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.

Burial in the wrong grave and what (possibly) to do about it

Stewart Dickson, son of Rose and Charles Dickson, died aged 27 in 2011 and was buried in the churchyard of St Andrew, Thringstone. His parents applied for and were granted a faculty to reserve the immediately-adjacent space to him so that in due course they could be buried next to him; and the faculty was granted on condition that the reservation should be marked and endorsed on an up-to-date plan and marked discreetly on the ground. Unfortunately, the priest-in-charge, the Revd Mr Burgess, marked the plot inaccurately.

In March 2013 another parishioner, David Garrett, died; and because the oversight by Mr Burgess he was buried in the plot reserved for the Dicksons. Mrs Dickson and her daughter, Yvonne McIlwraith, were offered the plot next-but-one to Stewart Dickson’s but rejected it. Each family felt sorry for the other; but the Dicksons believed that they were entitled to the plot that they had reserved, while the Garretts held to the view that once David Garrett had been buried he should not be disturbed. Said Ms McIlwraith, “We have said all along the only plot acceptable is the one next to my brother. It is a horrendous mistake by the church and they have to abide by our wishes. We feel for the other family but we have no option but to take our stance”.

The Archdeacon referred the matter to the Chancellor, Mark Blackett-Ord, who ruled on the matter in Re St Andrew, Thringstone [2013] Leicester Ch Ct.

Blackett-Ord Ch was faced with an unenviable choice:

“What is unusual in the present case … is that it is not (as is more usual) the family of the person to be moved who seek the disinterment. Indeed they positively oppose it. It is the Dicksons, not the Garretts, who wish to see the remains of Mr Garrett removed” (para 21).

Whatever was decided, one side or other was going to feel hurt and aggrieved:

“It is a serious matter to order the disinterment of a body in the face of opposition by the family. On the other hand, it seems to me to be an equally serious matter that a family who have been granted by faculty the reserved use of a burial space beside a beloved family member, should lose any right to that space if another person is wrongly buried there” (para 22).

He saw his task as one of resolving the case in the manner that would cause the least injustice (para 23). He concluded that justice required that the rights over the grave space should remain with the Dicksons – who had reserved it and paid for it – rather than with the Garretts (para 29). He therefore ordered:

  • that the remains of Mr Garrett should be exhumed and reinterred within the churchyard;
  • that the reinterment should be performed by experienced funeral directors with a priest present; and
  • that Mr Burgess should take no part in the proceedings.

Since Mr Garrett had already been committed in a funeral service, a second service would not be required.

The Chancellor also suggested that, in future:

“(a) the standard faculty order reserving a grave space should in future cases state clearly that the obligation to mark a reserved plot is an obligation on the PCC or on the incumbent and churchwardens and not on the petitioners; (b) no interment in any graveyard should take place unless the officiating priest has satisfied himself or herself that the proposed grave space is not a reserved plot” (para 35).

Costs were awarded against Mr Burgess, who had admitted that he had been at fault.

Comment

Sadly, “wrong” burials are by no means unknown. As we noted in a previous post, a similar mix-up occurred in Re St Peter Dunchurch [2013] Coventry Cons Ct, in which a wholly unrelated person had been buried in the plot reserved for Mrs P-W so that on her death she could be buried alongside her husband. In the Dunchurch case, however, the family did not petition for the mistakenly-interred remains to be exhumed and reinterred elsewhere because they did not wish to distress the family of the person already buried there, who were unaware of the mistake. Instead, Chancellor Eyre granted permission for the exhumation of Mr P-W (who had been buried in the correct plot), his re-interment elsewhere in the churchyard and the reservation of a new adjacent plot for Mrs P-W.

But no such solution was possible in the Thringstone case, which aroused considerable local publicity in the Leicester Mercury: here and here. Possibly the nearest recent parallel is Re Jean Gardiner [2003] Carlisle Cons Ct, in which a faculty was granted to exhume the wrongly-buried remains of Mrs Jean Gardiner and to reinter her in an adjacent reserved plot, despite the objections of her family.

If there is any lesson to be learned from Re St Andrew, Thringstone (and, indeed, from similar cases in the past) it is that PCCs and incumbents need to be ultra-careful in marking out and recording plots. No “blame” could possibly attach to either family: both were merely victims of circumstance – and one suspects that the Dicksons have emerged from the experience only very little happier than the Garretts.

