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.

Religion and Law round up – 16th June

The ABC visited the Pope, “Christians in Parliament” published a report on faith groups and local authorities – and people realised that the Church in Wales is not quite as disestablished as they thought it was

Religion and local authorities

We noted the report produced by Christians in Parliament and the Evangelical Alliance, Faith in the Community, on relations between faith groups and local authorities in Great Britain. The report is a fairly heavyweight document – albeit produced from a particular religious perspective – and points up the sense of isolation that some faith communities seem to experience. Whether that sense is real or imagined is not for us to say; but in any discussion of relations between local authorities and faith groups it should not be forgotten that, apart from local and central government, the the largest single provider of social services is the Salvation Army. Good relations and mutual understanding would appear to be in the interests of both sides.

Welsh Church disestablishment

We reported on the publication by the NAW Constitutional and Legislative Affairs Committee of its Report on the Inquiry into Law-making and the Church in Wales in which the Committee advocated the full, final disestablishment of the C in W by removing its remaining common law obligations in relation to marriage and burial. The fact that there are such obligations clearly came as a surprise to some – not least to the Chair of the Committee.

After our original post (to which we added an update) the Church in Wales issued a press release in which it stated that it had not considered the issue of whether or not it should seek to change its status in relation to marriage law – but would welcome any assistance the Welsh Government could give to ease the burden of maintaining its burial grounds and in relation to disused burial grounds which, unlike in England, cannot be handed over to local authorities.

The Archbishop visits the Pope

Slightly (though not entirely) marginal to law and religion but of considerable wider interest,  on Friday the Archbishop of Canterbury had his first meeting with the Pope. Reading the press release and the accompanying material, one might perhaps be forgiven for thinking that the new Pope is rather better-disposed to Anglicans that his predecessor was. The Vatican reported [1]

“At 11 o’clock this morning, the Holy Father Francis receives in audience the Archbishop of Canterbury and Primate of the Anglican Communion, Archbishop Justin Welby, with his wife and an entourage.

The official meeting begins with a private audience at the library, and then, in the presence of the delegation accompanying His Grace Justin Welby, the official speeches and the exchange of gifts. Finally, it carries a moment of prayer in the Redemptoris Mater Chapel.”

Thinking Anglicans and Vatican Insider provide further details, and the official speeches are to be found here and here. The private meeting lasted half an hour, and an official visit has been scheduled for December this year.

The Digital Nun notes that “… from both left and right of the religious spectrum have come little grunts of disapproval [that the meeting was held]”, and should they so wish, readers will have no difficulty in sourcing these comments from the “usual suspects”. However, one upbeat comment within the Catholic Herald is from Fr Alexander Lucie-Smith, here, who suggests

“Cheerful news for a Friday: Catholic-Anglican relations are actually in good shape.  ARCIC may have failed, but on the great moral issues of the day Catholics and Anglicans are on the same side”

– which is just as well, given the world’s 1.2 billion Roman Catholics and 77 million members of the Anglican Communion.

Curial reform

The Catholic Herald reports that “Pope Francis ‘appoints management consultant’ to advise on reform of Roman Curia”. The consultant, Dr von Mitschke-Collande, is a former manager of the Munich branch of McKinsey & Company, who last year published Schafft sich die katholische Kirche ab?, which the CH suggests might be translated as “Does the Catholic Church want to destroy itself?” or “Is the Catholic Church going out of business?”

Last week’s suggestion for holiday reading, John Thavis’s book The Vatican Diaries, describes the Curia [at page 2] as:Vatican Diaries

 “A culture of miscommunication and miscues, of good intentions and flawed execution, of conflicting agendas and shifting alliances. It is a culture in which clerical careerism often overshadows quiet dedication in the work of the church. It is a culture founded on hierarchical order, but swamped by organizational confusion. It is a culture in which the pope is considered immune from criticism, yet is often kept uniformed about the details of important decisions.  It is, in theory, a culture of confidentiality – yet it leaks like a two-thousand-year-old boat”.

