Religion and Law roundup: 25th November

Women as bishops or archbishops? – not yet

Readers of this web log need not be reminded of General Synod’s 8-hour consideration of the proposal on the ordination of women as bishops and archbishops, and its narrow defeat by 6 votes in the House of Laity.  This was expected to be a close vote, and it must be admitted that draft title (and the comment) of the post Dies illa had to be changed from ‘Yes’ to ‘No’.  To continue the quotation, it appears that teste David cum Sibylla was equally inappropriate.

Shortly after the announcement of the vote, the Church of England issued a statement, and at 08:30 on the following day the House of Bishops met to consider the consequences of the vote. Pertinent to these considerations is Synod Paper GS Misc 1034 Consecration of Women to the Episcopate: Future Process.  Like the draft Dies illa post, this was available to Synod (and those accessing the CoE web site) and was written in advance of the vote with options for both a positive and negative outcome.

The critical provision within GS 1034 is paragraph 3, which states

‘If the Measure is rejected the effect of Standing Order 61(d) is that it cannot be considered again on the First Consideration Stage in the same form until a new Synod comes into being unless the Presidents, the Prolocutors and the Chairman and Vice-Chairman of the House of Laity give permission for such a motion to be moved and make a report in writing to the Synod setting out a summary of the case for reconsideration and their reasons for giving such permission.”

There has been much comment on the vote, although some salient facts are not always included.

  • The House of Bishops and the House of Clergy overwhelmingly supported the ordination of women as bishops and archbishops; the narrow defeat was in the House of Laity;
  • As with other important issues considered by the Synod, approval required a two thirds majority in each of the three Houses;
  • Typical of synodical debates, all were given an opportunity to speak, and more than 100 speeches,on both sides of the argument, were heard;
  • The proposal had been discussed at Parish, Deanery and Diocesan level.  Here, voting within the dioceses was also on the basis of bishops, clergy and laity, and 42 out of 44 dioceses voted in favour of women bishops;
  • Unless one considers the theological beliefs of those opposing the ordination of women as totally irrelevant, the issue is not solely one of equality.

Of the ensuing debate, Guido Fawkes (a.k.a.  Paul Staines) noted,

“Sir Tony Baldry, resplendent in his bright pink shirt and salmon and cucumber Garrick Club tie, fulfilled his duty in the House today at the Second Church Estates Commissioner (the Church’s representative in Parliament, aside from that constitutional abomination that lets Bishop vote on legislation, of course). Baldry was arguing for women bishops, but as Ann Treneman points out, the Garrick still do not let women join”.

In addition to reporting on Sir Tony’s Q&A session in the House, Archbishop Cranmer (no connection to this blog) reported of MPs “queuing up in a concerted effort to impose equality upon the Church of England”, but significantly, noted

“Anglicans are not freelance theological pundits but a valid part of the One Catholic and Apostolic Church. Like all expressions of ecclesiology, its orders are provisional, and this a theological, not a sociological judgment”.

Readers will draw their own opinions, but three observations that can be made

  • Church leaders have done it few favours by talking down the implications of the vote, dismal though these have been, and providing the media with the headlines advocating disestablishent;
  • Church procedures on the development of its legislation and appointment of senior clergy have been shown to be ponderous and in need of urgent review.
  • Groups within the Church might ponder whether the desire for a particular outome resulted in ‘over-lobbying’ the issue to the point that this became counter-productive.

Charitable status and religion – again

Civil Society reports that the Pagan Federation is taking the Charity Commission to the First-Tier Tribunal over the Commission’s refusal to recognise it as charitable.

Members of the Federation self-identify by reference to three core beliefs: love and respect for nature, a positive morality and recognition of the divine. A Charity Commission spokeswoman was reported as saying that the Pagan Federation was denied charitable status because the basis of its beliefs was too loosely-defined to constitute a “religion” as understood in charity law. The Federation countered that it was appealing the decision because it believed that it had missed the Commission’s criteria by “only a hair’s breadth” and wanted the opportunity better to explain itself.

