Religion and law round up – 25th May

A week dominated by elections and Richard III…

Election legal trivia

With Parliament prorogued until 4th June, the thoughts of some of our blogging colleagues turned to the present local and European elections and the General Election on 7th May 2015.  We are not in the business of predicting the outcome or indicating why some would vote for a particular party but we did come across a couple of items of pertinent legal trivia:

  • Whilst the votes of the 26 Lords are unlikely to sway the result of the latter, this week the CofE Parliamentary site addressed the question “Can Lords Spiritual vote in general elections?“, which no doubt will be of interest to anyone fast-tracked to the Lords.
  • Although widely reported in the Netherlands, the UK media carried few reports of the Dutch exit polls in the European elections and the fortunes of Geert Wilders, leader of the controversial anti-Islam, anti-immigration Freedom Party (PVV).  The answer lies within the European Parliamentary Elections Regulations 2004, SI 293 which preclude the publication of the way in which citizens voted in any EU state “before the close of the poll”.
  • Since the majority of Member States do not vote until Sunday, the BBC and several UK-based news organisations took the view that it was not possible to report details of the Dutch exit poll and remain within election law.
  • In a case of possible relevance to the application of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 prior to the General Election, in Brosa v Germany (Application no. 5709/09), the European Court of Human Rights held that an injunction banning a political activist from distributing leaflets targeting a political candidate violated his rights of free expression under Article 10 of the European Convention.
  • By convention, opposition parties are entitled to enter into confidential discussions with senior civil servants in the run-up to a UK general election, and this week the House of Commons Library published a Standard Noteon this convention, indicating that such discussions could take place from October 2014

Leicester Cathedral – a victory for ‘the Devil’

 . . . or more specifically for James Eadie QC of Blackstone Chambers, First Treasury Counsel (a.k.a. the ‘Treasury Devil’) who “is the QC to whom the Government turn first for their major pieces of advice and litigation.”  We produced an early summary of the main points of the full judgement, R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662. The BBC reported

“Philippa Langley, whose efforts kick-started the search for Richard’s grave, said: ‘We were hoping there would be a judgement not just on where he would be buried but also on how he would be buried. I’ve not had a chance to study the judgement closely but there doesn’t seem to be any information on what happens to him now.”

The judgement makes many references to the close involvement of Ms Langley and the Richard III Society, from the inception of the project onwards, and it is therefore surprising that such a misconception of the judicial review process should arise. However, it was the involvement of Leicester City Council that came in for a legal ticking off, and in concluding its judgement, the court said, [at 164]:

“The Council’s intervention as the “legal sentinel” of Richard III’s bones was unnecessary, unhelpful and misconceived (as it, itself, ultimately acknowledged). It is clear that the Council had no legal duty to consult nor power to intervene once (a) the licence had been granted and (b) Richard III’s remains had been removed from its land. Accordingly, it was not necessary for the Council to be joined as a defendant to these proceedings.”

Nevertheless, the Court (if not the Justice Secretary) was more gentle with the Plantagenet Alliance and its locus standi, [at para. 82], in which it stated:

“It is fair to say that the relationship of Mr Nicolay and the other collateral relatives to their ancestor, Richard III, is, on any view, attenuated in terms of time and lineage. The Claimant’s interest – indeed, that of the 16th, 17th and 18th generation descendants – may not suffice for personal standing. However, the points raised have a broader public interest sufficient for the Claimant to have standing in this case as a public interest litigant,”

which appears to suggest that on an issue such as this where there is broad public interest, any group, regardless of its links to Richard III, might have standing as a public interest litigant.

The judgement commenced with a potted history of Richard III and the discovery of his remains, [paras 8-27 & 28-71 respectively], and prior to its analysis of the case, the court considered the relevant legal issues – the common law principle of “fairness”; intuitive judgment; public law duties; and the Burial Act 1857 and the associated guidance, [paras  83–119], many of which merit further consideration in a later post.

In a concluding postscript, Lady Justice Hallett said

“Since Richard III’s exhumation on 5th September 2012, passions have been roused and much ink has been spilt. Issues relating to his life and death and place of re-interment have been exhaustively examined and debated. The Very Reverend David Monteith, the Dean of Leicester Cathedral, has explained the considerable efforts and expenditure invested by the Cathedral in order to create a lasting burial place ‘as befits an anointed King’. We agree that it is time for Richard III to be given a dignified reburial, and finally laid to rest.”

Women in the episcopate – update

The synods of 42 mainland dioceses and of the diocese of Sodor and Man met prior to the 22 May deadline[1], and all have voted in favour of the draft Measure and draft Canon for the admission of women to the episcopate.  General Synod will now hold the final approval debate when it meets in York 11-15 July 2014. The Crown Nominations Commission (CNC) meets on two occasions per Vacancy in See to nominate candidates for diocesan bishoprics to the Crown: the list of present/future vacant diocesan Sees is here; suffragan Sees here; and the planned dates for meetings of the CNC for 2014–15 are listed here.

