Religion and law round up – 22nd June

“Do Not Resuscitate”

We posted on the judgment in Tracey, R (on the application of) v Cambridge University Hospitals NHS Foundation Trust & Ors [2014] EWCA Civ 822, in which the appellant complained about the treatment of his late wife. Mrs Tracey had been diagnosed with terminal lung cancer and had a nine-month life expectancy but subsequently sustained a serious cervical fracture and was placed on a ventilator in a critical condition. Initially, her medical team placed a DNACPR [Do Not Attempt Cardio-Pulmonary Resuscitation] notice in her notes. Her condition appeared to improve and, following objections by her daughter, the notice was removed; but a few days later her condition deteriorated again and a second DNACPR notice was put in her notes. The claim was that the Secretary of State had breached Mrs Tracey’s Article 8 rights (private life) by failing to publish national guidance to ensure that the process of making DNACPR decisions was sufficiently clear, accessible and foreseeable and that persons in her position had the right to be involved in discussions and decisions about DNACPR.

The overall judgement of Lord Dyson MR was to grant a declaration against the Trust that it had violated Mrs Tracey’s Article 8 rights in failing to involve her in the process which led to the first notice; but he refused the other claims against the Trust and the Secretary of State. Longmore and Ryder LJJ concurred.

A Scottish Constitution?

We noted that on Monday the Scottish Government published Scottish Independence Bill: A consultation on an interim constitution for Scotland. The draft Bill says nothing about the future position of the Church of Scotland: an issue that has exercised many Scots, not least in the Free Church and the Free Presbyterian Church (whose Synod came to a Deliverance in 2012 opposing independence on the novel grounds that it would “represent the sin of covenant-breaking before the Lord”). However, because section 34 (Continuity of laws) of the draft states that “The laws that are in effect in Scotland immediately before Independence Day are to continue to have effect on and after Independence Day…”, the Church of Scotland Act 1921 would continue in force, while section 26 confirms Scotland’s continued adherence to the ECHR – which, of course, includes Article 9.

As to covenant-breaking, we were not aware that the Almighty had had any hand in the Acts and Treaty of Union – unless, of course, the Union and the events that led up to it, including the ruinous Darien expedition, were predestinated.

Human rights, freedom and religious belief

On Tuesday Lord Phillips of Worth Matravers, the founding President of the Supreme Court, gave a lecture at KCL Law School entitled European Human Rights – A force for good or a threat to democracy? On 13 June Lady Hale gave the Annual Human Rights Lecture for the Law Society of Ireland, entitled Freedom of Religion and Belief and the text was posted on the Supreme Court website late last week. Unsurprisingly, both merit very careful reading.

Though Lord Phillips was not uncritical of some of the judgments of the Strasbourg court which, he believes, have accorded an insufficient margin of appreciation to domestic jurisdictions, his conclusion was supportive overall: “… when the countries of the Council of Europe are looked at as a whole, the influence of the Strasbourg Court has been beneficial … Europe needs the Convention and Europe needs the Court”. Lady Hale, on the other hand, was rather more equivocal about the operation of the domestic legislation and the Convention in the specific context of Article 9 rights, asking whether we should be developing “… an explicit requirement upon the providers of employment, goods and services to make reasonable accommodation for the manifestation of religious and other beliefs”.

A good question, om which we hope to post on this later this week.

Serious Crime Bill

The Serious Crime Bill was given its second reading in the House of Lords on 17 June.  The Christian Institute reports that it has received a letter from Damian Green (Con. Ashford), Minister for Policing, Criminal Justice and Victims, confirming that the Bill will not criminalize religious parents who teach their children biblical principles. Prior to the announcement of the Bill in the Queen’s Speech there was widespread concern that the Government would introduce a so-called “Cinderella law” that would criminalize emotional neglect; and Times columnist Libby Purves and others argued that this could have also criminalized religious parents who do not agree with evolutionary science.

Mr Green told the Institute that the Bill, which partly aims to deal with child neglect, would only target “cruelty likely to cause physical or psychological suffering or injury” to children:

“Clause 62 of the Bill would make it absolutely clear that cruelty likely to result in physical or psychological suffering or injury is covered by section 1. The clause would also modernize the language of section 1, in particular by replacing the outdated term ‘mental derangement’.

I am aware of concerns that the Government’s proposed changes could criminalize parents for teaching their children particular religious tenets for example, that same sex marriage is wrong. I would emphasize that the focus, as now, would be on targeting cruelty likely to cause physical or psychological suffering or injury.  We are not proposing to extend criminal liability under section 1 more broadly. The offence already encompasses psychological harm; something that is explicitly recognized by the Crown Prosecution Service Legal Guidelines and the sentencing Council guidelines in relation to section 1 of the Act.

We fully expect that the reference to ‘psychological suffering or injury’ under clause 62 of the Bill would continue to be interpreted by the courts as it currently is.  The courts have long held that such suffering or injury must be more than trivial (for example a slight fright or low level mental anxiety). The Government’s proposed clarification of the law should therefore not affect the way the law operates”.

