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.

Hymn-books, projectors and copyright &c

On 23 November, the Daily Mail carried the story End is nigh for hymn books as churches go hands-free with new iTunes app, which announced “experts in the Church of England estimate that about a quarter of its 16,000 parish churches have projectors or large flat screens”. Dr Thomas Allain-Chapman of Church House Publishing, (CHP) is quoted as suggesting that this growing trend for screens in churches had been taken up by “at least 20 per cent and could be a third. It’s happening everywhere, even in some traditional rural churches.”

CHP was among the first Christian publishers to embrace digital publishing and, in addition to an online version of Crockford, has been busy developing a range of user-friendly apps such as Visual Liturgy in partnership with Aimer Media since 2011. It has also launched a new Sunday Worship app on iTunes so people can look up the relevant readings for a particular day, feast or season, and “a vicar can get this on his iPad and easily project it onto a screen”.

Comment

The move away from hymn books raises two legal issues: the need for a faculty for the permanent installation of a project and screen; and the copyright on the storage and use of electronically generated data. Using the estimates quoted to the media, the maths suggests that this is likely to affect somewhere between 3,240 and 5,345 churches, within which there will be on average 2,500 to 4,125 listed buildings [1]. Under Annex A of the Faculty Jurisdiction Rules 2000 [2] only non-fixed projectors and screens fall within the jurisdiction of an archdeacon, under the heading “Work affecting movables: ( i) introduction of any article which may lawfully be used in the performance of divine service or the rites of the Church (other than an aumbry)”.  In all other cases a faculty will be required, and a recent example of the issues a consistory court takes into consideration are: Re St. Batholomew Binley [2013] Stephen Eyre Ch (Coventry), a faculty was granted for the installation of a projector and screen in a Grade I listed Georgian church, the screen to be housed in a box across the sanctuary arch. In this case, the chancellor commented

“There is a real need for the use of projection equipment in the services in the church and that need should be met by arrangements which are seemly, unobtrusive in appearance, efficient in operation, and safe . . . “, [para. 19]

[…]

“For the sake of completeness I add that even if I had taken the view that the proposed works would adversely affect the church’s special character I would have concluded that the impact on that character was so minimal and the potential benefits so substantial that the latter outweighed the former”, [para.20].

With regard to the use of material subject to copyright, where hymn books are used in a church, the fee for copyright permission is included in the purchase price, but the situation is different in the case of: weekly service sheets; hand outs including the words of hymns, songs &c; and the projection of words with an overhead projector or a computer projection system.  In such cases, it is unlikely that the copyright fee will have been paid, unless this is part of the “package” via which the material was supplied, and some payment is required for its use.

Unfortunately, computer literacy is not necessarily associated with copyright literacy, and at the end of October we published a basic guide that may be of use to our readers.  The Service Sheet for the inauguration of Justin Welby as Archbishop of Canterbury provides a practical example of the material for which an acknowledgement of copyright is required, and a template for the acknowledgements.  Coincidentally, yesterday the ABC commended the decision by the Bodleian and Vatican libraries to make available to the public digitized copies of ancient Bibles and Biblical texts, and this provides a good example of the care that must be taken when using material from web-based sources.

The home page of the web site indicates that during the next four years, “1.5 million pages from these two collections will be made freely available online to researchers and to the general public”, [our emphasis added].  However, anyone wishing to use this material would be advised to read the associated  Terms and Conditions , for whilst use of material from the Bod is relatively relaxed,

 “images of the Bodleian’s collections included on this site, and linked to via the image viewing interface, may be used for personal and non-commercial purposes under the terms of the UK Creative Commons ‘Attribution-NonCommercial-ShareAlike 3.0’ Licence (CC-BY-NC-SA)”

that from the Vatican is more restrictive, i.e.

“The images of the Vatican Library’s collections included on this site, and linked to via the image viewing interface, are the intellectual property of the Vatican Library. These images may not be reproduced in any form without the authorization of the Vatican Library. Please email bav@vatlib.it for permission”, [emboldening on original].


[1] Based upon the CofE figure of 16,200 churches.

[2] Or under Schedule 2, Faculty Jurisdiction Rules 2013, from 1 January 2014.

