An amazingly busy week, with sharia, safeguarding, tax credits and the end of the Vatican Synod on the family, just for a start…
The Lords debate sharia
On Friday 23 October (yes: we’re afraid we missed it) the House of Lords debated Baroness Cox’s Arbitration and Mediation Services (Equality) Bill. In response, the Minister of State at the Ministry of Justice, Lord Faulks, said that as part of the Government’s Counter-Extremism Strategy announced earlier in the week, the Home Secretary was to commission a full, independent investigation into the application of sharia law in England and Wales. On the question of legislation, he did not want to prejudge that inquiry, “although certainly legislation may be an option”. But that would be considered in due course: the Home Office inquiry would “enhance our understanding of any ongoing misuse of sharia law and the extent of the problem where it exists”.
The National Secular Society has published a helpful summary of the debate.
That other Lords’ debate …
… i.e. the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, [26 Oct 2015 Vol 765 (56) Col 975] – not a Bill, as the Editor of a well-known satirical magazine insists on calling it. With regard to the constitutional issues associated with the amendments, had there been a division on the Bishop of Portsmouth’s “motion of regret”, the Lords would not have been accused of defying precedent on financial secondary legislation.
Following the government defeat, the Prime Minister was quick to establish a “rapid review” of the role of the Lords under Lord Strathclyde, although when questioned in the Commons, Chris Grayling commented “It is absolutely essential that we do not rush this”, [Commons Hansard 28 Oct 2015 Vol 601(5) Col 355].
Readmission of divorced and remarried Roman Catholics to communion
The Synod on the Family agreed by a single vote over the necessary two-thirds majority to allow divorced and remarried persons to take communion – from which they are currently debarred – after consideration of individual circumstances. Paragraph 85 of the final document, on readmission to communion, urges a “case by case” approach to remarried persons whose marriages have not been annulled, on the grounds that both parties to a divorce do not necessarily bear the same responsibility for what happened.
Divorced and remarried individuals were encouraged to examine their consciences, asking themselves
“how they behaved toward their children when the marriage entered into crisis; if they were tempted to reconcile; what the situation is for the abandoned partner; what consequences does the new relationship have on the rest of the family and the community of faithful; what example this offers to the youth who must prepare for marriage.”
Cardinal Schönborn of Vienna told Vatican Insider: “The key word was ‘discernment’ … Discernment depending on the situation that is before you, because every situation is different from another.”
One situation which hopefully will not be repeated was reported in the Church of England’s Daily Digest on Friday; this contained links to a number of reports concerning the couple who married “at first sight” as part of a television programme and who now have had their marriage annulled after eight months. A judge ruled that the groom, Jason Knowles, had “wilfully” refused to consummate the relationship. The couple were paired by a panel including a CofE priest on a Chanel 4 programme in February 2015.
More on the “British Bill of Rights”
We have frequently mention the prospect of a “British Bill of Rights”; and regular readers will by now know that we view the prospect with no enthusiasm whatsoever. In a guest post cross-posted from the UCL Constitution Unit’s blog, Professor Roger Masterman of Durham Law School looked at the pitfalls of breaking the link with Strasbourg.
Safeguarding in the Diocese of Chichester – the story continues
The lamentable story of safeguarding failures in the Diocese of Chichester rumbles on. On Thursday Vickery House, former Vicar of Berwick, East Sussex, was jailed for six and a half years after being found guilty on of five counts of indecent assault over a period of 16 years. He was cleared of three further counts. According to a report in the Evening Standard, House colluded with Peter Ball and shared three of the victims with him. The Diocese issued a statement on the conviction.
The news that the police had amassed sufficient evidence on the proclivities of Bishop George Bell to send the file to the CPS, had he still been alive, evoked a shocked reaction from those who revered him for his denunciation of the bombing of German civilians and the internment of German anti-Nazi refugees. The case also raises wider questions about what to do when someone who is commemorated in the Church of England Calendar appears to have feet of clay. Michael Ainsworth posted about it here; and the last time we looked at the statistics his post had had almost 1,500 page views.
The UN Special Rapporteur on religious rights of children and parents
The UN has published the latest report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, on “the rights of the child and his or her parents in the area of freedom of religion or belief”. We blogged about it here.
Issues of gender
Prior to her introduction to the House of Lords on Monday 24th October, Bishop Rachel Treweek is reported as saying “God should not necessarily be seen as a masculine figure … God is not to be seen as male. God is God.” Ironically, on Thursday in a response to Baroness Northover’s written question regarding “a gender specific title for the first woman bishop to be introduced into the House of Lords, currently described as the Lord Bishop of Gloucester” [HL2684], Baroness Stowell of Bestow replied,
“Following discussions between the Church of England and the Crown Office, it has been agreed that ‘The Lord Bishop’ will continue to be the appropriate designation for all Bishops in the House of Lords.”
WATCH this space.
The Belfast News Letter reports that the appeal in Lee v Ashers Bakery has been listed for a two-day hearing beginning on 3 February.
