Religion and Law round up – 28th April

Succession to the Crown Act 2013

The Succession to the Crown Act received Royal Assent on 25 April, but whilst section 5 (Commencement and short title) is now in force, “the other provisions of this Act come into force on such day and at such time as the Lord President of the Council may by order made by statutory instrument appoint,” for which “different days and times may be appointed for different purposes”.  This is required because it is necessary for other the other Commonwealth countries of which HM is Head of State to pass complementary laws on Succession.

We reviewed the debate in the Lords prior to the passing of the Act, here, and indicated some of the implications – primarily, should the Duchess of Cambridge give birth to a girl in July, the baby could not subsequently be displaced by the birth of a brother. In addition to absolute primogeniture, other key impacts of the Act are summarized in the Royal Central blog as follows:

  • members of the Royal Family who marry, or who have married, a Roman Catholic are not be excluded for the line of Succession to the Throne;
  • descendants of George II, of whom there are many, no longer require the permission of the Queen to marry – which overcomes the problem of such marriages being automatically annulled in the absence of the Monarch’s permission; and
  • the first six people in line of Succession must still seek the permission of the Queen to marry– and if they fail to obtain permission they are excluded from the Succession.

Conscientious objection to abortion

We noted the judgment of the Inner House of the Court of Session in Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 (24 April 2013), in which the Court recognised the conscientious objections of Mary Doogan and Connie Wood, labour ward co-ordinators at the Southern General Hospital, Glasgow, to supervising staff involved in terminations. The Inner House concluded that the two were part of the team responsible for the overall treatment and care of patients and would therefore “participate in treatment authorised by” the Abortion Act 1967. The court distinguished the judgment of the House of Lords in R v Salford Area Hospital Authority ex parte Janaway [1989] 1 AC 537 (which involved a conscience claim by a secretary who was required to type appointment letters for patients seeking a termination) and, in doing so, has probably both widened the scope of conscientious objection and brought it closer to what Parliament intended in 1969.

Lords win “ping pong” on caste discrimination

Having addressed the issues of the Succession to the Crown Bill, later on 22 April their Lordships turned their attention to third reading of the Enterprise and Regulatory Reform Bill which was in the process of “ping pong” between the Lords and Commons.  In our previous round-up we reported that the significant amendments made by the House of Lords in relation to the inclusion of caste discrimination and a reduction in the general powers of the Equality and Human Rights Commission, (EHRC), had been overturned when the Bill returned to the Commons.  However, on 22 April the Lords reiterated their objections to the Government position on these issues, and insisted on their amendments. As a consequence, the Government subsequently agreed to drop its insistence on the inclusion of these amendments in the Act.

These represented the 41st and 42nd “U-turns” of the Coalition to date [1].

“Denouncing” the ECHR?

The ill-considered threat of the Prime Minister to denounce the ECHR under the terms of Article 58 presents a further opportunity of the Coalition to exhibit the level of its “legal competence”.  As Richard A. Edwards notes:

“In order to remove one man [Omar Mahmoud Othman, aka Abu Qatada], from the jurisdiction the government is contemplating removing the protection of human rights for all”.

The full critique was published on Euro Rights Blog and is reproduced on the UKHR blog. Or as Adam Wagner tweeted on Tuesday:

“Temporarily withdrawing from Human Rights Convention to deport Abu Qatada is like temporarily withdrawing from a marriage to have an affair”.

Same-sex marriage and the Church of Scotland

Following the publication of documents on men and women in marriage by the Church of England and the Church in Wales, which we reviewed here and here, we published our review of the Church of Scotland report, Theological Commission on Same-Sex Relationships and Ministry. The three reports differ in their remit and the scope of the same-sex issues addressed, but are all driven by a common same-sex marriage agenda as it is being pursued in the respective governments in Westminster and Holyrood. Each of the organizations has been active in its contact with government, here, here, and here, but it is likely that in each case, the legislation will be put in place before the membership has given the matter detailed consideration

With regard to the Church of England’s report, Men and Women in Marriage, two weeks after advising its readers in the leader “On Marriagethat “the kindest thing to do with [the Report] … is to ignore it”, the Church Times ignores this advice and revisits the issue in another leader “Selling marriage short”, (but this time outside the pay wall).  We were not privy to the editorial processes which lead to this new article and will not speculate; but the current piece is an uneasy mix of justification for the production of the report and further criticism of different aspects of it.

To suggest that “[h]ad there been more time and more scrutiny, the limitations of the report might have been recognised” suggests that whereas the average recipient of the report was able to make such an assessment in a single reading, its writers did not possess the same critical faculties – an unlikely possibility.

The (second) leader concludes:

“It is generally unfair to criticise a work for not being something else. We have not dwelt on the sins of commission – the obscure language, the unsupported pronouncements – but in this instance, the sins of omission have created the greatest disappointment. Marriage is a precious element in our society, and it needs a more robust defence”.

We would challenge the assertion that “the sins of omission have created the greatest disappointment” and repeat our initial comment:

“The problem, it strikes us, is this: that the Church appears to be trying to have it all ways at once. Either you decide on biblical grounds that same-sex relationships are wrong in all circumstances and stick to that (which is an entirely consistent position even if it is one that looks increasingly at odds with the views of wider society) or you decide that they are not – in which case when you try to accommodate them you run the risk of getting tangled up in conflicting arguments in the way that is currently engulfing the C of E. But seeming to suggest that same-sex relationships are not always wrong and then maintaining that, nevertheless, they are basically second-class strikes us as the worst of all worlds – and much the most difficult position to defend, whether intellectually or pastorally”.

