Religion and law round up – 3rd November

Women as bishops in the Church of England

In the past week Will Adam authored another guest post on the continuing saga of women as bishops in the Church of England in which he analysed the draft Measure, amending Canon and supporting documentation published on Friday 25 October in advance of the General Synod meeting in November. Will suggests that where the documentation is silent is on the precise nature of the “guidance” on arrangements for parishes that decline to accept the ministry of women priests and bishops. If the number of page-views of Will’s post is any guide – over 500 at the latest count – it is going to be a very lively Synod indeed.

(Family) law, morality and religion

We duly reported Sir James Munby’s keynote address as President of the Family Division to the Law Society’s annual Family Law Conference. Almost inevitably, his speech, entitled “The sacred and the secular: religion, culture and the family courts“, drew howls of protest from some quarters and applause from others. His major theme was that judges should be wary of straying into matters of religion and that religious belief, however conscientiously held, “can never of itself immunise the believer from the reach of the secular law”.

Which seemed to us to be both obvious and irreproachable: but the result was that Frank found himself being interviewed at the very end of this morning’s Sunday programme on Radio 4 to defend the thesis that judges are there to apply the law impartially, “without fear or favour, affection or ill-will”. Which, one might have thought, goes without saying – except that in some quarters the idea of judicial impartiality seems to have become controversial.

Revision of section 25 Burial Act 1857

On Monday 18 November the General Synod of the Church of England will consider inter alia the draft Church of England (Miscellaneous Provisions) Measure GS 1866B which includes an amendment to section 25 of the Burial Act 1857. In our post on 12 August 2013 we commented on a pressing need for a revision and clarification of the law in this area and suggested that the use of a further Miscellaneous Provision Measure provided a pragmatic approach to some of the problems in this area being encountered by the Church. This latest revision in GS 1866B includes the following:

“(4) In subsection (2)(a) and (c) ‘court’ means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese or any other court or body referred to in section 1(2) or (3) of the Ecclesiastical Jurisdiction Measure 1963 having jurisdiction to determine the matter” [emphasis in original].

The modification (in bold) removing a lacuna noted in our post: an absence in the draft section 25(4) of a reference to the Church’s appellate courts.

However, the use of ecclesiastical law to make changes to secular statutory law is limited to “uncontroversial matters that do not merit freestanding legislation” and it is suggested that following Royal Assent of the new Measure, it would be beneficial for new guidance to be issued jointly by the MoJ and the Church.

Recent consistory court judgments

(1) Many who read the “modest and uncontroversial petition” in Re Burwash Weald St. Philip [2013] Chichester Const Ct , will empathize with the PCC which, having gained the approval of the DAC and the professional bodies who have been consulted and put in place the appropriate funding [1], is subject to further faculty fees following an often mis-placed objection from one individual – in this case, Lady Margaret Baldwin. As a dispassionate observer, Hill Ch expressed his sadness that “Lady Baldwin’s ‘habitual concern for the congregation’ had served in this instance only to obfuscate and delay the carrying out of the now long-overdue process of renewing the heating system”.

The Chancellor had some difficulty in comprehending the nature of the objection advanced by Lady Baldwin, her many letters comprising “dense text in a small font” whose content strayed considerably from the relevant material; at times contradictory and at others repetitive.  He found no merit in any of the small points of detail that were raised and granted the petition.

(2) In Re St. Edward, King and Confessor [2013] Southwark Const Ct, Petchey Ch, although forming a preliminary view that it would not be appropriate to permit the exhumation of a cremated husband’s remains in England and their reinterment alongside those of his wife in Australia, granted a faculty for this to take place. In so doing, he applied Re Blagdon Cemetery [2002] Court of Arches in the light of case law relating to “portable remains” and “family graves”.  Lawyers working in this area should read this report as Petchey Ch discusses his earlier ruling on family graves In re Peter’s Petition [2013] PTSR 420 that has been criticized in three judgments, and other subsequent case law. In summary, he states that the facts of the case are distinguishable from other “portable remains” cases and makes the decision to grant the petition.

The UK and the Holy See

Not many will be aware of the FCO’s involvement with the Holy See, or the All-Party Parliamentary Group on the Holy See (APPGHS), whose annual visit of MPs from the Westminster Parliament to the Holy See took place on 22-24 October 2013.  The Group is comprised of representatives of both Houses of Parliament and all the principal political parties and its role is “to monitor the relationship between the UK and the Holy See and call representatives of faith communities and the foreign/diplomatic service to brief the group on issues pertaining to the Vatican and the work of the Catholic Church”.

Led by the Co-Chair, Sir Edward Leigh MP, the group met Pope Francis at the end of the General Audience on 23 October and held meetings at the Secretariat of State, Pontifical Council for Justice and Peace, Congregation for the Doctrine of the Faith, Caritas Internationalis and the Sant’ Egidio Community. Speaking on Vatican Radio at the conclusion of the visit, Sir Edward acknowledged the Holy See’s “enormous soft power”, echoing the FCO’s position:

“The Holy See is the centre of a global community of over one billion people, and as such is one of the world’s biggest opinion formers. It has diplomatic relations with 180 states and has a pastoral presence right around the world.

[…]

[t]he UK’s relationship with the Holy See is policy-focused and concentrates principally on global issues such as international development, conflict prevention and resolution, human rights, inter-religious dialogue and environmental issues. Given the global reach of the Catholic Church, as well as its associated networks such as Caritas Internationalis, the Holy See is both an important global listening post and an important provider of services – such as healthcare and education – to many people around the world”.