Religion and law round-up – 1st December

A week dominated by the issue of same-sex relationships, both outside the Churches and within them 

Same-sex couples and B&B: Article 8 v Article 9

Perhaps the biggest news of the week was the Supreme Court’s ruling in Bull & Anor v Hall & Anor [2013] UKSC 73, in which the Court unanimously dismissed  the appeal of Mr and Mrs Bull against the Court of Appeal’s ruling that they had discriminated unlawfully against Mr Hall and Mr Preddy, a couple in a civil partnership, when they refused them a double-bedded room in their private hotel on the grounds that, as Christians, they believed that sexual activity should take place only within the context of (heterosexual) marriage.

The Court was divided over precisely what kind of discrimination had taken place: Lady Hale, Lord Kerr and Lord Toulson held that the Bulls’ policy constituted direct discrimination on grounds of sexual orientation, while Lord Neuberger and Lord Hughes held that the application of their policy in relation to Mr Hall and Mr Preddy specifically constituted unjustifiable indirect discrimination. We suspect that, on balance, Lord Neuberger and Lord Hughes were probably the more persuasive.

The Churches and sexuality

The other big news of week was that the Archbishops of Canterbury and York published the Report of the House of Bishops Working Group on Human Sexuality chaired by Sir Joseph Pilling. The Archbishops commented that the report was “a substantial document proposing a process of facilitated conversations in the Church of England over a period of perhaps two years. The document offers findings and recommendations to form part of that process of facilitated conversations. It is not a new policy statement from the Church of England“. A comprehensive review of the comment surrounding the report is available on Thinking Anglicans.

Also this week, the Methodist Church has announced the Methodist same sex marriage and civil partnership working party – consultation. The accompanying statement to the online consultation emphasises that it

“… is not a poll on the views of homosexuality amongst Methodists, nor is it asking Methodists to decide whether same sex marriages should take place in Methodist churches. Instead it seeks views about the implications of the new legislation for our church, and whether, as a consequence, we need to revise our understanding of marriage”.

Clergy employment again

We noted the judgment in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811 in which (rather contrary to our expectations) Mrs Justice Cox, sitting alone, overruled the Employment Tribunal’s decision that Mr Sharpe, former Rector of Teme Valley South in the Diocese of Worcester, was not a “worker” within the meaning of s 230(3)(b) Employment Rights Act 1996 and therefore could not sue for constructive dismissal. She remitted the case to the Employment Tribunal for a fresh hearing.

Traditionally, incumbents with freehold have been regarded as office-holders rather than employees. Under Regulation 33 of the Ecclesiastical Offices (Terms of Service) Regulations 2009 clergy on common tenure, though not employees, have the right of appeal to an Employment Tribunal if removed from office on grounds of capability – but that right does not extend to incumbents with the freehold. So it will be interesting, to put it mildly, to see what the rehearing decides.

Courting Faith: Religion as an extralegal factor in judicial decision making

Amanda Springall-Rogers is seeking barristers to participate in a PhD research project exploring the relationship between religion and judicial decision-making. If you are interested in taking part, please contact A.Springall-Rogers@uea.ac.uk. (Neither of us qualifies, alas.)

Richard III: further developments

The judicial review hearing of CO/5313/2013, began on 26 November before Hallett LJ and Ouseley and Haddon-Cave JJ. However, it was adjourned after the judges decided that Leicester City Council should also be a defendant in the case rather than an interested party. It will resume in 2014.

As a result of the 24 October decision of the Cathedrals Fabrics Commission for England, (CFCE), which recommended further study and discussion on Leicester Cathedral’s plans, with particular reference to the treatment of the furnishings scheme installed by Sir Charles Nicholson in 1927, the delay in the judicial review hearing does not appear to be a rate-limiting step, (provided the outcome was positive vis-à-vis Leicester). In a statement on 11 November the Dean of Leicester, David Monteith, indicated that the works necessary to provide the tomb and its place of honour would take about six months.

