Religion and Law round up – 27th January

What started as a quiet week became slightly frenetic

Adoption and same-sex couples

We noted that the Office of the Scottish Charity Regulator has directed a Glasgow-based Roman Catholic adoption agency to amend its practices and procedures to ensure that the criteria it applies when deciding whether or not enquirers about adopting will be accepted for full assessment as adoptive parents are clear and transparent and comply fully with the requirements of the Equality Act 2010.

Shades of the Catholic Care litigation in England – but Scots charity law is different, not least because the Charities and Trustee Investment (Scotland) Act 2005 provides at s 7 of for an explicit “outcomes” test that allows OSCR to balance benefits and disbenefits in a way that the Charity Commission for England and Wales may not (or, at any rate, is not allowed to do so explicitly).

Coincidentally, in Family Planning Association of Northern Ireland, Re Judicial Review [2013] NIQB 1 (16 January 2013) the High Court agreed to disclosure of documents that include references to the content of the legal advice and the on-going process of policy formation within the Department of Health, Social Services & Public Safety on which the Department has based its approach to the issue of adoption. This is part of the long-running battle over the Adoption (Northern Ireland) Order 1987, which imposes a blanket ban on all unmarried couples (whether same-sex, opposite sex or civil partners) adopting as a couple. In P & Ors, Re (Northern Ireland) [2008] UKHL 38 (18 June 2008) the House of Lords declared this illegal – but precisely nothing has been done to remedy the situation.

House of Lords debates religious freedom

On 22 January the House of Lords held a short debate on freedom of religion and conscience at the instigation of Christopher Hill, the Bishop of Guildford. We summarised it here: needless to say, everyone thought that freedom of religion and conscience was a “Good Thing”.

Church Commissioner briefs House of Commons

On Thursday 24 January the Second Church Estates Commissioner, Sir Tony Baldry, answered MPs’ questions on a range of issues concerning the Church of England, here, including: religious education, civil partnerships, women as bishops, the recent ECtHR judgments and the House of Laity. He noted that in her comments on the progress within the Church regarding women in the episcopate, Diana Johnson (Kingston upon Hull North) (Lab) was being “uncharacteristically uncharitable” in describing the document that was produced and put in the House of Commons Library as “shows[ing] no acceleration of the usual glacial way in which the Church of England operates”.

Such a description would, perhaps, have been more accurate if applied to the questions of Martin Vickers (Cleethorpes) (Con) concerning the progress of addressing House of Laity elections, to which Sir Tony responded:

“Last year, [actually eighteen months ago in July 2011], the Synod voted to explore alternatives to the present system under which the House of Laity is elected by deanery synod members. I understand that the report, with options for change, will be discussed by the synod at one of its meetings this year.”

Even if this is the July 2013 meeting, a two-year gestation does appear to be quite leisurely. In reply, Martin Vickers commented:

“The unrepresentative nature of the House of Laity is clearly holding the Church back, involving it in interminable, internal debates. Very few congregations are aware of the process of election and very few members of congregations get involved in election.”

Marriage in the C of E: further changes

In addition to the changes to the parochial fees which were effective from the start of the year and reported here, changes were made to extend the scope of the ”qualifying connection” provisions and modify the requirements for reading the banns through the Church of England Marriage (Amendment) Measure 2012 which received Royal Assent on 19 December 2012.  A comprehensive summary of the new measure is to be found in the 213th Report of the Ecclesiastical Committee, here, which contains details of each stage of the Measure’s development: Comments and Explanations of the Synod’s Legislative; Proceedings in the General Synod; the provisions of the Measure; matters raised before the Revision Committee and the General Synod; and an appendix of the Measures and Acts amended by the provision.

The concept of a “qualifying connection” was introduced through the Church of England Marriage Measure 2008 to enable couples to marry in a church away from where they live “because it has special significance for you through family or other connections”.  Section 1(3)(a) to (e) specifies seven possible “qualifying connections”. However, it became apparent that certain provisions of the Marriage Act 1949 and associated provision did not apply, including those which enabled a person to marry in other churches in the benefice to which the parish with which he or she has a qualifying connection belongs.  The amended measure resolves these unintended consequences, so that

“persons who wish to marry on the basis of a qualifying connection with a parish are put in an equivalent position to those who marry on the basis of residence in the parish or of being habitual worshippers there”.

With regard to the publication of banns, the 2012 Measure gives legal effect to the form of words in the Common Worship Marriage Service (page 132 paragraph 2)

“I publish the banns of marriage between NN of … and NN of … This is the first / second / third time of asking. If any of you know any reason in law why they may not marry each other you are to declare it.”

– as an alternative to those in the rubric of the Book of Common Prayer. Readers will note that neither form of the banns includes gender-specific terms.

A further change which has been introduced is to redefine the “Principal Service” at which the banns are to be announced. Clergy are no longer bound to read the banns at “Morning Service” but may do so at whichever Sunday service “the greatest number of persons who habitually attend public worship are likely to attend”.

Property taxes and the Latter-Day Saints

Though it wasn’t worth a separate post, at least some readers may be interested to learn of an American case highlighted in Howard Friedman’s Religion Clause blog.

