Religion and law round up – 6th October

A week of events and announcements but few legal developments

IPPC Climate Change Report

Readers of this blog and David’s column in Environmental Law and Management will be aware of  a continuing theme expressing concern at the inaction on global warming.  On Monday this week, the Intergovernmental Panel on Climate Change, (IPCC), released its new report “Climate Change 2013: The Physical Science Basis”, the work of “209 Lead Authors and 50 Review Editors from 39 countries, and more than 600 Contributing Authors from 32 countries”.  The 36-page Summary for Policy Makers has been condensed to a 2-page Headline from Summary for Policy Makers.  The main message from the report is summarized in the unambiguous statement in the Press Release:

“Human influence on the climate system is clear. This is evident in most regions of the globe … It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century. The evidence for this has grown, thanks to more and better observations, an improved understanding of the climate system response and improved climate models.”

The chairman of the Mission and Public Affairs Council, Philip Fletcher, is quoted as saying that the report made it “clearer than ever that climate change is happening; that we, the human race, are largely or completely responsible for that; and that we really ought to proceed on that basis rather than just hoping that it will all turn out to be wrong.”  Commenting on the performance of the Church of England, he continued:

“[t[here are things we do well, and things we do badly, but we have been seeking to work at shrinking our own footprint for some time. We know that we should be doing more ... We are taking it seriously, and we know we are part of the problem."

Religious circumcision – yet again

On Tuesday the Parliamentary Assembly of the Council of Europe adopted Resolution 1952 (2013) which expressed the Assembly's concern about

"... a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes, amongst others, female genital mutilation, the circumcision of young boys for religious reasons...".

Paragraph 7.5.2. of the Resolution calls upon member states, inter alia, to

"... clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys...".

We have been here before: readers may remember the court decision in Germany that caused so much embarrassment to Angela Merkel's Government; and only last week the Swedish Children's Ombudsman [Barnombudsman], Fredrik Malmberg, co-signed a piece in Dagens Nyheter which stated that “Circumcising a child without medical justification nor his consent contravenes this child’s human rights”.

Needless to say, the wording of the Resolution has caused considerable consternation in the Jewish community; and JTA (from which Frank picked up the lead) reported that

“Large majorities rejected five amendments that sought to remove or alter references to the circumcision of boys. An amendment that removed a reference to the ‘religious rights of parents and families’ was supported by a large majority of members”.

Our suspicion is that the Council of Ministers will simply duck the issue on the grounds that it is too hot a potato.

Anglican Liturgy for the Ordinariate

A new text of the Mass has been devised for use by Ordinariates throughout the English-speaking world “as a way of putting into practice Pope Benedict XVI’s vision of allowing former Anglicans who wish to enter the full communion of the Catholic Church to do so whilst retaining aspects of their spiritual and liturgical traditions”.  The Ordinariate explains:

“[t]he Roman Rite in both its ordinary and extraordinary forms remains available for use by Ordinariate priests and there will be no requirement for them to adopt the Ordinariate Use. However, all Ordinariate clergy will be expected to familiarise themselves with it. Some priests are expected to use it regularly, while others – especially in parishes with a large concentration of “cradle” Catholics in the congregation – may only wish to use it from time to time.”

The new liturgy, the work of a special commission established by Rome and approved by the Holy See, includes text from the Anglican Book of Common Prayer (1662) as well as the Roman Rite. It will be first celebrated on Wednesday 10 October as a Votive Mass of Blessed John Henry Newman, and followed by a media launch at the Church of Our Lady of the Assumption and St Gregory, Warwick Street, Soho.

The Mass will be celebrated by the Ordinary Ordinariate, Monsignor Keith Newton, and the preacher will be Monsignor Andrew Burnham, who was a member of the commission which devised the liturgy, known as the Ordinariate Use.  The music used will be drawn from the English tradition with Howells’ Collegium Regale as the ordinary, and other music by Elgar and Bairstow.

This is significant, given the general discontent with the standard of post-Vatican II music that is periodically aired in the Roman Catholic press and blogs.  A recent feature in the Catholic Herald stating:

“Music in the Catholic Church in Britain is in a serious and difficult situation. The origins of many of the problems stem from the varied interpretations of the decision of the Second Vatican Council (now fifty years ago), to permit the use of the vernacular in the liturgy”.

We will explore this theme further in a subsequent post.