During the week, the BBC reported the research by Dr Andrea Buckle of Oxford University into the reconstruction of “how an authentic medieval reburial service should be conducted”, and how “[t]he first glimpse of how Richard III could be reburied has been revealed”. In a Comment on our post, Dr Buckle indicates her work will ‘influence’ and ‘shape’ the reburial of King Richard III, should his remains go to Leicester, rather than providing a word-for-word template for the reburial service. A link to her paper “‘Entumbid Right Princely’: The Re-Interment of Richard Beauchamp, Earl of Warwick, and a Lost Rite” can be found here.

Ritual circumcision: update

In an earlier post we noted that the children’s ombudsmen from five Nordic countries had agreed to work with their national governments to achieve a ban on non-therapeutic circumcision of under-age boys. Earlier this month, Norway’s Minister of Health and Care Services said that his Government would introduce new legislation limiting or regulating ritual circumcision of boys under 18. However, The Foreigner now reports that after the Simon Wiesenthal Center had warned that a ban would “stand in direct defiance of international laws protecting religious freedom,” Norway’s Foreign Minister, Børge Brende, has disavowed the proposal. In a letter to the Center he said that “the Norwegian Government recognizes the importance of ritual male circumcision for the Jewish community in Norway… [and] it will not propose a ban on ritual circumcision”. [With thanks to Religion Clause for the lead.]

Meanwhile, Haaretz reported that a rabbinical court in Israel had imposed a fine upon a woman who had refused to have her son circumcised. The Justice Ministry is said to be likely to support the mother against the daily fine of 500 shekels (£86) until the child has had the procedure and she is appealing to High Court of Justice.

Recent consistory court judgments

A significant proportion of our reports of recent consistory court judgments concern petitions for the exhumation of remains, for which Re Blagdon Cemetery is the principal authority. Rather than eroding the principle of the permanence of Christian burial, the number granted reflects the willingness of the courts to consider the range of circumstances under which the initial interments were made, subsequent unexpected changes, and the impact that these changes have on relatives of the deceased. We also note the willingness of chancellors to consider petitions which are first sight do not seem appropriate to grant a faculty, a view that is changed on examination of the circumstances of the case.

Re Wandsworth Cemetery and a Petition by Magdalen Rees [2013] Southwark Const CtPhilip Petchey Ch is one such case, and concerns a petition to exhume the remains of a stillborn [1] child from the consecrated part of the Wandsworth Cemetery in order to allow their reinterment in the consecrated part of Magdalen Hill Cemetery, Winchester. A faculty was granted

“… because of the fact that Mr and Mrs Rees did not have a permanent home in Wandsworth at the time of the burial of their stillborn son and because of the tragic circumstances of that stillbirth, with which Mrs Rees is still trying to come to terms. These reasons represent circumstances which make it appropriate to make an exception to the norm of Christian burial.”

Petchey Ch also took into account of the fact that the effect of his judgment was to “free up” a four-person grave in Wandsworth Cemetery in circumstances where there is a shortage of grave space although, in the scale of things, this was not a weighty consideration in reaching his conclusions. He observed that, were it necessary for Mr and Mrs Rees to move again, a second exhumation might be requested; but a petition in those circumstances would evidently be weaker than the present one.

Two further judgments were reported this week: Re Bowling Green Cemetery Bradford [2013] Bradford Const Ct, John Walford Ch, in which a faculty was granted for the exhumation of a body from one part of the cemetery and reinterment near other family graves in the cemetery. The deceased’s wife [Mrs Oliver] expressed the opinion that she had been coerced by the Funeral Director into accepting the plot, who misled her on the suitability and availability of plots in the desired part of the cemetery. Checks through the Archdeacon confirmed that there had been a mistake in the burial and that it had not been in accordance with Mrs Oliver’s wishes, but precisely why this happened was deemed not to matter.

In Re Holy Trinity Wandsworth [2013] Southwark Const Ct, Morag Ellis Dep Ch dealt with outstanding matters considered at an earlier hearing concerning the repositioning of the font and baptistery screen.

