Women as bishops, a Christian law school, kirpans in detention centres, conscientious objection, pagan weddings – and hazelnut & chocolate spread…

Rt Revd Libby Lane

On Tuesday at York Minster Libby Lane was consecrated to the suffragan see of Stockport and became the first female bishop in the Church of England. Although we have tended to use the term “women in the episcopate” rather than “women bishops”, the latter was a convenient shorthand for tagging posts: now they’re just “bishops”. End of a long and tortuous story; though in view of some of the remaining hostilities expressed this week, perhaps the CofE should run a “Get over it” poster campaign on London buses?

Religious dress in prisons and detention centres

We noted that the Home Office had amended the Detention Services Order dealing with search procedures at detention centres in order to allow Sikh legal advisers to retain their kirpans provided they are properly secured.

Recent consistory court judgments

This week included our January round-up of recent consistory court judgments, most of which concerned exhumation and churchyard memorials. We also posted on a disciplinary tribunal judgment concerning the parochial fees for conducting services at cemeteries and crematoria, and a future post will examine the recent guidance issued by the Church of England Legal Office on clergy operating on a “freelance” basis.

Roof repairs: when it’s gone, it’s gone…

This week saw the closing date for grant applications under the Listed Places of Worship Roof Repair Fund. Given the brevity of the application period and the fact that part of that time was eaten away by the Christmas holidays, it will be very interesting to see how much of the grant allocation is taken up.

We have heard stories of archdeacons being inundated with requests for letters of support, and congregations who have had insufficient time in which to prepare their bid. However, given the applicability of the scheme, it is not possible for us to assess likely take-up although, based upon the detailed information requirements, we would be surprised if this exceeds 50 per cent. The fund has the potential to make around 375 places of worship watertight; but even if this is achieved, the latest edition of English Heritage’s At Risk register indicates that 6 per cent of listed places of worship are physically ‘at risk’ and of the 887 buildings in England, 806 are the responsibility of the Church of England, [Across the UK there are over 1,100 historic places of worship on national Buildings at Risk Registers].

Nursing and midwifery: professional standards

On Thursday the Nursing and Midwifery Council published the updated version of The Code: Professional standards of practice and behaviour for nurses and midwives. The Code makes no extensive reference to conscientious objection, relegating the matter to a footnote: “You can only make a ‘conscientious objection’ in limited circumstances. For more information, please visit our website at www.nmc-uk.org/standards”. Apparently this is the first time that the matter has been mentioned in the Code. Further investigation of the website leads the reader to the following, last updated in August 2013:

“Conscientious objection by nurses and midwives

There may be occasions when nurses and midwives have a conscientious objection to a particular aspect of patient care. Whilst the NMC expects nurses and midwives to at all times adhere to the principles contained within The code: Standards of conduct, performance and ethics for nurses and midwives (2008), in law they do have the right to conscientiously object in two areas only:

Article 4(1) of the Abortion Act 1967 (Scotland, England and Wales)

This provision gives nurses and midwives with a conscientious objection a qualified right to refuse to participate in the process of treatment where termination of pregnancy is the object. Under section 4(1) no person who has a conscientious objection to participating in any activity governed by this Act shall be under any duty, however arising, to do so. This right to conscientious objection is qualified by section 4 (2) of the Act where it is made clear that nothing in subsection (1) shall affect any duty to participate in treatment which is necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman.

In any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.

Article 38(2) of the Human and Fertilisation and Embryology Act (2008)

This Act gives nurses and midwives the right to refuse to participate in technological procedures to achieve conception and pregnancy. Nurses and midwives should give careful consideration when deciding whether or not to accept employment in an area that carries out treatment or procedures to which they have a conscientious objection.

Nurses and midwives should report in writing to their employing authority, at the earliest date in their employment, any conscientious objection that may be relevant to their professional practice.

The NMC expects all nurses and midwives to be non-judgmental when providing care and to continue to provide service users with full, unbiased information related to their care. Nurses and midwives are expected to facilitate patient access to relevant healthcare services, including where termination of pregnancy may result, regardless of whether they have a conscientious objection.

Nurses and midwives do not have the right to refuse to take part in any emergency treatment in any circumstances.

Nurses and midwives who do conscientiously object under the two Acts are reminded that they are accountable for their decision and may be called upon to justify their actions before a court of law.”

Presumably these guidelines are due to be updated, if only to update the reference to the latest edition of the Code. It will be interesting to see what changes, if any, are made in light of the Supreme Court’s judgment in Greater Glasgow Health Board v Doogan & Anor [2014] UKSC 68.

Naturist weddings, no: pagan weddings, maybe

In last week’s roundup we noted the story in the Mail claiming that the forthcoming review of marriage law in England and Wales might mean that naturists could qualify to conduct weddings if the rules were changed – and the subsequent denial by the Lord Chancellor, Chris Grayling, that it meant any such thing.

