Religion and law round up – 25th August

A relatively uneventful week . . . .

… but not for 19-year-old engineering student Stefano Cabizza, of Padova, who received a “cold-call” from Pope Francis who was following up a personal letter from Cabizza which was handed to a cardinal at a papal Mass to celebrate the Feast of the Assumption. For the benefit of its readers, the National Catholic Reporter has produced advice on telephone etiquette should any of them receive a similar call. Although non-Italian speakers in the UK may not be concerned with the subtleties of the use of tu rather than lei to address the Pontiff, Fr Alexander Lucie-Smith of the Catholic Herald writes “With the use of one word, Pope Francis is signalling to the Vatican insiders that their day is over”.

Conscientious objection to participation in abortion

Readers may recall the case of Mary Doogan and Connie Wood, the labour ward coordinators at the Glasgow Southern General Hospital who sought to assert their conscientious objection to supervising staff involved in abortions: we blogged about it here. They lost in the Outer House but, on reclaimer, won  in the Inner House: Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36

We now learn that the Health Board is in the process of appealing the Inner House’s decision to the Supreme Court. Apparently the Board announced its intention to appeal in June (but we missed it at the time) and on 25 June the BBC posted a report to that effect; however, the case does not yet appear on the Supreme Court’s permission to appeal applications list. Presumably the application for leave will be decided at the beginning of the new legal year: we shall be watching out for it.

Burqas and niqabs in court

A 21-year-old Muslim woman from Hackney charged with intimidating a witness appeared in Blackfriars Crown Court wearing a burqa. When she refused to remove her veil on grounds of her religion, HHJ Peter Murphy told her that she could not stand trial in a veil which only revealed her eyes because her identity could not be confirmed. The Daily Telegraph reported him as saying that it was necessary for the court to be satisfied that it could recognise the defendant:

“While I obviously respect her right to dress in any way she wishes, certainly while outside the court, the interests of justice are paramount. I can’t, as a circuit judge, accept a plea from a person whose identity I am unable to ascertain. It would be easy for someone on a later occasion to appear and claim to be the defendant.The court would have no way to check on that.”

The woman’s counsel, Claire Burtwistle, suggested that she herself and a female police officer could identify the defendant and confirm to the court that she was the same person as in the police arrest photos, while Sarah Counsell, for the Crown, added that the police officer in charge of the case was content that he recognised the defendant even though she was wearing her burqa. Nevertheless, HHJ Murphy rejected counsel’s suggestion, observing that “the principle of open justice” could not be subject to the religion of the defendant. He adjourned the case for argument as to whether or not the defendant should have to remove her veil. The case will be resumed on September 12.

Safeguarding in the Church of England

Our review in March of the Church’s safeguarding provisions in Jersey concluded:

“… the general recommendations within the [Korris] report have wide application throughout the Church of England and beyond. Although there are legal issues arising from the relationship between Jersey and the United Kingdom, the main issue remains the Independent Report and the subsequent investigation.”

With regard to the former, there have been a number of developments in the Church of England which are summarized on its web page Child Protection and Safeguarding, including:  the final report of the Archbishop of Canterbury’s Chichester Visitation, here, here, and here; a Statement on Safeguarding from the House of Bishops; a debate on safeguarding in General Synod and speeches by Bishop Paul Butler and Archbishop Justin, here and here respectively, and the establishment of an Independent Inquiry into the Church’s handling of reports of alleged sexual abuse by the late Robert Waddington, formerly Dean of Manchester.

On Jersey, early action was taken by Tim Dakin, Bishop of Winchester in setting up an independently-led Visitation into safeguarding procedures in the Deanery of Jersey, (26 March) and the appointment of Dame Heather Steel DBE to lead a separate Investigation into church safeguarding complaints from 2008 (15 May).  However, the involvement of the diocese has met with continuing opposition from the Islanders, here, the latest of which is from “a group of concerned [but unnamed] members of the laity of the Anglican Church”, here and here, who appear to have adopted the basic thesis of noli nos tangere. 

Recent consistory court judgment

The facts of Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch) were summarised concisely earlier this year by Catherine Shelley, (2013) 15 Ecc Law Soc, 120. The full judgment runs to ten pages and is now available via the above link. Paragraphs 8 to 21 contain a detailed account of the arcane law concerning churchyards and, in particular, monuments erected in churchyards. Incumbents would do well to read these, for as the chancellor notes

 “[it] is not well understood even by the clergy and the parish officers who have to deal with it. Its actual content some find surprising, and certainly the parties to the present dispute sometimes made assumptions as to the content of the law which were mistaken.”

The case concerned the two headstones which have stood in the churchyard of the parish church of St Thomas, Kilnhurst, over the grave of Frederick Howitt who died on 11 May 1946. The judgment was made against the background of a long-standing family feud, “with allegations and counter-allegations of assault, theft, criminal damage, and the sending of hate-mail”, and a “wholly lamentable record of neglect and inaction by the diocese and some of its office-holders which came close to denying justice to Mr [John] Howitt and which added to the length and cost of [the] proceedings”. (It’s amazing how death and burial seems to bring out all the worst instincts in people.)

A faculty was issued to allow removal of the “second” headstone placed on the grave in 2002 and its replacement with a replica of the original.

Ding, Dong, the King is dead

The timing of Leicester Cathedral’s plans for Richard III may have been set back by the recent decision for a judicial review, but this did not prevent the “Family Fun Fest” on 22nd August to commemorate his death at the Battle of Bosworth, ending with an “Excellent Evensong” sung by the choir of St Barnabas, Nottingham’s Roman Catholic Cathedral. (Would they have advertised a “Totally Crap Evensong”?)

And finally…

BuzzFeed Politics has published a geographical distribution, by religious affiliation, of members of the US House of Representatives. Though the US is normally well outside our sphere of interest, trying to make some sense of the figures helped liven up a wet and uneventful afternoon in mid-August.

