Law and religion round-up – 15th April

A week for washing one’s surplice – or maybe dry cleaning the infulae from one’s mitre…

…or as the Church Times tweeted “[In a] thin week, the appointment of a humanist to lead an NHS chaplaincy team got the most coverage of any story not connected to Meghan Markle and Prince Harry”. Apart from the humanist chaplain appointment which also featured in L&RUK, below, thereafter we tended to cater for our respective audiences with significant interest being shown in the availability of defibrillators, and the used of card readers in churches.

Humanist chaplains in the NHS

The Times (£) reports that Buckinghamshire Healthcare NHS Trust has appointed a humanist, Ms Lindsay van Dijk, as its lead chaplain in charge of a team of three clergy and 24 volunteers from a range of faiths: “the first time that Christian clerics have worked under a non-religious lead chaplain in the health service”. The Trust’s chief nurse said that Ms Van Dijk had been chosen for her leadership skills but added that patients had asked for more emotional and spiritual support that was not necessarily linked to a faith: “It wasn’t specifically about religious support, it was: ‘How can you support us when we’re feeling vulnerable?’ ”

Ms Van Dijk, who is only the third humanist in a paid NHS role, told The Times:

“Anyone within the chaplaincy team goes to patients to lend a listening ear, to provide spiritual and emotional support and doesn’t specifically say ‘I’m from this faith’ as it’s not important. We’re not there to proselytise our own beliefs.”

There were the anticipated grumbles from the usual suspects, but the reaction of the Revd Malcolm Brown, the Church of England’s Director of Mission and Public Affairs, was that humanists and Christians could work together “without trespassing on each other’s territory”. And see Andrew Brown’s piece in The Guardian – link below.

A new mosque in Stornoway

The Guardian reports that work has started on renovating a derelict building in Stornoway for use as the first mosque in Lewis and Harris. The first Muslim settlers arrived in the Western Isles in the 1950s. Some of them worked as door-to-door (or, perhaps more accurately, croft-to-croft) salesmen, travelling through Lewis and Harris with suitcases of clothes and fabrics. And some of them learned Gaelic. The new mosque will serve Muslim families living in Stornoway, who have been joined in recent years by several families who have fled the civil war in Syria, the community having outgrown the house in which it currently worships. The work is being paid for as the result of a crowdfunding campaign.

Admirable, one might think – but not if you’re the Free Church of Scotland (Continuing), whose Presbytery of the Outer Hebrides issued a statement in which they said that they regarded this as a most unwelcome development:

“Our main concern is with the religion of Islam itself. If a mosque ever opens, Islam will be able to promote itself in our midst through public worship, despite its beliefs and practices being alien to the religious convictions of the vast majority of our community. Islam is wholly inconsistent with the teaching of the Word of God in Holy Scripture, which is the only rule to direct us…”

The statement stresses that “we have nothing against individual Muslims, least of all any who have been forced to flee their homelands because of persecution and suffering…” To which the obvious response is “Yeah, yeah: that’s what they always say. Just get a life.” Or if they prefer it anns a’ Ghàidhlig,Cuir beatha ort“. The Free Kirk minister, James Maciver, on the other hand, is quoted in The Guardian as saying that he supports the Muslim community’s “civil right to a place of worship. I have no right to come between someone’s conscience and their god”.

[NB: The (tiny) Free Church of Scotland (Continuing) has nothing whatsoever to do with the Free Church of Scotland, from which it split in January 2000.]

Copenhagen Declaration on the ECtHR

The High Level Conference meeting in Copenhagen on 12 and 13 April at the initiative of the Danish Chairmanship of the Committee of Ministers of the Council of Europe has issued a Declaration on further reform of the Court. The Declaration addresses shared responsibility for the proper functioning of the Convention between the Court and states parties, the responsibility of states parties for effective national implementation, the execution of judgments, the role of the Court in European supervision, the need for dialogue in the interaction between the national and European level, the need for further action on the Court’s case-load, the importance of co-operation in the selection and election of judges and accession to the Convention by the European Union.

The ECtHR and advisory opinions

France has ratified Protocol No. 16 to the European Convention on Human Rights. Under it, higher courts designated by the member states will be able to seek advisory opinions from the ECtHR on questions of principle in relation to regarding cases pending before them on the interpretation or application of the Convention. The advisory opinions issued by the Court will be reasoned and non-binding – unlike those of the CJEU, which are binding interpretations of EU law. France was the tenth member state to ratify the Protocol, which was done in 2013, thereby triggering its entry into force on 1 August 2018.

