ELA website yet. Ironically, your reference to it comes two days after Chancellor McGregor’s judgment in Re Fairmile Cemetery, Lower Assendon, also involving a mistake by a civil burial authority, was published in the Weekly Law Reports: [2017] 3 WLR 1284. You don’t say what decision the chancellor made in the Daventry case, and it would be interesting to see what he said about the Lower Assendon decision in which, in similar circumstances, Alexander McGregor refused a faculty and dismissed the petition, while ordering the Town Council to pay the court costs and those of the other parties.

    • Sometimes there is a delay between receiving the judgments and their appearance on the ELA web site, as is this case. However, I have uploaded my pdf onto the “media” part of the website, and you should now be able to view the judgment.

      • Thank you, David. I’ve now read the Daventry judgment of Chancellor David Pittaway QC [2017] ECC Pet 2. Although he mentions the Fairmile Cemetery judgment, saying that it was one of the authorities to which he was referred (see para 7), he then rather dismissively says that although he found the cases to which he had been referred “helpful in demonstrating how other chancellors have exercised their [Blagdon] discretion”, they were, in his view “largely fact sensitive.”

        It is somewhat surprising, however, that Chancellor Pittaway does not refer again to these aspects of the Fairmile Cemetery case: (i) the one year delay – the same in both cases – between the wrongful interment in a grave plot reserved for another, and the presentation of the petition to exhume (see para 13, and para 81 of the Fairmile Cemetery judgment), and (ii) the fact that in both cases the petition was opposed by the family whose relative’s remains had been wrongly interred in the reserved space. Chancellor McGregor’s conclusion (at para 82) seems particular pertinent and ought to have been referred to by Chancellor Pittaway, if only to distinguish it when weighing “the greater harm” at para 20 of his judgment. As Chancellor McGregor noted (at para 51, but quoting the WLR headnote): “The cases of mistake where the Court of Arches has said that faculties for exhumation can be ‘readily granted’ have concerned exhumation at the behest, or at least with the support, of the family of the deceased, not exhumation proposed by someone else in the face of opposition from the family of the deceased.”

        Although one chancellor is not bound by a fellow chancellor’s decision in another diocese, and they depend of the exercise of a discretion, these two cases do give the impression of a decision being subject to the equivalent of a ‘postcode lottery’. Given that these kind of mistakes continue to occur, perhaps some further guidance is needed from the Court of Arches.

  3. Pingback: Law and religion round-up – 26th November | Law & Religion UK

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