Added to this are Pope Francis’s alleged remarks on a “gay lobby” and corruption in the Vatican made to Latin American Conference of Religious (CLAR) in a private audience on 6 June, here, here, and here

So, quite a straightforward task for Dr von Mitschke-Collande, then…

Respect for religion in Russia

In March we noted the contining aftermath of the Pussy Riot protest, and the drafting in Russia’s lower house of parliament of  legislation relating to offences against religion.  On 11 June, the State Duma approved a bill’s second and third readings that would make insulting religious believers’ feelings a criminal offence, here.  Provided it is passed by the upper house of parliament – the Federation Council – and signed by President Vladimir Putin, it will come into effect next month and substantial penalties introduced:

  • Publicly insulting the feelings of religious believers, including by vandalism or the desecration of holy sites: a fine of up to 500,000 rubles (£10,000), compulsory labour and/or up to three years in prison.
  • Obstructing the activities of a religious organization or the holding of a religious ceremony: a 300,000 ruble (£6,000) fine and/or up to three months in prison.
  • Commission of an offence by a state official commits that offense: imprisonment for up to a year and a bar on holding government posts for up to two years.
  • Deliberate public desecration or destruction of a religious object by any Russian citizen: a fine up to 200,000 rubles (£4,000).

Along with federal legislation on the promotion of homosexuality, the Bill is aligned with the position of the Russian Orthodox Church and is strongly supported by a number of conservative activist groups.

Two of the Pussy Riot protesters, Maria Alyokhina and Nadezhda Tolokonnikova are serving their two year prison sentence in different prison colonies.  The third member, Yekaterina Samutsevich, was freed last October when a judge suspended her sentence on appeal.

Burial customs

After the previous week’s exposure to the more exotic burial customs of the Etruscans – elaborate cinerary urns and underground burial – the report of Re All Saints Standon [2013] Lichfield CCt provided a return to Anglican “normality”. Here the Chancellor was faced with ruling on the appropriateness of the memorial that Darren and Rick Clapham proposed to erect over the grave of their father, Charles Clapham.  He was locally well-known as being something of a “character” and the choice of suitable wording to reflect this proved problematic to the PCC, DAC and the Court.

Cinerary urn, VolterraIMG_2272HHJ Stephen Eyre held that inclusion of the words “Now then” was  just about acceptable, and although they would convey little to anyone who did not know Mr Clapham or his use of this phrase, but they did not give any false or unchristian message. However, he drew the line at “It’s only rock and roll” – a possible reference to life (or death) – since this “amounts to a trivialising of God’s precious gift of life or of the ending of that gift.” Similarly the words “finally fell off his perch” were also unacceptable, since “they cross the line going beyond quirkiness and humour to undue flippancy and irreverence.”

Although the petition was refused, the Chancellor noted the desirability of celebrating individuality and the colourful nature of Mr Clapham’s life and would be prepared to authorise an inscription going beyond the recording of Mr Clapham’s age at death and his attributes as a loving father and grandfather. However, any such inscription should “give a message which conveys something of Mr Clapham’s character without being capable of being seen as inconsistent with the Christian Gospel.” He further authorised the Petitioners to apply to amend the form of words and refer them directly to the Court without the need for a fresh petition or for public notice.

If suitable words cannot be found, an inscription on a memorial bench outwith the curtilage of the church might be an option, such as that seen on the SW Coastal Path near Church Cove, Lizard, Cornwall:

H S M Unsworth (Popeye)


Misbehaved All His Life

And finally… 


Apart from an isolated post in February (isolated because Frank simply couldn’t get his head around WordPress) we started posting regularly on 11 June last year, so the past week saw the blog’s first birthday. It’s been fun and hard work in pretty well equal measure – but we don’t intend to hang up our mice (mouses?) in the foreseeable future: FC & DP

[1] Using Google Translate, from the Italian

Religion and Law round up – 19th May

A very busy week for law and religion: activity in the courts and the Commons, and the LARSN Conference in Cardiff

Assisted dying

In the week that saw Lord Falconer introduce his Bill on Assisted Dying and a “right-to-die” application begin in the Court of Appeal before Lord Judge LCJ, Lord Dyson MR and Elias LJ, the European Court of Human Rights issued its judgement on Gross v Switzerland [2013] ECHR 429, in which it held that Swiss law was not clear enough as to when assisted suicide was permitted and was in violation of Article 8 ECHR (right to respect for private and family life).

