Religion and law round up – 9th March

A fairly busy week: the Mormon temple in Preston, Welsh devolution, women in the C of E episcopate, selling “church treasures” – and more

Caste in Britain

The Equality and Human Rights Commission has published two new research reports – Caste in Britain: Socio-legal Review and Caste in Britain: Experts’ Seminar and Stakeholders’ Workshop – as part of a project undertaken at the request of Government following the requirement in the Enterprise and Regulatory Reform Act 2013 for the inclusion of a statutory prohibition on caste discrimination within the Equality Act 2010 .

Key findings include the following:

  • Caste is a form of identity that is used as a basis for social differentiation distinct from class, race or religion.
  • Discrimination against an individual because of caste, including perception of caste, in education, employment, housing, business or public services cannot be tolerated and should be included in the protections against discrimination and harassment provided in the Equality Act 2010.
  •  However, the State should not intervene in cultural or social usages which are a matter of private practice. Therefore, in regulating in this area particular regard should be given to individuals’ rights under the European Convention on Human Rights.
  • The definition of caste should be neither too precise nor too broad.  A minimum definition of caste in terms of endogamy (marriage restricted within a specific group) inherited status and social stratification would be useful.
  • Businesses and public authorities will need clear and practical information about how the prohibition of caste discrimination will affect them. The Commission’s initial view is that the impact will be small, given that the straightforward message remains that employers and service providers must not make decisions on the basis of irrelevant considerations such as caste.

Mormon temples and “public religious worship”

On Monday the ECtHR handed down its judgment in Church of Jesus Christ of Latter-Day Saints v United Kingdom [2014] ECHR 227, in which the Church had challenged the decision that its temple in Preston did not qualify for exemption from non-domestic rates as a “place of public religious worship”  because access to the temple was restricted only to those members of the Church in sufficiently good standing to have a “temple recommend” from their bishop.

In short, the LDS lost: the ECtHR held that the matter was within the UK Government’s margin of appreciation and that there had been no violation of Article 14 taken in conjunction with Article 9, nor was it necessary to examine the  complaint under Article 1 of Protocol No. 1. You can read our analysis here.

Silk Commission on Devolution in Wales

The Commission on Devolution in Wales chaired by Paul Silk delivered its second and final Report on Monday. The issue of legislating for the Church in Wales was not mentioned [1] – though it might get swept up in a general transfer of powers should the Government accept the Commission’s principal recommendation. The Commission wishes to see a move from the present conferred powers model of devolution, under which the National Assembly has specific powers expressly granted to it by the UK Parliament, to a reserved powers model under which anything not specifically reserved to Westminster is devolved. All that is a long way in the future; but if it were to happen one cannot imagine Westminster wanting to reserve the power to legislate for the C in W.

Perhaps the oddest recommendation was that “There should be at least one judge on the United Kingdom Supreme Court with particular knowledge and understanding of the distinct requirements of Wales”. National pride apart, why exactly? By the time a case gets to the SC the facts have been crawled over endlessly and what is usually at stake is a very precise and complex set of arguments as to the law. Proprieties and sensitivities apart, is there any reason in principal why an English case could not perfectly properly be decided by Lord Kerr, Lord Reed and Lord Hodge or a Scots one by Lady Hale, Lord Sumption and Lord Toulson (apart from the obvious one that the SC does not normally sit in panels of three)? Pure idle speculation, obviously: but one cannot help wondering whether, at the SC’s level of operation, it would make any great difference to the outcome.

29 March 2014 and the CofE

This year, 29 March could be an important day for the Church of England. Following General Synod’s vote on 11 February in favour of women in the episcopate, the legislative process moves to the Diocesan Synods which will vote on the motion

“That this Synod approve the proposals embodied in the draft Bishops and Priests (Consecration and Ordination of Women) Measure and draft Amending Canon No 33.”

