Exhumation after home burial

On 10 January, The Independent reported “For sale: Four-bedroom terraced house, £650,000 – with previous owners’ bodies in back garden”. The estate agent’s description of this property in Teddington ended with the statement “[t]he rear garden measures approximately 50ft in depth and has significant width. It is important to note that the previous owners’ last wishes were to be buried in this garden, which is where both currently rest..” It continued “if the new owners did want to remove the bodies, they would have to seek permission from the next of kin and pay an estimated £7,000”. A quick call to Curchods, the estate agents, by The Guardian elicited further information,

“the husband and wife … are both interred under a floral display in the garden. But … the husband indicated before he died that he was happy for them to be moved if necessary in the future. With no direct relatives still living, an exhumation licence should be easy for buyers to secure.”

Readers who answered question 4 of our 2012 End of Term Quiz will be aware that certain environmental criteria must be satisfied prior to home burial of human remains [1]. Additionally it is necessary to check: whether the local Council would consider this as a “material change of use” and require this to be registered; and the existence of relevant bye laws or restrictive covenants. Nevertheless, according to the Independent article, the practice is “more common than thought in most populated areas of the UK”. In the reported case, in view of the estimated £100,000 costs of necessary extensive repair work, it is suggested that the 1875 property would be sold to a developer. However, regardless of the purchaser, some clarification of the reports in the media is clearly necessary.

Comment

The presence of human remains within the curtilage of any property raises two questions in relation to its sale: if they are to remain in situ what access, if any, are relatives to be permitted to visit the burial; and if the remains are to be exhumed, which parties should be consulted and where should their final resting place be. The absence of direct relatives such as in relation to the Teddington property adds a further dimension.

Access Issues relating to access would normally be addressed within the terms and conditions of the sale, and the absence of direct relatives should simplify this aspect. In Rudewicz, R (o.a.o.) v Secretary of State for Justice & Ors [2012] EWCA Civ 499, Stanley Burnton LJ acknowledged that the purchaser of the property in question was under no obligation to permit access for that purpose, and if such access were to be accorded at all, it would only be on a very restricted basis, i.e. once per year. Furthermore, it was noted that any such permission could be withdrawn at any time.

Exhumation This would require a licence issued by the Ministry of Justice under section 25 Burial Act 1857, for which there is a standard Application Form. Part A of the form requires a number of details concerning the deceased, and although it can be completed by anyone, it must be signed by the next of kin and those of equal kinship (i.e. if a child is the next of kin, then all the children would need to sign the form)[2]. In Rudewicz, the judge noted [para.10]

“the practice of the Secretary of State in relation to applications under section 25 has always been to regard the wishes of the deceased’s next of kin as very important”, [para.10].

There is no general definition of “next of kin” in English law although the Administration of Estates Act 1925 refers to the ‘statutory next of kin’ and lists a hierarchy of persons who will inherit the possessions of someone who dies intestate. This is included in Rule 22 of the Non-Contentious Probate Rules 1987, No. 2024 (L. 10) which gives the order of priority for grant in case of intestacy, although it is subject to section 116 of the Senior Courts Act 1981, (formerly known as the Supreme Court Act 1981).

Rudewicz was a special case, since

“when it comes to members of religious orders, the head of the relevant order is generally regarded as the next of kin. Such an approach is reinforced in the present case by the fact that the constitution of the Fathers (as laid down in 1930) does not entitle a member, even one as exceptional as the Priest, to have enforceable views as to where he should be buried”, [para.10],

and it was this factor, rather than the familial relationship between Ms Rudewicz and the deceased – first cousin once removed – that was considered to be critical in relation to this point.

The FAQs produced by the MoJ address the issue “What if I cannot obtain the consent I need?” and state:

“If the person whose consent you need is not immediately available, you should explain the circumstances in a covering letter. Without the consent, however, a decision on the application is likely to be delayed.

If you do not know the identity or the whereabouts of any person whose consent is necessary we would normally expect you to show that appropriate enquiries had been undertaken. This could be, for example, by advertising in a newspaper circulated within the appropriate area (e.g. the person’s last known whereabouts.”

From this it appears as though the onus of providing evidence of “appropriate enquiries” rests with the person seeking permission for exhumation, although no guidance is given of the extent of such enquiries needed to satisfy the MoJ. However, in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August) the court noted [para.28] the statement of the Head of the Coroners, Burials, Cremation and Inquiries Policy Team at the MoJ that that the Secretary of State’s practice is only to “consult” relatives of identified remains in cases where that individual has been buried “recently” and, for these purposes, recently means “within the last 100 years”. Although not relevant in the present case, were an archaeological investigation in prospect, different information would be required as in the case of Richard III.

Human Rights The application of human rights legislation in the context of the deceased is uncertain. In Rudewicz, when assessing whether Article 8 was engaged Burnton LJ stated

“[i]t might have been different if there had been a close personal relationship, or even a close familial relationship, between Ms Rudewicz and the Priest, but they never met, and she is a distant relative. It is difficult to see how her family life or private life can fairly be said to be involved on the facts of this case”, [para. 39].

However, in his consideration of this statement, in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August), Haddon-Cave J stated:

“It is clear from European jurisprudence, however, that the views of a deceased person as to his funeral arrangements must now be taken into account (per Cranston J in R (Burrows) v HM Coroner for Preston [2008] EWHC 1387 (Admin)). For this reason, and in view of the unusual circumstances of this claim by traceable descendants of a famous Royal figure, [Richard III], it may be said that Article 8 has some role to play” [para 33].

Nevertheless, this is not an universally held view and in Ibuna & or v Arroyo & orsi [2012] EWHC 428 (Ch) Peter Smith J observed [para. 50]

“I confess that I have some difficulty in a post-mortem application of human rights in relation to a body as if it has some independent right to be heard which is in effect what Cranston J is saying [in Burrows]. I would respectfully disagree with his conclusion in paragraph 20 and 29 as set out above. It seems to me that the established law is correctly summarised by Hale J as she then was in Buchanan which gives the executor the primary duty to dispose of the body. In disposing of the body the executor is entitled to have regard to the expression made by the deceased but is not bound by them. Given that principle in my view there is no room further for any application of any human rights concepts to protect the right of the body to speak from death as it were.”

When the judicial review Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor is heard this year, it is hoped that there will be some clarification on this issue, and other aspects of the implementation of section 25[3]. With regard to consultation, the court has already acknowledged [para.28] that “Secretary of State’s practice is to “consult” relatives of an identified [person] in cases where that individual has been buried ‘recently’ ” – In the case of the four-bedroomed property in Teddington, the wife died in 2011 and her husband in 2013.

Wishes of the deceased In Ibuna, Peter Smith J reviewed the issue of possession of the body and stated [para. 44]

“A recent starting point is the decision of Hale J as she then was in Buchanan v Milton [1999] 2 FLR 844 at paragraph 845H as follows:-

There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate …”

As noted above, Peter Smith J did not subscribed to the view that this position was altered by human rights provisions. Furthermore, most of the relevant case law associated with these various decisions focuses on the custody and possession of a body up to and including burial, but not thereafter.

Comment

In summary, the position would appear to be:

– unless a specific agreement is made, the purchaser will be under no obligation to permit the access of relatives and others to the grave;

– permission to exhume the bodies must be granted by the Ministry of Justice, and the wishes of the next of kin will be one factor it takes into consideration.

– whilst the wishes of the deceased should be taken into consideration, most authorities indicate that there in no obligation to follow them.

– further clarification may result from the judicial review Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor.


[1] Environment Agency non-statutory guidance Funeral practices, spreading ashes and caring for the environment.

[2] There is no general definition of “next of kin” in English law although the Administration of Estates Act 1925 refers to the ‘statutory next of kin’ and lists a hierarchy of persons who will inherit the possessions of someone who dies intestate.

[3] In November 2013, the Church of England General Synod approved for Final Drafting and Final Approval the Draft Church of England (Miscellaneous Provisions) Measure, GS 1866B which will inter alia make changes to s 25 Burial Act 1857 only in so far as it affects the CofE, as we discussed here.

Cite this article as: David Pocklington, "Exhumation after home burial" in Law & Religion UK, 17 January 2014, http://www.lawandreligionuk.com/2014/01/17/exhumation-after-home-burial/

Religion and Law round-up – 19th January

Is atheism a religion?

