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”…

Women in the episcopate – next steps

In contrast to Monday’s General Synod and the cloud cast over the proceedings by Dr Carey’s much-criticized speech in Shropshire, the overwhelming vote in support of women in the episcopate generated a raft of positive publicity. This will surely be welcomed by those responsible for the Church’s interface with the media, though perhaps a sterner test will be how press reaction to the forthcoming Pilling Report is anticipated and handled.

The CofE Daily Digest for 21 November was headed by links to the “women bishops” story in the Evening Standard, Daily Mail, Daily Express, Times, Independent, Guardian, and Daily Telegraph.  A notable absence from this listing was The Tablet’s encouraging article by Liz Dodd, Revitalised CofE Synod clears major hurdle in passing women bishops legislation”, which was in sharp contrast to the terse report in Vatican Insider and the absence of comment in the on-line version of The Catholic Herald.

For readers of this blog, however, perhaps the most significant aspect of the debate was the absence of amendments to the package so that it could go to the House of Bishops for clarification and not for alteration. The exchange on “women bishops” in the Lords during Prime Minister’s Questions prior to the Synod vote also bears some consideration.

Within the wider Anglican Communion, 35 women have been consecrated to date and of these, 25 are currently serving.  As at 20 November 2013, three Anglican women are bishops-elect.

Comment

Next Steps

In the shadow of the vote, it is easy to forget exactly where one is in the legislative process of the new Measure and revised Canon.  The Church’s current deliberations on women in the episcopate began in July 2000 and are summarized here. Given the complexity of the legislation-making process in the Church, the Legislation in Progress pages provide insufficient information about the progress of a draft instrument, unlike the excellent  “Progress of the Bill” pages on the UK Parliament site, shown here for the Anti-social Behaviour, Crime and Policing Bill 2013-14.

A comprehensive picture of the law-making processes involved in General Synod is provided in the paper “Synodical Government and the Legislative Process”, [2012] 14 Ecc LJ 43–81, by Stephen Slack, Registrar and Chief Legal Adviser to the General Synod.  He notes [at page 54] that

“before [legislation can be introduced to the Synod either by the Archbishops’ Council or by the Business Committee of the Synod] … Measures having a significant policy content will generally have been the subject of earlier debate(s).

[…]

“[this] can give rise to misunderstanding: as in the case of the draft legislation relating to women in the episcopate, members of Synod can wrongly assume that preliminary debates of this kind have conclusively settled the Synod’s position in relation to issues that have been debated, when in fact they remain open for subsequent further debate and decision in the course of the legislative process itself.

There are five formal stages to the legislative process:

  • First Consideration, when the Measure is the subject of general debate;
  • Revision Committee Stage, when a Revision Committee considers it clause by clause, together with any proposals for its amendment;
  • Revision Stage, when it is subjected to a similar process on the floor of the Synod, but with amendments normally limited to matters addressed by the Revision Committee;
  • Final Drafting, when the Steering Committee for the draft Measure (ie the members responsible for its progress through its synodical stages) can move certain limited types of amendment intended to put it into its final form; and
  • Final Approval.

On the Wednesday morning, the Bishop of Rochester, James Langstaff, moved the following motion, which was carried by 378 votes to 8, with 25 abstentions:

“That this Synod, welcoming the package of proposals in GS 1924  and the statement of principles endorsed by the House of Bishops at paragraph 12 of GS 1886, invite the House of Bishops to bring to the Synod for consultation in February a draft declaration and proposals for a mandatory disputes resolution procedure which build on the agreement reached by the Steering Committee as a result of its facilitated discussions”.

At its First Consideration in the afternoon session, Synod voted to progress the legislation to its next legislative stage of revision at its next meeting in February. However, as a result of the votes carried, Synod agreed 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”.

The many issues which are to be resolved were comprehensively reviewed in Will Adam’s guest post “Women bishops – what you see and what you don’t”.

Women bishops in the House of Lords

The following exchange on women bishops took place at Prime Minister’s Questions on 20 November [20 Nov 2013 : Column 1224]:

Sir Tony Baldry (Banbury) (Con): General Synod is meeting today and hopefully will find a way to enable women as soon as possible to be consecrated as bishops in the Church of England. If this is successful, will my right hon. Friend and the Government support amendments to the Bishops Act to ensure that women bishops can be admitted to the House of Lords as soon as possible rather than new women bishops having to queue up behind every existing diocesan bishop before we can see women bishops in Parliament?

