Law & Religion 2013 and 2014: retrospect and prospect

In a vintage year for law & religion anoraks so much happened that it is almost invidious to attempt to pick out the most important events: but we can seldom resist a challenge, so here goes…

Defining “religion”KEEP CALM

Joint top of the list of important issues for 2013 must be the recent attempt by Lord Toulson in the Supreme Court to provide a definition of “religion” appropriate to a multi-faith, multi-cultural and rather secularised society. It begins: “a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite… “: see R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 at para 57.

Religious accommodation in the workplace

Equally important was the ruling of the ECtHR in Eweida and Ors v United Kingdom [2013] ECHR 37, on which we posted at some length. As everyone knows, Ms Eweida won her case while Mrs Chaplin, Ms Ladele and Mr McFarlane were all unsuccessful. The most interesting distinction was that drawn between the two religious dress cases. Ms Eweida won because BA’s uniform policy was about corporate image – and the company shot through its own goal when it subsequently decided to allow employees to wear approved religious symbols, including crosses. On the other hand, Mrs Chaplin lost because her NHS Trust had based its policy on principles of health and safety and the Department of Health guidelines on appropriate dress for clinical staff. The ruling has somewhat moderated the “specific situation rule” (recently and memorably described as “like it or leg it”) and it is already beginning to have some influence in the domestic courts.

[Howard Friedman included Eweida and Hodkin in his world-wide Top 10 Church-State and Religious Liberty Developments in 2013.]

Abortion and conscientious objection

In April we reported that the reclaiming motion of Mary Doogan and Connie Wood,Greater Glasgow HB the labour ward coordinators at Glasgow’s Southern General Hospital who objected on grounds of conscience to supervising staff involved in abortions, had been successful. In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36 the Inner House of the Court of Session overturned the decision of the Lord Ordinary [Lady Smith] dismissing their petition for judicial review. Delivering the opinion of the Court in favour of the reclaimers, Lady Dorrian concluded that

“The conscientious objection in section 4 [of the Abortion Act 1967] is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant … [I]t is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it” (para 38).

The Health Board has since appealed to the Supreme Court.

Assisted dying

The tragic case of the late Tony Nicklinson, who suffered from “locked-in syndrome” following a severe stroke, attracted considerable media attention. In the first instance, along with an anonymous claimant, “AM”, he sought declarations that, on grounds of necessity, it would not be unlawful for his GP or another doctor to terminate or to assist the termination of his life and, further or alternatively, that the current law of murder and/or of assisted suicide violated Article 8 ECHR and was contrary to ss 1 and 6 Human Rights Act 1998 insofar as it criminalised voluntary active euthanasia and/or assisted suicide.

He lost in the Administrative Court: see R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors [2012] EWHC 2381 (Admin) and subsequently died. His widow Jane (and two other appellants) appealed unsuccessfully to the Court of Appeal: see Nicklinson & Anor, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961. A further appeal was heard by the Supreme Court on 16 December: judgment is awaited.

In Scotland, Margo MacDonald introduced her Assisted Suicide (Scotland) Bill in the Scottish Parliament on 14 November. The Health and Sport Committee began its preliminary consideration of the Bill on 17 December: the suspicion is that progress through Parliament will be slow – if, that is, it survives Stage 1 at all.

Bed, breakfast and same-sex partners

MarazionThe sequence of judicial hearings in Bull & Bull v Hall & Preddy commenced on 18 January 2011 in the Bristol County Court, where it was held that on 5 September 2008 Peter and Hazelmary Bull had directly discriminated against Mr Preddy and Mr Hall in refusing to let to them the double-bedded room they had booked in the Chymorvah[1] Private Hotel, Marazion, Cornwall. The Court of Appeal upheld that judgment: [2012] EWCA Civ 83; and the Supreme Court dismissed a further appeal unanimously: [2013] UKSC 73. Our post, Double rooms, gay couples, Christians and the clash of rights, makes a detailed analysis of this latest ruling and the Supreme Court’s deliberations on direct and indirect discrimination – on which opinions were divided. Had the discrimination been indirect, it would have been possible for the appellants to argue justification.

Lady Hale observed (para 26) that “civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law” and that it “was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy … [I]ts equivalence to marriage is emphasised by the provision in regulation 3(4) that being married and being a civil partner is not to be treated as a material difference for the purpose of a finding of either direct or indirect discrimination”.

