Religion and Law round-up – 2nd February

Another fairly quiet week ahead of the C of E General Synod on 10 February…

Adoption, sexual orientation and charitable status

As we reported at the time, St Margaret’s Children and Family Care Society, a voluntary Roman Catholic adoption agency based in Glasgow, was told by the Office of the Scottish Charity Regulator that it was to lose its charitable status over its refusal to place children with same-sex couples. OSCR concluded after an investigation that, insofar as the Society’s criteria for assessing prospective adopters favoured Roman Catholic married couples over non-Roman Catholics and same-sex couples, the Society had failed the charity test under the terms of the Charities and Trustee Investment (Scotland) Act 2005.

The charity appealed; and on Friday it was announced that OSCR’s decision had been overturned by the Scottish Charity Appeals Panel. The reasoned decision is not yet available on the Panel’s website but we will publish an analysis when further details become available.

‘Ex-gay’ London bus advert ban

We noted the Court of Appeal’s judgment in R (Core Issues Trust) v Transport for London & Anor [2014] EWCA Civ 34 on Transport for London;s decision not to run an advertisement on London buses with the slogan “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!”. Since the judgment at first instance, further evidence had come to light of possible involvement by the Mayor.

The judgment has been the subject of some slightly-confused comment. What the Court of Appeal decided was that it was in the interests of justice that a further enquiry should be conducted by the lower court as to whether or not the decision had, in fact, been instructed by the Mayor and whether or not it had been made for an improper purpose. The Court also decided that Mayor (on behalf of the GLA) should be added back as a defendant and the case remitted to the judge at first instance for her to make the necessary order and give appropriate directions (para 48). And that was it. As to how the matter progresses further, we must just wait and see.

Face-veils in criminal trials: update

In last week’s round-up we mentioned that HHJ Peter Murphy had warned the jurors in the trial of Rebekah and Matthias Dawson for witness intimidation that they should not be influenced by the fact that Ms Dawson was appearing in the dock in a niqab veil and that she was entitled so to appear if that was what she wished to do. In the event, his direction that she should remove her veil in order to give evidence was not tested: she declined to give evidence and pleaded guilty to the charge.

Guidance on charities, elections and referendums

The Charity Commission has announced that it will update its guidance on charities, elections and referendums (which supplements its guidance on campaigning and political activity) to explain the changes introduced by the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014, which received Royal Assent on 30 January.

Recent Consistory Court judgments

In Re St Chad Bishop’s Tachbrook [2014] Coventry Const Ct, Stephen Eyre Ch, two related petitions were considered together: one for the construction of a church centre on part consecrated land added to the churchyard in 1965, in which twenty-five interments had been made:, and permission to grant a lease of the church centre site to a charitable company with a view to the construction and operation of the church centre. In relation to the latter, there are three gravestones, two erected in 1917 and the other in 1928, which the petitioners propose to protect that during the course of the building works and possible move them temporarily. Although a majority supports the proposals, a substantial number of letters of objection were received from active and committed members of the congregation, and others, and there is a division of opinion both within the congregation and the PCC.

Central to the decision is whether the site a disused burial ground within the meaning of Disused Burial Grounds Act 1884, section 1 of which defines “burial ground” as including “any churchyard, cemetery or other ground, whether consecrated or not, which has been at any time set apart for the purpose of interment”, i.e. it refers to the churchyard as a whole and not to a portion of it which is not otherwise differentiated from the remainder. Since burial continue to take place, the chancellor considered that the 1884 Act did not apply.

However, the chancellor disagreed with Professor Hill’s view that “so long as the churchyard remains `open’, i.e. it is possible in practical terms to carry out further burials, nothing may be authorized in any part of it which will prevent that part being used for burials, “[Hill, M (2007). Ecclesiastical Law (3rd ed) Oxford: OUP  para 7.93].  Referring to other authorities, he concluded

“… the fact that a churchyard is still in use for burials and that a proposed building will take up space which could otherwise be used for burials is a relevant factor when the Court is considering whether to allow a building on part of the churchyard. It is not, however, necessarily and automatically determinative of the matter”’ [para.24].

The faculty was granted on the basis that

“the building of the proposed church centre and its letting to The St. Chad’s Centre Trust Company with consequent mixed community and church use of the facilities are suitable and fitting activities to take place in a consecrated churchyard. There are real benefits to be obtained in meeting the needs both of the worshipping community of St Chad’s and those of the wider community. Those benefits outweigh the modest impact on the setting of the church and on the churchyard”, [para.36].

In Re St Margaret Lowestoft [2013] Norwich Const Ct, Ruth Arlow Ch the issue was unauthorized additions to graves – a common problem in many churchyards and one that is exacerbated by the passage of time.  Re St Margaret Lowestoft concerned the removal wooden and plastic kerbs from a number of graves.  Diocesan Registrar confirmed that under the Diocesan Churchyard Regulations wooden and plastic kerbstones were not permitted in churchyards, and the PCC unanimously agreed that a petition should be sought for their removal, in line with these regulations which reflect policies approved nationally by the Church Buildings Council,

“No monument shall include any kerb, railings, fencing, chippings of any kind, statue, sundial, birdbath, photograph, picture, portrait, laminated card, glass shades, plastic materials, containers or other glass objects or any other object or thing unless it is expressly permitted by these regulations” [para.18].

However, there was an objection from an 85 year old parishioner who expressed distress at the requirement to remove wooden kerbstones which were first placed around the grave of her husband in 1986.  The chancellor noted:

“The passage of time does not mean that that authority is somehow implied. Given the timescales involved, it is clear to me that the failure of previous incumbents to ensure that the Churchyard Regulations have been respected has created problems which the PCC and Revd Asquith should be commended for attempting to address. This is particularly so given the pastoral sensitivities which are inevitably engaged in such matters”, [para. 10].

“I have considered whether the passage of time should mean that the kerbstones in this churchyard should be allowed to remain in place. I have come to the conclusion that it does not”, [para. 11]

Consequently, a faculty for the proposed works was granted subject to certain conditions.

And finally… Religious Freedom and the Law 

Readers may be interested to hear that the Catholic Truth Society has published A Guide to Religious Freedom and the Law by Neil Addison. Neil’s booklet considers areas of the law relating to religious freedom and discrimination of specific interest to Roman Catholic institutions and individual Roman Catholics: in particular, the exemptions in discrimination law which apply to religious organisations in England, Wales and Scotland. Though intended primarily for a Roman Catholic audience, the publisher points out that many of the matters discussed are common across religious boundaries. Currently unavailable from Amazon, but you can order it from the CTS here.