The Prime Minister: My hon. Friend follows these matters closely and asks an extremely important question. I strongly support women bishops and hope the Church of England takes this key step to ensure its place as a modern Church in touch with our society. On the problem he raises—there is, of course, a seniority rule for bishops entering the House of Lords—the Government are ready to work with the Church to see how we can get women bishops into the House of Lords as soon as possible.

The number of bishops in the Upper House was first limited (to 26) by the Bishopric of Manchester Act 1847 and the present arrangements are made under section 5 Bishoprics Act 1878, viz. 

“The number of Lords Spiritual sitting and voting as Lords of Parliament shall not be increased by the foundation of a new bishopric [after the year 1846]; and whenever there is a vacancy among such Lords Spiritual by the avoidance of any of the sees of Canterbury, York, London, Durham, or Winchester, such vacancy shall be supplied by the issue of a writ of summons to the bishop acceding to the see so avoided; and if such vacancy is caused by the avoidance of any see other than one of the five sees aforesaid, such vacancy shall be supplied by the issue of a writ of summons to that bishop of a see in England who having been longest bishop of a see in England has not previously become entitled to such writ: Provided, that where a bishop is translated from one see to another, and was at the date of his translation actually sitting as a Lord of Parliament, he shall not thereupon lose his right to receive a writ of summons to Parliament.”

Additionally, the three senior bishops of the Church: Canterbury, York, and London, are made Privy Councillors on their appointment.  Changes to the 1878 Act raise a number of issues: the “Buggins’ Turn” provision applies to the 21 diocesan bishops. Currently there are 113 bishops within the Church of England: 44 diocesan bishops (including the offshore dioceses of Sodor & Man and Gibraltar in Europe, neither of whose occupants is eligible to sit in the Lords) and 69 suffragan and full-time assistant bishops, including area bishops and provincial episcopal visitors. Peter Owen’s list of English diocesan see Vacancies is here.

It is quite conceivable that were changes to the 1878 Act to be subject to Parliamentary debate, the total number of Lords Spiritual would be brought into question, either within the Bill or as the result of subsequent amendments. Alternatively, a Church Measure could be introduced to change this primary legislation; but that would still be subject to scrutiny by the Ecclesiastical Committee and it would not be uncontroversial.

No wonder the Archbishop of York urged caution against premature celebration and opening “the champagne bottles or whatever drink we regard as celebratory”.

General Synod – Media lessons still to be learned?

The Church of England’s November Group of Sessions of its General Synod began on Monday 18th November, for which the formal business scheduled for the afternoon was:

– Report by the Business Committee, GS 1916, [item 4]

– Intentional Evangelism, GS 1917, [item 5]

– Draft Church of England (Miscellaneous Provisions) Measure,  GS 1866B and GS 1877B; Draft Amending Canon and Report by the Steering Committee GS 1866Z-1877Z [items 500-502]

– Draft Diocese of Leeds Resolution, GS 1918, [item 509]

Since the newsworthy focus of Synod is Wednesday’s considerations of women in the episcopate, it is clear that on Monday the media would casting around for headlines: the Draft Church of England (Miscellaneous Provisions) Measure was clearly a non-starter; and link between the Draft Diocese of Leeds Resolution and last week’s BBC 4 programme Cathedrals (trailed as “[t]he dean of Wakefield defends his diocese from absorption into a Leeds ‘super-diocese’”), was a little tenuous for the average “red top” reader.  One of the media’s options, therefore, was to look for an appropriate headline-grabbing quote.

The Church’s own take on the Monday’s headlines is summarized in its Daily Digest: November 19 which rightly includes several positive items, including: Justin Welby’s speech to Synod; the Archbishop of York’s introductory remarks to the debate on intentional evangelism, saying it is vital to consider the re-evangelization of England – Evangelize or Fossilize!; the Bishop of Oxford’s piece in the Telegraph challenging the idea that Anglican schools are dominated by white, middle-class families, and his response to a question at Synod stating that the Church of England and gay rights group Stonewall are to work together to stamp out homophobic bullying in schools.