For the motion to be carried within a Diocese, the Houses of Clergy and Laity must each vote, by a simple majority, in favour. Within the Church as a whole, a simple majority of Dioceses is required to carry the motion.  The voting of each Diocese and the date on which these votes are taken is being followed by Peter Owen on Thinking Anglicans, and from these it appears that 29 March is the earliest on which a simple majority within the Dioceses could be achieved.  A deadline of 22 May has been set for these votes to take place and all nine Dioceses that have voted to date have approved the motion.  The Diocese of Europe has indicated that it is unable to meet this timetable.

29 March is also the earliest date upon which the same sex marriage of CofE clergy might take place, contrary to the position outlined in the House of Bishops’ Statement of Pastoral Guidance on Same Sex Marriage.  Secular legislation requires notice of any marriage on this day to be displayed on the public notice board of the appropriate register office on 13 March. However, on today’s Sunday programme on Radio 4, one priest who has announced his intention to marry indicated that this was planned for three months’ time, prior to which he would be having a meeting with his bishop.

Church and cathedral music

Our post on Friday commented on the problems facing many English cathedral choirs, whose costs represent a significant proportion of the overall operating costs of the cathedral. Nevertheless, there was a more upbeat message in the Prospero blog of the Economist,  Cathedral choirs – Sing and they will come, which commented on the growing popularity of Choral EvensongThe blog cites From Anecdote to Evidence, Findings from the Church Growth Research Programme 2011-2013, a recent report from the theological college Cranmer Hall, which found that attendance at services in British cathedrals rose by 35% between 2000 and 2012, resulting chiefly from an increase in worshippers at weekday services, i.e. Choral Evensong, a service which follows the 1662 Book of Common Prayer, although the musical settings are often more modern.

However, the popularity of the service does not have a direct impact on cathedral finances; and the Dean of Durham Cathedral, Michael Sadgrove, puts this into perspective in his comment “[t]o put it bluntly, Evensong across the country offers a free daily recital. It’s a wonderful cultural offering.”

It’s the ECtHR, stupid

Ms Jacqueline Minor, of the EC’s Representation to the UK, complained to the Press Complaints Commission that The Sun had inaccurately conflated the European Court of Justice and the European Court of Human Rights in a headline to an article on a decision by the ECtHR about whole-life sentences. She was particularly concerned that the inaccurate headline had been published only two weeks after the PCC had established another breach of the Code in a complaint by the European Commission on the same issue.

The PCC resolved the matter by facilitating a meeting between representatives of the EC and representatives of The Sun to discuss the error and broader concerns about the paper’s reporting of European human rights law and the EU. It was agreed that The Sun would devise and circulate a memo and graphic to staff, the terms of which were agreed with the complainant, explaining the differences between the two and emphasising that the inaccuracy should not be repeated.

Should’ve gone to Specsavers. Or maybe read our idiot’s guide part III.

And finally…

The Times reported (£) that

“[t]he right [sic] of hundreds of churches to sell their historic treasures to repair leaky roofs hangs on a landmark appeal over a 16th-century helmet. The Flemish helmet dating from 1500 had been in a village church in Hampshire but was sold at auction for £45,000 to a private buyer, to finance running costs and repairs.”

The proposed sale by the PCC of Wootton St Lawrence was deferred after the Church of England’s Church Buildings Council challenged it and it is currently the subject of an appeal to the Court of Arches. The complicating factor is that the helmet is no longer in the church: some 40 years ago it was removed from the tomb with which it was associated and taken to the Royal Armouries for safe-keeping.

But with great (well, a certain amount of) respect to The Times, Church of England congregations  do not have a “right … to sell their historic treasures”. They have a right to petition for a faculty to allow them to do so – which is a very different matter from a “right to sell”. Every faculty application is considered case by case: some are granted, some are rejected. That’s why there’s a system at all: on the one hand to prevent PCCs from treating as their own property the buildings and contents of which they are merely the temporary trustees and, on the other, to make sure that any central policy on disposals is operated in a way that is sensitive to local needs and conditions.

 

[1] The Church in Wales’s submission to the Silk Commission is available here.