We noted the reports in the Daily Mail and the Daily Telegraph about an Afghan man who, because he became an atheist after coming to the UK, has been granted asylum on the grounds that, as an atheist, he would be in physical danger were he to be returned to Afghanistan. The case was submitted to the Home Office under the 1951 Convention and Protocol Relating to the Status of Refugees; however, it also has resonance with Article 9 ECHR, because that Article protects both freedom of thought, conscience and religion and the right to change one’s religion or belief. The alternative would be to assert that an atheist does not have a conscience  – which would be manifestly ridiculous.

UN Committee on the Rights of the Child holds sixty-fifth session

The Committee on the Rights of the Child is meeting at the Palais Wilson in Geneva from 13 to 31 January 2014 to review the promotion and protection of children’s rights under the provisions of the Convention on the Rights of the Child and its two Optional Protocols (on involvement of children in armed conflict and on child pornography) in Congo, Yemen, Holy See, Portugal, Russian Federation and Germany.

The Holy See is presenting its second periodic report CRC/C/VAT/2 under the Convention, and the Committee’s concluding observations and recommendations on the initial report, considered in November 1995, can be found in CRC/C/15/Add.46.  The Holy See is also presenting its initial report under the Optional Protocol on children and armed conflict CRC/C/OPAC/VAT/1 and its initial report under the Optional Protocol on the sale of children, child prostitution and child pornography CRC/C/OPSC/VAT/1.

The Committee will publish its concluding observations on the reports and meetings on Wednesday, 5 February, and a Press Conference is scheduled for 11.30 a.m. at the Palais des Nations in Geneva.

Baptism, continued

Whilst the Church of England considers additional material for use in its baptism service, Pope Francis has set canon lawyer commentators commentating, following reports in La Stampa that on the Feast of the Baptism of the Lord he baptized a number of children in the Sistine Chapel including one whose parents were civilly-married but not married in the Church. As might be expected, canon lawyer Ed Peters provided an excellent analysis in his blog How popes, baptism, marriage, and form, all come together, exploring the “unmarried” nature of the civilly-married Catholic couple on the ground that they reportedly did not observe “canonical form” in marrying “in the Church” as required by 1983 CIC 1108, 1117 He questions whether the “canonical form” requirement has outlived its usefulness and suggests that this might be addressed at the forthcoming Synod on the Family and EvangelizationSee also Fr Z’s blog here and here,  and Dr Peter’s follow-up post.

Of Vesture – I, postscript

GamarelliJust over a year ago, our post Of Vesture – I considered the appointment of six Cardinals by Pope Benedict; and Vatican Insider’s estimate that each could spend €4,000 to €5,000 for the associated Cardinal’s ‘tat’. On this basis, the recent announcement of 19 new Cardinals, (16 of whom are not too old to vote)[1] could yield up to €95,000 new business for Gammarelli; but we wonder whether this is likely to be realized in view of the new Pope’s approach to his own vesture. Regardless of how much or how little each of the new Cardinal spends on his new clothes, the most significant item could be the Cardinal’s ring, which he receives from the Pope. For his own ring, Pope Francis selected an existing design and chose gold-plated silver rather than solid gold.

Animal Welfare: Methods of Slaughter

A short debate in the House of Lords was secured by Lords Trees, (CB), who asked Her Majesty’s Government “what assessment they have made of the ethical, legal and religious factors that influence the way in which some animals are slaughtered in the United Kingdom.” Their Lordship’s considerations on 16 January were wide ranging and well-informed, and supplement the information included in the House of Commons Library Standard Note SN/SC/1314, ‘Religious Slaughter’, as last updated on 11 June 2012, reviewed here, which included successive coalition government promises for action dating back to 2010

Responding to Thursday’s debate, The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con) stated that he anticipated that regulations on EU Regulation 1099/2009 on the protection of animals at the time of killing would be laid before the House in April.  With regard to the equally problematic issue of labelling, Lord De Mauley acknowledged that the Government was aware of concern about non-stunned meat being sold on to the general meat market, but that there are some practical difficulties in identifying the method of slaughter for all meat from the point of source to the point of consumption. He stated that the results of an European Commission commissioned study were ”due shortly” and the government would “look carefully at what options are available for providing information to consumers”.  Supporters of religious slaughter will welcome that there seems to be little more commitment to action than there was in 2010, here.  

Campaigns

Further to the suggested New Year Resolutions of Full Fact [“promoting accuracy in public debate”] with a view “to make 2014 a more accurate year for politics”, reported here, we note that the British Humanist Association (BHA) has announced its support for the Ask for Evidence campaign, which aims to hold companies, politicians, commentators and public bodies accountable for the claims they make. Although the campaign is run by Sense about Science, a “UK-based charitable trust to encourage an evidence-based approach to scientific and technological developments”, a number of the issues addressed such as claims on climate change are of relevance to law and religion.

In view of the Defamation Act 2013 and Defamation (Operators of Websites) Regulations 2013 SI 3028 discussed here, we strongly believe that there is room for another campaign, “Identify yourself!”, that aims to end bloggers hiding behind pseudonyms associated with their comments.

King Alfred the Great – Update

Wessex Flag, IMG_2723On 8 August it was reported that a local group had been granted permission “to carry out scientific investigations on human remains, recovered from St Bartholomew’s church earlier this year, to ascertain whether or not they belong to King Alfred”.

Well, they’re not. Reports by the BBC and elsewhere indicate that these were subsequently dated as being from the 1300s, not 899 when King Alfred died; but a fragment of pelvis bone discovered at a previous dig at Hyde Abbey has been dated to 895-1017 and may belong to King Alfred the Great or his son Edward the Elder, or not.

This leaves the Diocese of Winchester with the dilemma of what to do with the assorted bones dug up at St Bartholomew’s. Since they had already been on walkabout before their most recent interment, it could be argued that this is not necessarily the logical place for their final resting place, where there may some residual risk from the theft or vandalism that resulted in their precipitous exhumation. The recent story also provides a contrast in the treatment of the remains exhumed under the Church of England’s faculty jurisdiction which are still under its care and control, with the 1999 fragments which had remained forgotten in two boxes at Winchester’s City Museum.

And finally, how secure is your password?

This week the BBC reported “Man jailed for refusing to give police USB stick password”, which it alleges neither the police nor the GCHQ could crack. Other versions of the story vary on detail, but the main point is that the code he finally revealed was “$ur4ht4ub4h8”, a play on words relating to a chapter of the Koran. In 2012, SplashData analyzed millions of passwords released online by hackers to compile its list of the most used passwords and whilst “password,” “123456” and “12345678” were again the top three most common passwords, “Jesus” was a newcomer at #21.

Wikipedia has a mind-numbing item on Password Strength and whilst we do not propose to explore “information entropy”, we note that “strong” passwords generally include a minimum of 12 to 14 characters, if permitted, and a mixture of upper- and lower case letters, numbers and symbols. Since randomly-generated passwords are preferable, and those that could be associated with personal interests &c are to be avoided, neither Frank nor David will be using “L@w&r5l1gi0NuK”, despite its apparent “strength” according to some web-based software. [And Frank would never remember it anyway…]


[1] We are not in a position to comment on the significance of these appointments, but note the analysis of the distribution of “red hats” made by Vatican Insider and John Thavis amongst others.

Religion and Law round-up – 12th January

Whilst media attention was focused on the weather, an eventful week for law and religion with a bumper crop of consistory case reports, a guest post on sharia law and the UK, in addition to the Defamation Act

… however, the Church Times reports that “more than 130 churches have so far submitted claims for wind- and rain-damage. Ecclesiastical Insurance, which insures almost all Anglican churches in the UK, said that the total bill was already more than £500,000”.

Preston Down, “closed” congregations and the Charity Commission

Apart from the floods, by far the most important news of the week was the revelation that the Charity Commission has announced the appeals against its deregistration of the Preston Down Trust of the Plymouth Brethren Christian Church (“PBCC”, aka the “Exclusive Brethren”) have been withdrawn and that it will accept an application for registration from the Trust, based on a revised governing document and a Deed of Variation setting out, in a manner binding on the trustees, the Church’s core religious doctrines and practices.

This is the latest development in a long-running saga – and is by no means over yet. The  full decision includes in a Schedule the PBCC’s draft statement on “Faith in Practice”: it makes interesting reading.

