Religion and Law round-up – 12th January

Whilst media attention was focused on the weather, an eventful week for law and religion with a bumper crop of consistory case reports, a guest post on sharia law and the UK, in addition to the Defamation Act

… however, the Church Times reports that “more than 130 churches have so far submitted claims for wind- and rain-damage. Ecclesiastical Insurance, which insures almost all Anglican churches in the UK, said that the total bill was already more than £500,000”.

Preston Down, “closed” congregations and the Charity Commission

Apart from the floods, by far the most important news of the week was the revelation that the Charity Commission has announced the appeals against its deregistration of the Preston Down Trust of the Plymouth Brethren Christian Church (“PBCC”, aka the “Exclusive Brethren”) have been withdrawn and that it will accept an application for registration from the Trust, based on a revised governing document and a Deed of Variation setting out, in a manner binding on the trustees, the Church’s core religious doctrines and practices.

This is the latest development in a long-running saga – and is by no means over yet. The  full decision includes in a Schedule the PBCC’s draft statement on “Faith in Practice”: it makes interesting reading.

Government defeat in Lords on ASBO Bill

The significance of the substantial government defeat on clause 1 of the Anti-social Behaviour, Crime and Policing Bill will only be apparent over time. Lord Dear forced a vote on the issue despite the Home Office minister, Lord Taylor of Holbeach, promising talks on the issue and possible concessions if he withdrew his amendment.  The importance of this tactical decision is evident from Crime Prevention Minister Norman Baker’s dismissive comments on the 306 to 178 defeat

“[t]he Bill was never intended to ban noisy children or carol singers, and does not do so as currently drafted.  I am disappointed that the Lords fell for what appear to be scare stories. We have already provided alternative wording to provide reassurance but will reflect further given the position the Lords have taken”

The government has also been reflecting on another piece of ill-conceived and hurried legislation, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill which is due to receive further consideration in the Lords on 13 January.

Sharia

We published a long and detailed guest post by Dr Catherine Shelley, who responded to our plea for a dispassionate academic assessment of the current position of sharia in the UK. We hope that it will provide a useful resource – given that “sharia” is one of the most frequently-used search terms that brings people to our blog – and, more important, a corrective to some of the more sensationalist material on the Web.

Baptism in the C of E

Early in the week we noted the significant interest that had been shown in the Church of England proposals for additional material that might be used in the baptism service. The story was picked up by the Anglican Communion News Service, (ACNS) of 7 January, which included an item “England considers dropping language of sin and devil from baptism service“: not notable of itself in that the facts were impartially and correctly presented, other than that the piece was based upon an article in The Tablet with the CofE clarification added as a footnote. Very ecumenical?– or perhaps The Tablet provides a more comprehensive summary of the responses to the proposed new service?

However, it includes a comment from the Revd Miranda Threlfall-Holmes, whose church in Durham is one of those trialling the additional texts in accessible language until the end of April. She is quoted as saying “the aim, to have elements of the service that even those of low literacy can understand, is entirely laudable,” – which does not seem quite the same as “materials to supplement the Baptism service ‘in culturally appropriate and accessible language’ “.

There has been interest in the story in the United States where Msgr. Charles Pope blogged “Should the [Roman Catholic] Church Consider Reintroducing the Exorcism Prayers in the Rite of Baptism?. A comparison of the Latin Tridentine Baptism Rite and the Novus Ordo is available here. Within the Church of England, however, although the 1549 Book of Common Prayer retained one of the prayers of exorcism, this was removed in subsequent editions.

Baptism was addressed by Pope Francis at his first general audience of 2014 when he began a new series of catecheses on the Sacraments, starting with Baptism and recalling that, fortuitously, the following Sunday would be the Feast of the Baptism of the Lord. In response to the question “Is [baptism] not fundamentally a simple rite, a formal act of the Church, for naming a child?” he concluded “… it is not a mere formality! A baptised child is not the same as a child who is not baptised; a baptised person is not the same as one who has not received baptism. It is an act that touches the depth of our existence”.

Defamation

The Defamation Act 2013 came into effect on 1 January. The Act (which applies largely to England and Wales, though some of its provisions also extend to Scotland) includes a requirement for claimants to show that they have suffered serious harm before suing for defamation. In addition:

  • it removes the current presumption in favour of a jury trial;
  • it introduces a defence of “responsible publication on matters of public interest”;
  • It confers privilege on peer-reviewed articles in scientific or academic journals (in Scotland as well as in England and Wales); and
  • it introduces new statutory defences of truth and honest opinion in place of the common law defences of justification. and fair comment.