However, it was the remarks of former Archbishop Carey, made at the Shropshire Churches Conference 2013, which gained coverage in the Times, Daily Mirror, Daily Telegraph, Daily Express, and Daily Mail on his assertion that “[t]he Church of England could be one generation away from extinction”, some reports linking this with Dr Sentamu’s motion on the promotion of evangelism. There has been no official statement and it has been left to others to comment: Cristina Odone gives her reasons in the Daily Telegraph why Dr Carey’s latest pronouncement is wrong, and the Archbishop Cranmer blog makes the point “George Carey has been predicting the imminent demise of the Church of England at least since 1996, (i.e. almost a generation ago), when he first declared that the Church is always one generation away from extinction”. Others have been highly critical of Dr Carey’s vision and his legacy.

Less prominent in recent media comment, so far, has been the Pilling Report on which Synod had scheduled a number of questions with regard to: its publication, Q39; its status, Q40; future Synod debate, Q41; its consistency with 1987 Synod motion, Q42; Liturgy for the blessing of civil partnerships, Q43; and the process & future Synod engagement, Q44.  However, the report in Thinking Anglicans does not make reassuring reading and suggests that a degree of uncertainty remains.  In response to questions on when the Report will be published, various answers were given ranging from “soon” through “quite soon” to “but not very soon”. In answering questions 40, 41, and 42, the Archbishop is reported to have said:

“I can confirm that the Pilling Report will be a document which will offer findings and recommendations from the members of the group for the Church of England to consider. It will not be a new policy statement from the Church of England. That will be made quite clear when the Report is published.

It is premature at this stage to speculate about any decision making process at the end of the period of discussion and reflection initiated by the report’s publication. Who has the authority nationally to determine any particular issue in the Church of England always depends on the nature of the decision. Clearly, if there were any question of looking again at the motion passed by the Synod in 1987 that would be a matter for the Synod.”

More decisive was his response to Q43, “[i]s the House considering tasking the Liturgical Commission with the preparation of suitable liturgy for the blessing of civil partnerships in church?” Answer: No.

Comment

The largely positive Editorial in the Guardian entitled Mission Impossible noted that

“[i]n less than a year in office, the Archbishop of Canterbury, Justin Welby, has defused an existential crisis.”

[…]

“Dr Welby seems to be on the way to pulling off an unexpected coup. It is part of how he is making the Church of England feel relevant. Unblocking the stalled process of making women bishops matters. But it’s nothing like as important as the voice he has given the church in the lives of the most vulnerable.  . . He has been in the forefront of the attack on payday lenders and is actively supporting credit unions. In his latest appeal, he asks Christmas shoppers to give a 10th of the cash they spend on presents as a donation to their local food bank.

[…]

The deeper question is whether the Church of England wants to be in that place enough to put aside its obsession with sex”

Given the many communications problems associated with human sexuality and marriage/civil partnerships since the Church began its re-consideration of these in 2011, perhaps the Archbishop’s next organizational priority should be improved media management?

David Pocklington

November General Synod – legislative business

The November 2013 Group of Sessions of the General Synod of the Church of England will take place at Church House, London, commencing at 13:45 on Monday 18 November and ending at 17:30 on Wednesday 20 November.  The full agenda and links to papers are available here, and whilst media attention will focus on the discussions concerning women in the episcopate, there are also a number of other legislative issues which may have a more immediate effect on the operation of the Church.  Details of all of these are summarized in the Report by the Business Committee.

Women in the Episcopate

Women in the episcopate will be discussed in three stages: the first part on Tuesday when there will be a brief presentation on the report from the Steering Committee for the draft legislation on Women in the Episcopate to set the scene for discussion in small groups later in the morning.  The second and third parts of the package will be discussed on Wednesday: the Steering Committee’s report GS 1924 which describes the package of proposals prepared by the Committee in accordance with the mandate approved in the July Synod, based upon the five guiding principles the House of Bishops Report GS 1886, paragraph 12.  Synod will then be invited to give first consideration to the draft Measure and draft Amending Canon prepared by the Committee. With the agreement of the Business Committee, the Chair of the Steering Committee will move under Standing Order 57 that the legislation should be committed for revision in full Synod.

Tentative dates for completion of the process are:

February 2014: Women in the Episcopate legislation – Revision Stage; Women in the Episcopate legislation, consideration of the draft House of Bishops declaration and draft dispute resolution procedure.

July 2014: Depending on timing and outcome of Article 8 reference to dioceses, consideration of the Women in the Episcopate legislation.