Government defeat in Lords on ASBO Bill

The significance of the substantial government defeat on clause 1 of the Anti-social Behaviour, Crime and Policing Bill will only be apparent over time. Lord Dear forced a vote on the issue despite the Home Office minister, Lord Taylor of Holbeach, promising talks on the issue and possible concessions if he withdrew his amendment.  The importance of this tactical decision is evident from Crime Prevention Minister Norman Baker’s dismissive comments on the 306 to 178 defeat

“[t]he Bill was never intended to ban noisy children or carol singers, and does not do so as currently drafted.  I am disappointed that the Lords fell for what appear to be scare stories. We have already provided alternative wording to provide reassurance but will reflect further given the position the Lords have taken”

The government has also been reflecting on another piece of ill-conceived and hurried legislation, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill which is due to receive further consideration in the Lords on 13 January.

Sharia

We published a long and detailed guest post by Dr Catherine Shelley, who responded to our plea for a dispassionate academic assessment of the current position of sharia in the UK. We hope that it will provide a useful resource – given that “sharia” is one of the most frequently-used search terms that brings people to our blog – and, more important, a corrective to some of the more sensationalist material on the Web.

Baptism in the C of E

Early in the week we noted the significant interest that had been shown in the Church of England proposals for additional material that might be used in the baptism service. The story was picked up by the Anglican Communion News Service, (ACNS) of 7 January, which included an item “England considers dropping language of sin and devil from baptism service“: not notable of itself in that the facts were impartially and correctly presented, other than that the piece was based upon an article in The Tablet with the CofE clarification added as a footnote. Very ecumenical?– or perhaps The Tablet provides a more comprehensive summary of the responses to the proposed new service?

However, it includes a comment from the Revd Miranda Threlfall-Holmes, whose church in Durham is one of those trialling the additional texts in accessible language until the end of April. She is quoted as saying “the aim, to have elements of the service that even those of low literacy can understand, is entirely laudable,” – which does not seem quite the same as “materials to supplement the Baptism service ‘in culturally appropriate and accessible language’ “.

There has been interest in the story in the United States where Msgr. Charles Pope blogged “Should the [Roman Catholic] Church Consider Reintroducing the Exorcism Prayers in the Rite of Baptism?. A comparison of the Latin Tridentine Baptism Rite and the Novus Ordo is available here. Within the Church of England, however, although the 1549 Book of Common Prayer retained one of the prayers of exorcism, this was removed in subsequent editions.

Baptism was addressed by Pope Francis at his first general audience of 2014 when he began a new series of catecheses on the Sacraments, starting with Baptism and recalling that, fortuitously, the following Sunday would be the Feast of the Baptism of the Lord. In response to the question “Is [baptism] not fundamentally a simple rite, a formal act of the Church, for naming a child?” he concluded “… it is not a mere formality! A baptised child is not the same as a child who is not baptised; a baptised person is not the same as one who has not received baptism. It is an act that touches the depth of our existence”.

Defamation

The Defamation Act 2013 came into effect on 1 January. The Act (which applies largely to England and Wales, though some of its provisions also extend to Scotland) includes a requirement for claimants to show that they have suffered serious harm before suing for defamation. In addition:

  • it removes the current presumption in favour of a jury trial;
  • it introduces a defence of “responsible publication on matters of public interest”;
  • It confers privilege on peer-reviewed articles in scientific or academic journals (in Scotland as well as in England and Wales); and
  • it introduces new statutory defences of truth and honest opinion in place of the common law defences of justification. and fair comment.

Crucially for readers of this blog (and, indeed, crucially for us as its originators) it gives increased protection to operators of websites that host user-generated content, provided that they comply with the procedure to enable complainants to resolve disputes directly with the author of the material concerned. (But rather than rely on the new Act, we’d prefer not to post potentially-libellous material in the first place…)

The Master of the Rolls has issued a statement on the (limited) changes to the Civil Procedure Rules in consequence of the Act’s coming into force. 

Recent consistory court judgments

Two of this week’s reported judgments – Re St Peter Forncett [2013] Norwich Cons Ct, Ruth Arlow Ch and Re St Peter Gunton [2013] Norwich Cons Ct, Ruth Arlow Ch – concerned faculties for the exhumation of remains, seeking to transfer the remains to a grave in Co. Antrim, and to move cremated remains to a more accessible location six feet away from the current position, respectively. Both petitions were refused on the basis of the the guidelines set out in the Court of Arches decision in Re Blagdon.

In Re St Saviour Smallthorne [2013] Lichfield Cons Ct.  Stephen Eyre Ch, a faculty was granted for the installation of polycarbonate window guards rather than the more traditional wire mesh guards recommended by the Diocesan Advisory Committee. Reference was made to the Church Buildings Council Guidance Note on both types of guard, and the location of the proposed polycarbonate guards, 4m above the ground at the lowest point, was an important factor in the positive decision for their use in this case.

There was a single objection to the petition in Re St Nicholas Chapel Kings Lynn [2013] Norwich Cons Ct, Ruth Arlow Ch, which related to various works to a redundant chapel vested in the Churches Conservation Trust and the adjoining chapelyard. The objection concerned the removal of the modern metal security gates from the entrance to the south porch and their replacement with the Victorian gates which previously hung there.  St Nicholas’ Chapel was made redundant in the early nineties, as a result of which the faculty jurisdiction no longer applies to the building itself although the redundancy does not extend to the chapelyard which remains under the control of the PCC. Consequently, the Consistory Court has no jurisdiction on the matter of the south porch gates, which are part of the building, which no longer has the benefit of the ecclesiastical exemption and is subject to the usual secular planning controls.

Safeguarding

On 3 January, the House of Commons Library published a Standard Note on An overview of child protection legislation in England. It  summarizes:

It concludes with developments under the Coalition Government, including:

Further general information about child protection policy is available on the Department for Education website, here.

The Ecclesiastical Law Society 2014 Day Conference on Safeguarding will take place on 5 April at The Cardinal Vaughan Centre, Westminster, London, and include topical legal and pastoral issues relevant to clergy and laity, here.

Anglicans mark 70 years since ordination of first woman priest

… another headline from the ACNS.  Thirty years before any Anglican Church regularised the ordination of women, Dr Florence Li Tim-Oi was ordained a priest on 25 January, 1944 by the Bishop of Victoria, Ronald Hall,  in response to a crisis among Anglican Christians in China caused by the Japanese invasion. The article notes that her ordination was controversial and she resigned her licence (though not her priestly orders) after the end of the war. A service marking 70 years since the ordination of the Anglican Communion’s first woman priest is to be held at St Martin in the Fields Church, Trafalgar Square, on Saturday 25th January. It has been organised by members of the Foundation set up to honour the Reverend Dr Florence Li Tim-Oi’s legacy. It was established to enable women to be trained for Christian work in their own countries and has given more than £750,000 in grants to over 350 women in countries including Brazil, Fiji, Kenya, Pakistan, Rwanda, Sudan, Tanzania and Uganda.

Chancel Repair Liability

On Wednesday 15 January there will be a Westminster Hall debate on manorial rights (England and Wales) led by Albert Owen, (Ynys Môn) (Lab) who raised the issue before the debate on the Autumn statement, and received the following riposte from Andrew Lansley, [5 Dec 2013 : Column 1100]

“The hon. Gentleman will know that registration of notice of manorial rights at the Land Registry is not related to rights relating to shale gas or oil. The Petroleum Act 1988 vests all rights to the nation’s petroleum resources in the Crown. Manorial rights have a distinct legal history, but can be legitimately bought and sold in the same way as other property rights. The registration of notice of manorial rights records existing rights so that people know they exist; it does not create new rights although it does, of course, help prospective buyers avoid what would otherwise be hidden rights. The hon. Gentleman will appreciate that property owners who were unaware of existing mining rights when the notices arrived may have been alarmed by that, but I recommend they obtain legal advice, which should reassure them. If Members of the House have evidence of problems, my hon. Friends at the Ministry of Justice will be happy to help.”

We hope that the Westminster Hall debate will be as well-informed as the comments regarding our post on the issue.

Chancel Repair Liability – Revision Notes

Following media interest earlier this week, we thought that it would be useful to re-iterate some of the information relating to Chancel Repair Liability, (CRL), from the earlier post which outlined the position after the expiry of the midnight deadline for registration 12 October 2013.  There have been no new legal developments (or apparently any claims) regarding CRL since that date, but in the slack news period over the Christmas/New Year break, a number of newspapers based their stories on FoI requests earlier in the year to the Land Registry.  The Daily Mail reports

“247 churches have so far registered 12,276 homes or plots of land as being liable. Letters informing the owners have been sent out by the Land Registry, which manages the list, the Sunday Times reported yesterday. However as many as 5,000 parish churches have yet to register their rights, meaning the final total could be significantly higher.”