The United Kingdom has neither signed nor ratified the Protocol so, presumably, the UK courts will not be seeking advisory opinions from Strasbourg; however, Antoine Buyse suggests on the ECHR Blog that

“For those ECHR state parties who have not (yet) shown keenness to ratify, the entry into force will provide an opportunity to see how the new Protocol will function in practice and to what extent it becomes beneficial in practices to national court procedures and thereby to an increased embedding of the Convention in national judicial practice.”

India: constitutional right to marry

In Jahan v Asokan KM & Ors [2108] India Sup Ct Crim App No. 366, the Supreme Court set aside a High Court order annulling the marriage of a 26-year-old student who had converted to Islam in order to marry. The court strongly affirmed the constitutional right of individuals to choose their religious faith and their marriage partners. In the lead judgment, Misra CJI said that curtailment of individual choice in marriage was both a constitutional and a human right and that, though the girl’s father might feel that his right to protect the interests of his daughter had been transgressed, that could not be allowed to curtail the fundamental rights of his daughter “who, out of her own volition, married the appellant”. Concurring, Chandrachud J added:

“The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life … Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership, are within the central aspects of identity … Society has no role to play in determining our choice of partners.”

[With thanks to Howard Friedman.]

Defibrillators – the aftershock

A relatively innocuous tweet from the CofE which in passing mentioned defibrillators, generated an unexpected volume of comment. We followed the Beaker Folk of Husborne Crawley post Go to Church, Have a Cardiac Arrest with Defibrillators in churches in which we looked at aspects of the faculty jurisdiction and the liabilities involved. The theme was further explored in Heart Skipped a Beat where Archdruid Eileen, (a.k.a. the Revd Gary Alderson) considered some of the medical issues, and whether A Church near You would be the place to seek an automated external defibrillator (AED). Between these posts and some of the intervening tweets, most of the issues arising appear to have been covered, including: heart attacks vs cardiac arrest, i.e. “plumbing” vs “electrics”; the potential adverse effects of metallic jewellery; and GIGO (garbage in, garbage out) issues of A Church Near You.

Those with a sermon to write next week might note that the duty of care obligations only come into play when someone voluntarily takes action in the case of a suspected cardiac arrest, so legally, the least-risk scenario is to “pass by on the other side”, Luke 10:31. Hmmm….

Income tax: self-assessment for ministers of religion

HMRC has issued its annual updated supplementary pages SA102M (ministers of religion) for self-assessments for the tax year 6 April 2017 to 5 April 2018, together with accompanying notes. Unless HMRC receives a paper tax return by 31 October 2018 a late filing penalty will apply. The deadline for electronic filing, on the other hand, is 31 January 2019; however, HMRC does not supply its own software to enable ministers of religion to file online.

While we do not normally advertise commercial services (and we certainly don’t get paid for doing so), Simple Tax offers custom software for the completion of SA102M here: £15 with the discount code MORST2018.

Ecclesiastical Law Association website

The Revd Ray Hemingray informs us that some work is being done on the web server for the Ecclesiastical Law Association website. Many of our consistory court judgments link to this. Ray advises that if you have bookmarked the site in your browser, the bookmark may not work at the moment; he suggests that you delete your existing bookmark and use the following link to the website – https://ecclesiasticallawassociation.org.uk/index.php – then save the page as a new bookmark.

The writing on the wall for church architects

Earlier this year we published a post based upon a diocesan chancellor’s observations,  Deliberate breach of faculty conditions, which was yet a further cautionary post along the theme developed in Ignorance of the Faculty Jurisdiction Rules is no excuse… (2014) and Risks of disregarding the faculty jurisdiction in June 2016. The most recent case, Re All Saints Buncton [2018] ECC Chi 1 (not yet on the ELA website but available on the Diocese of Chichester site), again concerned problems regarding the selection of an appropriate paint/treatment to overcome problems of algal growth on damp walls. 

Despite advising on work in a number of dioceses, the chancellor suggested that the architect concerned seemed unable to differentiate between the advisory function of the DAC and the adjudicatory role of the chancellor [81]. Furthermore,

“[85]. In this instance, sadly, it is not the first occasion on which [the architect] has encouraged parishes to proceed with works in the absence of a faculty. He is a repeat offender and his attitude during the proceedings was not one of contrition but of arrogance”.

The Chancellor granted a confirmatory faculty for treatment of walls [79], and criticised the architect for allowing work to proceed without first making sure that a faculty had been granted; he directed that: the architect should pay two-thirds of the court fees; be given 21 days in which to make written representations as to whether the chancellor should recommend to the DAC that his name be removed from its list of approved architects; a copy of the judgment be sent to Ecclesiastical Architects and Surveyors Association and to the DAC secretaries, the registrars, and the chancellors of each of the dioceses in which the architect says he practises (or has practised), i.e. Guildford, Oxford, Rochester and Winchester.