Religion and law round up – 20th October

Votes for prisoners in the Supreme Court, yet another dispute over school uniform and more on oaths 

Prisoner voting: the Supreme Court says “no, but”…

As we reported earlier, probably the major story of the past week was the Supreme Court’s rejection of both the appeals in R (o a o Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council & Anor [2013] UKSC 63 and its decision not to seek an advisory opinion from the European Court of Justice. Perhaps the most important feature of the various judgments is that their Lordships agreed to reject the Attorney’s request that they should “refuse to follow and apply the approach taken by the European Court of Human Rights in Hirst (No 2) and Scoppola” [para 29]. There seemed to be sympathy for the view that the present total ban is arbitrary and indiscriminate but none whatsoever for the appellants.

Nothing to do with religion as such – but everything to do with human rights and our domestic courts’ attitude to the ECHR and Strasbourg.

Beards, religious dress and school uniform

The Telegraph reported the case of two Muslim 14-year-olds at at Mount Carmel Roman Catholic High School in Accrington who had been “placed in isolation” because they had grown beards. Headteacher Xavier Bowers had said that the matter was not one of religion but about dress code and that parents were told about the rules on appearance and uniform before their children start attending the school and were given regular reminders. Subsequently, however, the school’s governors changed their minds and decided to allow Muslim boys (only) permission to grow a beard as a sign of their faith so long so they had started on the Hafiz programme (which involves daily prayers and learning the Qur’an in Arabic by heart) at their mosques. The Telegraph reported that the school “claimed its about-turn was to comply with the European Convention on Human Rights”.

When Frank read the report in the Telegraph he was reminded of G v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin), in which it was held that an Afro-Caribbean boy who, in accordance with family tradition, kept his hair in “cornrows” or braids and who, in consequence, had not been allowed to take up his place at the respondent school, had suffered unjustified indirect racial discrimination. If cornrows, he wondered, why not beards?

Coincidentally, Stephanie Berry, of Sussex University, recently posted an interesting discussion about the different approaches of the ECtHR and the UN Human Rights Commission to religious dress in state institutions.

Religious oaths – this time in Ireland

We  reported earlier that the issue of religious oaths in court proceedings is to be considered by the Magistrates’ Association at its AGM: yesterday (Saturday), however, the proposal was thrown out. However, the issue has suddenly acquired a much higher profile in Ireland. The Irish Times reports that six of the President’s seven nominees to the Council of State have made a submission to the Convention on the Constitution asking that it consider the appropriateness of office-holders having to take religious oaths.

Article 31.4 of the Constitution [Bunreacht na hÉireann] requires members of the Council of State to make the following declaration:

“In the presence of Almighty God I [N] do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfil my duties as a member of the Council of State.”

The six argue that, approaching the issue “from the perspective of what it means to take seriously the Republican form of Government”, such an imposition “serves neither religion nor the ideal of a public space open to all who are willing to contribute to the common good in a Republic”. They also point to the increasing diversity of modern Irish society as compared with 1936-37, when the current Constitution was adopted.

Recent consistory court judgments

This week six further Consistory Court judgments were published:

Re Christ Church Eccleston [2013] Liverpool Const Ct Sir Mark Hedley Ch: Controversial aspects of this successful petition for reordering were the partial removal or shortening of pews and the installation of under-floor heating. Although the chancellor concluded that the former could properly be characterised as “harm”, notwithstanding the impact this would cause to the significance of the church, the justification advanced by the applicants succeeded. The issue of the heating would be resolved through contractual obligations.

Re St. Paul Eastville [2013] Lincoln Const Ct, Mark Bishop Ch. (Lincoln): In view of the link with the recent problems with the spire of St Mary de Castro in Leicester, and the infrequency of consistory court judgments concerning the application of ss 17-18 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, this was reviewed earlier in the week, here. The present judgment is important since it addresses the legal issues from the identification of the need to demolish St Paul’s to the refusal of a faculty on the basis of s18 of the measure.