John Paul II and John XXIII to be proclaimed saints next year

This week Pope Francis announced that Karol Wojtyła and Angelo Giuseppe Roncalli – the former popes Blessed John Paul II and Blessed John XXIII – would be proclaimed saints on the same day – Divine Mercy Sunday, 27 April 2014, a worldwide celebration that was instituted by Pope John Paul.  Pope Francis held the Ordinary Public Consistory for the canonization during the course of an Ordinary Public Consistory on 30 September.  As is traditional, the announcement was made in Latin.

Of blogging

There was a thought-provoking piece from Dame Catherine Wybourne entitled “What we don’t blog about, and what it says about us” with which to start the month.  An indication of our current thinking regarding this blog may be deduced from our recent “100,000 page view” post, but comparing this with earlier “landmark” posts – at 50,000 page views/250 posts, here,  and at a mere 3 months/100 posts, here – suggests that this is changing as the blog develops.  In common with ibenedictines, we rarely comment on what is going on in other Churches, although we certainly discuss current legal issues as objectively as possible, or at least try to make it clear to readers when we are being opinionated.  We also stray beyond what we euphemistically refer to as our “comfort zone”, i.e. our current knowledge/experience, in the knowledge/hope that there will be someone “out there” to put the record straight.

We estimate that at present rates of publication and readership, the “next milestone” at which we might again review the blog will be in ~12 months’ time, when we expect to have published over 750 posts in total, and achieved 200,000 page views.

And finally . . . . . . . . .

The Church Times reports that to mark his 50th birthday, Stuart Whatton, whom it describes as “a church musician”, made a bid for entry into Guinness World Records after “taking just 22 days to complete a pilgrimage around all 61 Anglican and Roman Catholic cathedrals in England, “attending a service in each of the 42 Anglican and lighting a candle in all 19 Roman Catholic ones.  Ironically, it will take significantly longer to have his attempt verified, or not: using the free record application service takes up to 6 weeks to process applications for existing records and up to 12 weeks to assess proposals for new record categories, although the Fast Track service guarantees a response to an application in three working days, but costs £450/$700.

Very much like the setting of “SMART targets” in the business world, a Guinness World Record must satisfy the criteria of being: measurable; based on a single variable; verifiable; and breakable.  Perhaps as a musician Mr Whatton gained some insights into the choral traditions at each venue.  When David’s choir sang in all of the Oxford college chapels in a single day, as well as being fund-raising event, it provided a good comparison of their acoustics. Any guesses for which came out best?

Religion and law round up – 14th July

Another row with the ECtHR

Inevitably, the major event of the week – though it has nothing especially to do with law & religion – was the Grand Chamber judgment in Vinter & Ors v United Kingdom [2013] ECHR 645. The GC held by sixteen votes to one that the whole-life tariff without review imposed on some prisoners in England and Wales violates Article 3 ECHR (inhuman or degrading treatment or punishment).

The interest from the point of view of this blog lies in the (entirely predictable) reaction from most of the media and Westminster politicians.The Daily Mail ran an article by the Lord Chancellor, Chris Grayling, under the screaming headline This meddling in our affairs must stop now, in which he declared that

“Yesterday’s ruling underlines the need for urgent change. We need to curtail the role of the European Court of Human Rights in the UK. The days when it could interfere with the settled wishes of the British Parliament and people must end. We need a proper balance between rights and responsibilities in our laws. You can’t be allowed to take away the rights of others, and then use your own rights to avoid facing the consequences. I would introduce such changes immediately.

But Labour and the Lib Dems will have none of it. They want things to stay as they are. This is mad. I don’t understand them. But they have more votes in Parliament and have said a clear ‘no’ to change. So we are working on alternative plans. All options are on the table. And we will go into the next general election with a clear promise in the Conservative manifesto of major change, together with a detailed plan of how we will deliver it. For me, that change cannot come quickly enough”.

Earlier in the week the Daily Telegraph had reported that Chris Grayling had gone even further than the above, telling BBC1’s Sunday Politics programme that he regarded withdrawing from the ECHR as a viable option. Which will not come as any great surprise to anyone – though whether withdrawing from the ECHR is, in fact, a viable option remains to be seen.

In a more moderate tone the Law Society Gazette reportedinter alia, that former Home Secretary David Blunkett agreed with criticism of the GC’s ruling, defending his decision in 2003 to cancel the right to review after 25 years in order to “to make life mean life”.

