Religion and Law round up – 17th March

Pope Francis I

The appearance of white smoke was announced to the London meeting of the Ecclesiastical Law Society during the lecture by HH Rupert Bursell QC on “The Faculty Jurisdiction and Questions of Theology”.  Outside was the sound of the bells of Southwark Cathedral, but no doctrinal issues were at stake since this was an apparently fortuitous coincidence with the Wednesday’s ringing practice.  We reported details of the formal papal announcement here, and commented on the Vatileaks report which is awaiting Pope Francis’ attention.  No doubt he will discuss this with Emeritus Pope Benedict when they meet in Castel Gandolfo on Friday 23 March.  Vatican watchers can follow other aspects of the Holy Father’s busy schedule leading up to Holy Week in the Bollettinno In subsequent posts we will be addressing some of the more interesting canon law issues that have arisen in recent weeks.

Of Vesture – III

On the resignation of Archbishop Rowan and the placing of his robes in the National Museum Wales, we noted

“No doubt some will question the justification or need for senior churchmen to wear costly vestments and others will draw significance from those of the Archbishop ending in a museum.”

Readers will therefore note the significance on the following BBC report

“Minutes after the election result was declared in the Sistine Chapel, a Vatican official called the Master of Ceremonies offered to the new Pope the traditional papal red cape trimmed with ermine that his predecessor Pope Benedict XVI gladly wore on ceremonial occasions.

“No thank you, Monsignore,” Pope Francis is reported to have replied. “You put it on instead. Carnival time is over!”

GamarelliThe veracity of such reports is disputed by sources in Rome, but whether or not the comment was made, the facts are that Pope Francis did not make his first appearance wearing the papal mozzetta, and he eschews the hand-made, red papal shoes favoured of his predecessor In a similar vein, Justin Welby has declined to have new robes made for his enthronement.  Both the Archbishop and the new Pope are due to be enthroned within three days of one another.  Gillan’s blog notes that the last time the Pope and Archbishop of Canterbury were enthroned so closely together was in 1294, when they were two weeks apart.

Bishops (Consecration of Women) Bill 2012-13

On 13 March Diana Johnson (Kingston upon Hull North) (Lab) introduced the Bishops (Consecration of Women) Bill under the Ten-Minute Rule. She described this as “a straightforward one-clause Bill, allowing women to become bishops in the Church of England”, adding  “[i]t has become clear that the Church needs to act much more quickly to sort out the problem, and I believe Parliament must be very clear about its view in order to assist the Church.  Opposing the Bill, Edward Leigh (Gainsborough) (Con), outlined and the development of the Church’s independence from Parliament and stressed its importance.  He said

“I think it would be extraordinarily dangerous, and a retrograde step, if Parliament were now to get involved, however strongly we feel about this issue, and even though everybody realises that there is enormous interest in it and many people believe it is absolutely right that women should become bishops.”

The question was put and agreed to and Diana Johnson presented the Bill, which was set down for second reading set on 3 May.  However, as we noted in last week’s round up, very few Ten-Minute Rule bills ever make any progress. On this occasion, since there are no private Members’ Fridays left in the current session it is difficult to see how the exercise can be any more than a gesture. It will be interesting to see whether or not her Bill is even printed (many TMR bills are not): but if it is, we will report it.

Westminster Hall debate: reburial of Richard III

On 7th March, responding to a question from Hugh Bayley (York Central) (Lab) regarding the burial of Richard III’s remains in York, the Second Church Estates Commissioner (Sir Tony Baldry) stated that:

“[t[he legal position is clear. The Ministry of Justice has granted a licence to the University of Leicester, which means that it is responsible for keeping the remains of King Richard III and for their reburial. It is intended that they will be reburied in Leicester cathedral.”

“The hon. Gentleman has an Adjournment debate on this issue on Tuesday, and I suggest that he put those issues to Ministry of Justice Ministers then. As for the Church, we believe that in a situation such as this the remains should be reburied in the nearest possible church, which, as it happens, is Leicester cathedral.”

During the debate on 12th March in Westminster Hall Jeremy Wright, the Parliamentary Under-Secretary of State for Justice, made the following points:

  • The Ministry of Justice has responsibility for burial law and policy. The law is old and well established. Under section 25 of the Burial Act 1857, exhumation of human remains is permitted only with a licence from the Secretary of State.
  • In the case of unnamed remains buried a long time ago, applications do not require the consent of the next of kin.
  • York Minster has openly supported the re-interment of the remains in Leicester cathedral. The default position of the Church of England is that the remains should be interred at the nearest Christian church, which in this case is Leicester Cathedral.
  • Although conditions of a licence can be amended, this is unusual. The University of Leicester could apply to vary the terms of the licence if it wanted to. However, the broad terms of the licence allow it to re-inter the remains effectively where it wants, with due regard to decency and the dignity of the deceased.
  • Leicester University has made it clear that it is happy to receive representations on this issue.

Readers will be aware that whilst the above summary of the legal position is broadly correct, this is a relatively obscure and complex area of law and some uncertainties remain. Our original post in October, which was removed as it was attracting a substantial amount of spam has been re-posted although comments on this and similar threads are now closed.

Human rights: the continuing debate 

We reported that the President of the European Commission and the Secretary General of the Council of Europe had issued a press release expressing concern at the vote by the Hungarian Parliament of the Fourth Amendment to the Constitution removing the power of the Constitutional Court to strike down a constitutional law that has been passed with a two-thirds parliamentary majority. The Fourth Amendment is the latest episode in a dispute between the judiciary and the legislature over recent legislation on freedom of conscience and the legal status of faith-communities.

The fact that the Commission and the Council of Europe acted jointly is indicative of the degree to which the two institutions now co-operate on matters of human rights – a co-operation that will become even closer when the EU accedes as an institution to the ECHR. That, and the fact that the EU has its own Charter of Fundamental Rights which closely mirrors the contents of the European Convention, leads one to conclude that, as Lady Hale argued in her lecture at the LSE on Wednesday, there is no escaping the reach of the ECHR. Except, of course, by withdrawing from the EU as well – which is what many of the opponents of the ECHR would like to see happen.

Workshop: Maintaining a Faith Community – the Role of Law

This funded workshop is planned for 13th May, (the day before the Law and Religion Scholars Network, (LARSN), Conference at the University of Cardiff). The intention is to explore current thinking in selected jurisdictions on the relationship between secular and religious laws in the particular context of marriage and divorce. Date for submission of applications to participate in the workshop: 25 March 2013. Further details Dr Ruth Gaffney-Rhys,

Safeguarding in Jersey

We noted the Diocese of Winchester’s Press Release in which the Bishop of Winchester had withdrawn the commission of the Dean of Jersey, the Very Revd Robert Key, following the publication of the report Independent Review of a Safeguarding Complaint for the Diocese of Winchester. The States of Jersey have issued a statement stating that this is a matter that should be resolved by the Church, which has indicated that it will now conduct an investigation into the findings of the independent review. It also notes the Bishop’s affirmation that his action in removing the Dean of Jersey’s commission is a neutral measure which implies no judgement and is necessary while matters are investigated, in accordance with best practice.

Religious communities in general are quite rightly taking safeguarding much more seriously than they did even five years ago – this week  Ekklesia reported that the Methodist Church is undertaking a comprehensive review of every safeguarding matter it has dealt with over the past sixty years in order to learn the lessons of the past.  Quite apart from the fact that people do not join congregations in order to be subjected to physical, mental or sexual abuse, the possibility of vicarious liability for such activities for the Churches concerned is always lurking round the corner: see JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 and Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56.