The applicant was an elderly woman who wished to end her life but was unable to obtain the Swiss authorities’ permission to be provided with a lethal dose of the drug sodium pentobarbital in order to commit suicide. Alda Gross was not suffering from a clinical illness but submitted that, being over 80, she was unwilling to continue suffering the decline of her physical and mental faculties. In particular, she explained that she was becoming increasingly frail, had difficulties concentrating and was unable to take long walks.

The Court held in particular that Swiss law, while providing the possibility of obtaining a lethal dose of a drug on medical prescription, did not provide sufficient guidelines to ensure clarity as to the extent of that right. This uncertain situation was likely to have caused Ms Gross a considerable degree of anguish. However, the Court did not take a stance on the question of whether or not she should have been granted the possibility to acquire a lethal dose of medication allowing her to end her life.

There is a helpful post on the case at UKHRB.

Census update

We reported that the Office for National Statistics had released further data on religion in England and Wales from the 2011 Census. Perhaps the most significant (though unsurprising) finding was that Christianity had the oldest age profile of the main religious groups and Islam the youngest. The data tables are available here.

Other recent statistical news includes an analysis of the 2011 data relating to the Roman Catholic Church in England and Wales, here, and the 2011 statistics for Mission of the Church of England, here.

Clergy employment

We noted the Supreme Court’s conclusion in President of the Methodist Conference v Preston  [2013] UKSC 29 that Methodist ministers are office-holders rather than employees: a decision which has implications that go far beyond Methodism. The Daily Telegraph reported the judgment under the headline “Supreme Court rules that God is above the law”. As it happens, the SC said no such thing – but you can’t seriously expect subs to read the sources, can you?

Interestingly, three judges in the Court of Appeal and one judge in the Supreme Court found for Ms Preston, while four judges in the Supreme Court found for the President of Conference. Which goes to show, if nothing else, the intellectual complexity of the issues involved.

Draft European Union (Referendum) Bill

The draft European Union (Referendum) Bill was published on the Conservative Party website rather than being introduced as part of the Government’s own legislative programme or even announced in the Queen’s Speech116 Conservative MPs backed an amendment to the Queen’s Speech “expressing regret” that plans for an EU referendum were not included in the Government’s programme for the coming year. Though the amendment was lost, James WhartonEurosceptic” Conservative MP for Stockton South, subsequently came top in the ballot for private Members’ Bills and announced that he would introduce the Conservative Party’s draft Bill. Its chances of becoming law, however, are very slim.

In relation to the UK’s membership of European institutions and human rights more generally, on Friday a group of lawyers and academics, including the President of the Supreme Court and the Master of the Rolls, held an interesting discussion on a UK “without Convention Rights”: see Jim Duffy’s post at UKHRB.

Law & Religion Scholars Network

Both of us were at the conference of the Law & Religion Scholars Network at Cardiff on Tuesday. The conference attracted people from as far afield as the US, Brazil and Singapore – which, considering that there was no funding for participants, probably exceeded the organisers’ expectations.

The papers ranged over an extremely wide field: from Adina Radicanu of Karl Franzens University on the debate in the Orthodox Christian community about bar-codes (the problem being that they include in their sequence 666, the number of the Great Beast in Revelation 13:18) to Bob Morris of UCL on the Succession to the Crown Act and David Kirkham of Brigham Young U on natural rights. Frank read a paper on European and UK developments on adoption by same-sex couples – a topic probably at the outer limits of the subject area.

If you haven’t already heard of LARSN, do have a look at its website. Membership is free and there is no qualifying test for applicants: simply e-mail Russell Sandberg giving your consent for your name to be added to the site and for your e-mail address to be added to the list. “Law & religion” is still a fairly small academic specialism, so the better its practitioners know each other, the better (we reckon) for the development of the subject.