Religion and law round up – 23rd February

A surprisingly busy week, given that neither Parliament nor the General Synod was in session

ASBO on Muslim street preacher

The Guardian reported that a Muslim convert who targeted members of the public as part of a campaign for a sharia state in the UK has been made the subject of an ASBO. In what the item described as a “legal first”, Jordan Horner, from Waltham Forest, has been ordered to stop preaching in public. The ASBO will run for five years and be effective throughout London. The Metropolitan Police said that Horner was thought to have distributed leaflets and posters advertising a “sharia controlled zone” in Waltham Forest.

Whether or not this is, in fact, a “legal first” we have no way of knowing for certain. We hope, however, that the story will give some reassurance to those Churches who expressed concern that the provisions of the Anti-social Behaviour, Crime and Policing Bill, currently in its final parliamentary stages, would interfere with activities such as street preaching and open-air services. The Salvation Army is particularly concerned about this, for obvious reasons – but if the Horner ASBO is a first, then it’s a very long way from advocating “sharia controlled zones” to open-air hymns and band music.

Is “doctrine” justiciable?

On Wednesday and Thursday the Supreme Court heard oral argument in the appeal from Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983. The case concerns the powers to appoint and remove trustees of two Sikh gurdwaras and hinges on a matter of what might be termed “ecclesiastical succession”. The principal question before the Court, was this: “whether the proceedings unavoidably raise non-justiciable issues of religious belief, doctrine and practice”.

There is a long line of decided cases suggesting that the courts will not adjudicate matters of doctrine, so the judgment is going to be extremely important whichever way it goes. Watch this space…

Niqabs in court – again

Late last week a report surfaced of a judgment by the Upper Tribunal (Immigration and Asylum Chamber) in an asylum case, AN v Secretary of State for the Home Department [2014] UKAITUR DA013242013, which was handed down on 15 January and published on 11 February. (Either it was late appearing BAILII or we simply missed it.) In coming to its decision the FtT had, in effect, ignored the evidence of a witness who was wearing the niqab and, as we noted, the Upper Tribunal was quite hard on the FtT’s determination, holding that its failure to deal adequately with a veiled witness vitiated its determination. The UT’s full determination is well worth reading.

Tougher sanctions against clergy who marry their same-sex partner?

Following some of the reaction to the House of Bishops’ Statement of Pastoral Guidance on Same Sex Marriage, this week’s Question of the Week in the Church Times is

Should there be tougher sanctions against clergy who marry their same-sex partner?

on which we have posted our comments.  It may be interesting to see the results of this CT question, but although earlier questions have revealed definitive opinions[2] within the readership, these are based on relatively few responses compared with its circulation of 34,000:

Would you alter your lifestyle to fight against climate change? – Total: 98   Yes: 85.7%   No: 14.3%

Do you trust the leadership of the General Synod? – Total: 117   Yes: 33.3%   No: 66.7%

Is numerical growth a priority in your church? – Total: 166   Yes: 64.5%   No: 35.5%

Progress on the Marriage (Same-Sex Couples) Act 2013

In our December post Same-Sex Marriage from 29th March 2014? we examined the progress towards the implementation of the Marriage (Same Sex Couples) Act 2013. Today’s Thinking Anglicans post Progress on implementing the Marriage (Same Sex Couples) Act provides an update with links to a second Commencement Order and a raft of secondary legislation laid before the House on 23 January, the two under the negative resolution procedure having been approved and four under the affirmative resolution procedure to be discussed in the near future.  Other provisions are still “in the pipeline”.

The knock-on effects of changing the legal concept of marriage within the 2013 Act are evident in: 56 consequential amendments to subordinate legislation and the 9 consequential amendments to Welsh subordinate legislation,  Schedules 1 and 2, of The Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014 SI 107, now approved; and the 36 items of primary legislation within Schedule 1 to the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014, to be considered by the Delegated Legislation Committee on Tuesday.