The figure relating to the number of titles affected supported by exchanges with Land Registry, here, and a subsequent response, here, indicated that at 4 November 2013 there had been 3,609 entries of titles affected by chancel repair between 2002 and 12 October 2013 (with a further 8 since then).

A useful analysis of these recent reports has been made Greg Yerbury, here.

Comment

Although the origins of CRL date back to the time of Henry VIII, the provisions under which it is enforced are relatively recent. Until 1932, enforcement proceedings took place in the ecclesiastical courts, but the UK Government brought in the Chancel Repair Act 1932 whereby jurisdiction passed to the secular courts and responsibility for its enforcement was placed on the PCC of the parish concerned [1]. There have been attempts at phasing out CRL: in February 1982, the General Synod of the Church of England overwhelmingly supported a motion approving a phasing out of chancel repair liability; and in 1985, the Law Commission published a paper on its reform, recommending phasing it out over a 10-year period.

The Church of England helpfully summarizes the post 12 October position:

– If the liability is not registered by 2013, liability is still enforceable against the then owner of the relevant land until he or she disposes of the land. It is only a successor in title who is freed from the unregistered liability;

– As long as liability is registered by 2013, then all future owners of the relevant land are liable for their due share (unless they compound the liability as provided for under the Ecclesiastical Dilapidations Measure 1923);

– Liability registration can still be achieved after October 2013 but it will only be effective in continuing chancel repair liability if there has been no sale of the subject land since October 2013. Also, the Land Registry will charge a fee [for applications after 11 October 2013].

An important caveat is that in terms of “new owners” it is possible that where property changes hands “without valuable consideration”, i.e. where no money or a nominal sum is handed over, such as under the terms of a Will, the land may still have a Chancel Repair Liability past the cut-off date.

With regard to the statement that “as many as 5,000 parish churches have yet to register their rights”, this appears to be based upon CofE estimates of the number of parishes subject to CRL. There is no central Church of England register of parishes where Chancel Repair Liability may exist, but recent estimates suggest a figure of 5,200 parishes, involving 3,780,500 acres of land.  Of this the Church Commissioners, Ecclesiastical Corporations such as Deans and Chapters of Cathedrals, Oxford, Cambridge and Durham Universities and their constituent colleges, Winchester College and Eton College are estimated to have responsibility for about 1,200 chancels.

In conclusion, whilst some might regard some of the media reports as scaremongering, Chancel Repair Liability remains an issue for existing owners, properties that have been registered by the PCC, and where ownership has changed “without valuable consideration”. As the Law Society noted  on 16 December 2013 “Chancel repair liability still an issue for conveyancers[2]. A further area of concern is the extent to which this liability is “joint and several””[3].

And see the comments of Greg Yerbury and Michael Hall, below.


[1] The Act does not apply to the Channel Islands or the Isle of Man.

[2] This article incorrectly states that midnight on 13 October 2013 was the threshold for the provisions on registration.

[3] See paragraph 13 and footnotes 10 & 11 of the Church of England Opinion of the Church of England Advisory Commission on Chancel Repair Liability.

Law & Religion 2013 and 2014: retrospect and prospect

In a vintage year for law & religion anoraks so much happened that it is almost invidious to attempt to pick out the most important events: but we can seldom resist a challenge, so here goes…

Defining “religion”KEEP CALM

Joint top of the list of important issues for 2013 must be the recent attempt by Lord Toulson in the Supreme Court to provide a definition of “religion” appropriate to a multi-faith, multi-cultural and rather secularised society. It begins: “a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite… “: see R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 at para 57.

Religious accommodation in the workplace

Equally important was the ruling of the ECtHR in Eweida and Ors v United Kingdom [2013] ECHR 37, on which we posted at some length. As everyone knows, Ms Eweida won her case while Mrs Chaplin, Ms Ladele and Mr McFarlane were all unsuccessful. The most interesting distinction was that drawn between the two religious dress cases. Ms Eweida won because BA’s uniform policy was about corporate image – and the company shot through its own goal when it subsequently decided to allow employees to wear approved religious symbols, including crosses. On the other hand, Mrs Chaplin lost because her NHS Trust had based its policy on principles of health and safety and the Department of Health guidelines on appropriate dress for clinical staff. The ruling has somewhat moderated the “specific situation rule” (recently and memorably described as “like it or leg it”) and it is already beginning to have some influence in the domestic courts.

[Howard Friedman included Eweida and Hodkin in his world-wide Top 10 Church-State and Religious Liberty Developments in 2013.]

Abortion and conscientious objection

In April we reported that the reclaiming motion of Mary Doogan and Connie Wood,Greater Glasgow HB the labour ward coordinators at Glasgow’s Southern General Hospital who objected on grounds of conscience to supervising staff involved in abortions, had been successful. In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 the Inner House of the Court of Session overturned the decision of the Lord Ordinary [Lady Smith] dismissing their petition for judicial review. Delivering the opinion of the Court in favour of the reclaimers, Lady Dorrian concluded that

“The conscientious objection in section 4 [of the Abortion Act 1967] is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant … [I]t is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it” (para 38).

The Health Board has since appealed to the Supreme Court.

Assisted dying

The tragic case of the late Tony Nicklinson, who suffered from “locked-in syndrome” following a severe stroke, attracted considerable media attention. In the first instance, along with an anonymous claimant, “AM”, he sought declarations that, on grounds of necessity, it would not be unlawful for his GP or another doctor to terminate or to assist the termination of his life and, further or alternatively, that the current law of murder and/or of assisted suicide violated Article 8 ECHR and was contrary to ss 1 and 6 Human Rights Act 1998 insofar as it criminalised voluntary active euthanasia and/or assisted suicide.

He lost in the Administrative Court: see R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors [2012] EWHC 2381 (Admin) and subsequently died. His widow Jane (and two other appellants) appealed unsuccessfully to the Court of Appeal: see Nicklinson & Anor, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961. A further appeal was heard by the Supreme Court on 16 December: judgment is awaited.

In Scotland, Margo MacDonald introduced her Assisted Suicide (Scotland) Bill in the Scottish Parliament on 14 November. The Health and Sport Committee began its preliminary consideration of the Bill on 17 December: the suspicion is that progress through Parliament will be slow – if, that is, it survives Stage 1 at all.

Bed, breakfast and same-sex partners

MarazionThe sequence of judicial hearings in Bull & Bull v Hall & Preddy commenced on 18 January 2011 in the Bristol County Court, where it was held that on 5 September 2008 Peter and Hazelmary Bull had directly discriminated against Mr Preddy and Mr Hall in refusing to let to them the double-bedded room they had booked in the Chymorvah[1] Private Hotel, Marazion, Cornwall. The Court of Appeal upheld that judgment: [2012] EWCA Civ 83; and the Supreme Court dismissed a further appeal unanimously: [2013] UKSC 73. Our post, Double rooms, gay couples, Christians and the clash of rights, makes a detailed analysis of this latest ruling and the Supreme Court’s deliberations on direct and indirect discrimination – on which opinions were divided. Had the discrimination been indirect, it would have been possible for the appellants to argue justification.

Lady Hale observed (para 26) that “civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law” and that it “was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy … [I]ts equivalence to marriage is emphasised by the provision in regulation 3(4) that being married and being a civil partner is not to be treated as a material difference for the purpose of a finding of either direct or indirect discrimination”.

The status of same-sex couples in other jurisdictions has received judicial consideration in both the CJEU and the ECtHR. In Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 the Court of Justice of the European Union ruled that in relation to Article 2(2)(a) of Directive 2000/78/EC on establishing a general framework for equal treatment in employment and occupation, same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses. In Vallianatos & Ors v Greece [2013] ECHR (GC) 1110 the Grand Chamber held that the fact that the “civil unions” introduced by Law no. 3719/2008 were designed only for opposite-sex couples had infringed the right of the applicant same-sex couples to respect for their private and family lives, contrary to Article 8 ECHR, and amounted to unjustified discrimination between different-sex and same-sex couples to the detriment of the latter, contrary to Article 14.

