A week in which the Government’s proposals on judicial review got a kicking from Parliament, the proposal to relocate the Bishop of Bath and Wells got the thumbs-down from the Archbishops’ Council and an atheist synod was announced…
The Joint Committee on Human Rights and judicial review
On Wednesday the Joint Committee on Human Rights published its Report on The implications for access to justice of the Government’s proposals to reform judicial review. Its conclusion is a pretty comprehensive rejection of the Government’s proposals for reform. The Committee does not
“… consider the Government to have demonstrated by clear evidence that judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate” (paragraph 30).
“… the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice … We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice, and of the restructuring of departmental responsibilities between the Home Office and the Ministry of Justice that followed the creation of the new merged office” (paragraph 23).
Though the detailed nuts-and-bolts of judicial review are somewhat beyond the scope of this blog they are certainly by no means irrelevant: remember R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages  UKSC 77? For further and better particulars, we would refer readers to the summary on UKHRB by Angela Patrick, Director of Human Rights Policy at JUSTICE, and to the equally helpful post on Public Law for Everyone by Mark Elliott, Reader in Public Law at Cambridge.
Few can have failed to notice the double canonization of the “two Pope saints”: John XXIII and John Paul II on 27 April, details of which have been summarized by the Vatican Information Service, (VIS). Aside from the process of beatification and canonization, for which atheist Simon Jenkins voiced the incredulity of many at their present-day relevance, the blog of John Thavis provided some insights from the Roman Catholic point of view into the preceding debate and the issues of: the fast-tracking of John Paul II; the waiving of the second miracle for John XXIII; the politics of saint-making; and the on-going tensions over the Second Vatican Council. He suggests that “the double canonization is a unifying move by Pope Francis, an attempt to build a bridge between constituencies in the church who identify with the ‘liberal’ John XXIII or the more ‘conservative’ John Paul II”.
At the Gloucester Diocesan Synod on 1 May, the Bishop of Gloucester, the Right Revd. Michael Perham, addressed the Church of England’s attitude to homosexual people. Commending the Pilling Report, he urged “gracious restraint” by all those within the Church of England during the forthcoming facilitated conversations at national and diocesan level: “to those who condemn the Church of England from other parts of the Anglican Communion he said, “might you hold back while the Church of England reflects?’”. As Kelvin Holdsworth points out, however, this is all very well for opposite sex couples on whom the Church’s extended timetable will have little impact.
With regard to the Anglican Communion (and others), the Archbishop of Wales, the Most Revd. Dr Barry Morgan, was more forthright in his Presidential Address on 23 April to members of the CiW’s Governing Body: he warned that there was no one Christian viewpoint on issues such as same-sex relationships or assisted dying, stating “Holy Scripture itself … is far more nuanced, subtle and complex than we often realise….. We cannot just quote Biblical texts on different subject matters and think that that settles an issue”.
The Bishop of Newcastle, the Right Reverend Martin Wharton, has announced his forthcoming retirement, which under the Ecclesiastical Offices (Age Limit) Measure 1975 will be before his 70th birthday on 6 August 2014. As a consequence, he will step down from the Lords Spiritual, and a new appointment will be made on the basis of seniority.
On 2 May, Downing Street reported that the Queen had approved the nomination of four new Suffragan bishops in the Dioceses of York and Chelmsford: John Thomson (Selby), Paul Ferguson (Whitby), Roger Morris (Colchester), and Peter Hill (Barking).
Of bishops’ residences
On Thursday it was announced that the committee of the Archbishops’ Council appointed to consider the proposal to relocate the new Bishop of Bath and Wells from the Palace at Wells to the Old Rectory, Croscombe, had upheld the objections to the proposal. This is the first time the procedure has been used; and though the decision is very much an internal matter for the Church of England, the legal framework surrounding it is interesting in itself and we shall post a note on it later in the week.
Is the UK a “Christian country”?
In last week’s roundup we noted the pop-up debate on whether or not “Britain” is a Christian country. Bob Morris, of UCL, kindly provided a guest post looking at some of the wider implication of the controversy. We also looked at the legal framework for depriving a Church of its property in the context of Article 1 Protocol 1 ECHR on peaceful enjoyment: we concluded that, whatever may have happened in the past to the Church of Ireland and the Welsh dioceses of the Church of England, that was then and this is now.