Legislative Business

The Legislative Business for this group of sessions is set out in Special Agenda I, which is to be found here  [1].  This is to be taken on Monday, Tuesday and Wednesday and includes:

Draft Church of England (Miscellaneous Provisions) Measure, GS 1866B, and Draft Amending Canon No 31, GS 1877B: ”miscellaneous un-contentious amendments to ecclesiastical law”, for Final Drafting and Final Approval. See report GS 1866Z-1877Z;

Draft Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure, GS 1919: Further legislative changes to faculty jurisdiction, supplementing Faculty Jurisdiction Rules 2013: Further details, GS Misc 1048;

Draft Church of England (Ecclesiastical Property) Measure, GS 1919, to give PCCs and trustees of property subject to the Incumbents and Churchwardens (Trusts) Measure 1964 greater freedom to deal with their property by removing the need for the diocesan authority’s consent for certain kinds of disposal and the bringing of legal proceedings.  See GS Misc 1060 and Explanatory Memorandum, GS 1919x;

– Following approval in July of scheme prepared by the Dioceses Commission for diocesan reorganisation in West Yorkshire, Synod will be invited to make transitional arrangements for the representation of the new diocese of Leeds in the Synod.

– Approval will be sought for the Vacancies in See Committees (Amendment) Regulation 2013, GS 1922. This will give effect to the Bradford Diocesan Synod motion passed by the Synod in July 2012, which called for the Vacancy in See Committees Regulation to be amended so as to require Vacancy in See Committees to have at least 21 members.


[1] Pages 2 and 8 to 11.

Religion and law round up – 3rd November

Women as bishops in the Church of England

In the past week Will Adam authored another guest post on the continuing saga of women as bishops in the Church of England in which he analysed the draft Measure, amending Canon and supporting documentation published on Friday 25 October in advance of the General Synod meeting in November. Will suggests that where the documentation is silent is on the precise nature of the “guidance” on arrangements for parishes that decline to accept the ministry of women priests and bishops. If the number of page-views of Will’s post is any guide – over 500 at the latest count – it is going to be a very lively Synod indeed.

(Family) law, morality and religion

We duly reported Sir James Munby’s keynote address as President of the Family Division to the Law Society’s annual Family Law Conference. Almost inevitably, his speech, entitled “The sacred and the secular: religion, culture and the family courts“, drew howls of protest from some quarters and applause from others. His major theme was that judges should be wary of straying into matters of religion and that religious belief, however conscientiously held, “can never of itself immunise the believer from the reach of the secular law”.

Which seemed to us to be both obvious and irreproachable: but the result was that Frank found himself being interviewed at the very end of this morning’s Sunday programme on Radio 4 to defend the thesis that judges are there to apply the law impartially, “without fear or favour, affection or ill-will”. Which, one might have thought, goes without saying – except that in some quarters the idea of judicial impartiality seems to have become controversial.

Revision of section 25 Burial Act 1857

On Monday 18 November the General Synod of the Church of England will consider inter alia the draft Church of England (Miscellaneous Provisions) Measure GS 1866B which includes an amendment to section 25 of the Burial Act 1857. In our post on 12 August 2013 we commented on a pressing need for a revision and clarification of the law in this area and suggested that the use of a further Miscellaneous Provision Measure provided a pragmatic approach to some of the problems in this area being encountered by the Church. This latest revision in GS 1866B includes the following:

“(4) In subsection (2)(a) and (c) ‘court’ means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese or any other court or body referred to in section 1(2) or (3) of the Ecclesiastical Jurisdiction Measure 1963 having jurisdiction to determine the matter” [emphasis in original].

The modification (in bold) removing a lacuna noted in our post: an absence in the draft section 25(4) of a reference to the Church’s appellate courts.

However, the use of ecclesiastical law to make changes to secular statutory law is limited to “uncontroversial matters that do not merit freestanding legislation” and it is suggested that following Royal Assent of the new Measure, it would be beneficial for new guidance to be issued jointly by the MoJ and the Church.

Recent consistory court judgments

(1) Many who read the “modest and uncontroversial petition” in Re Burwash Weald St. Philip [2013] Chichester Const Ct , will empathize with the PCC which, having gained the approval of the DAC and the professional bodies who have been consulted and put in place the appropriate funding [1], is subject to further faculty fees following an often mis-placed objection from one individual – in this case, Lady Margaret Baldwin. As a dispassionate observer, Hill Ch expressed his sadness that “Lady Baldwin’s ‘habitual concern for the congregation’ had served in this instance only to obfuscate and delay the carrying out of the now long-overdue process of renewing the heating system”.