Appeal on CNC election rejected

On 26 March 2018, a panel appointed by the House of Laity considered the appeal by Mrs April Alexander in respect of the election of Miss Jane Patterson as a member of the Crown Nominations Commission by the House of Laity of the General Synod. At the conclusion of the hearing, the panel reserved its decision and undertook to give a reasoned decision at a later date; on 6 April, the decision rejecting the appeal was published.

Mrs Alexander had argued that Miss Patterson had “conflicts of interest which she did not declare and of which the electors well have been unaware”, primarily her positions as a trustee of Christ Church Central, Sheffield (CCC), and Christ Church, Walkley, Sheffield (CCW), both of which are members of the Anglican Mission in England (AMiE) [11]. However, the panel was satisfied that the fact that Miss Patterson was a trustee of CCC and CCW had no bearing on her eligibility to stand for election to the CNC. It also noted: “neither the Standing Orders nor the General Synod Members Code of Conduct required Miss Patterson to disclose any conflict of interest” [56]; and that Charity Commission guidance on conflicts of interest was not applicable, “given that neither the General Synod nor the CNC is a charity” [57]. However, in its ruling the panel stated:

“[58]. It is not the function of the appeal panel to determine whether such a position as to disclosure is satisfactory. We have no doubt that it is theoretically possible for the General Synod to amend its Standing Orders and impose a more onerous Code of Conduct than that which currently exists, for example by requiring candidates to make express disclosure of all organisations of which they are directors or trustees, but in our judgment it is a matter for General Synod, and not this appeal panel, to determine whether such is appropriate. However, as matters currently stand, in our judgment Miss Patterson and all other candidates were entitled to proceed on the basis that there was no requirement on them to make any declaration of interest”.

We suspect that this will not be the end of the matter.

Quick links

And finally…  Oooh, Jeremy Corbel

One thought on “Law and religion round-up – 15th April

  1. Re the CNC election appeal.
    Leaving aside the merits of Mrs Alexander’s appeal, this case (which I believe to be the first such challenge to the election of a central member of the CNC), raises a number of procedural issues that ought now to be addressed:
    (i) the need to expand General Synod Standing Order 135 to require anyone challenging an election to set out his/her grounds of challenge; also to set out the possible grounds of appeal and the powers of the appeal panel – at present entirely absent (cf CRR rule 45) As the panel pointed out (para 23), the existing SO gives little guidance as to how an appeal is to be conducted.
    (ii) to specify who should be notified of such an appeal: the electorate, i.e. the members of the House of Laity, were informed of the result of Mrs Alexander’s appeal by an e-mail on 9 April 2018 giving the link to the decision on the CofE website, but were not previously told about it. Only candidates in the election were notified that the appeal had been made, and then only on 15 December 2017, after I had raised the issue at Church House, having heard about the appeal independently. In my view, the whole electorate should be notified when notice of such an appeal is given.
    (iii) to set a time-limit for the appeal to be heard and determined. An election appeal which challenges the legitimacy of a candidate’s election should be resolved speedily: it should not have taken over 8 months, as in this case (from 28 July 2017, when the result of the CNC election was announced, to 6 April 2018 when the panel’s decision was delivered.);
    (iii) whether the hearing of any such appeal should be in public: in this case the preliminary view of the panel was to hold the hearing in private, and when that view was put to the parties and they did not disagree, the decision was confirmed: see Decision, paras 29-30. (I think any hearing should be in public.);
    (iv) whether the appeal panel should be able to make an order for costs, either inter partes, or to pay the reasonable expenses of the panel. In this case, there must have been significant costs incurred by the Church in relation to the appeal. [Cf CRR rule 45(f) which empowers the persons appointed to determine an enrolment appeal (under rule 43) or an election appeal (under rule 44) to award costs. These rules are under review by the Revision Committee considering the draft Church Representation and Ministers Measure.];
    (v) whether candidates for election to the CNC ought to be able to submit an election statement longer than 100 words. Regardless of whether such alleged conflict of interest was properly disclosable to the electorate, I suggest that it was unrealistic to expect Miss Patterson to have declared her interest as a trustee of two Fulwood church ‘plants’ in the 100 words currently allowed. For the GS elections, two sides of A4 are allowed, and given the importance of the role of central members of the CNC, I suggest there should be a similar allowance.
    It may be that some of these issues will, or should, be addressed by the working group being set up to review the process for the election of central and diocesan members of the CNC in the light of the O’Donovan Report: see GS 2080 para 14.
    [For the avoidance of doubt, I declare what some may consider to be an interest as one of the unsuccessful candidates in the 2017 CNC election.]

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