Religion and law round-up – 17th May

A pot-pourri of human rights, parents’ rights, the Kirk and civil partnerships, bishops, cremation, property portfolios – and black spiders…

Church of Scotland and civil partnerships

Perhaps the biggest news of the week was that yesterday the General Assembly of the Church of Scotland agreed that ministers in civil partnerships may be ordained and inducted. A vote is expected on Thursday on the issue of same-sex marriage.

Human rights

The Conservative Manifesto 2015 states inter alia

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”

A number of commentators have considered the possible options for the new Conservative government, including Mark Elliott in his pieceCould the devolved nations block repeal of the Human Rights Act and the enactment of a new Bill of Rights?” He concludes “At a time when no exaggeration is involved in saying that the Union hangs by a thread, it would be a foolish Prime Minister who cast aside a convention that institutionalises respect for devolved autonomy in order to implement the proposed human-rights changes. All of which suggests that, for all that the Human Rights Act is not legally entrenched, it may be far more deeply politically entrenched within our multi-layered constitutional order than the UK Government has so far appreciated.” We blogged about it ourselves here.

On Sunday 10 May, the BBC broadcast its “Big Questions” debate on the subject “Have human rights laws achieved more than religion for humankind?” For those who were unable to view first time around, it is now available on iPlayer (until 9 June) with follow-up comment on Twitter.

Parenting and religion

Last week the Court of Appeal granted leave to appeal in the case of a Christian couple whose adopted children had been taken into care. The parents alleged that their two boys were taken from them because of their faith and their views on discipline and because they took them to church. In an unreported judgment Black LJ ordered that the case should proceed to a full hearing as to whether or not the Family Court had taken the right factors into account when deciding the children’s future and whether or not proper weight had been given to the good parenting they had been given for three years prior to their forced removal.

[With thanks to Antony Bushfield of the Premier website]

Surrogacy agreements

A recent case on surrogacy, H v S (Surrogacy Agreement) [2015] EWFC 36, provoked a range of comment. Rosalind English of UKHRB viewed the case as “Mother paraded as “intimidated martyr” to cheat gay couple of surrogacy arrangement – Family Court”, much in the same way as we read the judgment ourselves. However, The Daily Mail and The Huffington Post commented primarily from a perspective of treating babies as commodities or chattels, here and here. The Mail presented the judgment as: “Ms Justice Russell (she insists on the ‘Ms’ to stress her feminist credentials despite co-habiting with a male partner) has decreed that a 15-month-old girl should be taken from her ‘homophobic’ mother and sent to live with her wealthy gay father and his male lover”; it also noted that the judge “has no children herself” – a detail whose relevance escapes us. The BBC’s angle was “Gay couple wins High Court battle over baby girl”, which we suspect underlies some of the adverse comment on the case.

Although the blog of Natalie Gamble Associates, the solicitors representing the two men, bore a similar headline, “High Court awards care of baby girl to gay couple”, its analysis of the case included a useful legal perspective. The blog post noted that pre-conception and surrogacy agreements are unenforceable under UK law and therefore, contrary to some of the media coverage, the legal issues in question concerned whether or not the court should uphold the original agreement between the parties. Nevertheless, what was agreed between the parties did form an important part of the factual background necessary to determine the case; and the court said it was also important for the child that the truth about her origins was resolved. Thus,

“… despite the media hoopla in response to the case, the decision to transfer main care to the fathers is not as controversial as it might first appear. It was a transfer of residence in a dispute between parents, just one of the many welfare-based decisions the family court make every day”.

However, it concluded:

“the case has, however, sparked an important debate about the future of UK surrogacy law, which we hope will encourage positive change from what is undoubtedly a very sad story for all involved. This is in part a result of Ms Justice Russell’s comment at the very start of the judgment that: ‘The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, led to an increase in these cases before the Family Court’.”

About 2,000 children are thought to be born to surrogate mothers every year in the UK.

