Religion and Law round up – 3rd March

Charities, public benefit and “closed” congregations

We have posted on several previous occasions about the dispute between the Hales Exclusive Brethren and the Charity Commission for England and Wales as to whether or not the Exclusives’ gospel halls provide sufficient public benefit to satisfy the requirements for registration as charities – most recently, that the Commission had agreed to stay the tribunal proceedings pending further discussions about the activities of the Preston Down Trust. Readers who have been following the story may be interested in an article in Third Sector by Ian GriggsAnalysis: Religion and public benefit, in which he discusses the issues in great detail.

Introduction of the Lord Archbishop of Canterbury

On 26 February Justin Welby was re-introduced to the House of Lords as the Lord Archbishop of Canterbury. Supported by the Archbishop of York and the Bishop of London,  he took the oath and signed the Test Roll and an undertaking to abide by the Code of Conduct.

Reburial of remains of Richard III in York?

In a further development in securing York as the final resting place of the remains of Richard III, a group of nine of Richard descendant’s has published an open letter in the Telegraph and elsewhere demanding that “the remains of King Richard III, the last Plantagenet King of England and our mutual ancestor, be returned to the city of York for formal, ceremonial reburial”.  The letter is signed by Charles Brunner, Jacob Tyler and Eleanor and Charlotte Lupton, King Richard’s 17th great nephews and nieces; Stephen Nicolay, Paul Tyler and Vanessa and Linda Roe, the monarch’s 16th  great nephews and nieces; and Raymond Roe, the 15th great nephew of the King.

A supportive e-petition has reached 23,751 signatures and city leaders in have indicated that they would write to the Queen and the Ministry of Justice in an attempt to have the remains returned to his “spiritual home”.  However, a Ministry of Justice spokesman is quoted as saying said

“When applying for an archaeological exhumation licence, the applicant must state that the remains will be laid to rest at a suitable location.  The licence we issued states that the applicant (the University of Leicester) would, no later than August 31, 2014, deposit the remains at Jewry Wall Museum or have them reinterred at St Martin’s Cathedral or in a burial ground in which interments may legally take place. The precise location of reburial is now for the University of Leicester.  This means that no one except the licence holder, i.e. the University of Leicester, can decide where the remains end up.”

“Second parent” adoption and same-sex couples – and the rule of law

But to return to serious matters…

We noted that the Grand Chamber of the ECHR handed down its judgment in X and Ors v Austria 19010/07 – HEJUD [2013] ECHR 148, about the complaint by two women in a stable same-sex partnership about the domestic courts’ refusal to grant one of them the right to adopt the son of the other without severing the mother’s legal ties with the child (“second-parent adoption”). The Grand Chamber held by  ten votes to seven that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights, on the grounds that the difference in treatment between the applicants and an unmarried opposite-sex couple in which one partner sought to adopt the other’s child had been based on sexual orientation.

What we did not mention was that one of the interveners who submitted third-party comments was the Attorney General for Northern Ireland. And why? Because, as we reported in the round-up for 27th January, in P & Ors, Re (Northern Ireland) [2008] UKHL 38 (18 June 2008) the House of Lords declared illegal the provisions in the Adoption (Northern Ireland) Order 1987 which impose a blanket ban on all unmarried couples (whether same-sex, opposite sex or civil partners) adopting as a couple. And almost five years on, precisely nothing has been done to remedy the situation. No wonder the Northern Ireland Executive was worried at what the Grand Chamber might say.

And, remember, NI ministers haven’t merely chosen to ignore the European Court of Human Rights, reprehensible though that would be: the Executive is flouting a judgment of our very own House of Lords. Perhaps they should all be made to read Tom Bingham’s book as a Lenten exercise.

Spain and the burqa

Howard Friedman, over at Religion Clause, reports that the Spanish Supreme Court has overturned a local ban on clothing that covers the face, such as the burqa, instituted by the Catalonian city of Lérida/Lleida in 2010. The ban was challenged by the Catalan Muslim Association, Watani, and the Supreme Court ruled that banning the Islamic veil infringed religious freedom. The full Supreme Court opinion in Spanish is available from this link. The Gatestone Institute has published a very helpful news report and analysis.

Vicarious liability for historic sexual abuse 

We had previously reported that leave to appeal had been sought against the decision in JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012), in which the claimant sought damages for an alleged rape when resident at a children’s home between 1970 and 1972 by a priest who had since died. The Court of Appeal held by two to one that the second defendant at first instance – the Trustees of the Portsmouth Roman Catholic Diocesan Trust – was vicariously liable for the alleged torts.

Owen Bowcott now reports in The Guardian that leave to appeal has been refused. Apparently, in a statement not yet on its website the Supreme Court said it had refused permission to appeal “because the application does not raise an arguable point of law of general public importance”. Since the Trustees seem to have concluded that there is no realistic possibility of an appeal to Strasbourg, that would appear to have settled the matter.

And now a couple of religio-environmental issues

Scrap Metal Dealers Act 2013

Although the Scrap Metal Dealers Act 2013 received Royal Assent on 28 February, apart from section 20 and 23, it will not come into force “until … such day as the Secretary of State may appoint by order”. Furthermore, as a result of substantial backbench lobbying, section 18 contains a latent sunset clause requiring the Secretary of State to undertake a review within 5 years of its commencement to determine the extent to which the Act has achieved its objectives and “whether it is appropriate to retain or repeal the Act or any of its provisions in order to achieve those objectives”.

Recent analysis has shown that [i] with a more focused enforcement and prosecution policy, significant reductions in metal theft were possible under the 1964 Act and that [ii] some sections of the industry have (legally) circumvented the ban on cash payments in the ‘quick fix’ introduced through ss 145-147 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Bats in the belfries

A Church of England delegation led by Second Church Estates Commissioner Sir Tony Baldry MP, with representatives of Natural England, informed the Environment Minister Richard Benyon MP that bat conservation is damaging churches not just physically but financially. Leaving interpretation of the law on bat conservation largely to the Bat Conservation Trust, (BCT), is bringing the European Habitats Directive into disrepute to the detriment of endangered species more generally.  The minister was told that the amount of monitoring and mitigation required before even basic repair works can be undertaken can act as a disincentive to the on-going maintenance needed to retain a building in good condition.  Such delays are not only costly but disheartening for the church congregations and communities who work hard to keep these buildings going.

And finally . . . .

Readers will be aware of the allegations of “insider dealing” associated with the recent appointment of the Archbishop of Canterbury, and Justin Welby’s reaction – “It’s a very strange feeling when you find yourself having odds quoted on you at a bookie. Generally speaking I am not a horse”.  However, the stakes are higher, so to speak, when betting on the results of the Conclave where there is canon law and the threat of excommunication to consider.

Ed Peters’ blog notes that Pope Gregory XIV’s bullum Cogit nos (21 March 1591), will have been abrogated under the 1917 Pio-Benedictine Code of Canon Law, and it is therefore no longer forbidden to bet on the election of a pope, the duration of a pontificate or the creation of new cardinals, although cognizance should still be taken of the requirements of the Catechism [at 2413].

With regard to “insider dealing”, however, Benedict XVI’s recent motu proprio Normas nonnullas extends the secrecy provisions, additionally requiring officials and technicians to swear an oath of secrecy inter alia, to

“promise and swear to refrain from using any audio or video equipment capable of recording anything which takes place during the period of the election within Vatican City, and in particular anything which in any way, directly or indirectly, is related to the process of the election itself.”

Whereas previously the penalty for breaching the oath of secrecy was determined by the new pontiff, this is now identified as automatic excommunication, latae sententiae.