Regency and the Monarch

As the anniversary of Pope Benedict XVI’s resignation approaches[1], Bob Morris considers the issues surrounding another position for which resignation seems highly unlikely.  His post The UK Monarchy: Moving to a Regency that dare not speak its name? reviews the increasing role being taken by the Prince of Wales and the “movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner”. Readers are recommended to read the full post which examines the legal and constitutional implications. He concludes

“It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.”

Recent Consistory Court judgment

Situated 7km to the west of Swindon, St Mary, Purton is one of only three parish churches that has both a central tower and spire and a western tower, here. The petition considered in Re St Mary Purton [2013] Bristol Const Ct, Justin Gau Ch. comprised two parts, permission for the installation of a replacement sound system, and for a projector screen in the Grade I church. The former was less contentious once the family of the benefactors of the existing system had been assured that parts would be incorporated in the new arrangements. The latter concerned a boom-mounted projector screen on and behind the front north pillar at the tower crossing, which when not in use would be rolled up and swung back behind the pillar “out of sight”. When in use the projector screen “would act as a barrier, visually and physically, cutting off the High Altar and choir from the rest of the church”. Objections were raised by the Society for the Protection of Ancient Buildings (SPAB) and the Church Buildings Council (CBC). English Heritage chose not to comment.

The Chancellor applied Re St Alkmund, Duffield (2012) 14 Ecc LJ 461-461 and addressed the five questions seriatim:

  • #1: “yes”: “the introduction of this screen is, frankly, jarring in such a lovely interior”;
  • #2: the answer to #1 being “yes”, #2 did not apply;
  • #3: the harm would be “small”;
  • #4: the Chancellor was “just persuaded that there is a justification for carrying out the proposals”; a conclusion supported by
  • #5: “that the public benefit in granting an amount of lawful liturgical freedom, the pastoral wellbeing and the opportunities for growth and mission outweigh the harm that will be done”.

Both parts of the faculty were granted.

Latest Standard Notes from the House of Commons Library

As part of its role in providing impartial information and research services for Members of Parliament and their staff in support of their parliamentary duties, the House of Commons Library produces a range of publicly-available Briefing Papers: Research papers which provide in-depth and impartial analysis of all major pieces of legislation, as well as many areas of policy; and Standard Notes which cover frequently asked questions and topical issues.  Recent publications include:

And finally, posthumous marriage…

Did you know that in France Article 171 of the Code Civile makes it possible in certain circumstances to marry your dead fiancé(e)? Neither did we; but in a speech to the Northern Ireland Medico-Legal Society last week, Lord Wilson JSC explained that, when President de Gaulle visited Fréjus in 1959 after a devastating flood, a girl pleaded with him to be allowed to marry her drowned fiancé and he was so touched that he persuaded the Assemblée Nationale to pass a law to enable her to do so. Apparently about 20 posthumous marriages take place in France every year on the basis that the applicant was genuinely engaged to the deceased and that the deceased’s parents still approve of the marriage.

But Lord Wilson’s lecture is well worth reading for much more important reasons than that: his elegant and learned exposition of the history of the formation of marriage in the UK and abroad and his explanation of why marriage as a socio-legal construct has changed over time.


[1] Although the Pontiff announced that he would be stepping down on the morning of 11th February 2013, his actual resignation was effective from 20:00 CET 28th February 2013

[2] To prevent multiple voting, readers must be logged in, an essential precaution given the number of respondees.

Religion and law round up – 9th February

An eventful week, with a district judge encroaching on the beliefs of the Mormons, a UN Committee lecturing the Holy See on its canon law and the EU Parliament passing a controversial Resolution on LGBTI rights.

LGBTI rights and the European Parliament 

MEPs called for an EU strategy  to protect the fundamental rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, in a resolution adopted on Tuesday 4 February. According to a EU-wide survey last year, 47% of LGBTI people have felt discriminated against. Such strategies already exist for the Roma and people with disabilities. Parliament’s resolution, passed by 394 votes to 176 with 72 abstentions, strongly regrets that the fundamental rights of LGBTI people are not always fully upheld in the EU and calls on the European Commission, EU member states and EU agencies to work jointly on a roadmap to protect their fundamental rights, similar to existing EU strategies against discrimination based on sex, disability or ethnicity.

