Religion and law round up – 15th June

A  very busy week, even for those of us who aren’t  remotely interested in what’s happening in Brazil…

The Master of the Rolls, Magna Carta, religion and the rule of law

Lord Dyson MR made the closing address at the conference on Magna Carta, Religion and the Rule of Law at the Temple on Saturday 7 June. His speech is well worth reading in full; but we thought it worth reporting his admirably even-handed conclusion. He pointed out that the relationship between religion and the law was now recognised as a complex subject involving balancing the interests of different religious faiths and the rights of those who have no faith at all: therefore

“It seems to me that the equality of all religions under the state’s secular law is the best guarantee in a secular society of equal freedom for each religion and its adherents. Faith leaders no longer have the power that they once had. But they continue to have a very important role in promoting such equality of freedom as a fundamental and indispensable social good”.


Justiciability of religious doctrine

In Shergill & Ors v Khaira & Ors [2014] UKSC 33 the Supreme Court unanimously concluded that “… disputes about doctrine or liturgy are non-justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law” [para 46] but that that did not mean that disputes about doctrine or liturgy were a no-go area altogether: “The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology” [para 48]. The Court seemed to be holding to the view that disputes purely about doctrine or liturgy were non-justiciable; however, in a dispute as to whether or not the trustees of a particular trust were adhering to the terms of the trust deed issues of doctrine might well come into play. We posted about the case here.

Sacking a married Roman Catholic priest

On Thursday the Grand Chamber ECtHR held by nine votes to eight that there had been no violation of Article 8 (private and family life) in the case of a married Roman Catholic priest who had been, in effect, sacked from his post as a teacher of Roman Catholic religion and morals in a state high school after a newspaper published a photograph of him attending a meeting of the Movement for Optional Celibacy, along with his wife and their five children. In Fernández Martínez v Spain [2014] ECHR 615 the GC concluded that it was not unreasonable for the Church to expect particular loyalty from religious education teachers and that the interference with the applicant’s right to respect for his private life had been within the margin of appreciation accorded to states parties.

We shall post a longer analysis later in the week.

Dissolving a church on grounds of public health?

In Biblical Centre of the Chuvash Republic v Russia [2014] ECHR 606 a Protestant church was dissolved on the grounds that it administered religious education without a State licence and ran a Sunday school for children that was not appropriately equipped. It had been registered as a religious organisation in November 1991 and founded a bible college and Sunday school in 1996. However, following inspections of the Biblical Centre in April and May 2007, the domestic courts ruled against it in two sets of administrative proceedings for running educational activities without authorisation and for violating rules on hygiene. The Supreme Court upheld the prosecuting authorities’ claim to dissolve the Centre in August 2007 and, following the dismissal of the organisation’s appeal in October 2007, it was dissolved with immediate effect.

Relying in particular on Article 9 (thought, conscience, and religion), interpreted in  light of Article 11 (assembly and association), the Centre complained about the validity of the decision to dissolve it and the ensuing restriction on its right to teach its followers. The Court held that there had been a violation of Article 9 in light of Article 11 but that that finding was itself sufficient just satisfaction for the non-pecuniary damage sustained by the Centre.

EU Commission, Council and Parliament meet religious leaders

On 10 June saw the tenth annual high-level meeting between representatives of Christian, Muslim, Jewish, Hindu, Sikh and Mormon communities with the leaders of the EU for an exchange of views. The  meeting was hosted by José Manuel Barroso, outgoing President of the European Commission, and co-chaired by Herman Van Rompuy, President of the European Council, and László Surján, Vice-President of the European Parliament, representing EP President Martin Schulz.

Inheritance and intestacy

The Inheritance and Trustees’ Powers Act 2014 received Royal Assent on 14 May: it will be brought into force by Order made by the Lord Chancellor. Once in force, the Act, which applies to England and Wales, will:

  • ensure that where a couple are married or in a civil partnership, assets pass on intestacy to the surviving spouse in cases where there are no children or other descendants;
  • simplify the sharing of assets on intestacy where the deceased was survived by a spouse and children or other descendants;
  • protect children who suffer the death of a parent from the risk of losing an inheritance from that parent in the event that they are adopted after the death;
  • amend the legal rules that currently disadvantage unmarried fathers when a child dies intestate;
  • remove arbitrary obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership;
  • permit a claim for family provision in certain circumstances where the deceased died domiciled outside England and Wales but left property and family members or dependants within the jurisdiction; and
  • reform trustees’ statutory powers to use income and capital for the benefit of trust beneficiaries (subject to any express provisions in the trust instrument).

