Religion and law round up – 30th March

The week that saw the first same-sex marriages in England and Wales also saw controversies about sharia and hospital incineration practices 

Channel Islands deaneries

On Tuesday the Archbishop of Canterbury, the Bishop of Winchester, the Bishop of Dover, the Dean of Jersey and the Dean of Guernsey signed an agreement to give effect to the interim oversight arrangements that were put in place in January. The press release announcing it quoted the Archbishop to the effect that it was an important part of the agreement that he would appoint a Commission to inquire and report to him in detail on “the long and complex history of the Islands’ relationship to the Church on the mainland”. However, it is probably the timeline of more recent events, commencing with the introduction of Jersey’s revised canon law on 18 January 2011, that will provide an insight to current issues.

Cremation, incineration and the foetus

Channel 4’s Dispatches programme, Amanda Holden: Exposing Hospital Heartache, which was broadcast on 24 March, led to some understandable but not entirely well-informed comment in the media and in the blogosphere about incineration of foetal remains. It is a complex issue; and we attempted to tease out some of the practical issues involved and the problems caused by the relevant legislation.

Law Society’s practice note on sharia-compliant wills

We noted the controversy surrounding the Law Society’s new practice note for solicitors on the sharia succession rules and Christopher Luff kindly supplied a guest post on some of the context around freedom of testamentary provision. We suspect that this particular controversy will continue to rumble on for some time yet.

Misconduct in public office

It was widely reported that Bishop Peter Ball, former Bishop of Gloucester, is to be prosecuted for, inter alia, misconduct in public office. The Crown Prosecution Service’s guidance on the offence of misconduct in public office states that:

“The prosecution must have evidence to show that the suspect is a ‘public officer’. There is no simple definition and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved”

and suggests that the case-law

“contains an element of circularity, in that the cases tend to define a public officer as a person who carries out a public duty or has an office of trust … A person may fall within the meaning of a public officer where one or more of the following characteristics applies to a role or function that they exercise with respect to the public at large:

    • Judicial or quasi-judicial
    • Regulatory
    • Punitive
    • Coercive
    • Investigative
    • Representative (of the public at large)
    • Responsibility for public funds

This list is not exhaustive and cannot be determinative of whether a person is properly described as a public officer, when acting in a particular capacity. The characteristics should be treated only as a guide and considered in the context of all the facts and circumstances of the particular case”.

For obvious reasons we make no comment on the facts surrounding the particular case; but we did wonder whether a diocesan bishop of the Church of England holds “public office” for the purposes of the offence.

Same-sex marriage in England & Wales

The first same-sex marriages in England and Wales took place on 29 March. In anticipation, the Equality and Human Rights Commission published guidance on the provisions of the Marriage (Same Sex Couples) Act 2013 and how they relate to equality and human rights law.

The implications to the Church of England have been covered by many commentators and are reviewed on Thinking Anglicans and Anglican Mainstream. However, in terms of the legislative issues, the more important observations are those of the Rt Revd Dr Alan Wilson, Bishop of Buckingham, and the Right Revd Nick Holtam, Bishop of Salisbury, since as bishops they are directly involved in the implementation of the House of Bishops’ Pastoral Guidance. Both are supportive of broader formal acceptance within the Church.

The Bury Free Press carries comment and video of an address by the Most Revd Justin Welby, Archbishop of Canterbury during the launch of the St Edmundsbury & Ipswich Diocese centenary celebrations in Bury St Edmunds, during which he says, inter alia:

 “It is unbelievably difficult, unbelievably painful and unbelievably complicated.

“I haven’t got a quick one-liner that solves the problem – I wish I had and I would dearly love there to be one but there isn’t.

“The church does look very bad on this issue to many people in this country particularly younger people and we’re mugs if we think anything else.

“We need to be really blunt about that. We need to listen to them but we need to listen to Christians around the world and we need to listen to each other and in the discussions rather than shouting that one side’s homophobic and the other side’s betraying the gospel – we need actually to listen to each other as human beings.”

To these observations should be added the post from the Very Revd Kelvin Holdsworth, Provost of the St Mary’s Cathedral, Glasgow,  in which he examines the “postcode lottery” nature of the Churches’ recognition of same-sex relationships, which is shaped by national legislation, church law, and the beliefs of the clergy concerned.