Frédéric Hay is, of course, binding as part of EU law. But Vallianatos is also potentially important because (so far as we know) it is the first case at the ECtHR to address same-sex civil partnership rights outside the context of marriage; and our suspicion is that it may have implications for the forthcoming DCMS consultation on introducing opposite-sex civil partnerships in England and Wales – for which, see below.

Clergy employment

The year saw two major cases on clergy employment that are extremely difficult to reconcile. In President of the Methodist Conference v Preston [2013] UKSC 29 the Court, by four votes to one (Lord Hope DPSC, Lords Wilson, Sumption and Carnwath JJSC: Lady Hale JSC dissenting), reversed the decision of the Court of Appeal that the Revd Haley Preston, former Superintendent Minister in the Redruth Circuit was employed by the Methodist Conference and restored the original order of the Employment Tribunal dismissing her claim.

The majority of the Court distinguished Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73: while it was accepted in that case that Ms Percy (who had previously demitted her status as a minister of the Kirk) did not have a contract of service, the statutory test of “employment” for the purposes of sex discrimination claims was broader than the test for unfair dismissal claims. Under the Constitution and Standing Orders of the Methodist Church a minister’s engagement was incapable of being analysed in terms of contractual formation and neither admission to full connexion nor ordination were themselves contractual: therefore, unless there was some special arrangement with a minister (which in Mrs Preston’s case there was not), that minister’s rights and duties arose from his or her status under the Church’s Constitution rather than from any contract.

Conversely, in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811 Mrs Justice Cox, sitting alone, held that the decision of the lower tribunal that the Revd Mark Sharpe, former incumbent of Teme Valley South Benefice in the Diocese of Worcester, could not be a “worker” within the terms of the Employment Rights Act 1996, as amended, had been flawed. She allowed the appeal and remitted the case to the Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” (para 244). Following the decisions in Percy and Preston, she concluded that it was now “abundantly clear” that the employment status of clergy “cannot be determined simply by asking whether the minister is an office holder or is in employment” (para 146).

The second judgment has left us somewhat confused. Hayley Preston lost in the Supreme Court because the majority accepted that it is the corporate understanding of the Methodist Church that it is not in a contractual relationship with its ministers and that there is, therefore, no intention on the Church’s part to create contracts of employment with circuit ministers. But it takes two to create a contract and, as Professor David McClean explained in evidence, it is equally the the Church of England’s corporate understanding that it is not in a contractual relationship with its freehold incumbents (nor, indeed, with clergy on common tenure, which is why it has given them “as if” employment rights).

So why does the Methodist Church’s understanding of the nature of its ministry defeat Mrs Preston’s claim while the Church of England’s understanding of the nature of its ministry does not defeat Mr Sharpe’s? Moreover, as Philip Jones points out over at Ecclesiastical Law, Cox J “missed a factual distinction of critical importance to Mr Sharpe’s dismissal claim. Ms Percy and Ms Preston did not have the parson’s freehold“. We imagine that before Sharpe gets anywhere near an Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” it will be in front of the Court of Appeal.

Consistory Court judgments

Carmarthen Const CtSince August, we have included reports of recent consistory court judgments in our weekly round-up as soon as they become available on the Ecclesiastical Law Association website. Petitions for exhumation to correct basic errors in burials by those responsible for churchyards and cemeteries appear with depressing regularity, making one wonder what would happen if these individuals ever had to manage FMCGs. On the positive side, however, are the instances in which the chancellor had given detailed consideration to a petition when at first reading it appeared as though it should be rejected.

As a commentary on the range of issues being faced by the Church of England, the judgments provide a valuable insight into the everyday workings of a PCC, from unpleasant village politics and the often misplaced and incomprehensible objections from a single individual with a “habitual concern for the congregation”, to the sale of chattels where the church has either insufficient funds or apparently poor stewardship of its finances. In addition, some of the more obscure aspects of church law were given detailed consideration:

  • the arcane law concerning churchyards and, in particular, monuments erected in churchyards: Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch);
  • the narrow interpretation given to the word “building” in the context of the Disused Burial Grounds Act 1884Re St Peter in the East, Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep Ch); and
  • the respective criteria in sections 17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 for the demolition of a church: Re St Paul Eastville [2013] Lincoln Const Ct (Mark Bishop Ch).

Family law, morality and religion

Sir James Munby’s speech to the Law Society’s annual Family Law Conference in October, “The sacred and the secular: religion, culture and the family courts“, provoked a certain amount of controversy (and resulted in Frank being picked up in a taxi at 6.45 to be taken to the nearest BBC studio for a two-minute down-the-line interview on Sunday on Radio 4 – an experience he would not care to repeat). Almost inevitably, Melanie Phillips was one of the severest critics, complaining that “today’s judges see it as very much their business to enforce secular beliefs” and that “traditional moral codes have merely been replaced by the modern religion of human rights”.

We disagree; and we would pray in aid the judicial oath to do justice to all manner of people “without fear or favour, affection or ill-will” – which must sure entail an even-handed approach to questions of religious belief. Of course, our views are neither here nor there; but when the matter was raised with the new Lord Chief Justice, Lord Thomas, at his first press conference since taking office he replied:

“[W]e have to apply the law and the law is essentially a secular law and so, yes … as it is our duty to apply law which is secular law we should do that”.

End of argument. Maybe.

New Pope, New Archbishop

Benedict XVI’s words “meas ingravescente aetate”[2] alerted Vatican correspondent Giovanna Chirri to the likelihood that the consistory on 11 February 2013 would be more than a routine event; and the first papal resignation since that of Gregory XII in 1415 caught everyone by surprise. Whilst this possibility is addressed the 1983 Code of Canon Law, (primarily through Canon 332 §2 and more generally in Canons 187 to 189), it was necessary for Pope Benedict to make some last-minute changes to the “standing orders” concerning the sede vacante with the Universi Dominici Gregis and take decisions regarding his future position, style, title, vesture &c prior to the start of the sede vacante, i.e. 8.00 pm on 28 February 2013.

In contrast to the short, 13-day conclave to determine the new Pope, [during which there was a limited edition issue of four stamps – €0.70, €0.85, €2.00 and €2.50 – for use within this period, the minting of €2.00 coins of legal tender plus a limited number of “collectible” €5.00 and €10.00 coins and interim changes to the coat of arms], the selection of the Archbishop of Canterbury was a ponderous affair. Although Rowan Williams announced his resignation on 16 March 2012, it took until 9 November 2012 before the Prime Minister’s office announced Justin Welby’s appointment. He was formally elected as of 10 January 2013 in Canterbury Cathedral, legally took office on 4 February at a ceremony in St Paul’s Cathedral and was enthroned in Canterbury Cathedral on 21 March.

Since Archbishop Rowan’s resignation took effect on 31 December 2012 and Archbishop Justin was formally elected by the College of Canons of Canterbury Cathedral early in January (i.e. the equivalent to the end of the sede vacante) it could be argued that the CofE was without a head for three days less than the Roman Catholic Church. However, there are lessons to be learned by both Churches: a less bureaucratic method of appointing a new ABC and further revisions to/replacement of the Universi Dominici Gregis that take into account the present situation, (i.e. a Pope and Pope Emeritus), and the possibility of future resignations.

Same-sex marriage

The Marriage (Same Sex Couples) Act 2013 received Royal Assent on 17 July. Briefly, it provides for same-sex marriage in England and Wales, permits marriage of same-sex couples by way of a civil ceremony and, except for the Church of England and the Church in Wales, permits religious marriage of same-sex couples if and only if the religious organisation concerned has opted in to that process. The Act also provides a process for the C in W to request legislative change should it one day wish to marry same-sex couples. The Act does not remove the availability of same-sex civil partnerships and provides for their conversion into marriage if the partners so choose. But it makes no provision for opposite-sex civil partnerships, in spite of the fact that a group of heterosexual couples wishing to contract civil partnerships have taken the matter to Strasbourg: see Ferguson & Ors v United Kingdom (Application No. 8254/11) lodged on 2 February 2011. At the last gasp, the Government agreed to bring forward the timing of its intended consultation on the issue.

The Scottish Government took a much more comprehensive approach. Considered proposals, together with a draft Bill, were published in December 2012. The detailed proposals were the subject of a further consultation which ended on 20 March 2013 and the Marriage and Civil Partnership (Scotland) Bill was introduced on 26 June 2013. It passed Stage 1 is currently being considered at Stage 2 by the Equal Opportunities Committee.