The maps themselves only make any sense if you can recognise the unlabelled state outlines (and Frank hasn’t the foggiest idea which state is which except for the ones any fool can recognise, like Alaska, California, Florida and Hawaii); but the basic breakdown in list form is interesting in itself: 136 are Roman Catholics (31% of the House), 66 Baptists (15%), 45 Methodists (10%), 35 Episcopalians (8%), 28 Presbyterians (6%), 22 Jews (5%) and 19 Lutherans (4%). There is a single atheist.

One would expect there to be more Roman Catholics in the House than any other group; but some denominations seem to be over- or under-represented. The widely-respected Pew Research Center’s Religion & Public Life Project estimates that 23.9% of Americans are Roman Catholics, 12% are Baptists of various kinds, 6% Methodists, 4.6% Lutheran, 2.7% Presbyterian, 1.7% Jewish and only 1.4%  Anglican. On that basis (and given that there are bound to be distortions across a group as small as 435) there are rather more Roman Catholics than one would expect, twice as many Presbyterians, about the right proportion of Baptists, rather fewer Methodists and Lutherans – and about five times the expected number of Anglicans.

So why are the Episcopalians so massively over-represented? Social class/personal wealth, given that national politics in the US tends to be a rich person’s sport? Education? Social awareness? And why are 21 of the 35 Piskies Republicans? Given that the views of the majority of the Anglican Communion about the Episcopal Church seem to range from “theological liberals” to “a bunch of heretics”, one would have expected Democrats to predominate. (It should surprise no-one that the single Unitarian Representative and the single Quaker are both Democrats, though it should also be remembered that the last American Quaker politician that anyone has heard of was the appalling Richard Milhous Nixon.)

Rather than answers on a postcard, try leaving a comment.

Religion and law round up – 18th August

What we expected to be a quiet week in August proved not so quiet after all

Abortion law in Ireland

We noted the provisions of the Protection of Life During Pregnancy Act 2013, which was signed into law by the President on 30 July and will be commenced by order. In brief, the Act will allow termination to be carried out where there is a threat to the life of the mother or where there is a medical consensus that the expectant mother will take her own life as a result of her pregnancy. But that is unlikely to be the end of the story, since there appears to be some controversy as to whether or not the terms of the Act are fully in accordance with the Constitution.

Inevitably, opinions as to the wider implications of the Act are bitterly divided. The brief on the original Bill submitted by the Irish Catholic Bishops’  Conference argued that its effect would be fundamentally to alter the culture and practice of medical care in Ireland, to accept the premise that abortion was an appropriate response to a threat of suicide and to create “serious moral, legal and constitutional conflicts in the area of freedom of conscience and religious belief”. Doctors for Choice, the Irish Council for Civil Liberties and the National Women’s Council of Ireland, on the other hand, continue to have concerns about the legislation, not least that abortion remains a criminal offence except in the limited circumstances specified in the Act, with the “chilling effect” that this has on both women and their doctors.

Caste discrimination

In our 14 July round-up, we reported that the Government appeared to pulling back from its agreement to include casts discrimination as a protected characteristic within the Equality Act 2010.  The Times of India puts it like this,

“[d]espite outlawing social evils such as child marriage and Sati, the British balked at taking on untouchability during the Raj. Three months ago, in a quirky turn of events, the David Cameron government was forced by the House of Lords to outlaw caste-based discrimination among Indians settled in the UK. Last fortnight, yielding to counter pressure from Hindu groups, the government deferred the enforcement of the law by announcing a two-year-long public consultation for it”.

Fracking, mineral rights and muddle

The past week saw a certain amount of confusion on the subject of fracking (aka hydraulic fragmentation). The Diocese of Blackburn had published a leaflet suggesting that for Christians, fracking presents “a choice between economic gain and a healthy environment” and, as a result, came in for a degree of criticism in the Daily Telegraph on 14 August. At about the same time the Church of England published a note about its Mineral Registration Programme explaining that it was registering its existing interests “… to protect existing rights and interests made vulnerable by the change in the law. There are no particular plans to mine under any property. The focus is registration and protection”.

On Friday on Friday the Church issued two statements: a Clarification on suggested links with hydraulic fracturing or “fracking” and a Statement from Church of England on fracking. Our latest summary of developments is here.

Persecuted Christians

In April we commented on a piece by Lord Carey of Clifton in the Daily Mail about Christians feeling that they were a “persecuted minority”. Now comes a rather different and, dare one say it, far less sensationalist view from his successor. Speaking at the Edinburgh International Book Festival, Rowan Williams pointed out that being made to feel mildly uncomfortable hardly amounted to “persecution”:

“I am always very uneasy when people sometimes in this country or the United States talk about persecution of Christians or, rather, believers. I think we are made to feel uncomfortable at times. We’re made to feel as if we’re idiots – perish the thought! But that kind of level of not being taken very seriously or being made fun of; I mean for goodness sake, grow up.

You have to earn respect if you want to be taken seriously in society. But don’t confuse it with the systematic brutality and often murderous hostility which means that every morning you get up wondering if you and your children are going to make it through the day. That is different, it’s real. It’s not quite what we’re facing in Western society.”

No further comment necessary.

Religion and private law seminar

Máiréad Enright has sent us details of the latest seminar in the ESCR Public Life of Private Law series, on religion and private law, to be held at the University of Kent (Keynes College Room KS14) on Thursday 19 September :

“Private law is associated with the possibility of individual and group self-regulation. It allows citizens to depart from and supplement public norms. Our focus in this seminar will be on the developing religious use of private law to depart from the norms of state family law. Should we be troubled by ‘privatized diversity’  and the spectre of ‘law without a state’?  Does the emancipatory adage ‘from status to contract’ entirely capture the use of private law by minority groups to defend and sustain territory apart from the state? Does the channelling of religious disputes through private law depoliticize and marginalise them?”

