Religion and law round up – 13th July

A somewhat fractious week, with media disagreements about assisted dying, historic child abuse and same-sex marriage

Historical child abuse and Baroness Butler-Sloss

On Tuesday the Government announced the establishment of a wide-ranging historical child abuse inquiry to be chaired by Baroness Butler-Sloss: an announcement that immediately sparked controversy because one of the issues likely to be before the inquiry is the role of the prosecuting authorities when Lady Butler-Sloss’s brother, Sir Michael Havers (who later became Lord Chancellor) was Attorney General.

We have no view on that matter, save to say that Lady Butler-Sloss is immensely experienced in child protection matters and was generally regarded as a thoroughly admirable President of the Family Division of the High Court. However, she is also chairing the (unofficial) Commission on Religion and Belief in British Public Life convened by the Woolf Institute, Cambridge, which is just starting work. Given that the historical child abuse inquiry will be very demanding, we cannot help wondering whether the Commission is going to have to look for a new chair. 

Another sexual orientation discrimination case?

A bakery in Northern Ireland which refused a customer’s request to make a cake with a slogan supporting gay marriage could face discrimination proceedings. Ashers Baking Company, a family-owned firm based in County Antrim run by Christians, refused an order from a gay rights activist, asking for cake featuring the Sesame Street puppets, Bert and Ernie. The customer also wanted the cake to feature the logo of QueerSpace, a Belfast-based LGBT campaign group.

The BBC reports that the Equality Commission for Northern Ireland sent a letter to the firm’s general manager, Daniel McArthur, saying that the firm had discriminated against the customer on grounds of sexual orientation, asking how it proposed to recompense the customer for the discrimination and threatening legal proceedings. Potentially, it’s a dispute along the same lines as  Bull & Anor v Hall & Anor [2013] UKSC 73 and we’ll be following it with interest.

The matter was raised at Wednesday’s PMQs, which the Daily Mail announced as “PM rejects call for law change in gay cake row: Cameron declines to support ‘conscience clause’ to protect Christians who are persecuted for their beliefs.  However, Hansard reported the exchange with Gregory Campbell (East Londonderry) (DUP) somewhat differently, [9 July 2014 Vol 584 Col 281], although we suspect that the outcome will be the same.

Clergy in same sex marriages

The debate surrounding the marriage of CofE clergy to their same sex partners continues as Canon Jeremy Pemberton, whose permission to officiate was withdrawn by the action bishop of Southwell and Nottingham, has also been denied the bishop’s licence necessary for him to take up a new position as Head of Chaplaincy & Bereavement Services with the Sherwood Forest Hospitals NHS Trust.  In response to a number of emails supportive of Canon Pemberton, the Archbishop of York has responded, stating

“The Bishop’s action, and more recently his decision to withhold of a licence in relation to an NHS Chaplaincy post in the Diocese, is consistent with the Pastoral Guidance issued by the House of Bishops earlier this year. The relevant sections are Sections 25-28, below.


It is clear . . . that whilst clergy are able to argue for a change in the Church’s teaching, they are expected to fashion their lives according to it.  Bishop Inwood has acted entirely in accordance with the House of Bishops guidelines.”

However, this does not address the approach taken by the diocese of Lincoln, where Canon Pemberton was issued with a formal rebuke following his marriage to Laurence Cunnington, but no action was taken in relation to the general licence he continues to hold in relation to his current employment as Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust.

Assisted dying and Dr Carey

In the run-up to the forthcoming Lords second reading debate on Lord Falconer’s Assisted Dying Bill, former Archbishop of Canterbury Lord Carey rather set the cat among the pigeons with an article in the Daily Mail in which he said that he had dropped his long-standing opposition to the legislation. He was “driven by private conscience to urge a change in the law when the matter comes before Parliament next week” and there was “nothing anti-Christian about embracing the reforms that Lord Falconer’s Bill offers”. The current Church of England briefing on assisted dying is here.

The BBC subsequently reported that the Bishop of Carlisle, the Rt Revd James Newcome, “speaking on behalf of the CofE” had called for a Royal Commission on the matter. A Commission would allow the issue to be discussed at length and, in the interim, he called for the Bill should be withdrawn – a call which, unsurprisingly, was immediately rejected by Lord Falconer.

If Bishop Newcome was indeed speaking formally on behalf of the Church as a whole (which is very likely, given that Synod is currently in session) then his statement represents a slight shift away from outright opposition – but only a slight shift. For some purposes “Royal Commission” and “long grass” are virtually synonymous.

Recent consistory court judgments

Re The Blessed Virgin Mary, Ellesmere [2014] Lichfield Const Ct, Stephen Eyre Ch.

Medieval tracery and late-Georgian stained glass forming the east window of the Grade I listedchurch had been removed in the 1880s due to subsidence, and replaced with new tracery and stained glass. The old glass and tracery were placed in storage: since 2005 the tracery had been laid out near the replacement east window and did not feature in the present petition; in 1975, the glass was given on loan to the Stained Glass Museum at Ely, where one panel of glass was restored in 1979 and now forms a major part of the Museum’s display being its only example of a Betton & Evans window. The remainder of the glass is in store and its condition is so poor that full reinstatement or restoration is unlikely to be possible, although some had been restored as a component of an MA course in Stained Glass Heritage and Conservation, and there was a possibility of additional future restoration.