As to Northern Ireland however, the Assembly has now had two opportunities to consider the matter and on both of them has voted to reject the possibility of same-sex marriage.

Succession to the Crown

Although the Succession to the Crown Act 2013 received Royal Assent on 25 200px-Crown_of_Saint_Edward.svgMay 2013 the only part in force is section 5, which states, inter alia, that the substantive provisions will only come into force “on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint”. Given that the provisions within section 1 regarding succession are retrospective to 28 October 2011[3], one wonders exactly why it was fast-tracked through Parliament, allowing insufficient time for the consideration of many of the associated issues. As Viscount Astor noted during the Bill’s second reading [14 Feb c 810],

“[t]he Select Committee report pointed out that the retrospective element of the provision obviates the need for fast-tracking … even after the passage of the Bill, it will not come into force until, under Clause 5, an award is made by the Lord President of the Council”.

Historian and broadcaster David Starkey observed that the birth of HRH Prince George of Cambridge on 22 July has meant “the effect of the Act that everybody has been labouring over (?) will not now be felt for 100 years”. The monarchy now has three generations of heirs to the throne for the first time since 1894, but as Lord Trefgarne observed during third reading of the Bill, [22 April c 1229]

“[t]his Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers … those arrangements are … a great deal more complicated even than they are for the Crown“.

Women as bishops in the C of E

Synod’s narrow vote against women in the episcopate on 20 November 2012 presented Justin Welby with an unwelcome legacy to address, just over a week after his appointment as ABC had been announced. The situation was exacerbated by adverse reaction within the Church and Parliament but few, if any, of the initiatives other than that taken by the House of Bishops provided a realistic way forward towards resolving the situation. The Bristol Diocesan Synod’s “no confidence vote” in General Synod was a non-starter and gained no support from other dioceses, while action from within the House of Laity to force a meeting to discuss a vote of no confidence in its Chair, who voted against the motion, proved to be a costly embarrassment and burdened the CofE with an estimated cost of £38,000 for holding the House of Laity’s extraordinary meeting on 12 January.

In Parliament there was a rash of activity: EDMs, Private Members’ Bills, questions to the Second Church Estates Commissioner and a Westminster Hall debate, all of which served to highlight the urgency with which the issue was perceived. However, Sir Tony Baldry reminded the House [22 Nov 2012 c 723] that

“the occasions in the past when Parliament and the Church of England have gone head to head on matters of worship and doctrine—there were disputes about the prayer book in the late 1920s, for instance—are not happy precedents,”

and added:

“I hope and believe that Parliament will give it time to sort itself out and get on with the issue, and I assure the House that we will do so as speedily as possible”.

A guest post by Bob Morris considered the possible intervention of Parliament but concluded

“… the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining church/state ties is another question.”

This in fact was the case, and whilst it might not have been the approach favoured a number of parliamentarians, it provided an added impetus to the discussions, the progress of which we reviewed in December 12, in relation to the “next steps” consultation paper: Women in the episcopate: a new way forward, the July Synod, here, and the next steps following the positive vote in the November Synod in the morning of 20 November. Valuable insights into these developments were provided by Will Adam, Editor of the Ecclesiastical Law Journal, here and here.

Synod gave First Consideration to the proposals in the afternoon session of 20 November and voted to progress the legislation to the next legislative stage: revision. However, Synod also voted to dispense with the normal Revision Committee process and move straight to revision in full Synod, which next meets in February 2014, “thereby clearing the way for a possible vote on final approval later in 2014”.

Where should we rebury Richard III?

St Denys, S-i-t-VThe licence for the removal of the remains of “persons unknown” from Grey Friars was issued on 3 September 2012, shortly after the commencement of the archaeological dig. By the end of the year, although the identity of the remains had not been confirmed, speculation on their reinterment had commenced and initially centred on the “appropriate rites and ceremonies of the Church”. Answering Church Commissioner’s oral questions in October, Sir Tony Baldry speculated correctly that there would be “quite a lot of competition” if the bones were identified as belonging to Richard III, but we had to wait until the Leicester University press conference on 4 February 2013 to learn that this was the case “beyond reasonable doubt”.

Although there was a rival claim for the reinterment to be in York, it was not until the Plantagenet Alliance came upon the scene that the dominant legal issue changed from an interpretation of section 25 Burial Act 1857 and common law provisions regarding “custody and possession” of the remains, to a judicial review of the actions of the Ministry of Justice and the extent to which consultation was required in relation to the issue of an exhumation licence under the Act.

Judicial review was granted on 16 August, Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin), and following challenges by the MoJ, the substantive hearing was scheduled for 26 November. However, this was adjourned after the judges decided that Leicester City Council should also be a defendant in the case rather than an interested party and it is expected to resume in 2014.

In the meantime, the plans for reordering Leicester Cathedral are on hold following a decision by the Cathedrals Fabric Commission for England, (CFCE), to withhold permission for the work until the outcome of the judicial review hearing is known and there has been further study and discussion of the proposals relating to the objections from the amenity societies. Provided the outcome of these discussions and the judicial review are positive vis-à-vis Leicester, it is anticipated that the works necessary to provide the tomb and its place of honour will take about six months. Information on the conduct of a medieval reburial service is available as the result of the research by Dr Andrea Buckle of Oxford University on the reburial of Richard Beauchamp, Earl of Warwick, a contemporary of Richard III.

Unfinished business and unpublished reports

On the day following the election of Francis I as the new Pope, we commented:

“[a]s long as the two stiff, unmarked red folders containing the ~300 pages [Vatileaks] report remain in a safe in the papal apartments of the Apostolic Palace, speculation is bound to continue.  An important first step towards increased credibility and transparency would be for Pope Francis to authorize the release of the general findings of the Vatileaks report and the action that is to be taken”.

With the benefit of hindsight, it is clear that such an approach is not consistent with the modus operandi of Pope Francis, who has in other ways put measures in place that will increase the credibility and transparency of the Holy See. However, the existence of an unpublished report such as Vatileaks remains a potential threat from speculation and investigative journalism.

The as yet unpublished report of Dame Heather Steel’s inquiry into safeguarding in Jersey has raised similar issues, although these have been exacerbated by the noli nos tangere attitude of some on the Island combined with some less than helpful analyses from the mainland. The non-publication of this report is on the basis of legal advice following representations from an interested party; the investigation related to the treatment of one individual, HG, the procedures on safeguarding within Jersey, and the interface between the Church in Jersey and the Diocese of Winchester. Nevertheless, we are surprised that only peripheral mention is made on the CofE’s Child Protection and Safeguarding web page.

Despite the statement [23 Apr 2013 c 789] by the Parliamentary Under-Secretary of State for Business, Innovation and Skills, Jo Swinson, that the Government intended to make caste an aspect of race discrimination within the Equalities Act 2010, the Government Equalities Office timetable indicates that the final draft Order is unlikely to be introduced into Parliament before summer 2015.

*************

And for 2014?

Generally, we expect the year to be dominated by two things: the Scottish independence referendum and the continuing debate (?row) over the relationship between the UK and the European Court of Human Rights. But specifically we expect:

  • the forthcoming SC judgment in Nicklinson;
  • the forthcoming appeals in Doogan and (almost certainly) Sharpe;
  • the ECtHR hearing on the French ban on face-coverings in public places;
  • the consultation in Northern Ireland on limited reform to the abortion law;
  • further consideration by General Synod of women in the episcopate: in London, 10-14 February, and in York, 1-15 July;
  • (presumably) resolution of the dispute between the Charity Commission and the Preston Down Trust about the charitable status of chapels of the Exclusive Brethren; and
  • (possibly) same-sex marriage in England and Wales from 29 March.

And who knows what else?

*************

And that, believe it or not, was Post 500. And a happy and prosperous New Year to all our readers


[1] Cornish for “the house near the sea”.

[2] “my advanced age”.

[3] the date of the Commonwealth Heads of Government Meeting in Perth.

 

 

Religion and law round-up – 22nd December

A week in which the Supreme Court considered the right to die, the House of Lords debated Part 2 of the Lobbying Bill, and it became necessary to distinguish between PACS and super-PACs

Abortion law in Northern Ireland

We posted an analysis of the current state of abortion law in Northern Ireland, partly in response to the announcement from David Ford MLA, Minister of Justice and Leader of the Alliance Party, that he is going to consult early in 2014 on changing the law to allow women carrying babies with fatal foetal abnormalities to have a termination and partly triggered by a post on God & Politics by Edward Kendall.