Incurable liberals as we are, we have observed on more than one occasion that human rights are indivisible: if politicians have just decided that they don’t like Article 3, why should they stop there? Why not Article 9? Moreover, in the final analysis who will defend individuals from arbitrary or illegal acts by their governments if it is not the courts? And how could the courts do that without some objective and binding piece of legislation to use as a yardstick? Fifty years ago, as a baby law student, Frank had dinned into him the maxim enunciated by William Blackstone in his Commentaries on the Laws of England that “It is better that ten guilty persons escape than that one innocent suffer”. So just what has changed?

Holy See, Vatican City State – internal and international law

A number of important legal issues relating to the Roman Catholic Church have arisen this week:

  • the UN Committee on the Rights of the Child has requested the Holy See to provide information in relation to the Committee’s second periodic report of the Holy See.  Report CRC/C/VAT/2 details a number of issues of concerned, including, inter alia, clerical sexual abuse and the Magdalene laundries in Ireland, paragraphs 11 and 8 respectively.
  • modifications to the criminal law of the Vatican City State [1] including: abolition of life imprisonment, (please note, Chris Graying); a broader definition of the category of crimes against minors, applicable to officials and Roman Curia staff and also Apostolic Nuncios,  staff from organisations and institutions linked to the Holy See, regardless of whether they are on Vatican soil or not.  Reflecting the concerns raised by the Vatileaks scandal, there is a new article 116b regarding the theft of documents.

These changes to Vatican City civil law come into effect on 1 September 2014 and are separate from the universally applicable canon law, norms and sanctions.

  • on the day these changes were announced, Pope Francis issued a Motu Proprio making the criminal laws adopted by the Pontifical Commission for Vatican City State, above, applicable also within the Holy See. In explaining the significance of these new laws, Archbishop Dominique Mamberti said “The most recently approved laws, while not constituting a radical reform of the penal system, revise some aspects and complete it in other areas, satisfying a number of requirements”.
  • on 9 July, it was announced that Pope Francis had made a modification to Article 5 of the Norms made under Anglicanorum Coetibus [2]  which clarified the contribution of the Personal Ordinariates of OLW in the work of the New Evangelisation.  It has earlier been suggested that Pope Francis had doubts regarding the value of the Ordinariate.

Marriage (Same Sex Couples) Bill

The House of Lords completed the Report stage of the Marriage (Same Sex Couples) Bill on Wednesday, the debate revisiting the issues raised during the three days of the Committee stage, summarized here, and the extent to which government had taken these into consideration when introducing its own Amendments.

The Third Reading of the Bill in the House of Lords is scheduled for 15 July, for which the Marshalled list of amendments to be moved is here, and the Bill as amended on Report is here.  All five Amendments in the list have government approval, and are therefore likely to be agreed.  A summary of the issues debated during the three days of the Committee stage is here, and our notes the Report stage are summarized here.  

General Synod

The more important legal issues that were raised at the Church of England’s General Synod in York are summarized here.  In addition to the progress of the admission of women into the episcopate, we will be following a number of other matters, including possible changes to section 25 of the Burial Act 1857.  An early consideration of the proposed (Miscellaneous Provisions) Measure in 2008, GS 1683Y, indicated that that sub-paragraph concerning cathedrals was inserted since the Ministry of Justice interpret the legislation on consecrated ground as that falling within the faculty jurisdiction, and since this doesn’t apply to cathedrals, a section 25 licence was deemed necessary for an exhumation.  A further lacuna in relation to the cryptic “Provisions relating to Christ Church, Oxford” is the comment in GS 1683Y that observes  “[t]he unique status of Christ Church Cathedral, Oxford, as part of a joint ecclesiastical-academic foundation, means that the provisions of the Cathedrals Measure 1999 do not apply to it”.

Charity law reform – this time in Jersey

The Chief Minister’s Department in Jersey has just launched a consultation on whether or not a Charities Law is needed for the island. At the moment, the current definition of “charity” as set out in Jersey’s 1961 Income Tax Law is drawn from the (English) Statute of Charitable Uses 1601 and is interpreted to exclude what are generally regarded as major areas of bona fide charitable activity: for example, community sports clubs. The proposed Law “would define what makes a charity a charity, set out what charitable purpose is and put in place a requirement for all charities to deliver public benefit [and] make it a requirement for all charities to be included on a public register”. The Government is also consulting on whether the proposed Law “should provide for the future introduction of light-touch, proportionate regulation”. The consultation is not about the detail but about whether or not legislation is needed at all – though it looks suspiciously as if it expects the answer “yes”. It will close on 30 August 2013.