First name, First Amendment – again

Regular readers may recall that in August we reported the strange case from Tennessee in which the parents of a seven-month-old boy had gone to court because they could not agree on his surname and (evidently to their complete astonishment) a child support magistrate, Lu Ann Ballew, ordered that his first name should be changed from “Messiah” to “Martin” because “the only true messiah is Jesus”. We suggested that her order almost certainly contravened the First Amendment in relation either to the establishment clause or to the provision on freedom of speech; and the County Chancery Court duly reversed her ruling on the grounds that it did, in fact, violate the establishment clause.

But that is not the end of the matter. Reuters reports that Ms Bellew has been cited by the Tennessee Board of Judicial Conduct for acting with inappropriate religious bias in violation of the state judicial code. A three-member investigative panel concluded that there was “reasonable cause to believe [Ms Ballew] has committed judicial offenses” and formal disciplinary charges have been filed with the Board. [With thanks to Religion Clause for the link.]

And finally . . . . what’s in a (saint’s) name?

During the past week there have been a number of references to saints, starting with Alfred the Great, whose supposed canonisation was acknowledged in the town of his birth, although not in Winchester where the Cathedral’s Saturday service used KA’s official C of E status [2]. Musically, King Alfred’s Prayer provided the inspiration for a piece sung by the King Alfred Singers at the University of Winchester, and for an anthem composed by John Ridgway, organist at Wantage. “Rule, Britannia!” might have been equally appropriate since it had its origin as the finale to Arne’s masque, King Alfred.

However, the most publicized was the assignment (in the UK) of the name of St Jude to the weather front that swept the country on the saints’ day he shares with St Simon. In Sweden, it was called Simone, following the tradition of using the name on the Scandinavian name-day calendar, and the Guardian explains that there is a scheme operated by the Institute of Meteorology of the Free University of Berlin where for a mere €299 it is possible to name a high-pressure weather system (or €199 for a low-pressure one).

Elsewhere in Europe, the approaching Sinterklaas festival in the Netherlands has again brought criticism of Zwarte Piet, the “helper” of St Nicolas [3]. One view of the controversy is provided by the Erasmus blog, which concludes, “while the symbolism of a children’s holiday may be of limited consequence, the contemptible racial attitudes it has exposed are not. This month’s conflict has changed Zwarte Piet. For many, even if a year ago he was not a symbol of Dutch racism, he is now”.


[1] The cost, in excess of £51,000 is to be met from PCC funds, a public appeal and a loan facilitated by the Diocesan Board of Finance.

[2] In the Church of England’s Calendar, All Saints day (1st November) is marked as a Principal Feast/ Holy Day, whereas Simon and Jude, Apostles, (28 October) is marked as a Festival, but Alfred the Great, King of the West Saxons, Scholar, 899, (26 October) is a regarded as a Lesser Festival.

[3] The Daily Telegraph explains “[i]n mid-November, Saint Nicholas, or Santa Claus, who is white, arrives by steamboat in Amsterdam bringing presents for children helped by mischievous servants dressed as pageboys, wearing black make-up, curly wigs and with large, painted on red lips.”

7 thoughts on “Religion and law round up – 3rd November

  1. You say above, ‘However, the use of ecclesiastical law to make changes to secular statutory law is limited to “uncontroversial matters that do not merit freestanding legislation” ‘. What is the source of the quoted words please?

    The question is with an eye to Church of England Assembly (Powers) Act 1919 s.3 (6)
    “A measure may relate to any matter concerning the Church of England, and may extend to the amendment or repeal in whole or in part of any Act of Parliament, including this Act:
    Provided that a measure shall not make any alteration in the composition or powers or duties of the Ecclesiastical Committee, or in the procedure in Parliament prescribed by section four of this Act.”

      • Many thanks for the reference and link. It appears your syllogism is:
        A Miscellaneous Provisions Measure (‘MPM’) deals with uncontroversial matters.
        A MPM is a measure.
        Therefore measures can only deal with uncontroversial matters.

        As a former General Synod member, albeit in the last century ;-), and of its Standing Orders Committee may I suggest this is incorrect?

        The full quote from para.2 is, “This Measure is the eleventh in a series of Miscellaneous Provisions Measures dealing with
        uncontroversial matters that do not merit free-standing legislation.”.

        There is nothing to stop a measure dealing with any controversial matter concerning the Church of England. The self imposed limit on an MPM is presumably to avoid the risk of the Ecclesiastical Committee rejecting a MPM because a small part of it is controversial.

        Parliament has no powers to remove/change/amend parts of a measure. Though there is a power under section 4 of the 1919 Act where a measure that “deals with two or more different subjects which might be more properly divided” to “divide the measure into two or more separate measures accordingly”. It is hard to imagine the mechanics of such a process without amendments.

        Safer to limit a controversial matter to free-standing measure. QED?

        • Thank you Christopher

          You are, of course, right in your comment and the wording in the post should have made this clear. It would also be better to limit controversial matters to free-standing measures. But would this proposed change be regarded as controversial, or not?

          It could be argued that since the proposed changes to s25 are limited to tidying up matters relating to the CofE and would not per se impact on the MoJ’s use of this provision, they are therefore uncontroversial. Whether or not the Ecclesiastical Committee would take the same view is another matter.

          The “pragmatic solution” comment was an allusion to the unwillingness of successive administrations to address issues relating to burial, and the problems in securing parliamentary time for their discussion. The “quasi-law option” of the proposed amendment plus joint-guidance seemed the best that could be hoped for – once the Measure has received Royal Assent.

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