Confirmed speakers include: Emmanuel Melissaris, Emmanuel Voyakis, Samia Bano, Aileen McColgan, Daniel Monk, Aina Khan and Christine Schwoebel. To register your interest in attending please e-mail, indicating any dietary or access requirements. Further details of the series, including recordings of the first two seminars, are available at

Recent consistory court judgments

Re St Peter Dunchurch [2013] Coventry Cons Ct (Stephen Eyre Ch)

Regrettably, it is not uncommon for errors to occur in the case of reserved burial plots.  In this case, the burial of an unrelated person in a reserved plot adjacent to the interment of a widow’s late husband precluded her eventual burial alongside him. Subject to an assessment of practicability of conducting a seemly exhumation, a faculty was granted for his correctly-buried body to be reinterred elsewhere in the cemetery and for the reservation of an adjacent burial plot for the widow.

Re St Bartholomew Binley [2013] Coventry Cons Ct (Stephen Eyre Ch)

St. Bartholomew is a Grade I listed Georgian church was built in the early 1770’s as the estate church for Coombe Abbey. A petition was granted for the installation of a projector, fixed in a box under the balcony, and a screen to be housed in a box across the sanctuary arch. The latter proved the more problematic, particularly to the Georgian Group, but the chancellor agreed with the Diocesan Advisory Committee and the pragmatic approach of English Heritage that the proposed changes would not harm the character of the church.

Richard III: the saga rumbles on

On Thursday Haddon-Cave J handed down an unusually long judgment in the preliminary hearing in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August). Quite contrary to our prediction, he granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester in relation to the intended reburial of Richard III in Leicester Cathedral.

In his concluding comments, the judge urged the parties to avoid embarking on the (legal) Wars of the Roses Part 2, and strongly recommended that the fundamental question as to where and how Richard III is reburied should be referred “to an independent advisory panel made up of suitable experts and Privy Councillors, who can consult and receive representations from all interested parties and make suitable recommendations with reasonable speed.”  Nevertheless, Leicester Council and Leicester University were quick off the mark in issuing statements on the judgement, here, and here.

The substantive hearing of these proceedings is expected to take one day and is set down for next term. Haddon-Cave J has ordered skeletons to be exchanged one week beforehand. How this  will turn out is anyone’s guess but, given our recent track-record, we aren’t guessing.  We will however, post an analysis of Thursday’s judgment.

Over at the St John’s Center for Law & Religion Forum  Perry Dane, of Rutgers Law School, is currently posting a very interesting two-parter on the intended reburial. Part one is here; part two is presumably on its way.

Ecce pecuniam

When we reviewed the attempts of 81-year-old Cecilia Giménez to restore the Ecce Homo fresco by Elijah García Martínez in the Sanctuary of Mercy church in Zaragoza, we noted that whilst Specsavers missed the opportunity to include the “restoration” in their advertising campaign, others had begun to capitalize on its notoriety.  In the first four days, the church realized €2,000 from entry fees, and now one year on, the fresco has drawn more than 40,000 and raised in excess of €50,000 for a local charity in the town of Borja.  The Guardian reports that Giménez and a local council are to sign a deal to share profits from merchandise featuring the image.

Although any suggestion of causality would be misplaced, we can report that the Mona Lisa, (a.k.a. Lisa Gherardini) is probably spinning in her grave, though not at the possibility of a similar disfigurement since La Gioconda is safely behind bullet-proof glass.  However, in yet another tomb opening/DNA examination exercise, it is reported that scientists have opened a tomb in Firenze with a view of extracting DNA in an attempt to identify the model for da Vinci’s famous painting.

And finally, one for the silly season

The BBC reports that a child support magistrate in the US has ordered that a baby’s first name be changed from “Messiah” to “Martin” on the grounds, she asserted, that the only true messiah is Jesus. The parents of seven-month old Messiah DeShawn Martin had gone to court in Tennessee because they could not agree on his surname. The magistrate, Lu Ann Ballew, ordered that the child’s first name should be changed as well because “The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ”. So the baby is now Martin DeShawn McCullough, which gives him both his parents’ last names.

Er, First Amendment, anyone? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech… According to Religion Clause the child’s mother is appealing the magistrate’s decision to the Tennessee Chancery Court and a hearing is scheduled for 17 September. Which is no great surprise: if the decision doesn’t fail on the establishment limb of the First Amendment it probably violates the free speech limb.

(Incidentally re titles, “earl” is also a title – but that did not seem to bother Earl Warren CJ of the US Supreme Court.)

Court permits 40 solar panels on “Arts and Crafts” church

The Alaskan village of Newtok appears to have little in common with the church of St Francis of Assisi in Meir Heath in the diocese of Lichfield, yet the decision of the Consistory Court to permit the installation of 40 black photovoltaic solar panels provides an example of what local communities in the UK might do to lessen the impacts of global warming elsewhere – but too late for the inhabitants of Newtok, where it is predicted that the highest point will be under water as early as 2017, making them America’s first “climate change refugees”.

One of the principal reasons for seeking a faculty to install solar panels on this “Arts and Crafts” church in Re St Francis Meir Heath [2013] Lichfield Cons Ct was the belief of the petitioners [at para.6]

“that it is appropriate that they and the worshipping congregation of St. Francis should strive to reduce their ‘carbon footprint’ and to contribute to preserving the environment by using renewable energy rather than fossil fuels.”