It looks as if Jersey is seriously considering something on the lines of the Charities and Trustee Investment (Scotland) Act 2005 or the Charities Act 2006. Hopefully, the Jersey version will be better-drafted – but that’s detail, not principle.

Government pulling back on agreement on caste?

Following the Lords insistence on its amendment 37 to the Enterprise and Regulatory Reform Bill on 23 April this year, here, a new sub-paragraph was added after section 9(1)(c) (race) of the Equality Act 2010 to include caste discrimination as a protected characteristic.  An article in The Independent on 11 July quotes from a leaked letter sent from Equalities Minister Helen Grant to the Alliance of Hindu Organisations, which opposes such an inclusion of caste. She is reported as saying

“We remain concerned that there is insufficient evidence of caste-based discrimination to require specific legislation. We also have concerns that incorporating caste into domestic law – even in the context of anti-discrimination – may send out the wrong signal that caste is somehow becoming a permanent feature of British society.”

“Because, as I have said, we do not believe or accept that caste and caste division should have any long-term future in Britain – we have introduced an additional safeguard into the Act. This is the ability to carry out reviews of caste legislation to see whether it remains appropriate. If it does not, we have the option of removing it from the statute book.”

Trades union rights – or not – in the Romanian Orthodox Church

We noted that the Grand Chamber handed down judgment in Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646, about the refusal of the secular authorities to register the Union of the Good Shepherd) formed in 2008 by a group of clergy and lay employees in the Metropolis of Oltenia. The GC reversed the Third Section, holding by eleven votes to six that though there had been an interference with the union’s right of association it had been insufficient to violate Article 11 ECHR. The minority, however, concluded that the necessary balancing exercise between the Article 11 rights of the applicant union and the Article 9 rights of the Church had not been carried out and, therefore, that the interference with the union’s right to organise had not been “necessary in a democratic society”. Frank tended to agree with the minority view.

Canonical dress code

In view of the continuing hot weather, the Rorate Caeli item “For the Record: dressing modestly as Catholics” naturally caught one’s eye. Having been hurriedly directed into alternative robing facilities when the clergy in Milan Cathedral realized how little the ladies in our choir wore beneath their cassocks, David is aware of such sensitivities. The Rorate Caeli piece is in fact a rebadged SSPX item, and given the SSPX’s lack of canonical status, it seemed prudent to turn elsewhere for a view on the legislation referred to, Canon 1262, §2 (CIC), and as ever, a post by Ed Peters provided the answer. The canon referred to was within the pio-Benedictine Code of 1917 and whilst permitting men to be bareheaded, required women to have their heads covered and be modestly dressed when assisting in the liturgy [3].

The 1917 Code went out of force in November 1983, but if one stands by this provision, it would be logical to also abide by §1 which requires men and women to be seated separately [4]. The SSPX piece notes of this now-defunct canon as “[t]hough this reflects the Church’s mind for sacred places, it nonetheless also comprises a general rule of thumb for public life.” Readers may make up their own minds on its further debate concerning relative merits of “woman’s pants” (usually worn out of pleasure or commodity) against miniskirts.


[1] Law No. VIII containing Supplementary Norms on Criminal Law Matters; Law No. IX containing Amendments to the Criminal Code and the Criminal Procedure Code; and Law No. X containing General Provisions on Administrative Sanctions.

[2] This inserts into the Complementary Norms as Article 5 §2, “A person who has been baptised in the Catholic Church but who has not completed the Sacraments of Initiation, and subsequently returns to the faith and practice of the Church as a result of the evangelising mission of the Ordinariate, may be admitted to membership in the Ordinariate and receive the Sacrament of Confirmation or the Sacrament of the Eucharist or both.”

[3]  §2. Viri in ecclesia vel extra ecclesiam, dum sacris ritibus assistunt, nudo capite sint, nisi aliud ferant probati populorum mores aut peculiaria rerum adiuncta; mulieres autem, capite cooperto et modeste vestitae, maxime cum ad mensam Dominicam accedunt.

[4] Optandum ut, congruenter antiquae disciplinae, mulieres in ecclesia separatae sint a viris.

Not just the importance of being quorate…

At the end of the nineteenth century a complex series of negotiations took place between the Free Church of Scotland and the United Presbyterian Church which led to their union as the United Free Church. However, a minority of the Free Church opposed the union on the grounds that their own Church and the United Presbyterians differed fundamentally on various doctrinal matters – and that the Basis of Union had therefore been a fudge. If you’d like to read the history, the best recent account is by the late, great Alan Rodger in The Courts, The Church and the Constitution: Aspects of the Disruption of 1843 (Jean Clark Memorial Lectures: Edinburgh University Press 2008).