The English parish church and Church Commissioners’ Questions

On 12 June, the House of Lords debated the Motion to Take Note moved by Lord Cormack

“That this House takes note of the importance of the English parish church”,

on which we reported here. Earlier in the day, the House of Commons questioned the Rt Hon Sir Tony Baldry MP, representing the Church Commissioners, on the service of remembrance for Stephen Sutton, school chaplains, persecuted Christians overseas, listed church building repairs, credit unions and biblical literacy amongst children, here, and here. Transcripts have been posted on the Church of England in Parliament site, here.

Responding to a question by Helen Goodman, (Bishop Auckland) (Lab), on Listed Buildings (Repairs), Sir Tony Baldry stated that the Church of England’s 12,500 listed churches have an estimated backlog of repairs of £60 million, and the 42 cathedrals have an estimated backlog of £87 million over the next five years to keep them open and watertight.  However, there are “a number of pots of money available”: £20 million recently awarded by the Chancellor of the Exchequer to cathedrals to keep for immediate repairs; £25 million a year that the Heritage Lottery Fund has put aside for necessary repairs; £42 million a year from the listed places of worship scheme; and approximately £115 million raised each year by the wider public to spend on repairs to their parish church buildings.

In relation to a question from Miss Anne McIntosh (Thirsk and Malton) (Con) on the VAT payable on these funds, Sir Tony reminded the House of the provision of £25 million made by the Chancellor of the Exchequer to help to offset VAT costs on church repairs, “so there is no reason why churches should be deterred from carrying out repairs and restoration by concerns about VAT bills.”

Recent Consistory Court judgments

Re St Laurence Bapchild [2014] Canterbury Const Ct, Morag Ellis Comm. Gen.

Unconnected but of passing interest to Re St. Laurence Bapchild is Christopher Howse’s recent Daily Telegraph article“the battle against church lavatories”, in which he traces a lively campaign in Victorian England to stop lavatories being installed in new churches.  The Petition of the incumbent and church wardens of St Laurence sought a Faculty for the reordering of the west end of the building including the installation of a toilet and some external drainage works.  The Grade I church is a religious focus for the local community and nearby school, and the venue for festivals, concerts and theatrical events.  The Petitioners desired to equip the church with a lavatory, a new, properly fitting timber door in place of a pair of modern metal gates to the porch and to reconfigure the chancel.

Subject to certain conditions, the Diocesan Advisory Committee (DAC) supported the grant of a Faculty, and certified that, in its opinion, the works were not likely to affect the character of the church as a building of special architectural or historic interest or any archaeological remains.  Although SPAB and English Heritage were approached, only the latter responded, commenting inter alia

“[t]he harm in the proposed scheme relates to the loss of a small group of pews from the west end of the north aisle. We agree with the applicant’s statement of significance that the eighteenth-century pews would largely remain intact following their removal. Were this a secular listed building, we would be content to say, with reference to paragraph 134 of the National Planning Policy Framework, (NPPF), that the harm to significance is less than substantial and outweighed by the public benefits of providing a toilet and, in doing so, helping to secure the continuing use of the building.”

Considerable weight was given to the experience and expertise of the English Heritage evidence, but notwithstanding the Court of Arches’ guidance in Re Duffield: St Alkmund [2013] 2 WLR 854] on the separate nature of the ecclesiastic and secular jurisdictions, the Commissary General noted the recent re-emphasis by the Court of Appeal in Barnwell Manor Wind Energy Ltd v East Northamptonshire DC., English Heritage, the National Trust and the Secretary of State for Communities and Local Government [2014] EWCA Civ 137 that Parliament intended, through the enactment of s.66 Planning (Listed Building and Conservation Areas) Act 1990 to give “considerable importance and weight” to the desirability of preserving listed buildings and their settings. However, she concluded that the treatment of harm to significance in the first Duffield question as the trigger for one of two different sets of questions was consistent with the Court of Appeal’s general approach and therefore in tune with the principle of equivalence.

The Duffield questions were applied and although the proposed pew removal would result in harm to significance, this would be less than substantial.  The Statement of Needs was deemed to be a well-reasoned document, the work of a Christian community which is looking outwards to the people in the village and beyond in mission and service, thereby satisfying question 5 on a number of grounds.  Faculty granted.