And finally … 452Hz→440Hz = £350k

In another recent decision the CFCE granted permission for Peterborough Cathedral to retune its four-manual William Hill organ to modern concert pitch (A4=440Hz) from its present Old Philharmonic pitch (A4=452Hz) set in 1894. As a consequence of the present tuning it cannot be used with visiting orchestras and on accompanied pieces the Cathedral’s choristers and lay clerks are forced to sing almost half a semitone sharp. (And the choir sang Stanford in G-sharp…) The applications for the pitch changes of five previous directors of music had been turned down: and the present permission is conditional on the use of organ-builders Harrison & Harrison Ltd in Durham.

Leicester Cathedral must be hoping that it doesn’t take them six attempts and 70 years to gain approval for its reordering to accommodate the remains of Richard III.


[1] The NHS states that a stillbirth is a baby born dead after 24 completed weeks of pregnancy; If the baby dies before 24 completed weeks, it is known as a miscarriage or late foetal lossThere are around 4,000 stillbirths every year in the UK and 1 in every 200 births ends in a stillbirth. Eleven babies are stillborn every day in the UK, making stillbirth 15 times more common than cot death.

Religion and law round-up – 24th November

Women in the episcopate, same-sex marriage in Scotland, religious dress, and yet more on Richard III

Women in the Church of England episcopate

The big news of the week (or, at any rate, the big news of the week if you’re an Anglican) was the overwhelming General Synod vote in support of consecrating women as bishops. On Wednesday, by 378 to 8, with 25 abstentions, Synod passed a motion to endorse the package of proposals put before it on the consecration of women and invited the House of Bishops to bring forward a draft declaration and proposals for a mandatory disputes resolution procedure. Synod also voted to revise the draft Measure and Canon in plenary rather than in a revision committee. However, there is still a long way to go before the first woman is consecrated: we set out the next steps here. Thinking Anglicans devotes a page to the events of 19 November with links to all the documents.

Richard III – further developments

The judicial review hearing of R (o.a.o. Plantagenet Alliance) v S of S for Justice & Ors in the Divisional Court before three judges will be on 26 November 2013. In his piece “Why Chris Grayling should bury his appeal against Richard III ruling”, Joshua Rozenberg notes:

“Consultation is the only substantive issue to be decided by the High Court. The judges are not being asked to decide where Richard III should be reinterred … If the claim is successful, Grayling will merely be ordered to go away and think again. He could save the taxpayer a great deal of money by doing so now”.

It should also be noted that permission to bury Richard III in Leicester Cathedral or York Minster can only be given by the ecclesiastical courts and that any changes which prove necessary to either building to accommodate the tomb must be approved by the Cathedrals Fabrics Commission for England (CFCE).

At its meeting on 24 October 2013. the CFCE stated that it was unable to reach a decision on the plans submitted by Leicester Cathedral for two reasons: uncertainty on the outcome of the judicial review on 26 November, which was an essential precursor to any grant of permission for internal building works including a tomb space and the inclusion within the reordering proposal of alterations to the furnishings scheme installed by Sir Charles Nicholson in 1927, which was one of his most complete and largest pieces of work. Objections have been raised by a number of the statutory consultees, including: the Society for the Protection of Ancient Buildings, the Victorian Society and the Twentieth Century Society. The CFCE agrees with the Amenity Societies that further study and discussion are needed on the treatment of Nicholson’s scheme.

Marriage and Civil Partnership (Scotland) Bill

The Marriage and Civil Partnership (Scotland) Bill passed Stage 1 on 20 November by 98 votes to 15 with five abstentions.

The right to wear a turban

We noted the outcome in Shingara Mann Singh v France [2013] UN Human Rights Committee CCPR/C/108/D/1928/2010, in which the UN Human Rights Committee in Geneva came to precisely the opposite conclusion from the ECtHR in a case involving the same claimant and very similar facts: that refusing to allow Mr Mann Singh to wear his turban for a passport photograph interfered with his freedom of religion.

The Committee could not understand how bareheaded identity photographs of people who always appear in public with their heads covered could make it easier to identify them in real life. Neither can we.