Richard III reburial – application for judicial review

The reinterment (or entombement) of the remains of Richard III was again in the news with plans for the consideration by the High Court of a request for judicial review in relation to the issue of a section 25 licence to the University of Leicester.  The JR is being sought by the Plantagenet Alliance as part of its campaign to have the remains reburied in York.  As we noted in our last update of the case, a challenge on the basis that the Alliance had not been consulted and that its rights had been breached may prove difficult on a number of practical and legal grounds:

  1. the “Catch-22” situation, whereby when the section 25 licence was issued it was not known whether the remains were those of Richard III, and it would therefore be premature for the MoJ to identify possible “relatives”;
  2. the fact that since Richard III is thought to have no living descendants, any distant relations would be descended from his siblings and, statistically, many tens of thousands of individuals alive today are descended in this way; and
  3. following Rudewicz, R (o a o) v Secretary of State for Justice & Ors [2012] EWCA Civ 499, which dismissed the Article 8 (private and family life) arguments of a first cousin once removed, it is difficult to see how the claims of the relatives of someone who died almost 500 years ago and whose familial links are extremely tenuous at best might succeed.

It could be argued that the section 25 licence is currently in sufficiently general terms to permit reburial, inter alia, “in a burial ground in which interments may legally take place”, i.e. in York, Leicester Worksop, or elsewhere, and that, rather than JR, the Alliance might consider a common law action against the organization that currently has “custody and possession” of the remains: the University of Leicester.  Furthermore, the licence was primarily concerned with the exhumation, (for which the University was clearly the most appropriate body), and as such expired on 31 December 2012.

However, if these legal hurdles are surmounted and secular provisions permit burial in York, whether this is to be in York Minster, or another Church of England church or churchyard, any decision will be subject to the appropriate ecclesiastical law and further delay.  The deadline on the licence for reburial is “no later than 31 August 2014”.

Are Infallibility and Informality compatible?

Clearly yes, but Pope Francis’ liking for fervorini (short homilies) during his daily celebrations of Mass at the Domus Sanctae Marthae is causing consternation in some quarters with regard to where, and if, they are reported through official Vatican channels.  In addressing Papal Infallibility at a General Audience on 17 March 1993, Pope John Paul II said, inter alia

“the Second Vatican Council states that all the Pope’s teaching should be listened to and accepted, even when it is not given ex cathedra but is proposed in the ordinary exercise of his Magisterium with the manifest intention of declaring, recalling and confirming the doctrine of faith. It is a consequence of the institutional fact and spiritual inheritance that completes the dimensions of the succession to Peter.”

Consequently, anything said in the exercise of his Magisterium will be of potential relevance to Roman Catholics worldwide; yet at present there is no consistency in the reporting of these fervorini. Importantly, in order to be considered in context it is important that they are available in toto rather than as edited abstracts on Vatican Radio

As an indication of the scope of these short, off-the-cuff homilies, his recent consideration of the profound essence of the Church

“… which must never consider itself a ‘company’ that ‘makes deals to gain more partners’, neither does it measure its success in terms of organisation … The path Jesus chose for his Church is a different one: he chose the difficult path, the path of the Cross, the path of persecution…”

included explicit reference to the Istituto per le Opere di Religione, (IOR), aka the Vatican Bank, a number of whose employees were present. He indicated that, along with all Curia’s various bodies, it would be undergoing a review and reform in the next few months, although commentators suggest that he implied that the IOR would not be shut down, as some have suggested [2].

Canonization of John Paul II

Within days of the unveiling of a five tonne, 13.8m high statue to the Bl. Karol Wojtyła, (Pope John Paul II) in Czestochowa in southern Poland, the medical council of the Congregation for the Causes of Saints has recognized as inexplicable one healing attributed to him: it must now be approved by theologians and then by the cardinals and bishops of the Congregation before being subjected to the Pope for the definitive confirmation. It has been suggested that canonization might be timed for Sunday 20 October, close to the liturgical holiday assigned to the blessed Wojtyla on October 22nd.  

Whilst it is believed that Pope Francis is supportive of the early canonization of John Paul II, his views on beatification and canonization per se are as yet unknown. Pope John Paul II made significant simplifying changes to the underlying canon law with the promulgation of the 1983 Code and Divinis Perfectionis Magister, but he also canonized over 450 saints (more than all the popes since the Council of Trent combined) as well as beatifying more than 1,300 men and women. Benedict XVI was more circumspect as evidenced by his letter in 2006 to the Congregation for the Causes of Saints.

[1] This week, a new book by Aldo Maria Valli has been published, Il forziere dei Papi. Storia, volti e misteri dello Ior (The Popes’ coffers. History, faces and mysteries of the IOR).  Publicity material states: “You have to put together many pieces spread out and form a pattern . . . . . but there is no need to romanticize: reality goes far beyond imagination,” [Google translation].

[2] A full list of U-turns to 7 February is available in The Guardian

5 thoughts on “Religion and Law round up – 28th April

  1. Sandro Magister of http://www.chiesa has shed further light on Pope Francis’ fevorini and his off-the-cuff unscripted style. He notes

    “These homilies of the pope are recorded in their entirety. But they do not undergo the procedure for his official discourses, when it comes to the parts improvised off-the-cuff. That is, they are not transcribed from the audio recording, cleaned up in thought and expression, then submitted to the pope and finally made public in the approved text.

    The complete texts of the weekday homilies of Pope Bergoglio remain secret. Only two partial summaries of it are provided, by Vatican Radio and by “L’Osservatore Romano,” redacted independently of one another and therefore with a greater or lesser extent of word-for-word citations.

    It is not known whether this practice – aimed both at safeguarding the pope’s freedom of speech and at defending it from the risks of improvisation – will be maintained or modified.”

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