Consistory court judgments
We posted the monthly round-up of consistory court judgments and CFCE determinations (for which we are grateful as always to Ray Hemingray for providing the judgments). We shall publish separate analyses of Re Putney Vale Cemetery  Southwark Const Ct, Re St. Leonard Beoley  Worcester Const Ct and Re Christ Church Lye  Worcester Const Ct when we’ve got out heads round them.
- Bingham Centre for the Rule of Law, JUSTICE and the Public Law Project: Judicial Review and the Rule of Law: introduction to judicial review proceedings in Part 4 of the Criminal Justice & Courts Act 2015 – which the authors hope will help inform understanding of its scope and its interpretation in practice: Kate Beattie provides a helpful summary on UKHRB.
- Ecclesiastical Law Society: Gospel & Law, October 2015.
- Legal Cheek: The unintentionally positive effects of the Witchcraft Act are still being felt today: Katie King suggests that the law of witchcraft “was a pivotal point in the development of the law of evidence”.
- UK Parliament: Witchcraft: “In 1542 Parliament passed the Witchcraft Act which defined witchcraft as a crime punishable by death. It was repealed five years later, but restored by a new Act in 1562. A further law was passed in 1604 during the reign of James I who took a keen interest in demonology and even published a book on it. The 1562 and 1604 Acts transferred the trial of witches from the Church to the secular courts”.
And finally… two snippets this week
We’d been steadfastly ignoring the US presidential primaries (in which neither of us has a vote, so why bother?) until Religion Clause posted this:
“On the Republican presidential campaign trail last week, Donald Trump raised questions about the Seventh Day Adventist beliefs of fellow candidate Ben Carson. According to the New York Post Trump told a Florida audience on Saturday:
I’m Presbyterian. Boy, that’s down the middle of the road folks, in all fairness. I mean, Seventh-day Adventist, I don’t know about. I just don’t know about.
Subsequently Trump refused to apologize for his remarks.” [No surprise there, then.]
As any fule kno, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”: so why are so many American politicians so obsessed with it? And Presbyterians the world over are presumably wondering just what they must have done to deserve Trump in the first place…
And rather further afield, Christian Today reports that Ascension Island is looking for a new Vicar. According to Richard Fenwick, the Bishop of St Helena, one of the attractions is that “there are two flights up to Brize Norton, and two down from Brize Norton every week. This means that on Ascension you are never more than 9 hours away from Oxford”. Really useful if you hanker after a decent Choral Evensong. [David notes that both Wantage and Oxford are equidistant from Brize Norton].
Interesting that the RC criteria for the readmission to communion of divorced and remarried persons match almost exactly the guidelines which for some years now Anglican clergy have operated (in my experience effectively, if carefully handled) in deciding whether second marriage in church is appropriate – with the curious exception of whether the new relationship is the cause of the previous breakdown (rarely the case with couples I have dealt with, but obviously the clincher when this is an issue). The CofE approach, which accepts that genuine relationships may (sadly) fail, in which case divorce is a proper and honourable course, is surely preferable to – certainly more realistic than – an extended and often specious ecclesiastical nullity jurisdiction, which pretends that there never was a ‘real’ relationship in the first place. The Jason Knowles case, however, shows that nullity still has a necessary place in secular law. (Am I alone in lamenting that the issue of what non-consummation means in relation to same-sex marriage seems to have been brushed aside, despite all claims of exact equivalence with heterosexual marriage? We may no longer send priests to cense matrimonial beds and satisfy themselves that the deed has been done, but that does not mean that it is prurient to ask the question…)
Within the CofE, under Canon B16 only a bishop is permitted to exclude someone from Holy Communion except ‘in case of grave and immediate scandal to the congregation’. A blog post by Philip Jones examines the associated case law.
The conscience clause in s8(2) Matrimonial Causes Act 1965 may still be invoked by a CofE or CiW priest who believes that he/she should refuse to marry a divorcee or permit his church to be so used; similar provisions are included in para. 3, Part 1 of Schedule 4 to Gender Recognition Act 2004 in relation to “marriages involving persons of acquired gender”.
With regard to your concerns regarding non-consummation in same-sex marriage, you appear to be in good company. The associated issue of adultery was raised in Baroness Butler Sloss’ unsuccessful amendment 41 to the Marriage (Same sex Couples) Bill, [HL Hansard 19 Jun 2013, Vol 746(20) Col 376]; she said “I consider it profoundly unsatisfactory and, more importantly, profoundly unjust that adultery is not a ground for same-sex divorce. It undermines the value of same-sex marriage. … The failure to find a definition of consummation in civil and family law works, as I have said, as a real injustice. It makes a mockery of the so-called equality that is the bedrock of this Bill. If marriage is to be equal for all those who get married, an embarrassed or ineffective approach to this inequality and brushing aside the matrimonial offence of adultery will not do.”
An interesting, if explicit, examination of nullity is given in Richard Easton’s piece in the Solicitors Journal, Is consummation a legal oddity?. [15/03/18 Update: Unfortunately, this piece no longer appears to be available on-line].