But Scotland is another country and a different jurisdiction; and Maria Strauss helpfully alerted us to a story in Scottish Legal News for 20 January about the first same-sex pagan marriage north of the Border. The wedding of two male witches in Edinburgh was conducted by the presiding officer of the Pagan Federation (Scotland), Louise Park. As we have observed before, Scotland licenses officiants rather than buildings; the Pagan Federation has been able to conduct weddings since 2005 and, says the report, has married hundreds of heterosexual couples since then. One cannot avoid the question, if in Scotland, why not in England and Wales?

Burial law in Scotland

And while we’re on the subject of Scots law, on Monday the Scottish Government announced a web-only consultation on a proposed Bill on burial and cremation and related matters. Ministers have decided that the basic legislation is now so old that it needs consolidation and reform. The consultation closes on 24 April.

“Christian” universities and professional qualifications

Trinity Western University, British Columbia, is an overtly-confessional, Christian institution which requires its students to agree to comply with a code of conduct, the “Community Covenant”, which inter alia bans all sexual intimacy outside marriage between a man and woman. TWU is in the process of establishing a law school; but though its syllabus has been approved for professional purposes by the Federation of Canadian Law Societies, a number of Provincial Law Societies, including the Nova Scotia Barristers’ Society, have decided that, because TWU’s Community Covenant is avowedly discriminatory in terms of sexual orientation, its law graduates will not be admitted to practise in those Provinces on the basis of their degrees from TWU.

At the moment, the Law Societies of Alberta, Saskatchewan, New Brunswick, Prince Edward Island and Yukon have approved the law school’s accreditation and the Law Society of Upper Canada (ie Ontario), the Nova Scotia Barristers’ Society and the Law Society of British Columbia have not. (The Law Society of BC approved it at first then withdrew its approval.) In December 2014, British Columbia’s Minister of Advanced Education, having originally given his consent to establishing the law school, revoked it.

Unsurprisingly, the negative decisions are being challenged; and 28 January 2015 the Nova Scotia Supreme Court handed down judgment in Trinity Western University & Anor v Nova Scotia Barristers’ Society & Ors 2015 NSSC 25. Campbell J ruled in favour of the University, holding that the NSBS had acted ultra vires by changing its rules to refuse to accept TWU graduates whose law degrees had been approved by the Federation of Canadian Law Societies. In short:

•  the case was not about whether LGBT equality rights were more or less important that the religious freedoms of Evangelical Christians but about whether or not the NSBS had had the powers to decide as it did;

• even if the NSBS had acted intra vires, there was an issue as to whether or not it had acted reasonably in considering the implications of its decision on the religious freedoms of TWU and its students “in a way that was consistent with Canadian legal values of inclusiveness, pluralism and the respect for the rule of law” [3];

• the Federation of Canadian Law Societies had recognized TWU law degrees as suitable to prepare graduates for legal practice [6];

• there was no evidence to suggest that TWU graduates would be any more likely to discriminate than graduates of other law schools [6]; and

• the objection to the terms of TWU’s Community Covenant did not relate in any way to the quality or standard of its proposed law degree or to the ability or suitability of its graduates to practise [7].

In other circumstances the case might have merited a free-standing post; however, Neil Foster has saved us the trouble by examining the issue in detail on Law and Region Australia. But we might write something more comprehensive if and when the case gets to the Supreme Court of Canada.

And finally … what’s in a name?

There was a good deal of media hilarity this week over the report that a French court had refused to allow a couple to call their daughter Nutella (the trade name of a hazelnut and chocolate spread popular in France), ruling that it would make her the target of teasing and that she should be named Ella instead.

Prior to 1993, France had an approved list of children’s names. A law of 1803 obliged parents to choose children’s’ names from one of several authorized calendars of names of saints, revolutionary heroes and historic figures; and it was therefore illegal to give a child (for example) a Breton name that was not on the approved list. People used non-official names for each other but they were not the registered names of the persons concerned: “As a French citizen you were Maurice; among your Breton friends and family you were Morvan”. The law was gradually relaxed in 1966 and 1987; and from 1993 parents were finally free to enter any name (within reason) on a birth certificate. But local prosecutors are still empowered to report what they deem to be an unsuitable name to a family court for a ruling on acceptability – which is what happened in this case.

The UK, on the other hand, has probably the least restrictive laws on naming of anywhere. Here, you can call your child (or yourself) pretty much whatever you like: possibly the outlier is Professor Perri 6 of Queen Mary, London, who changed his name from David Ashworth in 1983.

So what is in a name? There’s an interesting snippet on the BBC website (scroll down) by an American, Sue Yoo  – who just happens to be an attorney…

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