Women in the episcopate

As indicated last week, the diocesan synods of Bristol, Hereford, Lincoln, Norwich, Portsmouth voted on 28 March on the motion that would permit women to be ordained to the episcopate.  [All five] voted for the motion, and now that a simple majority of dioceses has been exceeded, the draft legislation will now return to General Synod.  A breakdown of the voting figures has been provided by Peter Owen. The next diocesan synods to vote are Blackburn (3 April), Southwell & Nottingham (5 April) and Worcester (30 April). The Diocese of Europe had indicated that it was unable to meet the timetable to convene its synod within the three month timetable.

The proper Roman Ordinary for England and Wales

In a missive of 17 March entitled Mass Settings — End of Transitional Period, the Catholic Bishops’ Conference of England & Wales stated

“[…] from Pentecost Sunday, 8 June 2014 only settings of the Ordinary of the Mass using the new translation are permitted to be sung at Mass. Settings using the previous translation or paraphrased texts may no longer be used in our parishes, schools and communities.

The renewal of the Church’s music for the new translation has required much effort and cooperation by composers, musicians, priests and congregations which is now bearing fruit in the celebration of the liturgy. As the wisdom from tradition reminds us: ‘Whoever sings well, prays twice over [1]’.”

Although aware of some of the controversies there have been within the Roman Catholic Church concerning its music post-Vatican II, this is not an area on which we are in a position to comment.  We note that to date there has been no statement from the Latin Mass Society, although its post on 24 March reporting the interview with Archbishop-elect Malcolm McMahon suggested that those in the Archdiocese of Liverpool “who are attached to the Extraordinary Form of Mass” have “no need … to feel nervous.” It has also been pointed out to us that the Papal decree of St Pius V of 19 July 1570 Quo Primum established the validity of the Roman Missal in perpetuity.

 Archaeology and Crossrail

Twenty-five skeletons were uncovered in London’s Charterhouse Square, Farringdon, in March 2013 during construction works on the Crossrail project, and new research has revealed that many died of plague during the 14th Century Black Death pandemic, while others died during later plague outbreaks. As with the exhumation of any human remains, a licence from the Ministry of Justice must be issued under section 25 of the Burial Act 1857, and this will set conditions for the exhumation and subsequent treatment of the remains, generally within a 2 year timeframe.

This is not an unusual occurrence for railway development projects in London: more than 300 burials from the 1500s to 1700s were discovered by Crossrail at the New Cemetery near the Bedlam Hospital, Liverpool Street; and 674 skeletons was exhumed from the Cistercian cemetery at St Mary Stratford Langthorne, London, during work on the extension of the London Underground Jubilee Line. In this latter case, the remains were not reinterred “in the nearest consecrated ground” – a criterion supportive of the burial of Richard III in Leicester – but 122 miles away at the Trappist Mount St Bernard Abbey in Leicestershire, the first permanent monastery to be founded in England since the Reformation.

And finally … so was it Richard III?

Professor Michael Hicks, head of history at the University of Winchester, and Martin Biddle FBA, archaeologist and director of the Winchester Research Unit, have raised doubts about the identity of the skeleton found in the Leicester car-park and thought to be that of Richard III. They have reservations about the DNA testing, the radiocarbon dating and the damage to the skeleton. The BBC History Magazine carries the full interviewShock, horror if they’re right.

[1] According to Fr Z, what St Augustine really said was: Qui enim cantat laudem, non solum laudat, sed etiam hilariter laudat; qui cantat laudem, non solum cantat, sed et amat eum quem cantat. In laude confitentis est praedicatio, in cantico amantis affectio…For he who sings praise, does not only praise, but also praises joyfully; he who sings praise, not only sings, but also loves Him whom he is singing about/to/for. There is a praise-filled public proclamation (praedicatio) in the praise of someone who is confessing/acknowledging [God], in the song of the lover [there is] love.

Perhaps “Whoever sings well, prays twice over” is easier to remember.

[And presumably if you can’t sing, tough – FC]


Our thoughts and prayers are with Dame Catherine Wybourne OSB following her surgery earlier this week.