Bonomy Report on infant cremation

Following the publication of the Bonomy report on infant cremation at Mortonhall, Edinburgh, reviewed here, the Scottish Government has published its response, in which it announces the establishment of a national investigation team to look into all the families’ allegations headed by the former Lord Advocate, the Rt Hon Dame Elish Angiolini QC DBE, who headed the Mortonhall investigation. All parents with unanswered questions about the cremation of their baby will be able to have their case examined as part of the investigation, the first stage of which is the completion of the form which is available to download from the Scottish Government website, here.

Richard III judicial review – the legacy

Friday 13 June marked the expiry of the three-week period within which a request could be made for leave to appeal the judicial review decision in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 and further legal challenge to the validity of the action by the Ministry of Justice and the University of Leicester therefore seems unlikely. However, the action by the Plantagenet Alliance Ltd has left a legacy of the costs to the taxpayer (estimated by the Daily Telegraph as £175,00 plus the costs of the three-day court hearing) and has provided the Justice Secretary, Chris Grayling, with further ammunition in support of his proposed restrictions on judicial review under the Criminal Justice and Courts Bill, most recently referred to during the  Commons Report Stage, 17 Jun 2014 : Vol 582, Col 1072.

There is also the matter of the future expenditure on the re-interment of Richard III in Leicester Cathedral and the associated works; and the total project budget will be £2.5 million, to which the Diocese of Leicester will contribute £500,000 for central costs, fees, contingency and initial preparation of the Cathedral. The Cathedral will be fundraising from private sources for the services and events, the extensive capital works on the Cathedral in readiness for the tomb and ambulatory, the windows and the learning and interpretation centre.

Did she die in vain?

It may have escaped the notice of some readers that last Sunday, 15 June, marked the 799th anniversary of Magna Carta, and a series of events is already in progress leading up to next year’s milestone anniversary. With regard to issues of law and religion, one of the sections[1] still extant refers to the freedom of the English Church, Anglicana ecclesia[2], which in 1215 clearly referred to the [Roman] Catholic Church, although has this as “the Church of England”, rather than “the church of England” or “the English church”. (And, in passing, it should be remembered that Magna Carta has nothing whatsoever to do with Scotland or Northern Ireland.)

On a more practical note, the meeting of the Cathedral Fabric Commission for England on 5 June 2014 determined inter alia the applications by Lincoln and Salisbury Cathedrals for the loan of their copies of Magna Carta to the British Library, which has the other two known remaining copies. Links to these decisions will be uploaded shortly on the ChurchCare web site.

And finally . . . .

Will Pope Francis retire to a home in Buenos Aires for elderly priests?  Well, not exactly, but in what The Tablet described as “candid disclosures … during a hard-hitting interview with La Vanguardia newspaper”, he indicated that “he will retire ‘like Benedict’ “. A translation of the full text of the interview is available from the Catholic News Agency site, including the following Q&As:

What do you think of the renunciation of Benedict XVI?

Pope Benedict has made a very significant act. He has opened the door, has created an institution, that of the eventual popes emeritus … Well, as we live longer, we arrive to an age where we cannot go on with things. I will do the same as him, asking the Lord to enlighten me when the time comes and that he tell me what I have to do, and and he will tell me for sure.

You have a room reserved in a retirement home in Buenos Aires?

Yes, it’s a retirement house for elderly priests. I was leaving the archdiocese at the end of last year and had already submitted my resignation to Benedict XVI when I turned 75.  I chose a room and said ‘I want to come to live here’. I will work as a priest, helping the parishes. This is what was going to be my future before being Pope.”

Whilst not wishing Pope Francis into an early retirement, in our end-of-year comments we indicated the need for “further revisions to/replacement of the Universi Dominici Gregis that take into account the present situation, (i.e. a Pope and a Pope Emeritus), and the possibility of future resignations”. Since this now appears quite likely, it is even more important that these issues are considered before the next sede vacante.


Pink News reported today that Canon Jeremy Pemberton, who married his long-term partner in a civil ceremony in April, has had his Permission to Officiate (PTO) removed by the Acting Bishop of Southwell and Nottingham, the Rt Rev Richard Inwood, thereby revoking his permission to perform services in the diocese. His position as a lay clerk at Southwell Minster is unlikely to be affected. The BBC quotes the bishop as saying “it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives . . . In view of this I have spoken to Jeremy Pemberton and subsequently written to him to tell him his permission to officiate in the Diocese of Southwell and Nottingham has been revoked”.  Canon Pemberton declined to comment but subsequently confirmed that the reports are “basically accurate”.

Permission to Officiate is issued under Canon C 8 (3) entirely at the discretion of the bishop, creates no employment-like rights, and can be withdrawn at the absolute discretion of the bishop without the need for a disciplinary process. In contrast, Canon Pemberton is employed as Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust in the diocese of Lincoln, under the Extra-Parochial Ministry Measure 1967, for which he holds a licence from the Bishop of Lincoln.  However, although employed by the hospital, that employment is generally dependent upon the Bishop’s licence which can only be terminated following a disciplinary process, s8(2) Clergy Discipline Measure 2003. No public announcement has been made regarding this licence.

[Revised 25 June 2014: With thanks to Rev Gavin Foster for advice on clergy employment law].


[1] Initially, the various sections were unnumbered.

[2] Copies of the complete texts are available here.

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