Crucially for readers of this blog (and, indeed, crucially for us as its originators) it gives increased protection to operators of websites that host user-generated content, provided that they comply with the procedure to enable complainants to resolve disputes directly with the author of the material concerned. (But rather than rely on the new Act, we’d prefer not to post potentially-libellous material in the first place…)

The Master of the Rolls has issued a statement on the (limited) changes to the Civil Procedure Rules in consequence of the Act’s coming into force. 

Recent consistory court judgments

Two of this week’s reported judgments – Re St Peter Forncett [2013] Norwich Cons Ct, Ruth Arlow Ch and Re St Peter Gunton [2013] Norwich Cons Ct, Ruth Arlow Ch – concerned faculties for the exhumation of remains, seeking to transfer the remains to a grave in Co. Antrim, and to move cremated remains to a more accessible location six feet away from the current position, respectively. Both petitions were refused on the basis of the the guidelines set out in the Court of Arches decision in Re Blagdon.

In Re St Saviour Smallthorne [2013] Lichfield Cons Ct.  Stephen Eyre Ch, a faculty was granted for the installation of polycarbonate window guards rather than the more traditional wire mesh guards recommended by the Diocesan Advisory Committee. Reference was made to the Church Buildings Council Guidance Note on both types of guard, and the location of the proposed polycarbonate guards, 4m above the ground at the lowest point, was an important factor in the positive decision for their use in this case.

There was a single objection to the petition in Re St Nicholas Chapel Kings Lynn [2013] Norwich Cons Ct, Ruth Arlow Ch, which related to various works to a redundant chapel vested in the Churches Conservation Trust and the adjoining chapelyard. The objection concerned the removal of the modern metal security gates from the entrance to the south porch and their replacement with the Victorian gates which previously hung there.  St Nicholas’ Chapel was made redundant in the early nineties, as a result of which the faculty jurisdiction no longer applies to the building itself although the redundancy does not extend to the chapelyard which remains under the control of the PCC. Consequently, the Consistory Court has no jurisdiction on the matter of the south porch gates, which are part of the building, which no longer has the benefit of the ecclesiastical exemption and is subject to the usual secular planning controls.

Safeguarding

On 3 January, the House of Commons Library published a Standard Note on An overview of child protection legislation in England. It  summarizes:

It concludes with developments under the Coalition Government, including:

Further general information about child protection policy is available on the Department for Education website, here.

The Ecclesiastical Law Society 2014 Day Conference on Safeguarding will take place on 5 April at The Cardinal Vaughan Centre, Westminster, London, and include topical legal and pastoral issues relevant to clergy and laity, here.

Anglicans mark 70 years since ordination of first woman priest

… another headline from the ACNS.  Thirty years before any Anglican Church regularised the ordination of women, Dr Florence Li Tim-Oi was ordained a priest on 25 January, 1944 by the Bishop of Victoria, Ronald Hall,  in response to a crisis among Anglican Christians in China caused by the Japanese invasion. The article notes that her ordination was controversial and she resigned her licence (though not her priestly orders) after the end of the war. A service marking 70 years since the ordination of the Anglican Communion’s first woman priest is to be held at St Martin in the Fields Church, Trafalgar Square, on Saturday 25th January. It has been organised by members of the Foundation set up to honour the Reverend Dr Florence Li Tim-Oi’s legacy. It was established to enable women to be trained for Christian work in their own countries and has given more than £750,000 in grants to over 350 women in countries including Brazil, Fiji, Kenya, Pakistan, Rwanda, Sudan, Tanzania and Uganda.

Chancel Repair Liability

On Wednesday 15 January there will be a Westminster Hall debate on manorial rights (England and Wales) led by Albert Owen, (Ynys Môn) (Lab) who raised the issue before the debate on the Autumn statement, and received the following riposte from Andrew Lansley, [5 Dec 2013 : Column 1100]

“The hon. Gentleman will know that registration of notice of manorial rights at the Land Registry is not related to rights relating to shale gas or oil. The Petroleum Act 1988 vests all rights to the nation’s petroleum resources in the Crown. Manorial rights have a distinct legal history, but can be legitimately bought and sold in the same way as other property rights. The registration of notice of manorial rights records existing rights so that people know they exist; it does not create new rights although it does, of course, help prospective buyers avoid what would otherwise be hidden rights. The hon. Gentleman will appreciate that property owners who were unaware of existing mining rights when the notices arrived may have been alarmed by that, but I recommend they obtain legal advice, which should reassure them. If Members of the House have evidence of problems, my hon. Friends at the Ministry of Justice will be happy to help.”

We hope that the Westminster Hall debate will be as well-informed as the comments regarding our post on the issue.

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