Marriage (Same Sex Couples) Bill: progress

Report and Third Reading of the Marriage (Same Sex Couples) Bill are scheduled for 20–21 May. We noted that the Government had tabled an amendment to the Marriage (Same Sex Couples) Bill to ensure that chaplains employed by secular organisations, such as hospitals, the armed forces and universities, would not be obliged to conduct marriages of same-sex couples unless the governing authority of the religious organisation of which they are a part had opted in.

The Government has also tabled an amendment to the Bill to provide for a review of whether or not to extend civil partnerships to heterosexual couples – but not until 2019. Which leaves us wondering whether ministers have given any thought to the likely outcome of a possible challenge at Strasbourg from an opposite-sex couple aggrieved at the original package’s discriminatory provisions for civil partnerships.

Cardinal O’Brien

On 15 May, the Holy See Press Office issued the following press release:

“His Eminence Cardinal Keith Patrick O’Brien, archbishop emeritus of St. Andrews and Edinburgh, for the same reasons he decided not to participate in the last Conclave, and in agreement with the Holy Father, will be leaving Scotland for several months for the purpose of spiritual renewal, prayer, and penance. Any decision regarding future arrangements for His Eminence shall be agreed with the Holy See”.

From this it is clear that Pope Francis has been directly involved. Vatican Insider comments

“It is recognized in Rome and in the UK that the cardinal, by his sexual misconduct, had done immense damage to the Catholic Church in Scotland and wider afield, and Church sources say it is proper that he should do a period of prayer and penance to atone for this, and to rebuild his own life as a Christian.

Since the Cardinal has openly admitted his wrongdoing, there was no need for a formal judicial process. The penalty he is undergoing is in accordance with Church discipline and aims ‘to repair the scandal, restore justice, reform the offender” (Canon 1341 CIC)’.”.

Whilst “several months” suggests “more than three”, his absence from Scotland does not appear to be permanent. He also retains the style “His Eminence” and title “archbishop emeritus”.

Vatican Bank transparency

Also on 15 May there was a further press release from the Holy See Press Office:

“The Institute for the Works of Religion (IOR) [a.k.a. the Vatican Bank] intends to open, before the end of the year, a website where it will make public, among other information, the “Yearly Report” of its activities. According to Vatican Radio, the announcement was made by the President of the IOR, Mr Ernst von Freyberg, during a meeting with that Institute’s personnel. Also, consultation with a new international certification company has been undertaken by the IOR in order to ensure full compliance with international standards for combating money laundering”.

On a more practical level, in February CNN reported that “[t]he Vatican has sidestepped EU banking rules by turning to a Swiss company to restore card payments in its museums after they were suspended over concerns that the city-state was not doing enough to prevent money laundering”.

Vexilla regis prodeunt

During the week we posted on the case Re St. Mary the Virgin Selling [2013], which concerned the church’s desire to provide a more suitable location for two flags from the Battle of Trafalgar that had been donated to it by a local family. Although no new principles of ecclesiastical law were developed, the 65-page hearing provides a good example of conflict resolution in such cases [2], a skill sometimes lacking within churches and other voluntary organizations.

What does one call the Pope(s)?

Vatican Insider reports “a media frenzy”(?) following the publication of the 2013 Pontifical Yearbook in which there was a misunderstanding over one of Pope Francis’ titles, and the suggestion by some sources that Bergoglio had renounced the title of “Sovereign of the Vatican City State”. For those whom the “media frenzy” passed by, but are anxious to adopt the correct form when referring to His Holiness, Pope Francis’ official titles are: Vicar of Jesus Christ, Successor of St. Peter, Prince of the Apostles, Servant of the Servants of God and Sovereign of the Vatican City State.  Benedict XVI’s title is “Supreme Pontiff Emeritus”. So now you know.