The Chancellor had some difficulty in comprehending the nature of the objection advanced by Lady Baldwin, her many letters comprising “dense text in a small font” whose content strayed considerably from the relevant material; at times contradictory and at others repetitive.  He found no merit in any of the small points of detail that were raised and granted the petition.

(2) In Re St. Edward, King and Confessor [2013] Southwark Const Ct, Petchey Ch, although forming a preliminary view that it would not be appropriate to permit the exhumation of a cremated husband’s remains in England and their reinterment alongside those of his wife in Australia, granted a faculty for this to take place. In so doing, he applied Re Blagdon Cemetery [2002] Court of Arches in the light of case law relating to “portable remains” and “family graves”.  Lawyers working in this area should read this report as Petchey Ch discusses his earlier ruling on family graves In re Peter’s Petition [2013] PTSR 420 that has been criticized in three judgments, and other subsequent case law. In summary, he states that the facts of the case are distinguishable from other “portable remains” cases and makes the decision to grant the petition.

The UK and the Holy See

Not many will be aware of the FCO’s involvement with the Holy See, or the All-Party Parliamentary Group on the Holy See (APPGHS), whose annual visit of MPs from the Westminster Parliament to the Holy See took place on 22-24 October 2013.  The Group is comprised of representatives of both Houses of Parliament and all the principal political parties and its role is “to monitor the relationship between the UK and the Holy See and call representatives of faith communities and the foreign/diplomatic service to brief the group on issues pertaining to the Vatican and the work of the Catholic Church”.

Led by the Co-Chair, Sir Edward Leigh MP, the group met Pope Francis at the end of the General Audience on 23 October and held meetings at the Secretariat of State, Pontifical Council for Justice and Peace, Congregation for the Doctrine of the Faith, Caritas Internationalis and the Sant’ Egidio Community. Speaking on Vatican Radio at the conclusion of the visit, Sir Edward acknowledged the Holy See’s “enormous soft power”, echoing the FCO’s position:

“The Holy See is the centre of a global community of over one billion people, and as such is one of the world’s biggest opinion formers. It has diplomatic relations with 180 states and has a pastoral presence right around the world.

[…]

[t]he UK’s relationship with the Holy See is policy-focused and concentrates principally on global issues such as international development, conflict prevention and resolution, human rights, inter-religious dialogue and environmental issues. Given the global reach of the Catholic Church, as well as its associated networks such as Caritas Internationalis, the Holy See is both an important global listening post and an important provider of services – such as healthcare and education – to many people around the world”.

First name, First Amendment – again

Regular readers may recall that in August we reported the strange 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 (evidently to their complete astonishment) a child support magistrate, Lu Ann Ballew, ordered that his first name should be changed from “Messiah” to “Martin” because “the only true messiah is Jesus”. We suggested that her order almost certainly contravened the First Amendment in relation either to the establishment clause or to the provision on freedom of speech; and the County Chancery Court duly reversed her ruling on the grounds that it did, in fact, violate the establishment clause.

But that is not the end of the matter. Reuters reports that Ms Bellew has been cited by the Tennessee Board of Judicial Conduct for acting with inappropriate religious bias in violation of the state judicial code. A three-member investigative panel concluded that there was “reasonable cause to believe [Ms Ballew] has committed judicial offenses” and formal disciplinary charges have been filed with the Board. [With thanks to Religion Clause for the link.]

And finally . . . . what’s in a (saint’s) name?

During the past week there have been a number of references to saints, starting with Alfred the Great, whose supposed canonisation was acknowledged in the town of his birth, although not in Winchester where the Cathedral’s Saturday service used KA’s official C of E status [2]. Musically, King Alfred’s Prayer provided the inspiration for a piece sung by the King Alfred Singers at the University of Winchester, and for an anthem composed by John Ridgway, organist at Wantage. “Rule, Britannia!” might have been equally appropriate since it had its origin as the finale to Arne’s masque, King Alfred.

However, the most publicized was the assignment (in the UK) of the name of St Jude to the weather front that swept the country on the saints’ day he shares with St Simon. In Sweden, it was called Simone, following the tradition of using the name on the Scandinavian name-day calendar, and the Guardian explains that there is a scheme operated by the Institute of Meteorology of the Free University of Berlin where for a mere €299 it is possible to name a high-pressure weather system (or €199 for a low-pressure one).