The status of same-sex couples in other jurisdictions has received judicial consideration in both the CJEU and the ECtHR. In Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres [2013] EUECJ C-267/12 the Court of Justice of the European Union ruled that in relation to Article 2(2)(a) of Directive 2000/78/EC on establishing a general framework for equal treatment in employment and occupation, same-sex couples who enter into registered partnerships are entitled to the same benefits at the workplace as married employees because their legal situation is comparable to the situation of opposite-sex spouses. In Vallianatos & Ors v Greece [2013] ECHR (GC) 1110 the Grand Chamber held that the fact that the “civil unions” introduced by Law no. 3719/2008 were designed only for opposite-sex couples had infringed the right of the applicant same-sex couples to respect for their private and family lives, contrary to Article 8 ECHR, and amounted to unjustified discrimination between different-sex and same-sex couples to the detriment of the latter, contrary to Article 14.

Frédéric Hay is, of course, binding as part of EU law. But Vallianatos is also potentially important because (so far as we know) it is the first case at the ECtHR to address same-sex civil partnership rights outside the context of marriage; and our suspicion is that it may have implications for the forthcoming DCMS consultation on introducing opposite-sex civil partnerships in England and Wales – for which, see below.

Clergy employment

The year saw two major cases on clergy employment that are extremely difficult to reconcile. In President of the Methodist Conference v Preston [2013] UKSC 29 the Court, by four votes to one (Lord Hope DPSC, Lords Wilson, Sumption and Carnwath JJSC: Lady Hale JSC dissenting), reversed the decision of the Court of Appeal that the Revd Haley Preston, former Superintendent Minister in the Redruth Circuit was employed by the Methodist Conference and restored the original order of the Employment Tribunal dismissing her claim.

The majority of the Court distinguished Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73: while it was accepted in that case that Ms Percy (who had previously demitted her status as a minister of the Kirk) did not have a contract of service, the statutory test of “employment” for the purposes of sex discrimination claims was broader than the test for unfair dismissal claims. Under the Constitution and Standing Orders of the Methodist Church a minister’s engagement was incapable of being analysed in terms of contractual formation and neither admission to full connexion nor ordination were themselves contractual: therefore, unless there was some special arrangement with a minister (which in Mrs Preston’s case there was not), that minister’s rights and duties arose from his or her status under the Church’s Constitution rather than from any contract.

Conversely, in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811 Mrs Justice Cox, sitting alone, held that the decision of the lower tribunal that the Revd Mark Sharpe, former incumbent of Teme Valley South Benefice in the Diocese of Worcester, could not be a “worker” within the terms of the Employment Rights Act 1996, as amended, had been flawed. She allowed the appeal and remitted the case to the Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” (para 244). Following the decisions in Percy and Preston, she concluded that it was now “abundantly clear” that the employment status of clergy “cannot be determined simply by asking whether the minister is an office holder or is in employment” (para 146).

The second judgment has left us somewhat confused. Hayley Preston lost in the Supreme Court because the majority accepted that it is the corporate understanding of the Methodist Church that it is not in a contractual relationship with its ministers and that there is, therefore, no intention on the Church’s part to create contracts of employment with circuit ministers. But it takes two to create a contract and, as Professor David McClean explained in evidence, it is equally the the Church of England’s corporate understanding that it is not in a contractual relationship with its freehold incumbents (nor, indeed, with clergy on common tenure, which is why it has given them “as if” employment rights).

So why does the Methodist Church’s understanding of the nature of its ministry defeat Mrs Preston’s claim while the Church of England’s understanding of the nature of its ministry does not defeat Mr Sharpe’s? Moreover, as Philip Jones points out over at Ecclesiastical Law, Cox J “missed a factual distinction of critical importance to Mr Sharpe’s dismissal claim. Ms Percy and Ms Preston did not have the parson’s freehold“. We imagine that before Sharpe gets anywhere near an Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” it will be in front of the Court of Appeal.

Consistory Court judgments

Carmarthen Const CtSince August, we have included reports of recent consistory court judgments in our weekly round-up as soon as they become available on the Ecclesiastical Law Association website. Petitions for exhumation to correct basic errors in burials by those responsible for churchyards and cemeteries appear with depressing regularity, making one wonder what would happen if these individuals ever had to manage FMCGs. On the positive side, however, are the instances in which the chancellor had given detailed consideration to a petition when at first reading it appeared as though it should be rejected.