In Green v Church of Jesus Christ of Latter-Day Saints 2013 MD Ct App  (Jan. 23) the Maryland Court of Appeals held that an apartment-building owned by the Mormon Church and used to house a revolving group of “ordinance workers” (the majority of whom are retired married couples) who perform religious ceremonies full-time for a two-year period at the Church’s Temple in Washington DC was entitled to a property-tax exemption as a “convent”. The court interpreted “convent” as used in Md. Code 7-204 to mean “a community of people who live together, follow strict religious vows, and devote themselves full-time to religious work.”

Upholding the judgment of the Circuit Court, the Court of Appeals held unanimously that the (first instance) Maryland Tax Court had applied an incorrect legal standard in determining whether or not the apartment complex qualified as a convent for purposes of § 7-204 of the Code and that its narrower definition accorded only with certain religious traditions such as those of the Roman Catholic or Anglican Churches.

The relevance of this for law and religion in the UK is that there is an appeal currently pending before the ECtHR in Church of Jesus Christ of Latter-Day Saints v United Kingdom 7552/09 [2011] ECHR 733 (12 April 2011) against the unanimous rejection by the House of Lords in Gallagher (VO) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56 (30 July 2008) of the Church’s appeal against the decision of the local Valuation Officer not to grant the Preston Temple total exemption from non-domestic rates. The VO had argued successfully that in order to benefit from total exemption a place of “public religious worship” had to be open to the general public – which Mormon temples are emphatically not. Their Lordships also concluded by four votes to one that there had been no interference with the Church’s right to manifest under Article 9 ECHR.

Religious symbols in schools – again 

The Daily Mail reported that a six-year-old boy had been banned from wearing an elastic bracelet decorated with the fish symbol on grounds of health and safety. The boy’s father, who is demanding an apology from the school and keeping the child at home until the situation is resolved, says that he believes that the school is discriminating against his son because he is a Christian.

<At which David observed that the “health and safety excuse” is often the fall-back position of an uninformed manager or an undiscerning headline writer; however, it is inadvisable to comment without direct reference to the facts. He wonders if those involved might usefully contact the Health and Safety Executive’s “Myth-busting Panel”, here, for a professional opinion.> 

Royal Succession Bill

The possible untoward effects flowing from the Succession to the Crown Bill were considered by Bob Morris in his guest post here, in which he concluded

“The relative complexity – emotional, political, legal, administrative – of these issues are no doubt glimpsed by government. Of course, the government does not wish to plunge into these deep waters. It wants a quick, limited fix without too much argument. Commentators are right that there has been too little public discussion, but not all the blame can be laid at the government’s door. What is needed is fresh, bound-breaking thinking and most of that can best come only from within the Church itself.”

A number of MPs and others have suggested that insufficient time has been allocated to the Bill, which is being rushed through as though it were anti-terrorism legislation, and its second reading commenced with a debate on the timetable. The Bill completed its second reading and committee stage on 22 January 2013 and is scheduled to have its report stage and third reading on 28 January 2013.  All documents relating to the Bill are to be found here.

Although certain aspects relating to the Duchies of Cornwall, Lancaster, and Normandy were raised during the debates, time did not permit detailed discussion of the position, other than for the Deputy Prime Minister to reassure the House [at col. 211] that under the Sovereign Grant Act 2011 the financial support provided via the Duchy of Cornwall can, in future, be provided to female heirs to the Throne as well, (Explanatory notes here.  The DPM wrongly gave the date of the Act as 2010).  He also confirmed [at col.212] that although 16 realms have given their approval to the Bill, this is subject to parliamentary endorsement in most of them, though in Jamaica and Papua New Guinea, approval need not go through the full legislative process.

We will be following the progress of the Bill and some of the associated issues.

Royal Styles and Titles

On 31 December 2012 the Queen issued Letters Patent which stated:

“The Queen has been pleased by Letters Patent under the Great Seal of the Realm dated 31 December 2012 to declare that all the children of the eldest son of the Prince of Wales should have and enjoy the style, title and attribute of Royal Highness with the titular dignity of Prince or Princess prefixed to their Christian names or with such other titles of honour.”

This increases the number of those within the Royal Family who are entitled to the style of “Royal Highness” and the prefix “Prince” or “Princess” and updates the Letters Patent issued by George V in 1917 which limited the use of Royal Highness to the eldest living son of the eldest son of the Prince of Wales and to children of any Sovereign and children of sons of any Sovereign.

The Letters Patent were issued on 9 January, the 31st birthday of the Duchess of Cambridge; but in their present form, if the Duke and Duchess have a daughter, she will not be entitled to give her own children the title of Prince or Princess. Other possible implications have been explored here, although the solution to those relating to Royal Titles may be resolved through Letters Patent, which are issued by the Monarch without reference to Parliament.

<at this point Frank started muttering darkly, “How dost thou, Elizabeth Windsor?”>

Same-sex marriage in England and Wales 

On 24 January the Culture Secretary, Maria Miller, presented the Marriage (Same Sex Couples) Bill. It was published on the following day, together with Explanatory Notes, and is scheduled for its Commons second reading on 5 February. The Bill makes provision

“… for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes”.

We understand that the Government intends to carry it over into the next Session of Parliament starting in May.

And finally… 

Over at UKHRB Adam Wagner notes that of the 3,308 applications made by individuals in 2012 to the ECtHR that involved the UK only 21 were declared admissible – which rather gives the lie to the accusation that the notorious “unelected judges in Strasbourg” are constantly sullying the pristine purity of English and Scots law.

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