[Well if I ever bump into either of them in the street I’ll now know better than to say “Hello Pope…” FC]

[1] A draft Bill is published to enable consultation and pre-legislative scrutiny to take place, after which it may be introduced formally in House of Commons or the House of Lords. Most draft Bills are examined either by a select committee in the Commons or Lords or by a joint committee of both Houses. The Government announced a number of new draft Bills in the Queen’s Speech 2013: a Consumer Rights Bill, a Deregulation Bill, a National Insurance Contributions Bill,  a draft Bill on the National Assembly for Wales and a draft Bill on amendments to the Riot Damages Act 1886.

[2] It should be pointed out, however, that Morag Ellis QC made it clear that “[her] approach to this exceptional case cannot, and is not intended to, set a precedent as to my or other Chancellors’ approaches in other cases to the identification of “interested persons”.

Church court resolves historic flags conflict

Disagreements between villagers and the local vicar are not uncommon, particularly when misunderstandings between the parties are compounded by misinformation and poor communications, as the Diocese of Exeter found to its cost last year.  Although this was the initial scenario in Re St. Mary the Virgin Selling [2013] the approach adopted by the consistory court ensured that an equitable and amicable agreement was reached between the parties.  The case arose in the village of Selling, Kent, where the church was seeking to provide a more suitable location for two flags from the Battle of Trafalgar that had been donated to the church in by a local family – an Union Flag and an Austrian ensign had been given to a resident in the village, Stephen Hilton (1785-1872), when he was Master’s Mate on the HMS Minotaur at the Battle of Trafalgar.

In 1930, the flags were donated to the church and hung in a memorial chapel that had recently been dedicated “in honour of the Rev. William and Mrs Hilton-Simpson, parents of Captain Melville Hilton-Simpson, the present owner and resident at Sole Street”, a house which had been resided in by many “representatives” of the Hilton family.  The flags remained in the church until 1994 when they were removed, without a faculty, to an expert conservator, where remained until “sometime in 2010/11” when they were moved to their current location, Canterbury Cathedral Treasury.

In 2007, the conservator informed the PCC that

“[the flags] cannot be displayed either in suitable environmental conditions, or, frankly, safely, considering what they are and the value that could be placed upon them, in Selling Church anymore.”

Guided by the Diocesan Registrar and Diocesan Advisory Committee (“DAC”), having established a sound claim to ownership, the Parish began to explore the value of the flags and possibilities for their disposal.  In June 2012, the DAC concluded:

  • the two flags were items of national significance;
  • the National Maritime Museum, (NMM), was the most appropriate body to conserve the flags and arrange for their permanent display;
  • the priority of the PCC in selling the flags is not to raise money for the PCC’s funds but rather to ensure that the flags are properly conserved and displayed, since the PCC is not in a position to do so.

Although the Deputy Commissary General had indicated that he did not require a formal DAC certificate and that the Parish could proceed with a Petition, he indicated that evidence would be required on the Parish’s contact with the Hilton family and that he “may require Special Notice to be given to any such as remain available to contact.”  Notices were placed in local papers, but the necessarily limited information they contained, the unfortunate wording relating to the flag’s “disposal”, combined with a letter in the Daily Telegraph resulted in a substantial number of objections: 96 individual objectors and three organizations: The Faversham Society, The Flag Institute and The Nelson Society.

On 27 October 2011, the Priest in Charge and Churchwarden petitioned for:

“permission to transfer ownership of the Trafalgar Flags, in the possession of this church, to the National Maritime Museum at Greenwich”,

and the detailed Statement of Needs dealt with: the description and provenance of the flags, their ownership, authenticity and value, as well as their current fragile state and circumstances around their removal.  It then set down

  • the principles for present action;
  • reasons why it would be “most unwise” to re-hang the flags in the Hilton Chapel;
  • the reasons for seeking permission to transfer ownership to the NMM; and
  • future plans for continuing the Hilton Legacy.

The Petition generated further letters of objection and additionally the Commissary General [1] directed that a number of bodies directed that the following bodies be specially cited under Rule 13(1) of the Faculty Jurisdiction Rules 2000: The Church Buildings Council; The Nelson Society; The 1805 Club; The Society of Antiquaries of London; The Flag Institute; and The Society for Nautical Research.