Same-sex marriage: update

On 4 February the Scottish Parliament passed the Marriage and Civil Partnership (Scotland) Bill by 105 votes to 18 with no abstentions. There are now sixteen countries worldwide, including England & Wales, in which same-sex marriage is permitted. The Scottish government has indicated that it wants ceremonies to become available “as soon as possible” and this is likely to be in October at the earliest.At that point Northern Ireland will be the only country in the UK where same-sex marriage is not allowed.

St Margaret’s Children and Family Care: update

Last week we published our analysis of the ruling in St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator [2014] Scottish Charity Appeals Panel App 02/13 and said that we would be very surprised if the decision were not appealed by OSCR. Rumour now has it that OSCR has decided to appeal, though we cannot find any public confirmation of that decision. We shall carry on looking.

First name, First Amendment – and goodbye

Readers with a taste for the absurd may recall that in August we reported the case from Tennessee in which the parents of a seven-month-old boy had gone to court because they could not agree on his surname and were told by a child support magistrate, Lu Ann Ballew, that his first name should be changed from “Messiah” to “Martin” because “the only true messiah is Jesus”. She was then cited by the Tennessee Board of Judicial Conduct for acting with inappropriate religious bias in violation of the state judicial code and formal disciplinary charges were preferred. The outcome? Last week she was sacked by the presiding judge of Tennessee’s 4th judicial district. [With thanks to Religion Clause for the link.]

Prosecuting the President of the Mormons

We reported that the President of the Church of Jesus Christ of Latter-day Saints, Thomas S Monson, had been summoned by District Judge Elizabeth Roscoe to appear at Westminster Magistrates’ Court next month to defend the Church’s doctrines. A disaffected former Mormon, Tom Phillips, had taken out a private prosecution alleging that asking members of the Church to make financial contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006.

The likelihood of Mr Monson appearing in court to answer the charge is, one would have thought, zilch; moreover, unless he were to do so voluntarily, the only way that the matter could be proceeded with further is by the UK Government applying for his extradition. And even if the Crown Prosecution Service were prepared to take the matter further it would presumably be blocked in the US courts by the First Amendment on the “free exercise” of religion.

The whole story verges on the bizarre, not least because in order to establish fraud there has to be an element of dishonesty. And just because most readers of this blog are unlikely to believe the teachings of the LDS, why should it be assumed that the President of the LDS does not? But be that as it may, the immediate result was another crack-of-dawn start for Frank in order to be interviewed at 7.30 on Radio 4’s Sunday programme.

The UN, the Vatican and child abuse

In a controversial report, the UN Committee on the Rights of the Child (UNCRC) has said that the Holy See should open its files on members of the clergy who had “concealed their crimes” so that they could be held accountable by the authorities. Specifically, the Committee made the following statement:

Prosecution and impunity
“29. The Committee is deeply concerned that the vast majority of priests and clerics who have committed acts of child pornography as well as those who have concealed these crimes have benefited from impunity. The Committee is particularly concerned that:

(a) Canon Law provisions and proceedings which have allowed perpetrators to escape justice by imposing an obligation of silence on victims, prevented the reporting of cases to national law enforcement authorities and provided punishment with no relation to the gravity of the offences committed, are still in force and applied;
(b) On numerous occasions, the Holy See has refused to cooperate with law enforcement authorities and to disclose information requested by prosecutors and national commissions of inquiry; and
(c) The Holy See has signed treaties with certain States, notably Italy, which guarantee areas of immunity from prosecution to Vatican officials, including for bishops and priests accused of offences under the Optional Protocol.

30. The Committee urges the Holy See to repeal without delay all Canon Law provisions which have created an environment favouring the impunity of perpetrators of crimes under the Optional Protocol”.