As a commentary on the range of issues being faced by the Church of England, the judgments provide a valuable insight into the everyday workings of a PCC, from unpleasant village politics and the often misplaced and incomprehensible objections from a single individual with a “habitual concern for the congregation”, to the sale of chattels where the church has either insufficient funds or apparently poor stewardship of its finances. In addition, some of the more obscure aspects of church law were given detailed consideration:

  • the arcane law concerning churchyards and, in particular, monuments erected in churchyards: Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch);
  • the narrow interpretation given to the word “building” in the context of the Disused Burial Grounds Act 1884Re St Peter in the East, Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep Ch); and
  • the respective criteria in sections 17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 for the demolition of a church: Re St Paul Eastville [2013] Lincoln Const Ct (Mark Bishop Ch).

Family law, morality and religion

Sir James Munby’s speech to the Law Society’s annual Family Law Conference in October, “The sacred and the secular: religion, culture and the family courts“, provoked a certain amount of controversy (and resulted in Frank being picked up in a taxi at 6.45 to be taken to the nearest BBC studio for a two-minute down-the-line interview on Sunday on Radio 4 – an experience he would not care to repeat). Almost inevitably, Melanie Phillips was one of the severest critics, complaining that “today’s judges see it as very much their business to enforce secular beliefs” and that “traditional moral codes have merely been replaced by the modern religion of human rights”.

We disagree; and we would pray in aid the judicial oath to do justice to all manner of people “without fear or favour, affection or ill-will” – which must sure entail an even-handed approach to questions of religious belief. Of course, our views are neither here nor there; but when the matter was raised with the new Lord Chief Justice, Lord Thomas, at his first press conference since taking office he replied:

“[W]e have to apply the law and the law is essentially a secular law and so, yes … as it is our duty to apply law which is secular law we should do that”.

End of argument. Maybe.

New Pope, New Archbishop

Benedict XVI’s words “meas ingravescente aetate”[2] alerted Vatican correspondent Giovanna Chirri to the likelihood that the consistory on 11 February 2013 would be more than a routine event; and the first papal resignation since that of Gregory XII in 1415 caught everyone by surprise. Whilst this possibility is addressed the 1983 Code of Canon Law, (primarily through Canon 332 §2 and more generally in Canons 187 to 189), it was necessary for Pope Benedict to make some last-minute changes to the “standing orders” concerning the sede vacante with the Universi Dominici Gregis and take decisions regarding his future position, style, title, vesture &c prior to the start of the sede vacante, i.e. 8.00 pm on 28 February 2013.

In contrast to the short, 13-day conclave to determine the new Pope, [during which there was a limited edition issue of four stamps – €0.70, €0.85, €2.00 and €2.50 – for use within this period, the minting of €2.00 coins of legal tender plus a limited number of “collectible” €5.00 and €10.00 coins and interim changes to the coat of arms], the selection of the Archbishop of Canterbury was a ponderous affair. Although Rowan Williams announced his resignation on 16 March 2012, it took until 9 November 2012 before the Prime Minister’s office announced Justin Welby’s appointment. He was formally elected as of 10 January 2013 in Canterbury Cathedral, legally took office on 4 February at a ceremony in St Paul’s Cathedral and was enthroned in Canterbury Cathedral on 21 March.

Since Archbishop Rowan’s resignation took effect on 31 December 2012 and Archbishop Justin was formally elected by the College of Canons of Canterbury Cathedral early in January (i.e. the equivalent to the end of the sede vacante) it could be argued that the CofE was without a head for three days less than the Roman Catholic Church. However, there are lessons to be learned by both Churches: a less bureaucratic method of appointing a new ABC and further revisions to/replacement of the Universi Dominici Gregis that take into account the present situation, (i.e. a Pope and Pope Emeritus), and the possibility of future resignations.

Same-sex marriage

The Marriage (Same Sex Couples) Act 2013 received Royal Assent on 17 July. Briefly, it provides for same-sex marriage in England and Wales, permits marriage of same-sex couples by way of a civil ceremony and, except for the Church of England and the Church in Wales, permits religious marriage of same-sex couples if and only if the religious organisation concerned has opted in to that process. The Act also provides a process for the C in W to request legislative change should it one day wish to marry same-sex couples. The Act does not remove the availability of same-sex civil partnerships and provides for their conversion into marriage if the partners so choose. But it makes no provision for opposite-sex civil partnerships, in spite of the fact that a group of heterosexual couples wishing to contract civil partnerships have taken the matter to Strasbourg: see Ferguson & Ors v United Kingdom (Application No. 8254/11) lodged on 2 February 2011. At the last gasp, the Government agreed to bring forward the timing of its intended consultation on the issue.