The dissident minority took their case all the way to the House of Lords and won – see General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515 – with the result that they found themselves in possession of all the Church’s property. So a Parliamentary commission was appointed which recommended that Parliament should set up a further, executive, commission to make an equitable division of the property of the Free Church: hence the Churches (Scotland) Act 1905, which gave effect to those recommendations.

That’s almost enough Scots church history (Ed.) – except for one point.

In his judgment, the Lord Chancellor, Lord Halsbury, said this: “… in the controversy which has arisen, it is to be remembered that a court of law has nothing to do with the soundness or unsoundness of a particular doctrine.  Assuming there is nothing unlawful in the views held… a Court has simply to determine what the original purpose of the trust was” (at 613). Moreover, “… there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another.  Any other view, it appears to me, would be fatal to the existence of every Nonconformist body throughout the country” (at 627: emphasis added).

That appears to be an accurate statement of the general duties on trustees – both in Scots and in English law – to use the assets of the trust for the purposes intended by the settlors/trusters and not otherwise. When the trustees of the Confraternity of the Blessed Sacrament made the £1m grant to the Personal Ordinariate of Our Lady of Walsingham “to provide for theological teaching, learning and development and for the support of priests in the Ordinariate”, it would appear that they were doing precisely what Lord Halsbury had said trustees should not do: giving money for a purpose which did not appear to have been intended by the settlors.

Or have I missed something?

The importance of being quorate

The Confraternity of the Blessed Sacrament was established in 1862 to support Anglo-Catholic priests who risked imprisonment for engaging in practices which today are commonplace: candles on altars; making the sign of the cross; and vestments.  Substantial donations were made in 19th century and the investment from these has been the source of much of its present funds.  Following the creation of the Personal Ordinariate of Our Lady of Walsingham in 2011 by Pope Benedict XVI ‘to allow Anglicans to enter into the full communion of the Catholic Church whilst retaining much of their heritage and traditions’, the Confraternity made a grant of £1M to the Ordinariate ‘to provide for theological teaching, learning and development and for the support of priests in the Ordinariate’.

Reporting on the controversial donation, the Catholic Herald stated that this ‘represents almost half of the charity’s total assets’ . . . . . ‘Trustees agreed to the grant after checking with lawyers that it would be compatible with the charity’s objects – namely, “the advancement of the Catholic faith in the Anglican tradition”’. . . . . . ‘The Confraternity changed its rules in April last year [2010] so that Ordinariate priests could become members.  Five out of six of its trustees have now been ordained as priests in the Personal Ordinariate of Our Lady of Walsingham’.

As a result of ‘a substantial number of complaints’ to the Charities Commission, an investigation was launched and in January this year it set out its provisional conclusions.  After taking legal advice, both charities registered their disagreement and consequently the Commission asked a member of its Senior Management Team to review these initial findings under its decision review procedure.

In a statement today, the Commission concluded that:

The decision to make a grant to the Ordinariate was taken at an inquorate meeting, the majority of the trustees having a (financial) personal interest in the decision. It was also in breach of the charity’s governing document.

The meeting being inquorate, the decision was invalid. There was no valid exercise of the power to make a gift to the Ordinariate and the payment was unauthorised.

The gift is held upon constructive trust by the Ordinariate for the Confraternity.

The objects of the Ordinariate are wider than those of the Confraternity. A gift given to the Ordinariate without restriction could be used for purposes which have no connection with the Anglican tradition at all.

The precise meaning of Anglican Tradition is unclear but there is substantial doubt whether the Confraternity could make a grant to the Ordinariate (even with restrictions) which could be applied by the Ordinariate consistently with the objects of the Confraternity.

The Commission therefore considered the trustees of both charities were under a duty to take action to ensure the repayment of the money.

It notes that:

We have been informed that the grant has been returned in full (with interest) by the Ordinariate of its own volition.

The Confraternity has also issued a statement indicating that it ‘remain[s] firmly of the view that the grant to the Ordinariate was consistent with the founding spirit of the Confraternity and with charity law’, a view supported by its legal advisors and ‘endorsed by eminent canon lawyers’.  However, at the last meeting of the Trustees it was agreed ‘not to pursue any appeal or other legal proceedings about the grant, nor oppose the return of the grant if, as turned out to be the case, the Ordinariate should decide to return it, which it did last week’.