Our analysis was not intended so much as a response as a long comment. The whole issue of abortion law on both sides of the Irish border is complicated by both political and religious considerations. In Dublin the matter was brought to a head by the avoidable death of Savita Halappanavar in October 2012 at University Hospital, Galway. In Belfast the tragic story of Sarah Ewart, who was obliged to travel to England in order to abort a foetus without a developed brain, seems to have been a major factor in the decision to launch the consultation. Whether or not the law in Northern Ireland will be reformed, however, is another matter. There appears to be no majority for reforming the law, either in the Assembly or among the population at large.

Employment and equal treatment

Last week the CJEU ruled in Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 that Article 2(2)(a) of the of the Equal Treatment Directive 2000/78/EC requires that same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses. M Hay had concluded a civil solidarity pact (PACS) with his partner in 2007: the Court ruled that same-sex partners in civil partnerships and similar legal arrangements could not be excluded from employment-related benefits granted to married couples, even where the same-sex partnership legislation of the member state in question was not comprehensively equivalent to marriage, as was the case with the French civil solidarity pact.

Employment and religion

The Daily Mail reported (accurately) that Ms Karen Holland, a Wiccan who claimed that she was sacked by her employers because she had attended a Halloween ceremony, had been awarded over £15,000 by an Employment Tribunal in compensation for unfair dismissal and sex and religious discrimination. Her erstwhile employers announced that they would appeal.

We now have a copy of the ET decision (a snip at ten quid from the Tribunals Service at Bury St Edmunds) and will post an analysis as a Christmas treat for employment lawyers .

Lobbying registers

Attention this week has focused on the Lords’ deliberations on the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which the former bishop of Oxford, Lord Harries of Pentregarth (CB), has suggested [18 Dec 2013 : Column 1278]

“. . . represents an attempt to escape the influence of the super-PACs [Political Action Committees[1]] in this country. It is as though a huge net has been thrown in order to catch some great fish which might swim across the Atlantic, but the only effect of which is to trap smaller fish quite legitimately swimming freely in the waters of democracy.”

European developments in this area have received little attention, but in addition to the publication of the first Annual Report on the Transparency Register, a working group of MEPs has presented its recommendations for future improvements. Unlike the UK, there appears to be a better grasp of what lobbying entails, and possible changes include these:

  • Only organisations on the register of lobbyists should be given access to the European Parliament and Commission: lobbyists who do not comply with the rules should be removed from the database and barred from such access and other advantages of registration.
  • Registered lobbyists should be allowed to give their input to the European Commission and the European Parliament more easily, but the data they disclose should be peer-reviewed with be a better system for outsiders to alert inaccuracies and file complaints.

The European media reactions to the report have been mixed, ranging from “EU lobby register on track to becoming mandatory” to “Mandatory lobbyist register ‘unlikely’ under current law”, the latter picking up on the group’s conclusion that only legal basis for a mandatory register would be Article 352 TFEU which requires unanimous consent from all Member States and approval by national parliaments.

The possibility of a register was first raised by Siim Kallas, Vice-President of the European Commission in 2005, whose speech in Nottingham made reference to the “Open Government” episode of Yes Minister.  However, it was 2011 before a joint Parliament and Commission register was launched. Today in Europe, only Austria, Denmark, France and the Netherlands have mandatory registers, and the US has a mandatory register for lobbying in Washington, DC.

Frank points out (as a professional lobbyist, albeit a semi-retired one) that, currently, no-one has any problem with the existing EU lobbying and transparency rules and that making them entirely mandatory would in practice make very little difference to  commercial lobbyists.

Henry VIII powers to be ousted from Deregulation Bill?

A Report has been produced by the Joint Committee on the Draft Deregulation Bill recommending that the proposed powers in the draft Bill to allow Ministers to make orders to scrap legislation if they consider it “no longer of practical use” should “be removed from the Bill on the grounds that the power is ‘too wide and the safeguards are inadequate’”. The Committee has suggested that as an alternative, the Law Commissions should be encouraged to bring forward an annual Statute Law (Repeals) Bill, in consultation with Government departments, and that this “would provide the flexibility to allow departments to repeal legislation in areas of concern to them with the benefit of the expertise and independence of the Law Commissions”.

Readers will recall the present Administration’s attempt to incorporate extensive Ministerial powers within the Public Bodies Bill 2011; and although the greater excesses of these proposals were voted down, Ministers nevertheless have sweeping powers to abolish, merge, modify constitutional arrangements, modify funding arrangements and modify or transfer functions of NDPBs, (Schedules 1 to 5 respectively), albeit under the super-affirmative procedure.

Statement from ONS on marriage and divorce statistics consultation

On 12 December, the Office of National Statistics issued the following statement in relation to its consultation on marriage and divorce statistics, which has just closed:

“ONS would like to thank all users who have contributed so far to the consultation ‘User requirements for marriage, divorce and civil partnership statistics given the introduction of marriage of same sex couples‘. ONS would like to clarify that it is not proposing to produce only total figures for marriages where the distinction between same sex and opposite sex couples is not available. ONS do intend to publish marriage and divorce statistics in the future where figures for opposite sex and same sex couples are shown separately. ONS are consulting on the characteristics of these marriages/divorces which are of particular interest so that published statistics meet user requirements.”

The Coalition for Marriage claims that this to be a climb-down in response to the concerns it raised to ONS. Whilst some of the questions in the consultation might lead one to agree with its assertion that

“ONS had proposed merging official figures for same-sex and traditional marriage with “no differentiation possible”. The move would have airbrushed true marriage from official data,”

the explanatory information to the Consultation clearly states:

“When marriages of same sex couples begin to be registered, ONS intends to continue to publish: marriage statistics for the UK and England and Wales including marriages of opposite sex and same sex couples; civil partnership formation statistics for the UK and England and Wales; civil partnership dissolution statistics for the UK and England and Wales; statistics on the number of civil partnerships converted into marriage in England and Wales; and divorce statistics for the UK and England and Wales.”

Nevertheless, as the Church of England has found on a number of occasions this year, the need to issue a “clarification” tends to put an organization on the back foot with regard to its credibility and also the control of its agenda, and in terms of public perception the ONS statement will regarded in many quarters as C4M 1: ONS 0.

Votes for prisoners?

The Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill has concluded that (as any fule kno) the UK is under a binding obligation in international law to comply with judgment of the ECtHR in Hirst v United Kingdom (No. 2) [2005] ECHR 681. It recommends that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections and that six months before their scheduled release, prisoners should be entitled to apply to be registered to vote in the constituency into which they are due to be released.

Adam Wagner observes on UKHRB that it would be completely unprecedented for any state that has ratified the ECHR to enact legislation in defiance of a binding ruling of the European Court of Human Rights. That said, however, you never can tell…

Ritual circumcision: yet another update

At the beginning of the month we noted what was (to two secular English lawyers) a rather unusual report in Haaretz  that Israel’s Supreme Rabbinical Court of Appeals had upheld the ruling of a lower rabbinical court imposing a daily fine of 500 shekels (£86) on a woman in dispute with her husband who had refused to have her son circumcised. The Jerusalem Post now reports that the High Court of Justice has issued an interlocutory injunction freezing the order and has, in turn, ordered the Netanya Rabbinical Court and the Supreme Rabbinical Court to provide a response to the mother’s petition by 9 January.

Recent consistory court judgments

The replacement of lead roofing with alternative materials following its removal by theft is a growing concern of the Church of England.  Repairs using matching materials may come within an archdeacon’s jurisdiction under Rule 7.2 of and Schedule 2 to the Faculty Jurisdiction Rules 2013, effective from 1 January 2014, and further clarification may be introduced through List B of the proposed Draft Care of Churches and Ecclesiastical Jurisdiction (Amendment Measure, GS 1919X, considered by the November 2013 General Synod.  However, problems arise when different replacement materials are proposed, and in Re St. Peter Church Lawford [2013] Coventry Consist Ct, Stephen Eyre Ch, a petition to allow the replacement of lead roofing with zinc was refused. In this case, the Chancellor determined that it was premature to replace the entire roof, which had an estimated life of a further 10 to 15 years, and that a more appropriate course of action would be to undertake repairs.  A more general consideration of replacement roofing materials will form the basis of a future post. Likewise, the disposal of vestments in Re St. Mary Bourne Street London [2013] London Const. Ct, Justin Gau Dep. Ch bears further consideration. Although a faculty was granted, the disapproval of the acting Deputy Chancellor on the stewardship of parish resources was readily apparent.