Consistory Court news

1) Oxford: The Revd Alex McGregor was formally sworn in as Chancellor to the Oxford Diocese at the Diocesan Synod on Saturday 16 November 2013 and there will be a formal welcome to him when his Letters Patent are delivered at Evensong at Christ Church on 11 January 2014.  Alex was appointed as Deputy Chancellor of the Diocese of Oxford in 2007 and has been Deputy Legal Adviser to the Archbishops’ Council and the General Synod since 2009.  He succeeds the Revd  and Worshipful Canon Rupert Bursell QC who served as Chancellor from 2002 until his retirement on 10 November 2013.

2) St Lawrence Church, Wick: With increasing pressure on burial space, incumbents and PCCs will need to adopt a much more professional approach to the reservation of burial plots; and as well as not using reserved plots for other interments as all too often happens, must abandon “informal agreements” that have no standing in ecclesiastical law. The case of Re The Churchyard of Wick St. Lawrence [2013] Bath and Wells Const Ct, Timothy Briden Ch concerned the latter, and provides further guidance concerning the reservation of burial plots by persons with and without a legal right of burial in a churchyard, as considered in Re West Pennard Churchyard [1991] Bath and Wells Const Ct, Newsom Ch and [1992] 1 WLR 33.

For those with a legal right, a faculty may be granted in the discretion of the Court, but the Parochial Church Council may only oppose an application for such a faculty.  Where there is no legal right, 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, although neither the petitioner nor his children had a legal right, the court regularized the informal agreement with the petitioner and his wife, but refused permission for his two sons and two daughters. In addition, the chancellor noted [section4, page 6]

“[t]he Parochial Church Council is entitled to have regard to the anticipated demands upon burial space arising from an increase in the population of the parish. Equally the need to preserve an area free of burial on the north side of the church, in order to facilitate the building of an extension, is justified.”

Re St Andrew, Bradfield

This is not a reported consistory case – yet – but the CofE media have picked up a story in the Daily MailCarole Middleton in an unholy row: Church where Kate and Pippa were christened set to be sold to £30,000-a-year boarding school”. This apparently concerns the secrecy surround the proposal to sell the church where the now Duchess of Cambridge was christened which, it is claimed, has “prompted uproar from locals.” We have no further details; but according to Betjeman’s Best British Churches, St Andrew’s was almost wholly rebuilt by Sir George Gilbert Scott in 1847-8, and under the star-rating system introduced by Betjeman in the 1968 edition it scores more highly than the adjacent entry, St Mary, Bucklebury.

Media games

We have commented earlier on the efficiency of the National Secular Society in its Media Round Up section and the creativeness with which it presents the headlines and  Wednesday 20 November provided some good examples of the latter [our emphasis added]:

  • the Guardian statement “If the CofE is doomed, as former archbishop of Canterbury George Carey insists, it’s down to the damage he did in office”, was rewritten omitting the conditional “if”;
  • to the Telegraph headline “Lord Carey’s vision for the Church of England might kill it off”, “once and for all” was added;
  • another Telegraph headline “Despite our secularist enemies, we are on the brink of a Christian Spring” was translated into “More dishonest piffle from Cristina Odone”.

As to the last of these, whilst accepting that Ms Odone’s style of writing might be profoundly irritating to many (or, at any rate, it certainly irritates Frank), we’re not sure where to set the bar regarding honesty in this area.

This reinterpretation of events for one’s readers was also evident this week across the Tiber. Vatican Insider’s terse report of General Synod’s vote on women in the episcopate was headed “The Church of England has taken this historic decision following a heated debate in the Synod” – somewhat of a contrast to the Archbishop of Canterbury’s statement that “The tone of the debate was strikingly warm and friendly”.

With regard to Government departments’ presentation of facts, Joshua Rozenberg analyses the DWP’s statement after losing the back-to-work appeal which “shows how easy it is to report court rulings to suit an agenda”. His concluding advice to readers is:

“to adopt a degree of scepticism towards media reports – including those for which [he is] responsible. How plausible do they sound? How likely are they to be affected by error or bias? If you can’t cope with a lengthy primary source … then try to read as many different media reports as you can find. Read independent bloggers whose analysis you trust. Don’t assume there is only one way of looking at a case.”

Exactly.

And finally…

Today is Stir-Up Sunday: the day on which, tweets Catherine Fox, “good Anglicans order their luxury Christmas puddings from Fortnum & Mason”…