Elsewhere in Europe, the approaching Sinterklaas festival in the Netherlands has again brought criticism of Zwarte Piet, the “helper” of St Nicolas [3]. One view of the controversy is provided by the Erasmus blog, which concludes, “while the symbolism of a children’s holiday may be of limited consequence, the contemptible racial attitudes it has exposed are not. This month’s conflict has changed Zwarte Piet. For many, even if a year ago he was not a symbol of Dutch racism, he is now”.


[1] The cost, in excess of £51,000 is to be met from PCC funds, a public appeal and a loan facilitated by the Diocesan Board of Finance.

[2] In the Church of England’s Calendar, All Saints day (1st November) is marked as a Principal Feast/ Holy Day, whereas Simon and Jude, Apostles, (28 October) is marked as a Festival, but Alfred the Great, King of the West Saxons, Scholar, 899, (26 October) is a regarded as a Lesser Festival.

[3] The Daily Telegraph explains “[i]n mid-November, Saint Nicholas, or Santa Claus, who is white, arrives by steamboat in Amsterdam bringing presents for children helped by mischievous servants dressed as pageboys, wearing black make-up, curly wigs and with large, painted on red lips.”

Religion and law round up – 27th October

Aside

Same-sex adoption in Northern Ireland, the Lobbying Bill and more on burials (not excluding burials in car-parks) and women in the episcopate 

Blanket ban on same-sex adoption in Northern Ireland incompatible with ECHR

Possibly the major news item of the week was the refusal by the Supreme Court to take an appeal by the Northern Ireland Executive from the NI Court of Appeal in Northern Ireland Human Rights Commission, Re Judicial Review [2013] NICA 37. This was a sorry tale of flagrant disregard by the NI Executive of the House of Lords judgment in P & Ors, Re (Northern Ireland) [2008] UKHL 38 (also cited, confusingly, as Re G) that the blanket ban imposed under the Adoption (Northern Ireland) Order 1987 on all unmarried couples (same-sex, opposite sex or civil partners) adopting as a couple was illegal. The matter was further confused by the Attorney General for Northern Ireland’s intervention at Strasbourg in X & Ors v Austria [2013] ECHR 148 – made without the knowledge or approval of the Law Officers in London.

Before the Court of Appeal Mr Attorney had contended that the effect of the Grand Chamber judgment in X & Ors  was that the earlier House of Lords judgment in Re P/Re G should be narrowly construed on its own facts since, in his view, “The theoretical underpinning of Re P (Re G) must be in some doubt since the decision in X v Austria” (para 24). The Court of Appeal disagreed that there was anything wrong with the previous House of Lords judgment and, clearly, the Supreme Court was equally unpersuaded.

Criticism of Lobbying Bill echoes that of Commons (and many others)

No-one expected the Lords second reading of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill to go smoothly for the Government, having been roundly criticised on both the content and its handling of the Bill by: the Commons Political and Constitutional Reform Committee, here; the House of Lords Constitution Committee, here; and the Joint Committee on Human Rights, here. The BBC’s Parliamentary correspondent Mark D’Arcy anticipated the debate as being “the day’s real fun”, but in the event, the six and a half hours of debate did not produce any real fireworks. For that we will probably have to wait for the Committee stage on 5 November.

Women in the C of E episcopate – the saga continues

In advance of the forthcoming meeting of the Church of England General Synod it has been announced that the Church is contemplating a system of arbitration with an independent reviewer to adjudicate disputes in relation to the draft Declaration on women bishops. The draft Declaration at Annex A in the Report from the Steering Committee for the Draft Legislation on Women in the Episcopate GS 1924 includes a statement that

“Since those within the Church of England who, on grounds of theological conviction, are unable to receive the ministry of women bishops or priests  continue to be within the spectrum of teaching and tradition of the Anglican  Communion, the Church of England remains committed to enabling them to flourish within its life and structures … Pastoral and sacramental provision for the minority within the Church of England will be made without specifying a limit of time and in a way that maintains the highest possible degree of communion and contributes to mutual flourishing across the whole Church of England”.

To resolve any subsequent disputes the Steering Committee recommends

“… an Ombudsman-type scheme. This is an approach followed in various parts of the public sector, including Whitehall and the Health Service as well as in higher education where there is an Independent Adjudicator for student complaints against universities” (para 64).

 what Swedes might possibly describe as a kyrkansombudsman. The BBC report quotes William Fittall, Secretary General of Synod, as saying that:

“This is an ombudsman-type process, the real power comes through being able to investigate and publish findings. It is not in itself a disciplinary process. Although the fact that the regulations are made under canon law will mean that if a priest or bishop simply fails to engage with the independent reviewer then that in itself could be a disciplinary offence”.