At this point, the Commissary General took action to restrict the number of objectors to those with a proper interest, ruling out an academic naval historian in Australia under rule 16(2) of the Faculty Jurisdiction Rules 2000, and confirming whether other were resident in the parish or on the Church electoral roll and, if not, why they considered that they had a proper interest.

The Petitioners were shown the remaining objections, a number of which appeared to express justified concerns about difficulties experienced in gaining clear information from the Parish.  These and others were provided with further information, and as a result four more objectors formally withdrew.  Subsequent enquiries by the Petitioners revealed that that there were no surviving members of the Hilton family with a legal claim to the flags.

The Commissary General noted that given the national significance of the items at issue,  all objectors bar one had been treated as though they were “interested persons” in practice, even though not all appeared to satisfy the statutory requirements.  However, she noted that the number of petitioners making the same point was not persuasive on the basis that “neither a sound nor a bad point improves with repetition”.

Guidance on whether to conduct an oral hearing had been laid down by Gray QC Ch in Re St James’s, New Malden [1994] Fam 44, and it was noted that whilst none of the objectors had indicated that they wished to become a Party Opponent, the responses of the Citation Bodies were an important factor in considering the mode of disposal of the Petition.  A Directions hearing was arranged at which to consider a number of issues

  • the presence of objections which, despite lack of responses to the Registry, had to be treated as outstanding (because not expressly withdrawn);
  • the important points of qualification in the Citation Bodies’ responses;
  • the need for clear resolution of the Hilton family’s position and the related question of property in the flags;
  • the rigorous nature of the test in Re St Gregory Tredington (1972) Fam 236;
  • the interesting questions about local and national interests in heritage objects;
  • related issues of curatorial policy; and
  • the tremendous historical, cultural and emotional significance of the flags themselves.

All those who attended the Directions Hearing confirmed that that they were content for the Commissary General to consider the Petition on the Papers before her.  On the basis of these, submissions made after the Directions Hearing, and site visits, the following findings were reached.

  • On the ownership of the flags, it was held that flags were given to the Parish in 1930 by Capt Hilton-Simpson.
  • Four options were considered for the location of the flags:
    • Remaining in the Cathedral Treasury
    • Return to St Mary, Selling
    • Storage, conservation and display at the National Maritime Museum, (NMM)
    • Interim storage, (possibly at the NMM), until the Faversham Museum is physically able to accommodate them.

These were reviewed in the light of Tredington and the need for “a suitable long term home to ensure their conservation”, which could not be provided by St Mary’s Selling.  It was concluded that

“disposal to the NMM is justified by the necessity of ensuring proper care for the flags in the future. It is also desirable to divest the Parish of responsibility for the physical safety and condition of the flags.”

Regarding the terms of the flags’ disposal

“It is not proposed that the Parish receive an unfettered ‘windfall’. As noted  [by the court] the plan is to set up a charity with educational and social objects geared towards benefiting the young people of Selling and emphasising historical education and research particularly concerned with the Battle of Trafalgar.


No new principles of ecclesiastical law were developed: guidance on the determination of a Petition without an oral hearing (as was decided) was provided in Re St James’s, New Malden [1994] Fam 44; and by Re St Gregory Tredington [1972] Fam 236 on matters of title and considerations relevant to the sale of church property, with particular reference to the national cultural significance of the items involved. However, the court facilitated dialogue between the parties, and using a staged approach, sequentially addressed the various concerns of the objectors.

Although Morag Ellis  QC made it clear that

“[her] approach to this exceptional case cannot, and is not intended to, set a precedent as to [her] or other Chancellors’ approaches in other cases to the identification of “interested persons”,

others facing complex issues with large numbers of objectors would do well to read and learn from the judgement, both within the Church and elsewhere.

[1] The title Commissary General is unique to the Canterbury diocese.  In all other dioceses such judges are known as Chancellors.