The UNCRC was also highly critical of

“… the discovery in 2011 that thousands of babies had been removed from their mothers in maternity wards in Spain and sold by networks of doctors, priests and nuns to childless couples who were considered as more appropriate parents. The Committee is also concerned that similar practices were also carried out in other countries such as in Ireland where girls detained in the Ireland Magdalene laundries had their babies systematically taken away from them”.

Recent Consistory Court judgments

Re St Margaret of Antioch Thorpe Market [2013] Norwich Const Ct, Ruth Arlow Ch.

The essentially aesthetic issues of kerbing around graves were reviewed last week in Re St Margaret Lowestoft [2013] Norwich Const Ct, Ruth Arlow Ch.  The case of St Margaret of Antioch Thorpe Market considered here addressed different aspects: the church was “well-known for its conservation churchyard … managed by leaving areas …  uncut through spring and early summer to encourage the growth of wildflowers and support a biodiversity which might otherwise not exist within the churchyard.” In May 2012 the PCC passed a unanimous resolution to “seek permission to remove the kerbstones and cornerstones to the rear of the church” with a view to improving the safety and facility of maintaining the churchyard.

Notices were placed on the church and on the graves concerned and some of the families contacted, in accordance with an understanding of advice proffered by the Archdeacon, 3 years previously. However, the memorial kerbs were removed without the authority of a faculty, causing distress to several family members of those buried in the churchyard.  The Chancellor directed that the Team Vicar and Churchwardens should apply for a confirmatory faculty, in order that objections could be properly dealt with.

In addition to the absence of an authorizing faculty there were two legal issues to be dealt with: adherence to Diocesan Churchyard Regulations, which preclude kerbs &c; and the ownership of memorials of the deceased, by those who erected them or, where they have died, to the heir-at-law of the person commemorated, Re Welford Road Cemetery, Leicester [2007] 2 WLR 506.

A confirmatory faculty was granted subject to stringent conditions relating to the notification of the families concerned, where necessary, and the reinstatement of the kerbstones, but laid flush with the ground with the inscriptions, if any, facing upwards.

Re All Saints Thornage [2013] Norwich Const Ct, Ruth Arlow Ch.

The petition sought in the Grade II church All Saints Thornage concerned the conversion of the existing vestry into a “toilet and tea-point”, together with the provision of vestry facilities within the base of the tower.  Whilst such conversions are not uncommon, “relatively basic facilities of the type now expected by modern congregations”, [para. 15], here the rationale was to encourage wide use of the church building throughout the week, the church being the only community space within the village and only used by its small congregation every fortnight.  The DAC had recommended the proposed works, which were supported by English Heritage and the local PCC, and the Society for the Protection of Ancient Buildings and the Local Planning Authority were content with the proposals. Two objections were raised: a practical one concerning the potential interference of the necessary drainage with graves in the churchyard; and another on the appropriateness of the conversion, since the 1920 vestry was constructed in memory of those lost in World War I.

The Chancellor was satisfied that the proposed works would not result in harm to the significance of the church and the petition was granted, subject to conditions relating to the works in the churchyard, and the possible discovery of archaeological remains. The permissive statute, the War Memorials (Local Authorities Powers) Act 1923, was inapplicable, and although acknowledging the sensitivities relating to the change of this vestry into a toilet and tea-point, these concerns were held not to outweigh the benefit which the parish will gain from the works.

Meetings and Conferences

Cardiff

The Annual Conference of the Law and Religion Scholars Network, (LARSN), will be held on Monday 12 May, followed the Law and Religion Teaching and Research Conference held on Tuesday 13 May.  Both conferences are being organised by the Cardiff University Centre for Law and Religion, headed by Professor Norman Doe.  The LARSN conference will be composed of four different slots and each slot comprising several parallel sessions.  This is an open conference and papers on any topic within the field of Law and Religion are welcomed, and proposals for papers should be sent to Rev’d Dr Helen Hall (helenita862@gmail.com) by Monday 31st March.