In 2009, the Church of England initiated a programme of carbon reduction, Shrinking the Footprint, with a target of 80% by 2050, and an interim target of 42% by 2020.  As we have discussed earlier, the installation of solar panels on listed churches is not unknown, but most cases the panels have not been visible from the ground: see, for example, In the matter of St George, Kemp Town, Brighton.  In the case of St Francis, Meir Heath, the chancellor had to take into consideration the fact that although not listed, the church of St Francis was of architectural significance and that the pitch of the roof was such that the photovoltaic panels would be visible from the south side, i.e. on approaching the entrance, and most readily from the vicarage and partially on approaching the entrance, but not from the highway [1].

Arguments before the court

Planning permission was not required for the installation and the local planning authority chose not to make any representations. The Diocesan Advisory Committee, (DAC), did not recommend approval, and although itself not a party to the action, English Heritage expressed its objections in a detailed submission. However, there were a number of letters of support for the Petition from parishioners and members of the congregation and from Fulford Parish Council, which was particularly influenced by the financial benefits which will support the church’s continuing viability.

Importantly, the Diocesan Environmental Officer offered strong support for the proposal, describing it as “being well-thought through; as fitting with the Church of England’s ‘Shrinking the Footprint’ campaign; and as worthy of commendation for integrating care for Creation with moves to ensure financial stability for the church”.

In parallel with their concerns regarding the church’s carbon footprint, the petitioners’ justifications for the installation of the photovoltaics were also energy-related, [at para. 6]: the high roofs and elevated position conspired to make the church’s heating difficult and costly; and the income from the solar panels would assist in meeting those costs and thereby help to ensure the continuing financial viability of the church.

The DAC believed that although the church of St Francis “has not yet been designated as a listed building” it was nonetheless architecturally significant, and noted an Architectural History Practice report in 2008 which described St. Francis’s as being “a significant work” by W Curtis Green and recommended that it should be listed. It considered [at para. 10] that

“[the] architectural and historical significance of buildings does not lie only in those parts which may be easily seen from the public highway … the roof is a key element of the arts and crafts design and the panels would be too visually apparent … the adverse visual effects of the proposed installation on what is clearly an important historic building outweighed its potential benefits”.

The Chancellor rejected English Heritage’s submission that the church should be treated as if it were listed, noting [at para. 17]

”it is not appropriate for me to apply to an unlisted building the special regime which applies to listed buildings. This is particularly so as the listing for the relevant area was made as comparatively recently as 1981”.

The petitioners cited the decision of Cardinal Ch in Re St Mary Moseley [2011] Birmingham Consistory Court, who granted a faculty for the installation of solar panels on a Grade II listed church, taking account of the approach taken by the planning inspector (who had already granted planning permision). However, Eyre Ch stated that though such a decision might be highly persuasive he would not be strictly bound by it; and neither the planning inspector nor Cardinal Ch were purporting to say that the installation of panels would always be appropriate and permissible.

Analysis and judgement

In his analysis, Chancellor Eyre stated that he must give considerable weight to the DAC’s assessment and to the expert views of English Heritage.  In matters of aesthetics, he noted that whilst it is not for a chancellor to substitute his own views for those with particular expertise, he was entitled and bound to take account of the actual physical features of the church and to consider those features as they manifestly were on his site visit.

The DAC’s refusal to recommend the Petition was influenced by its conclusion on the adverse visual impact which the proposal would have. This played a lesser part in English Heritage’s concerns, which related more to the impact on the integrity and significance of the building.

In addressing these points in granting the petition, the Chancellor noted that the overall appearance of the church will be little altered, the Arts and Crafts appearance remaining: “the appearance will be that of an Arts and Crafts building with solar panels present on its markedly less visible rear face”. Moreover, in terms of integrity, the argument put forward against the current proposal would have applied equally to the earlier alterations – the addition of a church hall and meeting room.  He concluded

“[t]hose panels will have a limited impact on the appearance of the church but will not markedly alter that appearance and will contribute to the continued use and viability of the church building. In those circumstances the further harm to architectural integrity of the church is justified.”


One thought comes to mind. The Church of England’s faculty jurisdiction exempts it from the requirement to seek listed building consent (though not, it should be emphasised, from planning controls) – but, unlike secular controls, it applies to all C of E churches, whether listed or not. English Heritage, on the other hand, is primarily concerned with listed buildings: Faculty Jurisdiction Rules 2000 [2].

So why English Heritage’s concern about an unlisted building? The chancellor noted at para 11 that “it is the view of English Heritage that the Petition should be approached by regarding the church as if it were listed”. Which leads one to ask, “why should it?”. Either a building is listed or it is not – and if it is not, it is not entirely obvious why the matter should involve English Heritage. Similarly, the DAC explains that although the church of St Francis “has not yet been designated as a listed building” it is nonetheless architecturally significant [para 9]. But every unlisted building, by definition, “has not yet been designated as a listed building” – so exactly where do you stop? Eyre Ch evidently decided that whether or not a building is in fact listed should be the dividing-line:

“… account has to be taken of the building’s character … but the special status and consideration applicable to a listed building do not apply. This is a church building which has already been altered from its original appearance” [para 24].

David Pocklington and Frank Cranmer

[1] “Although it is in an elevated position the land around it is largely lined by trees, so that it is not readily visible from outside its own grounds”, [para. 2].

[2] The Faculty Jurisdiction Rules 2013 contain similar provisions regarding English Heritage and come into force on 1 January 2014

Legal standing and other changes to judicial review

The Plantagenet Alliance is currently seeking permission to apply for a judicial review of the decisions taken by the Ministry of Justice and the University of Leicester in relation to a licence, issued under section 25 of the Burial Act 1957 by the MoJ, for the exhumation of the remains which were later identified as those of Richard III.  The areas of concern include: the absence of consultation by the MoJ prior to the exhumation, by the University following the identification of the remains; and the MoJ’s decision not to re-visit the grant of the licence once it became clear that the University of Leicester would not carry out an appropriate consultation.