The Vicar and Churchwardens sought a faculty to convert the loan of the glass to a gift, and although the petition’s papers first came before the court in March 2014, the Chancellor deferred consideration pending the decision of Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches which we reviewed here. The DAC recommended approval of the disposal of the glass because the work proposed at York would help to ensure the proper conservation of the glass, and the Chancellor agreed with the comments of the Church Buildings Council that: the separation between the glass and the church building is not itself a reason for ending the church’s ownership of the glass; and a decision by a museum to change its loan’s policy should not force churchwardens to give up the ownership of items which have been lent to such a museum on permanent loan. Of particular relevance to the Council was that the gift would ensure the “long-term conservation, protection, and display of the glass”; that there was no financial gain to the church; and that the gift would be likely to increase the public visibility of the glass.

The Chancellor noted that there is a strong presumption against a disposal by sale in Re St. Lawrence Oakley with Wootton St. Lawrence and suggested that the same approach is to be taken to other forms of disposal. The fact that no equivalent benefit is being obtained by a church meant that the Court would be wary about authorizing a disposal by way of gift.  However, he concluded that the presumption against disposal has been overcome in this case and that the faculty sought should be granted on the grounds that: the glass is and has long since been redundant in respect of its original purpose: it was intended to form the East window of the church but even if the glass were to be capable of being restored to form a window it would not again become the East window of this church; separation of the precious object from the church building does not normally suffice as a ground justifying disposal, and in this case the separation has been for over 120 years; the proposed use to which the glass will be put is wholly appropriate; and the disposal is to be by way of gift rather than sale, given that in its current condition the glass can only have a minimal value and the proposed use is a beneficial one.

Re Field Road Cemetery, Bloxwich [2014] Lichfield Const Ct, Stephen Eyre Ch

A Petition was sought for the exhumation of the body of the petitioner’s father, interred in Field Road Cemetery, Bloxwich, in 1985, for reburial with remains of his mother who had died in April 2014 but whose burial had been delayed pending the determination of the petition.  Re-interment would be in the unconsecrated part of a recently opened cemetery at Strawberry Lane, Cheslyn Hay, which had been laid out on land which the deceased had formerly farmed.

The Chancellor considered Re Blagdon Cemetery [2002] Fam 299 and in particular whether the creation of the new cemetery, arguably a markedly more appropriate resting place for the remains, is a special circumstance capable of justifying exhumation.  The change of ]circumstances in Radford: St. Nicholas [2011] Coventry Const Ct, Stephen Eyre Ch and in Walford Ch’s decision of Re Coultous [2011] Bradford Const Ct, Wlaford Ch, were not applicable since in the instant case, Bloxwich cemetery remains an appropriate resting place for the remains of the deceased.

Likewise, in Re Miresse deceased: Lambeth Cemetery [2003] Southwark Const Ct, George Ch, although an exhumation was authorized to enable interment in a mausoleum which had not existed at the time of the original interment, this had been the original intention which was frustrated through an error.  The change of circumstances in have considered whether the decision of Bursell Ch in Re Royal Burial Ground, Frogmore [2013] Oxford Const Ct, Bursell Ch. had come about through a change in the political regime in Serbia, rather than a change of mind of the relatives.

Whilst there appeared to be similarities with the successful petition in Re William Radcliffe [2008] Carlisle Const Ct, Tattersall Ch – i.e. shortly after the initial interment, a Garden of Remembrance was created in a different part of the same churchyard – this had been permitted on the basis that there was an intention to create a new family grave.

The Chancellor therefore refused the petition on the basis that: Bloxwich cemetery remains a suitable resting place for human remains; the remains of the petitioner’s father have been in that cemetery for twenty nine years; it is possible for the petitioner’s mother to be buried at Bloxwich in the same plot as her late husband; and the likely condition of the coffin in which his father was buried means that it may well not be possible to conduct the exhumation in a seemly manner.

Quick links to other stories, information and events this week

Below is this week’s selection of links to other stories &c that may be of interest to our readers

And finally…

A frequent exhortation to guest organists before being permitted to play one’s instrument is to “remember to leave the swell box open” (to make sure it doesn’t go out of tune with the rest of the organ). The phrase was given new meaning when the perfectly-preserved remains of a sandwich and a copy of the Stockport Advertiser dated 1896 were discovered in the swell box of the organ at Padiham Road Methodist Church in Burnley, Lancashire. The organ was being dismantled prior to its transportation to Germany, where its interior and pipework will be re-installed in a church near Munich.

One thought on “Religion and law round up – 13th July

  1. “The BBC reports that the Equality Commission for Northern Ireland sent a letter to the firm’s general manager, Daniel McArthur, saying that the firm had discriminated against the customer on grounds of sexual orientation, asking how it proposed to recompense the customer for the discrimination and threatening legal proceedings. Potentially, it’s a dispute along the same lines as Bull & Anor v Hall & Anor [2013] UKSC 73 and we’ll be following it with interest.”
    Is there another perspective to the Asher case?
    If I was a baker and asked to provide a cake that proclaimed boxing as a virtous and commendable sport I would refuse. I believe that a ‘sport’ based upon physical assault and causing damage to another human is unacceptable: I would not wish to be associated with it. Would the boxing promoter have any grounds upon which to challenge my refusal to make the cake and exercise my Article 9 right of freedom of conscience and belief?

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