Re St. John Whitchurch Hill [2014] Oxford Const Ct Alexander McGregor Ch.

This relatively short, straightforward judgement concerns a Faculty to authorise a memorial comprising a headstone and kerb stones in memory of the petitioner’s late mother and father.  Whilst the headstone complied with the Oxford Diocesan Churchyard Regulations, difficulties arose in relation to the use of kerb stones which is precluded by current regulations, although a feature of some earlier graves at St John.  In addition to the importance of clear communications of the Regulations between the incumbent, the petitioner and the PCC, the judgement highlighted a number of issues relating to the duties and responsibilities of PCCs that have churchyards within their control, (i.e. not closed churchyards whose maintenance has been transferred to the local authority):

  • the PCC is under a statutory duty to maintain the churchyard under s4(1) Parochial Church Councils (Powers) Measure 1956, and since it is required to maintain the churchyard, any views it expresses on the way in which a proposal will impact on the carrying out of that duty should be accorded substantial weight.  In this respect, the Chancellor attached more weight to the PCC’s view on the question of the impact that the introduction of the kerbs would have on the maintenance of the churchyard than to the view expressed by either the petitioner or the incumbent, [para. 25].
  • very limited weight can be attached to the fact that other graves in the churchyard already have kerbstones, since:
    • in the instant case, the petitioner had not established that these were lawfully introduced;
    • “the PCC is entitled to call a halt to the incursion of kerbs that it regards as out of place”, In re the Churchyard of St John’s Whitchurch Hill, 14th April 2004 (unreported) [Note: the instant judgment is dated 31st May 2014]
    • as the DAC pointed out, even if the existing kerbs already mean that there is an impact on the way in which this area of the churchyard has to be maintained in terms of cutting the grass, the introduction of further kerbs will only increase that impact.

In view of the reference in the correspondence made to chippings being placed within the area of the proposed kerbs, although these did not form part of the details given in the petition, the chancellor took the opportunity to point out that chippings are not permitted unless expressly authorised by faculty. If a faculty were granted as envisaged it would not authorize any chippings.

Re St Aidan, Throckrington, (to be considered)

The Ascension Edition of the Ecclesiastical Law Society’s Newsletter Gospel and Law includes some “tests of problem-solving skills by way of fun and exercise for the little grey cells” for its younger members about to embark on the forthcoming exam season. To these, which “may bear some but limited connection to real situations”, might be added the following recent problem, yet to be resolved:

Unauthorized Burial

In fulfilment of his wishes, the long-term partner of a popular, well-known author made an unauthorized burial of his ashes, in the same Northumberland cemetery as his father is laid to rest. The ashes were buried in a small hole dug by hand, and the spot was marked by a bottle of whisky, a cigar and his favourite pen.

Outline the legal, pastoral and media issues that should be addressed.”

Media reports include: the Church Times (£) and the Daily Mail, here and here.

Baroness Hale on freedom of religion and belief

On Friday Baroness Hale gave the Law Society of Ireland’s 10th Annual Human Rights Lecture, entitled “Freedom of Religion and Belief”. We hope a transcript will appear on the UKSC website in the not-too-distant future.

Q: What do canon lawyers do on holiday? A: Consider how English Heritage might have reacted to this renovation

La chiesa dei SS Cosma e Damiano, situated on Lipari’s Marina Corta, dates from around 1545, but was only opened in 2005 by the Association of SS Cosma and Damiano after decades of neglect. The ecclesiastical authorities cooperated in the project, and the church features in the celebrations of the Fish Festival linked with the feast days of the saints, 24 and 26 September, as well as the arrival of Santa Claus from the sea, the Easter procession and, the distribution of Easter eggs to the children.

LIpari Church, IMG(2)

The display centres on the Holy House, à la Walsingham, but in a setting based on the Lipari port and includes (live) fish swimming in the water and illuminations within the houses. Historically, the most important part is the crypt beneath; and although frequently flooded by rain and seawater, there are plans for hydraulic pumps so that this area may be used as well.

However. before dismissing the project as a tourist venture, one should bear in mind: the church is integrated into the life of the local community which is strongly dependent upon its links with the sea; it is easily (and freely) accessible; and has less restrictive hours than the cathedral and other churches. A must for any visitor.

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