On 6 July the Plantagenet Alliance announced that the High Court in London had received and filed all claim documents (including supplementary information and Witness Statements) from all parties and would review these during the following 6-8 weeks. A ruling regarding the Permission Stage and the Alliance’s application for a Protective Costs Order would then be made. If granted, the Judicial Review will examine illegality, irrationality or procedural irregularities of the decision making processes of the MoJ and the University of Leicester, but not the validity of the decisions themselves.

In parallel with these events, the Ministry of Justice has been progressing its programme for reforming judicial review, and whilst these are unlikely to have an impact on the application of the Plantagenet Alliance, they are of general relevance to the future application of the law in this area [1]. Subsequent posts will address the Church of England’s proposed changes to section 25 of the Burial Act 1857, here, and the implications of the recently published findings on the car park excavations of the University of Leicester, here.

 Judicial Review

At the end of last year, the Ministry of Justice undertook a public consultation Judicial Review: proposals for reform [2], and in its response, government announced its intention to proceed with the majority of its proposals including: reduction of the time limit for judicial review from three months to six weeks in planning cases and thirty days in procurement cases; withdrawing the right to renew an application orally, for claimants turned down on the papers, where the judge certifies the application as “totally without merit”; and the introduction of a fee of £125 for claimants who choose to renew an application orally.

In their analysis of the consultation responses, Varda Bondy and Maurice Sunkin highlight some of the weaknesses in the government’s evidence base in relation to the scale of litigation and abuse, and suggest that reforming the process may have nintended consequences that could increase burdens on public bodies and the courts without achieving the ends that the government hopes. They suggest that restrictions on access may also have a disproportionate adverse effect on claimants with genuine legal disputes with public bodies especially in relation to public service provision.

This week it was reported by The Times and The Daily Telegraph that the government is seeking to introduce a further set of reforms which will place significant restrictions on the test for the legal standing of groups or individuals in judicial review cases, (see Mark Elliott’s post of 29 July 2013 on his Public Law for Everyone blog).  Currently section 31(3) of the Senior Courts Act 1981 sets out a test for legal standing based upon a requirement of “sufficient interest” in the matter in question, of which Elliott notes that “over the years, the vague statutory “sufficient interest” criterion has been imbued with a generous meaning”.

He continues, following R v Inland Revenue Commissioners, ex parte National Federation of Self-employed and Small Businesses Ltd, [1982] AC 617 [1982] AC 617, “courts went on to fashion a broad—but not infinitely broad—standing test”. The case of R v HM Inspectorate of Pollution, ex parte Greenpeace (No 2) [1994] 4 All ER 329 introduced the concept “associational standing” in which a pressure group was allowed to issue a claim on behalf of its local members who might be affected by the  commissioning a new nuclear reprocessing facility. In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386, standing was further extended to include considerations of public interest.


The MoJ’s December Consultation focussed on immigration and asylum matters, the main “growth area” in Judicial Review [3], but clearly any changes to the JR regime will impact on individuals or groups who claim the illegality, irrationality or procedural irregularities in the decision making processes of the Executive, including those of Ministers, local authorities, other public bodies and those exercising public functions.

Section 25 of the Burial Act 1875 addresses exhumation from both “consecrated place[s] of burial” and “any place of burial” [4], and judicial review is applicable both to the bodies issuing “section 25 licences” and to the ecclesiastical courts.  This has been reviewed by Hill [5] and more recently by Hill, Sandberg and Doe in Religion and Law in the United Kingdom [6],in which the authors state [at page 37]

“It is generally thought that the decisions of the Church courts are subject to judicial review of the High Court.  Section 81 of the Ecclesiastical Jurisdiction Measure 1963 states that the High Court has power to enquire into contempt of the Consistory Court upon certification by the chancellor, [section 81(3)], and recognizes the supervisory jurisdiction of the High Court over the Consistory Court. . . . . . . . For the purposes of the Human Rights Act 1998, all courts and tribunals of the Church of England are public authorities and as such must act in a way which is compatible with Convention rights, [section 81(2)]”.


Although not of direct relevance to the above discussion, for completeness, readers’ attention is drawn to today’s post by Aileen McHarg of the Constitutional Law Group – Access to Judicial Review In Scotland – in which she discusses the intention of the Scottish Government to recommend the approach in England and Wales by introducing a leave requirement and a three month time limit for Judicial Review.  A consultation has been launched for the incorporation of these recommendations, inter alia, through the Draft Courts Reform (Scotland) Bill.

[1] This post is not a commentary on these current proceedings, but an analysis of the issues raised in the MoJ consultation in the context of the future developments in this general area.

[2] 13 Dec 2012 to 24 Jan 2013.

[3] The consultation states [at para.31]: “In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted.13 Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year)”.

[4] There is a degree of uncertainty regarding the scope of the term  “any place of burial”, and whether this applies as a default position to any land which is not consecrated by the Church of England, or is covered by another statutory provision.

[5] M Hill, “Judicial Review of Ecclesiastical Courts”, in English Canon Law, ed. N Doe, M Hill & R Ombres, (1988, University of Wales, Cardiff) 104-114.

[6] M Hill, R Sandberg and N Doe, Religion and Law in the United Kingdom, Kluwer Law International, The Netherlands 2011).

Painting an accurate picture

Quoting the chair of the Church Buildings Council (CBC),  the alarmist headline in the Church Times proclaimed Churches may be stripped, CBC warns after ruling”, and continued

“[t]he sale of the West painting would ‘have serious repercussions, and create an unfortunate precedent for any one of our 16,000 churches seeking funding for repairs, sending a message that the way is now open for them to dispose of the treasures they have inherited to the highest bidder’ “.