The LRTR conference will comprise three panels of invited speakers on: The Teaching of Law and Religion; Law and Religion and Family Law and Individual and Collective Religious Freedom.  After each presentation there will be an opportunity for all attenders to take part in a question and answer session.

The charge to attend the LARSN conference will be £20 and the LRTR conference will be £15, and further details are available here.

London

The next London lecture of the Ecclesiastical Law Society will be on 6 March 2014, when the Society will be hosting members of the Colloquium of Anglican and Roman Catholic Canon Lawyers, who are gathering in London for their fifteenth meeting, convened to discuss church governance under the title ‘Counsel and Consent’.  Speakers will include: Professor Norman Doe, Director of the Centre for Law and Religion, Cardiff University; Aidan McGrath OFM, General Secretary of the Franciscans, Rome; Professor James Conn SJ, of the Gregorian Pontifical University, Rome and the School of Ministry and Theology Boston College. The panel is to be moderated by Professor Mark Hill. Also present as contributors will be other members of the Colloquium: Stephen Slack, Will Adam and Anthony Jeremy (Anglican); and Robert Ombres OP, Fintan Gavin and Andrew Cole (Roman Catholic).

And finally . . . . . . .

For those who do not know their crockets from their nodding ogees, the Beaker Folk of Husborne Crawley has published an informative A-Z of Technical Church Terms which is an invaluable supplement to Pevsner’s Architectural Glossary, the App version of which is a snip at £2.99.

Religion and Law round-up – 2nd February

Another fairly quiet week ahead of the C of E General Synod on 10 February…

Adoption, sexual orientation and charitable status

As we reported at the time, St Margaret’s Children and Family Care Society, a voluntary Roman Catholic adoption agency based in Glasgow, was told by the Office of the Scottish Charity Regulator that it was to lose its charitable status over its refusal to place children with same-sex couples. OSCR concluded after an investigation that, insofar as the Society’s criteria for assessing prospective adopters favoured Roman Catholic married couples over non-Roman Catholics and same-sex couples, the Society had failed the charity test under the terms of the Charities and Trustee Investment (Scotland) Act 2005.

The charity appealed; and on Friday it was announced that OSCR’s decision had been overturned by the Scottish Charity Appeals Panel. The reasoned decision is not yet available on the Panel’s website but we will publish an analysis when further details become available.

‘Ex-gay’ London bus advert ban

We noted the Court of Appeal’s judgment in R (Core Issues Trust) v Transport for London & Anor [2014] EWCA Civ 34 on Transport for London;s decision not to run an advertisement on London buses with the slogan “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”. Since the judgment at first instance, further evidence had come to light of possible involvement by the Mayor.

The judgment has been the subject of some slightly-confused comment. What the Court of Appeal decided was that it was in the interests of justice that a further enquiry should be conducted by the lower court as to whether or not the decision had, in fact, been instructed by the Mayor and whether or not it had been made for an improper purpose. The Court also decided that Mayor (on behalf of the GLA) should be added back as a defendant and the case remitted to the judge at first instance for her to make the necessary order and give appropriate directions (para 48). And that was it. As to how the matter progresses further, we must just wait and see.

Face-veils in criminal trials: update

In last week’s round-up we mentioned that HHJ Peter Murphy had warned the jurors in the trial of Rebekah and Matthias Dawson for witness intimidation that they should not be influenced by the fact that Ms Dawson was appearing in the dock in a niqab veil and that she was entitled so to appear if that was what she wished to do. In the event, his direction that she should remove her veil in order to give evidence was not tested: she declined to give evidence and pleaded guilty to the charge.

Guidance on charities, elections and referendums

The Charity Commission has announced that it will update its guidance on charities, elections and referendums (which supplements its guidance on campaigning and political activity) to explain the changes introduced by the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, which received Royal Assent on 30 January.