These decisions are obviously very finely-balanced. In September 2010 the Commission agreed to recognise the Druid Network as “a charity for the charitable purpose of the advancement of religion for public benefit and for no other purpose”, concluding that the Network facilitated and encouraged worship and veneration of a supreme being and that the Network provided identifiable public benefit. If in the case of the Pagan Federation the test turns on public benefit that is a different matter: but if the Commission’s ground for non-recognition of the Pagans is the extent to which they believe in a supreme being, then that criterion verges on the subjective. (And anyway, how many specialists in theology and comparative religion does the Commission employ?)

It will be an interesting case whichever way it goes – but first, presumably, the Tribunal will have to dispose of Preston Down.

Gender reassignment and marriage

The ECtHR was called upon to decide a very difficult case of a woman who had undergone gender reassignment surgery and had changed her first names but whose ID number and passport still showed her as chromosomally male.

In H v Finland 37359/09 HEJUD [2012] ECHR 1916 (13 November 2012) the Court decided that Ms H’s rights under Article 8 had not been interfered with since she could have a male ID and passport always provided that she divorced her wife – possibly an unusually extreme example of the “specific situation rule” so often encountered in employment cases. Unfortunately, however, the couple did not want to turn their marriage into a civil partnership; and the judgment seemed to turn on whether or not obliging the Finnish Government fully to recognise Ms H’s acquired gender without requiring her to divorce would cut across its margin of appreciation on the provision of same-sex marriage. The Court came down on the side of the Government: we wonder whether it got the balance quite right.

Vicarious liability

On Wednesday the Supreme Court handed down what may prove to be a landmark judgment on historic sexual abuse cases. In Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56 the Court held that the Institute was vicariously liable for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St William’s School – a residential institution at Market Weighton for boys in need of care. Though the Institute did not own the school but merely supplied the headmaster and some of the teachers, Lord Phillips concluded that it was  “fair, just and reasonable” for the Institute to share vicarious liability with the school’s managers.

Votes for prisoners

On Thursday the Ministry of Justice  published a Command Paper on the Voting Eligibility (Prisoners) Draft Bill – just inside the ECtHR’s six-month deadline. It includes three options:

  • to maintain the current ban on any convicted prisoner voting;
  • to allow prisoners sentenced to less than 6 months to vote; or
  • to allow prisoners sentenced to less than 4 years to vote.

How Parliament will take it on from there is anyone’s guess – but whatever happens in relation to Strasbourg that might not be the end of the matter. George McGeoch, a convicted prisoner serving life, is challenging the ban not on the basis of Article 3 of Protocol 1 ECHR but on the grounds that the provisions of the Representation of the People Act 1983 which prevent him from being included in the Register of Local Government Electors – and thereby voting in Scottish Parliament elections and in the European Parliamentary elections in 2014 – is contrary to Article 20(2) of the Treaty on the Functioning of the European Union and Articles 39 and 40 of the EU Charter of Fundamental Rights. He lost both at first instance and on reclaimer to the Inner House – see McGeoch, Re Judicial Review [2011] ScotCS CSIH 67 (08 November 2011) – and is now seeking leave to appeal to the Supreme Court.  As BBC deputy political editor James Landale points out, Ministers can in theory disregard a compensation order from the ECtHR – but if an appeal were to go in McGeoch’s favour they cannot simply ignore an order of the Supreme Court awarding him Francovich damages for failure to comply with EU law.

Excita, quaesumus, Domine

And finally, a reminder that today is the celebration of Christ the King – more commonly known as Stir-up Sunday. This is the last Sunday before the start of Advent, when traditionally the preparations for Christmas started with members of the family taking turns to stir the Christmas pudding. The name is derived from the collect Excita, quaesumus, Domine in the 1549 Book of Common Prayer for this Sunday, which may be translated as

“Stir up, we beseech thee, O Lord, the wills of thy faithful people; that they, plenteously bringing forth the fruit of good works, may of thee be plenteously rewarded”

although a corrupted chorister version has

“Stir up, we beseech thee; The pudding in the pot; And when we get home; We’ll eat it all hot!”.

Prior to its popularization by Queen Victoria’s husband, Prince Albert, the mediaeval form of the pudding, known as “Plum Porridge” or “Plum Pottage” was eaten, and this was a semi-liquid, made from meat stewed with dried fruits and prunes, here.

At Wantage, there was no mention of Christmas puddings, mediaeval or traditional, but the clergy left their birettas in the sacristy and joined the congregation wearing paper crowns in a children-focused service with younger members providing everything from the music and readings to the smoke.

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