True of Bluff?  Well, elements of both and given conflicting issues highlighted, the Priest-in-Charge of the church in question was wise to decline to comment. The case concerned the decision of Diocesan Chancellor, HHJ Nigel Seed QC, in the London Consistory court to grant a faculty to St Stephen, Walbrook, permitting it to sell the painting Devout Men Taking the Body of St Stephen, by Benjamin West RA. (You can see a reproduction of the painting here.) However, whereas judicial consideration in Re St Stephen Walbrook [2013] London Cons Ct (10 July) concerned the interpretation and application of church law in this particular case, the CBC’s fear was that the consequent sale of one of the CofE’s “church treasures” would have broader implications not only for individual churches but for those concerned with the financial affairs of the Church of England. Unfortunately, the issues raised by such concerns do not sit easily with the legal considerations of the court.

Consideration by the Court

The faculty to authorise the disposal of the West painting by sale had the unanimous support of the Parochial Church Council and no objections were received from English Heritage or the Local Planning Authority. However, it was not recommended by the Diocesan Advisory Committee and the Ancient Monument Society, although consulted and invited to attend discussions, indicated that it did not wish to be involved. The CBC agreed with the DAC but, after initially not wishing formally to oppose the petition, subsequently decided to do so and was given leave to become a Party Opponent out of time. The Georgian Group objected from the outset and, having initially indicated it wished to be a Party Opponent, subsequently agreed to its interests being represented at the hearing by the CBC.

The Statement of Significance gives two main reasons for the proposed disposal of the picture:

(i) It would not be appropriate or aesthetically satisfactory to re-introduce the picture into the re-ordered church;

(ii) The church has no endowments and the annual income of the church is used up entirely on paying the Common Fund and other current running costs. This leaves no provision for capital expenditure which has been identified and incorporated into a ten year fabric plan. The church has some handsome plate which it does try to use on special occasions and the West picture has been identified as the most appropriate asset to realise.

Although the case under discussion is not linked to Re St Stephen, Walbrook [1987] 3 WLR 726, [1987] 2 All ER 578, the judgment of Court of Ecclesiastical Causes Reserved is of factual relevance since this earlier decision [1] was instrumental in the reordering of the church, giving the famous/controversial Henry Moore altar a permanent home in the Wren church, and the removal of the West painting. The painting has been in been in storage since the reordering of the church and introduction of the altar in 1987, and the Chancellor came to the conclusion that

“the painting could not safely be brought in through the west door. The only way in would be through a window at the east end . . . . . the difficulties would be much greater than Mr Featherstone [Director, Hamilton Kerr Institute, University of Cambridge who gave evidence on behalf of the CBC], supposed, would be fraught with danger for the painting and damaging to the fabric of the church itself”.

Practicalities aside, the court was assisted by two Judge’s Witnesses with qualifications in paintings and art history, and an expert witness for the CBC. The court’s considerations included: whether the possibly unsolicited and unwanted West painting was congruent with Sir Christopher Wren’s design concept [2]: in its original position, [as an “altar piece”, at the east end]; on the North Wall, [prior to reordering]; or a proposed return to the North Wall in the re-ordered church, [proposed by the DAC and CBC and grudgingly conceded by the Georgian Society].  It was noted by one of the judge’s witnesses [at 19] that

“the primacy of St Stephen Walbrook is as a work of architecture. The Moore altar, the Victorian windows, the West painting, were each an interruption of the original scheme. The painting was not essential liturgically or architecturally … the presence of such a classical painting [was considered to be] anomalous. Wren did not conceive of anything so large interrupting the scheme. Returning it to the north wall would provide only a sentimental remembrance of how it hung. It was [the witness’s] view that this painting has never had a natural home in this interior.”

The lack of legal authorization or Vestry approval for the initial installation, its movement within the church, or its removal was considered, the Chancellor noting [at 33] that

“[t]his case, if nothing else, is an object lesson of the consequences of incumbents behaving as though the church building is a sort of personal doll’s house for them to play with, without reference to the parishioners (who, of course, own the goods and ornaments within) or the authority of the Ordinary, exercised in this respect by the Chancellor. Unfortunately, this attitude was not restricted to the eighteenth or twentieth centuries and is still held by certain incumbents today.”

He pointed out the inconsistency in the CBC argument, suggesting that the parish should not be allowed to “get away” with the illegal act of the removal of the painting from the church, [para, 31], while it was itself seeking to benefit from the illegal act of the introduction of the painting, [para.33.  Nevertheless, he accepted its position, which: established the link between this painting and the church;  its observations that the painting is doctrinally sound;  and is the church’s only depiction of St Stephen, the dedicatee of the church. Nevertheless, on the basis of the evidence “heard and accepted”, the DAC’s view was rejected, [at 33].

The Chancellor then addressed the financial considerations, with regard to the church’s operating costs and limited sources of income, and those associated with the reinstallation of the painting. Whilst the church was operationally solvent, roof repairs were currently draining the funds and the church/parish was currently financially unviable. With regard to the relocation of the painting, he was satisfied that there was no location available within the City of London, and the Museum of Fine Arts in Boston, USA would be a fitting place for the painting to be displayed, cared for and maintained.  It is likely that it would also be seen and appreciated by more people there than it would in St Stephen Walbrook.

In summary,the Chancellor stated [at 45] that

“[t]he CBC’s case seems to be that I should ignore the fact that the worshipping community of the parish is unanimous in not wanting this painting returned to the church or that this is trumped by the case of re St Gregory Tredington [1972] Fam 236.

However, he was satisfied that the petitioners had made out the necessary financial need to dispose of this painting, that any connection it may be said to have had to the parish was illegally established and to the aesthetic detriment of the church and that it should be sold to be displayed in the Museum of Fine Arts in Boston.  The parish, however, should not be entitled to the entire proceeds of sale, which will be subject to further submissions after the sale has been agreed.