The last reported judgement of the year is Re Selmeston Parish Church [2013] Chichester Const. Ct, Mark Hill Ch, in which a faculty was granted for the removal of a pew platform and four pews from the west end of the church, the Chancellor being satisfied that there were “compelling justifications on the basis of liturgical freedom, pastoral well-being and putting the church to other viable uses consistent with its sacred character.”

And finally . . . . . . . . .

“Tension, politics, terrorists, crowds, parties, drunks and crooks, in a huge confusion of unknown people in your small borough … the first rule for keeping security in Bethlehem was: no kings, no mention of kings, no mention of David. Anyone who shows up talking about David or kings was on their way … [t]he second rule of keeping order was to keep the shepherds sober and on the hills, looking after their sheep by night, or day, or any other time”.

Extracts from Justin Welby’s sermon at the Metropolitan Police carol service at St Margaret’s Church, Westminster, on 17 December, in which he relates the Christmas story from the point of view of “a Bethlehem Borough Commander”.


 

[1] OpenSecrets.org defines super PACs as: Technically known as independent expenditure-only committees, Super PACs may raise unlimited sums of money from corporations, unions, associations and individuals, then spend unlimited sums to overtly advocate for or against political candidates.”

Marriage and burial obligations of the Church of England

The Church of England actively encourages marriage in its churches, with the gushing statement on its website:

“Thinking of a church wedding?

Congratulations! You’re welcome to marry in church whatever your beliefs, whether or not you are christened and whether or not you regularly go to church. And, marrying in church has never been easier – there are more churches to choose from than ever before.”

However, its approach to funerals, is more reserved, and states

“Everyone is entitled to either a burial service (funeral) or to have their ashes buried in their local parish churchyard by their local parish priest regardless of whether they attended church or not,”

These entitlements stem from the duties of a minister to solemnize marriage, “as part of the customary law of the Church of England”[1] and, less ambiguously, from Canon B 38 §2 in relation to burial.  However, each is subject to slightly different restrictions, particularly in the case of churchyard burial where an individual, couple or family group seeks to reserve a burial plot as in the recent judgement, Re All Saints Heathfield [2013] Chichester Const Ct, Mark Hill Ch. Here a faculty was sought for the reservation of a grave space for the petitioner’s mother, whose husband had died in a car accident whilst working in Nigeria in 1964, and his remains were repatriated and interred in the churchyard in that year. Although there is no marker or gravestone to mark the interment, his name is recorded in the church’s Book of Remembrance, alongside which his age at the date of his death is recorded in pencil.

A faculty had been granted in 1963 to the church for the establishment of a Garden of Remembrance within the churchyard and, the circumstantial evidence suggested the likelihood was that his cremated ashes were interred there. The petitioner’s mother had expressed an earnest wish that after her death she would be buried in the churchyard and that a headstone be erected over her grave which might also bear the name of her late husband. However, the petitioner’s mother did not live within the parish nor was her name on the electoral roll of the church, and therefore she had no legal right to burial in the churchyard of All Saints Heathfield.

The law and practice regarding the reservation of grave spaces is addressed comprehensively in Re West Pennard Churchyard [1991] Bath and Wells Const Ct, Newsom Ch  1 WLR 33, ( see (1991) 2 Ecc LJ 232 for summary), which explains that where there is no legal right to burial, s6(2) Church of England (Miscellaneous Provisions) Measure 1976 empowers the minister of a parish, having regard to any general guidance given by the PCC, to permit an interment. In the instant case, after consultation with the archdeacon and the PCC on matters of principle and in relation to this particular request, the incumbent had not given his consent on the grounds that at the time of the petition, there were only seven spaces remaining which by the time of the hearing had reduced to “four or five”.

Comment

In refusing the faculty in Re All Saints Heathfield, the Worshipful Mark Hill QC noted that the absence of consent on the incumbent’s behalf was entirely reasonable since he reached his decision after the appropriate consultations.  In view of the limited grave space available, “to reserve one for any particular individual would serve to prejudice the public right of burial enjoyed by all parishioners until such time as the churchyard is full.” This is consistent with The Churchyard of Wick St. Lawrence [2013] Bath and Wells Const Ct Briden Ch in which consent was refused in the absence of a legal right to burial, where the team rector and PCC had not supported the petition, [although the court regularized and earlier informal agreement with a previous team rector under a different benefice arrangement].  Chancellor Hill noted the significant part of this earlier judgement, in which Chancellor Briden had stressed that for the court to go against the wishes of the incumbent

“would be to subvert the purpose of Section 6(2) of the Church of England (Miscellaneous Provisions) Measure 1976, since the provision of a space reserved by faculty would override the minister’s power to give or withhold consent to the eventual burial.”

The chancellor opined that since the parish of All Saints Heathfield is actively exploring the possibility of re-using parts of the churchyard in order to make further grave spaces available, this may mean that a future request from the petitioner’s mother might be treated differently.  Equally it may be that consideration could be given to the erection of a headstone, naming both the petitioner’s parents, his mother’s ashes to be interred in the churchyard. However, as neither of these matters was before the Court, he considered that it would be wiser not to express a view.

The chancellor observed [at para. 9] that

“[t]here is no analogous ‘qualifying connection’ in respect of burial as was introduced for marriage under the provisions of the Church of England Marriage Measure 2008”,

the rationale for which is found in the House of Bishops’ Guidance [at para.21, emboldening in original]

“It is important for the Minister to bear in mind that the Measure was passed because the Church wishes to support and encourage marriage, and to provide a welcoming ministry to couples who wish to be married in Church”.

The declining availability of burial space is becoming a consideration of the consistory courts, for example Re Wandsworth Cemetery and a Petition by Magdalen Rees [2013] Southwark Const Ct, Philip Petchey Ch, and Re The Churchyard of Wick St. Lawrence  and it would therefore have been unwise for the Church to have adopted a similar approach to burials as for weddings.  The 2007 Ministry of Justice publication Burial grounds: the results of a survey of burial grounds in England and Wales (i.e. contemporary with the start of the CofE Marriage Project), indicated that 64 per cent of Church of England/Church in Wales burial grounds were open for new burials, while a little under 20 per cent were closed to new burials.  However, the report also noted

“For both Church of England and local authority burial … approximately 80 per cent of land available for burials was already occupied by graves, with 20 per cent still unused. Twenty per cent of local authority burial land was occupied by graves over one hundred years old, compared to 36 per cent of Church of England burial land.”

It is encouraging that All Saints Heathfield is actively exploring the possibility of re-using parts of the churchyard in order to make further grave spaces available, a solution that was recommended to government in the 8th Report of the Environment, Transport and Regional Affairs, Session 2000-01,

“127. It is the almost universal view of those in the burial industry that reuse is the only long-term solution not only to the lack of burial space, but also to the long-term financial viability of cemeteries. If the public are to continue to have access to affordable, accessible burial in cemeteries fit for the needs of the bereaved, there appears to be no alternative to grave reuse.”

However, the HC Library Standard Note,Reuse of Graves“ appears to be updated more frequently than government thinking on the issue[2]. It records the statement of the Lord Bishop of Southwell and Nottingham, [HL Deb 22 April 2009 cc1497-9]

“On 2 April the Parliamentary Under-Secretary of State wrote to the chairman of the Churches Funeral Group explaining that,

“after careful consideration, the Government has concluded that this is not the most appropriate time for taking these matters forward”.

Why, after eight years of discussion, is there a shortage of parliamentary time for legislation, or is there a more fundamental reason?”

The Note also states that “[t}he position is particularly acute in London” where “[i]n limited circumstances,  . . . burial authorities may already reclaim and reuse old graves”. Although the shortage of space for burial was acknowledged by Helen Grant, then Parliamentary Under-Secretary of State for Justice, in an adjournment debate on 5 September 2012, [HC Deb 5 September 2012 col. 560],she stated

“I am aware of the difficulties that some burial authorities are experiencing both with a shortage of burial space and in finding practical and affordable alternatives, particularly in some urban areas. However, we have not yet reached the stage where the position is critical or requires Government intervention.”


[1] M Hill, Ecclesiastical Law (3rd Edn), [2007, OUP Oxford], 167.

[2] Last updated 27 November 2013.