Religion and law round-up – 1st December

A week dominated by the issue of same-sex relationships, both outside the Churches and within them 

Same-sex couples and B&B: Article 8 v Article 9

Perhaps the biggest news of the week was the Supreme Court’s ruling in Bull & Anor v Hall & Anor [2013] UKSC 73, in which the Court unanimously dismissed  the appeal of Mr and Mrs Bull against the Court of Appeal’s ruling that they had discriminated unlawfully against Mr Hall and Mr Preddy, a couple in a civil partnership, when they refused them a double-bedded room in their private hotel on the grounds that, as Christians, they believed that sexual activity should take place only within the context of (heterosexual) marriage.

The Court was divided over precisely what kind of discrimination had taken place: Lady Hale, Lord Kerr and Lord Toulson held that the Bulls’ policy constituted direct discrimination on grounds of sexual orientation, while Lord Neuberger and Lord Hughes held that the application of their policy in relation to Mr Hall and Mr Preddy specifically constituted unjustifiable indirect discrimination. We suspect that, on balance, Lord Neuberger and Lord Hughes were probably the more persuasive.

The Churches and sexuality

The other big news of week was that the Archbishops of Canterbury and York published the Report of the House of Bishops Working Group on Human Sexuality chaired by Sir Joseph Pilling. The Archbishops commented that the report was “a substantial document proposing a process of facilitated conversations in the Church of England over a period of perhaps two years. The document offers findings and recommendations to form part of that process of facilitated conversations. It is not a new policy statement from the Church of England“. A comprehensive review of the comment surrounding the report is available on Thinking Anglicans.

Also this week, the Methodist Church has announced the Methodist same sex marriage and civil partnership working party – consultation. The accompanying statement to the online consultation emphasises that it

“… is not a poll on the views of homosexuality amongst Methodists, nor is it asking Methodists to decide whether same sex marriages should take place in Methodist churches. Instead it seeks views about the implications of the new legislation for our church, and whether, as a consequence, we need to revise our understanding of marriage”.

Clergy employment again

We noted the judgment in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT 0243 12 2811 in which (rather contrary to our expectations) Mrs Justice Cox, sitting alone, overruled the Employment Tribunal’s decision that Mr Sharpe, former Rector of Teme Valley South in the Diocese of Worcester, was not a “worker” within the meaning of s 230(3)(b) Employment Rights Act 1996 and therefore could not sue for constructive dismissal. She remitted the case to the Employment Tribunal for a fresh hearing.

Traditionally, incumbents with freehold have been regarded as office-holders rather than employees. Under Regulation 33 of the Ecclesiastical Offices (Terms of Service) Regulations 2009 clergy on common tenure, though not employees, have the right of appeal to an Employment Tribunal if removed from office on grounds of capability – but that right does not extend to incumbents with the freehold. So it will be interesting, to put it mildly, to see what the rehearing decides.

Courting Faith: Religion as an extralegal factor in judicial decision making

Amanda Springall-Rogers is seeking barristers to participate in a PhD research project exploring the relationship between religion and judicial decision-making. If you are interested in taking part, please contact (Neither of us qualifies, alas.)

Richard III: further developments

The judicial review hearing of CO/5313/2013, began on 26 November before Hallett LJ and Ouseley and Haddon-Cave JJ. However, it was adjourned after the judges decided that Leicester City Council should also be a defendant in the case rather than an interested party. It will resume in 2014.

As a result of the 24 October decision of the Cathedrals Fabrics Commission for England, (CFCE), which recommended further study and discussion on Leicester Cathedral’s plans, with particular reference to the treatment of the furnishings scheme installed by Sir Charles Nicholson in 1927, the delay in the judicial review hearing does not appear to be a rate-limiting step, (provided the outcome was positive vis-à-vis Leicester). In a statement on 11 November the Dean of Leicester, David Monteith, indicated that the works necessary to provide the tomb and its place of honour would take about six months.

During the week, the BBC reported the research by Dr Andrea Buckle of Oxford University into the reconstruction of “how an authentic medieval reburial service should be conducted”, and how “[t]he first glimpse of how Richard III could be reburied has been revealed”. In a Comment on our post, Dr Buckle indicates her work will ‘influence’ and ‘shape’ the reburial of King Richard III, should his remains go to Leicester, rather than providing a word-for-word template for the reburial service. A link to her paper “‘Entumbid Right Princely’: The Re-Interment of Richard Beauchamp, Earl of Warwick, and a Lost Rite” can be found here.