Two legal issues are central to the case – those of precedent and the unauthorized introduction of the painting.  A secondary presentational issue was evident in relation to the attitude of the CBC and to one of the expert witnesses.


The relevance of precedent in ecclesiastical courts was explained by the Worshipful Mark Hill, QC in a case in the Chichester Consistory Court [3], where he noted

“the consistory courts do not have a sophisticated doctrine of binding precedent and stare decisis.  Nevertheless, consistency of judicial decision making means similar cases should be treated similarly.”

Furthermore, in the instant case the Chancellor said [at 44] “[v]ery little evidence was adduced by either party on the subject of precedent, even though that was an important part of the CBC’s case, as based on the DAC’s reasoning.”  He observed that the only evidence presented to him was that relating to “The Raising of Lazarus“, also by West, which set “the precedent of an English church [Winchester Cathedral] selling a religious picture . . . . to an American art institution, [Wadsworth Atheneum, Hartford, Connecticut]”.

Nevertheless, the “exceptional circumstances” surrounding the sale of the St Stephen’s painting suggest that this judgement would be more widely applicable, certainly to the extent suggested by the Church Times headlines.  From a legal point of view, therefore, it is incorrect and misleading to suggest that In re: St Stephen Walbrook sets a precedent that is likely be applied to any of the Church of England’s 16,200 or so churches, or that each judgment will be based upon the nationality of the artist, the quality of the work, and the compatibility with the architecture.  The latter comment in fact supports the view that each case would be determined on the facts, which as the present case demonstrates, requires the detailed consideration of information and advice from experts and those involved.

Absence of a faculty

Likewise, Chancellor Seed was clear [at para.26] that

“even if the painting had been unlawfully introduced, as I have found that it was, that would not be determinative of whether or not it should be re-introduced,” [emphasis added],

and [at para. 10]

“I reject the bold submission made by the CBC that the circumstances of the introduction of the painting are of little or no importance. While they are not determinative of the position, they are of considerable significance in providing the context for consideration of any alleged subsequent unlawful actions and the approach to a contentious artefact in a church.”

Consequently, extrapolation of this judgement to the many “paintings that were introduced in the 18th century without a faculty” seems unlikely.

[1] The appeal was heard by the Court of Ecclesiastical Causes Reserved rather than the Court of Arches since matters of doctrine and liturgy were involved, i.e. whether a solid stone sculpture was a “table” within the meaning of Canon F2.

[2] A characteristic of Wren’s designs was his use of light within a church, [para. 15], a concept that was frustrated by the initial bricking up of the east window for the installation of the painting.

[3] In the matter of conjoined petitions relating to the theft of metal from various church buildings, and in the matter of a like application for dispensation from faculty, St Michael and All Angels, Bexhill; All Saints, Danehill; St Matthew, St Leonards-on-Sea; St Mary, Balcombe; St John the Evangelist, Upper St Leonard.  16 November 2011

Religion and law round up – 14th July

Another row with the ECtHR

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

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

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

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

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

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

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

Holy See, Vatican City State – internal and international law

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

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

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

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

Marriage (Same Sex Couples) Bill

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

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

General Synod

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

Charity law reform – this time in Jersey

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

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

Government pulling back on agreement on caste?

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

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

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

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

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

Canonical dress code

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

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

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

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

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

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

CofE General Synod, Legal Issues

The full agenda for the meeting of the General Synod of the Church of England 5th – 8th July 2013 is published here, and copies of the papers on the issues discussed here.  Summaries and analyses of the debates are have been posted by Thinking Anglicans and others.  This post highlights specific legal issues that were discussed, although it should be noted that some of these are “work in progress”, and the sometimes Delphic nature of the reporting precludes a more detailed analysis at this stage.

Faculty Jurisdiction

A review of the faculty jurisdiction was one of the areas addressed by the Simplification Group of the Archbishop’s Council in GS 1048, which includes:

(i) the establishment of an agreed national list of minor works;

(ii) the establishment of an agreed national list of routine works which will require advice from the DAC and the approval of the Archdeacon, but do not need to go through the full faculty procedure;

(iii) a more streamlined application process from early advice stage through to the formal Petition with a more disciplined time frame for routine applications;

(iv) a move to an online form with a printed paper version available for those who are unable to access a computer;

(v) expanding the use of Statements of Significance accompanied by a Basic Information Form which will be stored electronically to build up a data base in each diocese, thus eliminating the need for repetition in future applications; and

(vi) a much shorter and more streamlined Petition Form.

The Synod considered the Faculty Jurisdictions Rules 2013, GS1887, and the associated Explanatory Note.  These incorporate a number of the above recommendations, and do not need primary legislation.  Synod agreed an amendment clarifying the nature of financial gifts to PCCs and approved the amended Rules which will come into force on 1 January 2014.

Draft Church of England (Miscellaneous Provisions) Measure

At the 2012 General Synod, the Dean of the Arches and Auditor, Rt Worshipful Charles George noted [at page 85] that whilst “Miscellaneous Provisions Measures” are an essential way of progressing, they were “the bane of lawyers because it is extremely difficult to establish what the law is”.  He made the observation, which is equally applicable to the present Miscellaneous Provisions:

“I doubt that any of the lawyers in General Synod would profess to familiarity with more than one or two of the Measures which it is proposed to amend, and I suspect that there is no one outside Legal Office in Church House who is familiar with them all. It is quite beyond the resources of members of this Synod to find the relevant volumes of Halsbury’s Statutes to check the draughtsmanship”

Quite so.  The present rag-bag of changes in GS 1866A includes amendments to:

–  Ecclesiastical Commissioners Act 1840

–  Burial Act 1857

–  Episcopal Endowments and Stipends Measure 1943

–  Church Commissioners Measure 1947

–  Parochial Church Councils (Powers) Measure 1956

–  Ecclesiastical Jurisdiction Measure 1963

–  Faculty Jurisdiction Measure 1964

–  Overseas and Other Clergy (Ministry and Ordination) Measure 1967

–  Synodical Government Measure 1969

–  Endowments and Glebe Measure 1976

–  Incumbents (Vacation of Benefices) Measure 1977

–  Patronage (Benefices) Measure 1986

–  Care of Churches and Ecclesiastical Jurisdiction Measure 1991

–  Cathedrals Measure 1999

–  Tenure of office of vicars general and surrogates

–  Dioceses, Pastoral and Mission Measure 2007

–  Power for chancellor to determine fees

–  Power for General Cemetery Company to dispose of whole or part of Kensal Green Cemetery

–  Provisions relating to Christ Church, Oxford

as well as some minor and consequential amendments.  Synod debated these and Draft Amending Canon No. 31, GS 1877A, and taking note of the report of the Revision Committee,  GS 1866Y-1877Y, considered the draft Measure and the draft Amending Canon clause by clause. A number of amendments consequential on earlier changes were accepted and the legislation now stands committed to the Steering Committee for final drafting.

We will discuss the proposed modifications to section 25 Burial 1875 in more detail when details of Synod’s amendments are published.


Synod debated the important issue of safeguarding and voted to acknowledge and apologize for past failures.  Synod also endorsed the proposed work on legislative and non-legislative changes with a view to tighten procedures, identified as a result of the Chichester Commissaries interim and final safeguarding reports, GS 1896.  Furthermore, the House of  Bishops and Archbishops’ Council have agreed to undertake a consultation on the proposed legislation over the course of the summer, with a view obtaining Final Approval during the present Quinquennium [1]. The proposed legislative measures include:

–  Removal of the 12 month limitation period for the bringing of complaints under the Clergy Discipline Measure 2003 in sexual abuse cases

–  Extending the bishop’s power of suspension under the CDM

–  Amending canon law so that clergy can be required to undergo risk assessments

–  Preventing prohibited and suspended clergy from robing

–  Extending the circumstances in which churchwardens and PCC members can be suspended and/or disqualified from holding office

–  Amending Canon C 8 – Of Ministers exercising their ministry.

Changes to the legislative framework already been approved by Synod are:

–  An amendment to the Code of Practice under the CDM to clarify when a complaint can be made under the Measure notwithstanding an acquittal in criminal proceedings; and

–  An amendment to the Clergy Discipline Rules made under the CDM so that victims will be able to withhold their contact details from respondents when making complaints

Women in the episcopate

A Church House Press Release announced that the General Synod has reaffirmed its commitment to women bishops and called for new draft legislation which will be considered in November 2013, with the view of reaching the stage of Final Approval in July or November 2015.  Subject to the agreed amendments 45 and 47, Synod agreed the proposals of the House of Bishops in GS 1886 by 319 votes to 84 that involved:

–  a measure and amending canon that made it lawful for women to become bishops;

–  the repeal of the statutory rights to pass Resolutions A and B under the Priests (Ordination of Women) Measure 1993, and the rescinding of the Episcopal Ministry Act of Synod 1993; and

–  arrangements for those who, as a matter of theological conviction, are unable to receive the ministry of women bishops or priests, set out either in a declaration from the House of Bishops or in a new Act of Synod., based paragraphs 52-62 of the annex to GS 1886.

New Diocese of Leeds for West Yorkshire and The Dales

The draft reorganization scheme replacing the current Dioceses of Bradford, Ripon and Leeds, and Wakefield with a new Diocese of Leeds, created to serve West Yorkshire and The Dales was approved by Synod.  The background to the scheme with links to relevant documents is summarised here.  Whilst the Bradford and Ripon diocese were strongly in favour of the scheme, as were the two adjoining diocese of Sheffield and Blackburn, Wakefield was equally opposed, and the decision of the Archbishop of York to bring the scheme to the General Synod, despite the Wakefield rejection, is explained in GS Misc 1050.

The documents before Synod included: The Dioceses of Bradford, Ripon and Leeds and Wakefield Reorganisation Scheme 201-, GS 1898, made under section 7 of the Dioceses, Pastoral and Mission Measure 2007; an Explanatory Memorandum and Covering Note; and a Resolution establishing transitional Vacancy in See Committee for the Diocese of Leeds, GS 1899 The reorganisation involves inter alia:

–  dissolving the existing dioceses of Bradford, Ripon and Leeds, and Wakefield and establishes a single new diocese of Leeds

–  retaining the three existing cathedrals of Bradford, Ripon and Wakefield as cathedrals of the new diocese, and establishing present the parish church of Saint Peter, Leeds as the pro-cathedral in Leeds [2];

–  creating two new suffragan sees, and reorganising archdeaconries and deaneries’

–  making arrangements relating to patronage, property, ecclesiastical courts and other matters;

–  abolishing various offices in the dioceses that are to be dissolved and conferring rights to compensation

–  transfers a small number of parishes to two neighbouring dioceses of Sheffield and Blackburn.

Thinking Anglicans reports that Synod voted in favour of the scheme on a show of hands, and following a second vote on the establishment of a transitional Vacancy in See Committee, the process for nominating the first Bishop of Leeds may now commence.  The new diocese will come into existence on a day to be set by the Archbishop of York after the scheme has been confirmed by Her Majesty the Queen through an Order in Council.

[1] The Consultation is in the Annex of GS 1896, and responses should be sent to  by 30 September.

[2] Establishing a pro-cathedral involves designating a church as a ‘seat of the bishop’ and will functions as a centre of worship and mission and, in particular, of episcopal ministry. However, a pro-cathedral is not subject to the legal framework that applies specifically to cathedral churches, and the Scheme provides that the Parish Church of St Peter, Leeds will continue to be governed in the same manner as any other parish church.