Of Bishops


The Crown Nominations Committee met on 11-12 May to consider the appointment of the next Bishop of Oxford. However, the meeting concluded without a nomination. The See of Oxford will be considered again early next year, because of the number of other vacant Sees currently scheduled to be considered by the CNC. Meanwhile Bishop Colin continues in his role as Acting Bishop of Oxford.


On Monday we reported the statements published by the Church, the diocese and the former Bishop himself following the satisfactory completion of the independent risk assessment under the Church’s safeguarding policy concerning the former Bishop of Gloucester,  Michael Perham: a police investigation last year had resulted in no further action being taken. As a result Bishop Michael will be able to resume his ministry in retirement and the postponed farewells for him in Gloucester can now take place.

“Black Spider” memos

On Monday 13 May the Cabinet Office published the so-called “Black Spider Memos” of Prince Charles, as a consequence of the Supreme Court’s ruling in R (Evans) v Attorney General [2015] UKSC 21. Constitutional issues aside, perhaps more important than the content of these memos will be the knock-on effect of the Supreme Court judgment in relation to the use of the ministerial veto when faced with Freedom of Information requests; this and six other cases were reviewed in the House of Commons Library, Standard Note SN/PC/05007, FoI and Ministerial vetoes, 19 March 2014. However, Schedule 7 to the Constitutional Reform and Governance Act 2010 passed just before the 2010 general election created a new but time-limited absolute exemption for correspondence with the Crown and other members of the Royal Family.

Blessed are the property holders, for they shall receive a 14.4% return

The Financial Times reports (£) that, assisted by the UK property boom, the Church Commissioners reported a total return of 14.4 per cent for the year. The property portfolio performed particularly well, rising to £2bn in 2014, an increase of 27 per cent. The FT also notes that by responding to “a real demand for alternative sources of credit” following banks withholding funding to businesses after the crisis, the private credit portfolio gave a 10.2 per cent return. The Commissioners allocated £123M to pensions and reported £215M charitable expenditure – it is the second-largest charity in the UK and eighth-largest in the world. The Commissioners’ full report and accounts for 2014 and annual review highlighting their fund management activity are available here and here.

Quick links

  • GOV.UK: Her Majesty’s Government: May 2015. Cabinet and other government ministers as at 14 May, following The Queen’s approval of the ministerial appointments and resignations announced since the general election.
  • House of Lords Library: Note LLN-2015-008 Constitutional Conventions: Possible Options in the New Parliament. This Note sets out some of the ‘key issues’ that have been put forward as being important when a process of constitutional review or reform is being devised and briefly highlights examples of the different structures used during such processes both in the UK and around the world. The Note ends with an overview of the latest known positions of a selection of political parties represented in the current House of Commons on the case for holding a constitutional convention.
  • Ecclesiastical Law Society: Gospel and Law, Ascension Edition including results of the AGM, a brief summary of the Annual Conference on “Funerals, Burial and Churchyards”, and a listing of forthcoming events, but without the dubious humour of the Easter Edition.
  • Church of England: “Grave Talk” will be launched nationally at a giant café in Portsmouth Cathedral between 2pm and 9pm on May 19th 2015. More details here. Although not associated with this initiative, a piece in The Independent is of relevance.

An important date for next year’s diary

Following the LARSN Conference last weekend, the School of Law at the University of Cardiff has announced that next year the event will form part of ‘The Cardiff Festival on Law and Religion‘, which will celebrate the 25th anniversary of the LLM in Canon Law at Cardiff University. It is envisaged that the 2016 LARSN Conference will be a two-day long event including both themed and non-themed panels and will take place on Thursday 5th and Friday 6th May 2016. We will post further details as they become available.

And finally … losing one’s marbles?

The Guardian reports that the Greek Government has decided that it will not, after all, take its claim for the return of the Elgin Marbles to the courts but will instead pursue the matter through diplomatic and political channels. Said the new Greek Culture Minister, Nikos Xydakis, “You can’t go to trial on every issue, and in international courts the outcome is uncertain, things are not so easy”. Sounds like Key Stage One for baby law-students as explained to Frank fifty years ago: “Advice for those about to sue: don’t.”

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