Church visitors, tower tours, and health & safety
Also in relation to Wells was the news this week that a visitor on a “High Parts” tour of the Cathedral had fallen 9 metres and become wedged in a void between two walls 46 metres inside the bell tower. The visitor, who was part of a small group escorted by two volunteer guides, was suspected to have sustained broken wrists, a broken pelvis and abdominal injuries, and was airlifted from roof of the Cathedral by helicopter.
This incident is a reminder that although churches and cathedrals are generally low-risk areas, they are associated with significant hazards which need to be identified, minimized and supported by emergency procedures. The Health and Safety Executive was made aware of the incident and is in discussion with the local authority. We will keep readers informed of the outcome of these investigations and any guidance or recommendations that are made.
Tower tours are a common fundraising event used by churches, and it is important that an appropriate risk assessment is made, written procedures included in its health and safety documentation, the event adequately manned, and responsibilities identified. As we have noted in one of our earliest posts, now is the time when each newly-elected PCCs will be sorting out its agenda for the coming year following the statutory Annual Parish Meeting, and this is a suitable occasion on which to review their church(es) Health and Safety arrangements.
Perinatal cremation in Edinburgh
We noted the report by the former Lord Advocate, Dame Elish Angiolini, commissioned by Edinburgh City Council to look into the practices of Mortonhall Crematorium. Mortonhall failed to provide parents with the ashes of their babies; and the report notes that “whether by use of a foetal cremator or modified practices in an adult cremator, or a combination of both, there is a need for detailed, authoritative professional guidance on how best to maximise the recovery of ashes from the cremation of babies”. Dame Elish also recommends that the Scottish Government should commission research to identify best practice.
New blogs, closed blogs, closing blogs
On 3 May, Thinking Anglicans announced the launch of a new blog, Thinking Liturgy, which “will focus on the link between the way that we worship and the social justice that we proclaim”: the main TA blog with its primary focus on issues of social justice will continue.
“Thinking Liturgy will cover a range of liturgical topics and news, not confined to any particular theological or doctrinal stance or ‘churchmanship’, though it will be largely Anglican and English. It will promote good liturgical practice and understanding — not for its own sake, but looking at the impact liturgy makes on working for the kingdom”.
In contrast, 4 May marked the closure as a news service of the Protect the Pope blog, although it is understood that the site and its existing material will remain. Deacon Nick Donnelly’s PtP blog focused on Roman Catholic, non-legal issues, and we are therefore not well placed to comment, other than to wish him and his bishop, Michael Campbell, well in the future.
Of more importance to students of law and religion, the admirable documentation site of the Netherlands Institute of Human Rights has been put into suspended animation and is to go off-line on 1 January 2015. The Institute has taken this decision in view of “the increasing amount of information available elsewhere and the investments that would be required to maintain substantive added value”. Which is very sad news, if entirely understandable in the current economic climate.
And finally … an atheist synod?
The Guardian reported on Tuesday that the avowedly-atheist Sunday Assembly, which predicts that it will have a hundred congregations on five continents by the end of 2014, is to hold its first “general assembly” to set up a system of church-like management, “an event that the group’s organisers acknowledge will be compared to the Church of England’s General Synod”.
Frank suspects that, given the absence of clergy, it will probably look more like a Quaker Yearly Meeting than General Synod or Methodist Conference – though, presumably, without the concomitant Quaker business method. However, the report does illustrate a very serious point for religious lawyers of whatever persuasion: there soon comes a moment at which any religious body (however you define “religious”) will need at least some basic rules and structure of governance.
At the very least, as soon as an organisation starts to own or lease property it is going to need an organised group of people to take day-to-day responsibility for the premises. It is, of course, possible to operate as an unincorporated voluntary organisation – but even that, once it exceeds the point at which everyone can participate in decision-making, will probably need some kind of day-to-day executive. So much as some people would like to consign “ecclesiastical law” (or whatever else you might prefer to call it) to the bin, there’s no escaping it in one form or another.
Regarding the Sunday Assembly…
If they choose to stay unincorporated, but with a bit more structure, I’d call it ‘some internal rules’, or ‘a constitution’.
If they choose to incorporate, they’ll be either a company, a charity, or a CIO. In which case, they’ll come under Company Law or Charity/Trust Law.