Ritual circumcision: update

In an earlier post we noted that the children’s ombudsmen from five Nordic countries had agreed to work with their national governments to achieve a ban on non-therapeutic circumcision of under-age boys. Earlier this month, Norway’s Minister of Health and Care Services said that his Government would introduce new legislation limiting or regulating ritual circumcision of boys under 18. However, The Foreigner now reports that after the Simon Wiesenthal Center had warned that a ban would “stand in direct defiance of international laws protecting religious freedom,” Norway’s Foreign Minister, Børge Brende, has disavowed the proposal. In a letter to the Center he said that “the Norwegian Government recognizes the importance of ritual male circumcision for the Jewish community in Norway… [and] it will not propose a ban on ritual circumcision”. [With thanks to Religion Clause for the lead.]

Meanwhile, Haaretz reported that a rabbinical court in Israel had imposed a fine upon a woman who had refused to have her son circumcised. The Justice Ministry is said to be likely to support the mother against the daily fine of 500 shekels (£86) until the child has had the procedure and she is appealing to High Court of Justice.

Recent consistory court judgments

A significant proportion of our reports of recent consistory court judgments concern petitions for the exhumation of remains, for which Re Blagdon Cemetery is the principal authority. Rather than eroding the principle of the permanence of Christian burial, the number granted reflects the willingness of the courts to consider the range of circumstances under which the initial interments were made, subsequent unexpected changes, and the impact that these changes have on relatives of the deceased. We also note the willingness of chancellors to consider petitions which are first sight do not seem appropriate to grant a faculty, a view that is changed on examination of the circumstances of the case.

Re Wandsworth Cemetery and a Petition by Magdalen Rees [2013] Southwark Const CtPhilip Petchey Ch is one such case, and concerns a petition to exhume the remains of a stillborn [1] child from the consecrated part of the Wandsworth Cemetery in order to allow their reinterment in the consecrated part of Magdalen Hill Cemetery, Winchester. A faculty was granted

“… because of the fact that Mr and Mrs Rees did not have a permanent home in Wandsworth at the time of the burial of their stillborn son and because of the tragic circumstances of that stillbirth, with which Mrs Rees is still trying to come to terms. These reasons represent circumstances which make it appropriate to make an exception to the norm of Christian burial.”

Petchey Ch also took into account of the fact that the effect of his judgment was to “free up” a four-person grave in Wandsworth Cemetery in circumstances where there is a shortage of grave space although, in the scale of things, this was not a weighty consideration in reaching his conclusions. He observed that, were it necessary for Mr and Mrs Rees to move again, a second exhumation might be requested; but a petition in those circumstances would evidently be weaker than the present one.

Two further judgments were reported this week: Re Bowling Green Cemetery Bradford [2013] Bradford Const Ct, John Walford Ch, in which a faculty was granted for the exhumation of a body from one part of the cemetery and reinterment near other family graves in the cemetery. The deceased’s wife [Mrs Oliver] expressed the opinion that she had been coerced by the Funeral Director into accepting the plot, who misled her on the suitability and availability of plots in the desired part of the cemetery. Checks through the Archdeacon confirmed that there had been a mistake in the burial and that it had not been in accordance with Mrs Oliver’s wishes, but precisely why this happened was deemed not to matter.

In Re Holy Trinity Wandsworth [2013] Southwark Const Ct, Morag Ellis Dep Ch dealt with outstanding matters considered at an earlier hearing concerning the repositioning of the font and baptistery screen.

And finally … 452Hz→440Hz = £350k

In another recent decision the CFCE granted permission for Peterborough Cathedral to retune its four-manual William Hill organ to modern concert pitch (A4=440Hz) from its present Old Philharmonic pitch (A4=452Hz) set in 1894. As a consequence of the present tuning it cannot be used with visiting orchestras and on accompanied pieces the Cathedral’s choristers and lay clerks are forced to sing almost half a semitone sharp. (And the choir sang Stanford in G-sharp…) The applications for the pitch changes of five previous directors of music had been turned down: and the present permission is conditional on the use of organ-builders Harrison & Harrison Ltd in Durham.

Leicester Cathedral must be hoping that it doesn’t take them six attempts and 70 years to gain approval for its reordering to accommodate the remains of Richard III.

[1] The NHS states that a stillbirth is a baby born dead after 24 completed weeks of pregnancy; If the baby dies before 24 completed weeks, it is known as a miscarriage or late foetal lossThere are around 4,000 stillbirths every year in the UK and 1 in every 200 births ends in a stillbirth. Eleven babies are stillborn every day in the UK, making stillbirth 15 times more common than cot death.

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