New DH guidance on abortion

On 23 May, the Department of Health published new guidance for healthcare professionals on complying with Abortion Act along with updated procedures for independent abortion clinics. It incorporates the findings of the consultation undertaken earlier this year on the procedures that independent sector abortion clinics must follow in order to be approved to provide services, which we reviewed in an earlier post.

(There’s still no sign of the promised consultation on abortion law in Northern Ireland.)

Recent consistory court judgment

Re St Andrew Shepherdswell [2014] Canterbury Const Ct Comm. Gen. Morag Ellis

The replacement of a “functionally defunct” late 19th century pipe organ[2] with a new Viscount Envoy 23S digital organ was at the centre of the petition for an interim faculty: this would relate to the installation of the digital organ, but leaving the pipe organ in situ, pending the grant of a permanent faculty. The Archdeacon had contacted the Registry to ascertain whether it would be possible to ‘fast-track’ authorization for the project, given that it was “entirely uncontroversial and fully supported in the DAC”.  In the context of interim faculties, the new provisions within the Faculty Jurisdiction Rules 2013 reflect and formalize previous practice as enunciated in the judgment of Re St Mary’s Churchyard, White Waltham [2010] Fam 131.

The Commissary General stated that although the matter would normally be within the Archdeacon’s jurisdiction, its interim nature required it to be dealt with by her, [FJR Rule 7.1(2)]. Furthermore, if it was to be dealt with without a DAC certificate then it would have to be processed as an interim since the Archdeacon and/or Commissary General would otherwise be obliged to await the DAC advice.

Although happy in principle to proceed under Part 14, the Commissary General noted that: she was required to impose a condition requiring the submission of a faculty petition within a set period of time; was content in principle to dispense with public notice as it was expedient in view of the need for a functioning instrument for the forthcoming visit of the Archbishop; and granted an interim faculty.

One objection was raised to the petition, relating to: the expense of the new organ (some £15,000), in comparison to a digital keyboard instrument (at ~£5,000) and the handling of the interim Faculty application. However, having considered these objections seriously, the Commissary General did not find them persuasive, and granted the interim faculty.

The facts of the case reflect the problems faced by small congregations, not only in the upkeep/replacement of pipe organs but in the availability of skilled organists and choristers. Also worthy of further general consideration is the Commissary General’s observation that there is “a certain profligacy inherent in worship”.

Non-story of the week?

The Western Gazette in West Dorset reported that Bishop of Salisbury had indicated he would not intervene following complaints regarding the “forthright views” of Canon Eric Woods, Vicar of Sherborne Abbey concerning the “invasion of halal meat” in the UK.  The item giving rise to the complaint was Canon Woods’ column (in the Western Gazette) in which he said:

“So although I would defend to the hilt the right of any community to follow their own rules relating to food and other products, I do not believe that the rest of us should have halal meat foisted on us by stealth … The scandal is that none of the supermarkets or restaurant chains are prepared to label their products as either halal or non-halal.”

Not particularly strong stuff and one suspects that the paper was talking up the story to boost its readership.  However, in the context of the “Protect the Pope” situation, perhaps the story should be retitled “Anglican Bishop permits priest to express his opinion”.

Or perhaps this?

The Sun reported (£) that the Welsh Christian Party wants the current Welsh flag replaced with the flag of Saint David: a gold cross on a black field. Apparently the party leader, The Revd George Hargreaves, said that the red dragon should not “reign over Wales for another moment” because it was a symbol of the devil. Bishop David Yeoman, former Assistant Bishop of Llandaff, was quoted as saying: “I doubt whether most Christians would see it as demonic”.

Our guess is that most Christians might not see it as any kind of issue at all, not least because there are no such things as dragons. But when did “facts” ever get in the way of a good old religious rant? Or maybe Mr Hargreaves has just been reading too much Harry Potter.

And finally . . . .

On Friday 23 May, the Church of England Daily Digest of news led with the story “Giant inflatable whale banned from Royal Parks”. Originating in the Daily Telegraph and the Daily Mail this concerns the banning of a giant inflatable whale used for pirate shows and re-enactments of the story of Jonah has been banned from the Royal Parks because of its “religious” undertones.  Officials are said to have turned down applications by the Bible Society to hold a children’s fun day based on the Jonah story at either Hyde Park or Greenwich Park in London claiming it could be classed as an act of “religious observance”. The Royal Parks are managed by a Government agency, but owned by the Queen, who also patron of the Bible Society.

[1] The dioceses of Bradford, Leeds and Ripon, and Wakefield voted before the formation of the new diocese of Leeds and the Dales.  The diocese of Europe was unable to arrange a meeting of its synod in the allocated three-month time slot.

[2] According to the Victorian Society, para. 5.2.