I was, earlier this year, involved in setting up a national organisation composed of a National Executive Team, Regional Executive Teams, and Local Chapters (with Executive Teams). I suppose, if you changed the names, you could say that we had parish congregations, parish vicars, bishops, and archbishops and the constitution I laboriously put together was ecclesiastical law. Part of it is that every year we will have a General Synod to discuss things (not raising women to the episcopate [Regional/National Executive Teams] – we already did that 🙂 ).
Except for the fact that there was no deity involved anywhere.
When you get down to it (as I understand it), the Church of England works a lot like a cross between a sports regulatory body (with internal rules that only apply to members, and are enforceable against members) and a web of charitable trusts. It is only special because, being the Established Church, its internal rules are also part of the general law of the UK – thus ecclesiastical (church – ecclesia) law.
As I understand it, the courts will only enforce the internal rules of non-CofE religions through the filter of UK law – a contract is a contract is a contract, whatever you call it and whyever you entered into it; a Will is a Will, and it stands or falls on whether it’s properly done according to UK law, not according to the division of property within it.
In order for law to be ecclesiastical, I think it has to be Christian. And in order for it to be ‘religious law’ (as opposed to rules controlling the internal workings of an association/company/charity), there has to be a religion involved.
According to the words of the philosopher Pratchett, “atheism is also a religious position” – a stance with which I agree wholeheartedly; a denial of the existence of any or all gods is just a matter of faith as the opposite, since we can’t prove it either way.
However, having a faith position is a far cry from having a religion, which, according to Lord Toulson in Hodkin, is 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, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system.”
Which is perfectly capable of including atheists. The stumbling block to regarding the Sunday Assembly as a religion is that they don’t seem to have a “belief system” as such – they specifically state that they have ‘no doctrine’; they seem to have been set up as an atheists’ community group – pretty much the only requirement is to not believe in any gods (calling them a religion would be a bit like saying that all of the various flavours of theists were also one religion). The Humanists come closer to a religion, with the Amsterdam Declaration, which sets out some of the ethical standards required of a Humanist, thus imposing positive obligations.
And currently, even the Humanists aren’t defined as a religion – you can tell, by the way Humanists are not allowed to marry in their own faith. They have to have a civil ceremony and get it blessed afterwards. (Although, I wonder whether any of the top people over there will think of redefining themselves as a religion in the wake of Hodkin – or would that be politically unacceptable to the membership?)
So I think the Sunday Assembly people are safe from religion law – but the Humanists might not be. 🙂
All that sounds eminently sensible to me. What was at the back of my mind when I saw the story about the Sunday Assembly and wrote that bit of the roundup was a conversation I had with the Clerk of my Local Meeting one Sunday after Meeting. I mentioned that I was writing an article for the Ecclesiastical Law Journal on Quaker canon law, to which her reaction was “Oh, we don’t have any of that“. To which I replied, “Oh yes we do: we just call it Quaker Faith & Practice“. The result was published as ‘Regulation within the Religious Society of Friends’ 7 Ecc LJ (2003).
Incidentally, I’m assuming that the Humanists will soon be allowed to hold wedding ceremonies as a “belief organisation” once the consultations under s 14 (Marriage according to the usages of belief organisations) of the 2013 Act have been concluded. The Scots have been licensing humanist celebrants for quite some time and the sky hasn’t fallen in.
I hope Humanists will be able to hold wedding ceremonies – and any other belief group, too. It seems rather unfair to me that whether you can have a wedding according to your own beliefs depends on whether your belief system has been around in an organised form long enough for it to have gained the cachet of ‘real religion’. (Hooray for Toulson in Hodkin.)
Regarding the Scots, although their sky hasn’t fallen in (yet), they only licensed their first humanist celebrant in 2005. And since the Marriage (Scotland) Act 1977 only allows them to be licensed as ‘temporary celebrants’ (it was never amended for Humanists, but they were added as ‘temporaries’ via that loophole for freedom-of-religion-and-belief reasons) presumably if there is any sign of stratospheric instability, the Registrar can just de-license them all again.
(Unless someone in Parliament connects all the rain we’ve been having – since about 2007 – with Humanist marriages in Scotland…)
Re the Scots, yes, of course you’re right that it’s a recent phenomenon. But the Marriage and Civil Partnership (Scotland) Act 2014 makes provision for “belief” marriages as a separate category so, presumably, once the necessary Regulations setting out the “qualifying requirements” are in place, Humanists will be put on the same basis as religious celebrants.