Recent Consistory Court judgments

In Re St Chad Bishop’s Tachbrook [2014] Coventry Const Ct, Stephen Eyre Ch, two related petitions were considered together: one for the construction of a church centre on part consecrated land added to the churchyard in 1965, in which twenty-five interments had been made:, and permission to grant a lease of the church centre site to a charitable company with a view to the construction and operation of the church centre. In relation to the latter, there are three gravestones, two erected in 1917 and the other in 1928, which the petitioners propose to protect that during the course of the building works and possible move them temporarily. Although a majority supports the proposals, a substantial number of letters of objection were received from active and committed members of the congregation, and others, and there is a division of opinion both within the congregation and the PCC.

Central to the decision is whether the site a disused burial ground within the meaning of Disused Burial Grounds Act 1884, section 1 of which defines “burial ground” as including “any churchyard, cemetery or other ground, whether consecrated or not, which has been at any time set apart for the purpose of interment”, i.e. it refers to the churchyard as a whole and not to a portion of it which is not otherwise differentiated from the remainder. Since burial continue to take place, the chancellor considered that the 1884 Act did not apply.

However, the chancellor disagreed with Professor Hill’s view that “so long as the churchyard remains `open’, i.e. it is possible in practical terms to carry out further burials, nothing may be authorized in any part of it which will prevent that part being used for burials, “[Hill, M (2007). Ecclesiastical Law (3rd ed) Oxford: OUP  para 7.93].  Referring to other authorities, he concluded

“… the fact that a churchyard is still in use for burials and that a proposed building will take up space which could otherwise be used for burials is a relevant factor when the Court is considering whether to allow a building on part of the churchyard. It is not, however, necessarily and automatically determinative of the matter”’ [para.24].

The faculty was granted on the basis that

“the building of the proposed church centre and its letting to The St. Chad’s Centre Trust Company with consequent mixed community and church use of the facilities are suitable and fitting activities to take place in a consecrated churchyard. There are real benefits to be obtained in meeting the needs both of the worshipping community of St Chad’s and those of the wider community. Those benefits outweigh the modest impact on the setting of the church and on the churchyard”, [para.36].

In Re St Margaret Lowestoft [2013] Norwich Const Ct, Ruth Arlow Ch the issue was unauthorized additions to graves – a common problem in many churchyards and one that is exacerbated by the passage of time.  Re St Margaret Lowestoft concerned the removal wooden and plastic kerbs from a number of graves.  Diocesan Registrar confirmed that under the Diocesan Churchyard Regulations wooden and plastic kerbstones were not permitted in churchyards, and the PCC unanimously agreed that a petition should be sought for their removal, in line with these regulations which reflect policies approved nationally by the Church Buildings Council,

“No monument shall include any kerb, railings, fencing, chippings of any kind, statue, sundial, birdbath, photograph, picture, portrait, laminated card, glass shades, plastic materials, containers or other glass objects or any other object or thing unless it is expressly permitted by these regulations” [para.18].

However, there was an objection from an 85 year old parishioner who expressed distress at the requirement to remove wooden kerbstones which were first placed around the grave of her husband in 1986.  The chancellor noted:

“The passage of time does not mean that that authority is somehow implied. Given the timescales involved, it is clear to me that the failure of previous incumbents to ensure that the Churchyard Regulations have been respected has created problems which the PCC and Revd Asquith should be commended for attempting to address. This is particularly so given the pastoral sensitivities which are inevitably engaged in such matters”, [para. 10].

“I have considered whether the passage of time should mean that the kerbstones in this churchyard should be allowed to remain in place. I have come to the conclusion that it does not”, [para. 11]

Consequently, a faculty for the proposed works was granted subject to certain conditions.

And finally… Religious Freedom and the Law 

Readers may be interested to hear that the Catholic Truth Society has published A Guide to Religious Freedom and the Law by Neil Addison. Neil’s booklet considers areas of the law relating to religious freedom and discrimination of specific interest to Roman Catholic institutions and individual Roman Catholics: in particular, the exemptions in discrimination law which apply to religious organisations in England, Wales and Scotland. Though intended primarily for a Roman Catholic audience, the publisher points out that many of the matters discussed are common across religious boundaries. Currently unavailable from Amazon, but you can order it from the CTS here.

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.