The Scottish Government took a much more comprehensive approach. Considered proposals, together with a draft Bill, were published in December 2012. The detailed proposals were the subject of a further consultation which ended on 20 March 2013 and the Marriage and Civil Partnership (Scotland) Bill was introduced on 26 June 2013. It passed Stage 1 is currently being considered at Stage 2 by the Equal Opportunities Committee.

As to Northern Ireland however, the Assembly has now had two opportunities to consider the matter and on both of them has voted to reject the possibility of same-sex marriage.

Succession to the Crown

Although the Succession to the Crown Act 2013 received Royal Assent on 25 200px-Crown_of_Saint_Edward.svgMay 2013 the only part in force is section 5, which states, inter alia, that the substantive provisions will only 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”. Given that the provisions within section 1 regarding succession are retrospective to 28 October 2011[3], one wonders exactly why it was fast-tracked through Parliament, allowing insufficient time for the consideration of many of the associated issues. As Viscount Astor noted during the Bill’s second reading [14 Feb c 810],

“[t]he Select Committee report pointed out that the retrospective element of the provision obviates the need for fast-tracking … even after the passage of the Bill, it will not come into force until, under Clause 5, an award is made by the Lord President of the Council”.

Historian and broadcaster David Starkey observed that the birth of HRH Prince George of Cambridge on 22 July has meant “the effect of the Act that everybody has been labouring over (?) will not now be felt for 100 years”. The monarchy now has three generations of heirs to the throne for the first time since 1894, but as Lord Trefgarne observed during third reading of the Bill, [22 April c 1229]

“[t]his Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers … those arrangements are … a great deal more complicated even than they are for the Crown“.

Women as bishops in the C of E

Synod’s narrow vote against women in the episcopate on 20 November 2012 presented Justin Welby with an unwelcome legacy to address, just over a week after his appointment as ABC had been announced. The situation was exacerbated by adverse reaction within the Church and Parliament but few, if any, of the initiatives other than that taken by the House of Bishops provided a realistic way forward towards resolving the situation. The Bristol Diocesan Synod’s “no confidence vote” in General Synod was a non-starter and gained no support from other dioceses, while action from within the House of Laity to force a meeting to discuss a vote of no confidence in its Chair, who voted against the motion, proved to be a costly embarrassment and burdened the CofE with an estimated cost of £38,000 for holding the House of Laity’s extraordinary meeting on 12 January.

In Parliament there was a rash of activity: EDMs, Private Members’ Bills, questions to the Second Church Estates Commissioner and a Westminster Hall debate, all of which served to highlight the urgency with which the issue was perceived. However, Sir Tony Baldry reminded the House [22 Nov 2012 c 723] that

“the occasions in the past when Parliament and the Church of England have gone head to head on matters of worship and doctrine—there were disputes about the prayer book in the late 1920s, for instance—are not happy precedents,”

and added:

“I hope and believe that Parliament will give it time to sort itself out and get on with the issue, and I assure the House that we will do so as speedily as possible”.

A guest post by Bob Morris considered the possible intervention of Parliament but concluded

“… the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining church/state ties is another question.”

This in fact was the case, and whilst it might not have been the approach favoured a number of parliamentarians, it provided an added impetus to the discussions, the progress of which we reviewed in December 12, in relation to the “next steps” consultation paper: Women in the episcopate: a new way forward, the July Synod, here, and the next steps following the positive vote in the November Synod in the morning of 20 November. Valuable insights into these developments were provided by Will Adam, Editor of the Ecclesiastical Law Journal, here and here.

Synod gave First Consideration to the proposals in the afternoon session of 20 November and voted to progress the legislation to the next legislative stage: revision. However, Synod also voted to dispense with the normal Revision Committee process and move straight to revision in full Synod, which next meets in February 2014, “thereby clearing the way for a possible vote on final approval later in 2014”.

Where should we rebury Richard III?