Richard III – update

In our earlier post Richard III reburial: MoJ to challenge decision for judicial review? we noted that the Ministry of Justice had indicated it was seeking to overturn the Protective Costs Order, (PCO) awarded to the Plantagenet Alliance. At the High Court hearing The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and ors on 18 October 2013, Haddon-Cave J ruled:

  • that the application for discharge or variation of the PCO is dismissed;
  • that the application for Security for Costs is dismissed;
  • that the cost cap is set at £70,000 with Treasury rates;
  • that the application to vary the Disclosure Order is dismissed; and
  • that time for filing First Defendant’s Grounds of Resistance and evidence is extended until 25th October 2013.

A detailed analysis has been made by David Hart QC on the UKHR blog, who considers the judgement in the context of the Ministry of Justice consultation paper on further reforms to judicial review.  He concludes:

“The judge ordered [a £70,000 reciprocal cost cap], large by ordinary standards, but as the judge observed ‘this case will be hard-fought, despite entreaties, with no quarter being given on either side’ – a bit like 22 August 1485″.

Recent consistory court judgments

We expounded at some length on Re St Andrew, Thringstone [2013] Leicester Ch Ct, one of those unfortunate situations in which the wrong person was buried in a previously-reserved grave plot because of an administrative error: a case in which neither family was remotely at fault and, whatever the outcome, one or the other was bound to feel hard done by.

Less dramatically – and in common with Re St. Margaret Horsmonden [2013] Rochester Const Ct reviewed last week – Re St. Mary the Virgin Stansted [2013] Rochester Const Ct, John Gallagher Ch concerned the exhumation of remains that had been buried about 12 years previously – “lengthy but not so lengthy as to be determinative against the Petition”. Both cases were a consequence of third-party action, alleged mistakes by health authorities and a fatal motor vehicle incident for which the driver is serving a custodial sentence. Whilst in the former there were no exceptional circumstances, in Re St. Mary the Virgin Stansted the written evidence of a consultant clinical psychologist attested to the impact on the petitioners of the fatal accident of the their son, its proximity to the churchyard and the necessity to gain access along the road where the driver’s home was located. Following Re Blagdon Cemetery, a faculty for exhumation and re-interment in the churchyard of All Saints, Dulverton was granted, on the ground of exceptional circumstances, i.e. medical reasons.

Cymru

Although graduates of the University of Wales and of Cardiff University respectively, neither Frank nor David has any grasp of the Welsh language. However, for the benefit of Welsh-speaking internet users, Fr Z has just published Gweddi cyn cysylltu â’r Wê, (A prayer before connecting to the Web). Other language versions are to be found here (including Klingon for Trekkies).

Through a glass, brightly

In Così fan tutte [1] Mozart was one of the earliest to parody the work of Friedrich Anton Mesmer who suggested that a variety of physical and mental ailments could be cured by the application of magnetism. Since then there have many such related claims on the benefits of applied magnetic fields, some of which concern the effects of the physical properties of medieval European stained-glass windows: Australian scientists discovered that these have an air purifying effect as a result of the small particles (nanoparticles) of gold used in the colouring [2]; and in an unrelated study, Danish researchers suggested that this effect might be a means of counteracting the deleterious effects of incense.

St M-t-V Faorford, 2013The latest application of this technology is in the 3D panoramic camera that is to be used in the European Space Agency’s 2019 Mars Rover mission. The absence of fading in medieval stained-glass is attributed to the presence of nanoparticles in the glass matrix: gold to produce a red colour and silver for deep yellow colour. This technology will be employed to counteract the high levels of ultra violet light on Mars, due to the absence of ozone in the atmosphere that would otherwise have caused colours to fade. However, the potential advantages of medieval stained glass is only of limited relevance in English parish churches, since as a consequence of the Reformation, there is little now remaining apart from a few examples such as that in St Mary the Virgin, Fairford, Gloucestershire, (detail of west window, above).


[1] “Egli ha di un ferro, la man fornita, (Act I, Scene XVI).

[2] When energized by the sun’s rays, their electrons oscillate and create a resonating magnetic field 100 times stronger than normally exists around glass, which breaks apart pollutants leaving a small amounts of carbon dioxide. John Naish, “Life-saving light”, The Times, 13th August 2008.