Re St. Peter Prestbury [2013] Chester Const Ct, David Turner Ch: Our sympathies are with the Chancellor, who had to consider a hearingbundle of 2,320 pages then adjudicate on one of those “church vs civic authorities & assorted complainants” issues that make one pleased not to be involved in village politics. Whilst the petitioners sought authority to build an extension at the north east corner of the church, for level access works and to provide new paths to the churchyard,

“‘the elephant in the room’ in this case and the source of probably the greatest single aspect of concern for a majority of local objectors to the present Petition (though strictly now only indirectly relevant to that Petition) – was the disposal by the parish of Ford House, a property which had been acquired by the parish in or about 1968”.

The petition was granted and, subject to any appeal, “brings to a conclusion a somewhat unhappy and difficult chapter in village life in Prestbury”.

The other three judgments were more straightforward:

Re St. Margaret Horsmonden [2013] Rochester Const Ct John Gallagher Ch: Faculty for exhumation refused as there were no exceptional circumstances, following guidance in Re Blagdon Cemetery.

Re Holy Trinity Dawley [2013] Lichfield Const Ct Stephen Eyre Ch: Faculty refused for exhumation of cremated remains from a family grave in one part of the churchyard to a double plot for cremated remains in another part of the same churchyard, as “a case of a change of mind on the part of those who caused the first interment … is not an exceptional circumstance of a kind which can justify an exhumation going against the principle of the permanence of Christian burial: Re Blagdon Cemetery again.

Re St Michael’s Whichford [2013] Coventry Const Ct Stephen Eyre Ch: Faculty granted for repairs to external stonework of a twelfth-century church. This followed an earlier faculty for similar work, but on different facts, and the issue of the requirement for conservation vs renovation was considered. [1]

Richard III – an alternative perspective

In the current edition of Private Eye, No.1351, 18-31 October, what it views as a “controversy … fuelled by fanatics of the Richard III Society” is examined by ‘Piloti’ in the Nooks and Corners column which provides a commentary on proposed changes to architecturally-important buildings. Whilst favouring Leicester over York, the columnist comments

“it is odd that so much passion has been engendered about which Anglican church should house the body of a medieval Catholic monarch who was scarcely a national hero or founding father. As far as the Dean and Chapter was concerned, what mattered was ‘the possibility of the cathedral and its surroundings becoming a tourist attraction.’”

Although Piloti praises the architects for responding to their brief with sensitivity and intelligence, he questions whether the tomb should be made the focus of the cathedral interior, noting that “for all their ideas about dragging the cathedral into the 21st century, the Dean and Chapter are behaving like their superstitious medieval forbears, for every pre-Reformation cathedral needed a prominent shrine to rake in money from the pilgrims”.

Not all will agree. The important decision, however, now lies with the Cathedral Fabric Commission for England.

And finally…

Thanks to Simon Hunter of 13 Old Square who alerted us to these exchanges in the House of Lords on 14 October:

Church of England: Appointment of Bishops

14 Oct 2013 : Column 264

Lord Faulkner of Worcester (Lab): My Lords, what assistance are Her Majesty’s Government giving to the most reverend Primate the Archbishop of Canterbury in redressing the gender imbalance on the Bishops’ Benches in your Lordships’ House?

Lord Wallace of Saltaire: My Lords, the Church of England is moving with all deliberate speed towards the appointment of women bishops. I think it quite possible that the first women bishops will be consecrated before we have reached the next stage of House of Lords reform.

[…]

Lord Foulkes of Cumnock (Lab): My Lords, will the Minister confirm that one of the great things about Church of England bishops is that their number in this House has an upper limit, whereas coalition Peers seem to be flooding in with no apparent upper limit? Are there any members of the Liberal Democrat Party who are not in the House of Lords?”

Lord Wallace of Saltaire: I am sorry that the noble Lord, Lord Foulkes, did not take the other path appropriate to the Question, which is that the Bench of Bishops is the only section of this Chamber that has an upper age limit, which is 70.


[1] Non-architects may benefit from an understanding of certain terms used in the judgment: a reveal, the side of an opening for a door or window between the frame and the outer surface of a wall, showing the wall’s thickness; a hood moulding, gothic ornamental stone moulding which projects over an arch, doorway or window, in order to throw water clear of the building; ferramenta,  metal window grid to which glazing, especially stained glass, is secured. See Pevsner’s Architectural Glossary, available as an iPhone App.