St Denys, S-i-t-VThe licence for the removal of the remains of “persons unknown” from Grey Friars was issued on 3 September 2012, shortly after the commencement of the archaeological dig. By the end of the year, although the identity of the remains had not been confirmed, speculation on their reinterment had commenced and initially centred on the “appropriate rites and ceremonies of the Church”. Answering Church Commissioner’s oral questions in October, Sir Tony Baldry speculated correctly that there would be “quite a lot of competition” if the bones were identified as belonging to Richard III, but we had to wait until the Leicester University press conference on 4 February 2013 to learn that this was the case “beyond reasonable doubt”.

Although there was a rival claim for the reinterment to be in York, it was not until the Plantagenet Alliance came upon the scene that the dominant legal issue changed from an interpretation of section 25 Burial Act 1857 and common law provisions regarding “custody and possession” of the remains, to a judicial review of the actions of the Ministry of Justice and the extent to which consultation was required in relation to the issue of an exhumation licence under the Act.

Judicial review was granted on 16 August, Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWHC B13 (Admin), and following challenges by the MoJ, the substantive hearing was scheduled for 26 November. However, this was adjourned after the judges decided that Leicester City Council should also be a defendant in the case rather than an interested party and it is expected to resume in 2014.

In the meantime, the plans for reordering Leicester Cathedral are on hold following a decision by the Cathedrals Fabric Commission for England, (CFCE), to withhold permission for the work until the outcome of the judicial review hearing is known and there has been further study and discussion of the proposals relating to the objections from the amenity societies. Provided the outcome of these discussions and the judicial review are positive vis-à-vis Leicester, it is anticipated that the works necessary to provide the tomb and its place of honour will take about six months. Information on the conduct of a medieval reburial service is available as the result of the research by Dr Andrea Buckle of Oxford University on the reburial of Richard Beauchamp, Earl of Warwick, a contemporary of Richard III.

Unfinished business and unpublished reports

On the day following the election of Francis I as the new Pope, we commented:

“[a]s long as the two stiff, unmarked red folders containing the ~300 pages [Vatileaks] report remain in a safe in the papal apartments of the Apostolic Palace, speculation is bound to continue.  An important first step towards increased credibility and transparency would be for Pope Francis to authorize the release of the general findings of the Vatileaks report and the action that is to be taken”.

With the benefit of hindsight, it is clear that such an approach is not consistent with the modus operandi of Pope Francis, who has in other ways put measures in place that will increase the credibility and transparency of the Holy See. However, the existence of an unpublished report such as Vatileaks remains a potential threat from speculation and investigative journalism.

The as yet unpublished report of Dame Heather Steel’s inquiry into safeguarding in Jersey has raised similar issues, although these have been exacerbated by the noli nos tangere attitude of some on the Island combined with some less than helpful analyses from the mainland. The non-publication of this report is on the basis of legal advice following representations from an interested party; the investigation related to the treatment of one individual, HG, the procedures on safeguarding within Jersey, and the interface between the Church in Jersey and the Diocese of Winchester. Nevertheless, we are surprised that only peripheral mention is made on the CofE’s Child Protection and Safeguarding web page.

Despite the statement [23 Apr 2013 c 789] by the Parliamentary Under-Secretary of State for Business, Innovation and Skills, Jo Swinson, that the Government intended to make caste an aspect of race discrimination within the Equalities Act 2010, the Government Equalities Office timetable indicates that the final draft Order is unlikely to be introduced into Parliament before summer 2015.


And for 2014?

Generally, we expect the year to be dominated by two things: the Scottish independence referendum and the continuing debate (?row) over the relationship between the UK and the European Court of Human Rights. But specifically we expect:

  • the forthcoming SC judgment in Nicklinson;
  • the forthcoming appeals in Doogan and (almost certainly) Sharpe;
  • the ECtHR hearing on the French ban on face-coverings in public places;
  • the consultation in Northern Ireland on limited reform to the abortion law;
  • further consideration by General Synod of women in the episcopate: in London, 10-14 February, and in York, 1-15 July;
  • (presumably) resolution of the dispute between the Charity Commission and the Preston Down Trust about the charitable status of chapels of the Exclusive Brethren; and
  • (possibly) same-sex marriage in England and Wales from 29 March.

And who knows what else?


And that, believe it or not, was Post 500. And a happy and prosperous New Year to all our readers

[1] Cornish for “the house near the sea”.

[2] “my advanced age”.

[3] the date of the Commonwealth Heads of Government Meeting in Perth.