Law and religion round-up – 8th November

A mixed bag: same-sex marriage in Northern Ireland, possible withdrawal from the ECHR, Jeremy Pemberton loses his employment claim, a couple of interesting consistory cases – and more…

Northern Ireland and same-sex marriage

On Monday, the Northern Ireland Assembly debated a joint SDLP-Sinn Féin private Member’s motion calling on the Executive to table legislation to allow for same-sex marriage. The motion was carried by a margin of one vote – Ayes 53: Noes 52 – but because the Democratic Unionists had invoked another “petition of concern”, as on previous occasions when the matter has been discussed, the motion was negatived because it did not have cross-community support.

Dominic Grieve on withdrawal from the ECHR

The Justice Sub-Committee of the House of Lords Select Committee on the European Union has published an unrevised transcript of evidence from Aidan O’Neill QC, Dominic Grieve QC MP and Martin Howe QC in the course of its inquiry into the impact on EU law of repealing the Human Rights Act. In the course of the hearing, Dominic Grieve confirmed our own suspicions about the legal consequences of withdrawal:

“As a matter of political practice, it is quite clear that you cannot now become a candidate member and be admitted to the EU if you are not adherent to the European Convention. On the other hand, it is also right to say that there is nothing in the treaties that says that you have to be. But the practical consequences of our leaving the Convention while remaining in the EU … would be that if we started to be shown to be in breach of what was regarded as fundamental norms, the treaty would then be invoked, either politically – ‘We can’t have the UK as a partner’ – or, indeed, it might be the green light to the Court of Justice in Luxembourg to say, ‘Well, in these exceptional circumstances, it must be our duty to see that these articles of the Convention are being observed, even if they fall outside the treaty norms’ ”.

Jeremy Pemberton loses in employment tribunal

On 4 November, the Diocese of Southwell & Nottingham issued a Press Release stating that the Employment Tribunal that heard Jeremy Pemberton’s case against Bishop Richard Inwood had released its findings, dismissing all the claims. The BBC reports that Canon Pemberton’s lawyers have considered the judgment and are in the process of preparing the Grounds of Appeal for submission to the Employment Appeal Tribunal.

The issue of cost to the Church Commissioners was explored by Ben Bradshaw, (Exeter, Lab), in a question to the Church Estate’s Second Commissioner, [Commons Hansard: 5 Nov vol 601(65) col 1109]. Mrs Spelman replied:

“I come back to my point that the litigation is still in progress, and at the moment there is therefore no definitive sum that I can make transparent in the House. This is an on-going matter. The Church Commissioners do not seek to incur legal bills, but the action was initiated by the litigant in this case. It is important to say that there will be a variety of views in the Church of England on the doctrine of marriage, and the Church has encouraged a conversation within the Church about that.”

Other aspects of the costs of the case and the possible appeal have been explored elsewhere in the blogosphere. We hope to post a case-note shortly.

Funeral wars?

A brother and sister are currently pursuing a dispute in the High Court about the way in which their late mother should be buried. Their mother, Iris Freud, died on 12 October 12 in West Middlesex University Hospital but her body remains there in storage because Susanna Levrant and David Freud cannot agree on the place of burial or the funeral rites. Mrs Levrant wants a traditional Church of England funeral, while Mr Freud is insisting on a Jewish funeral. The issue is complicated by the fact that, though Mrs Freud’s husband – who predeceased her – was a practising Jew, she herself did not convert.

According to press reports, Arnold J told the court:

“This case has come to court quickly and for good reason. It must be deeply distressing for all those concerned …I do not have the judgment of Solomon. However if this brother and sister cannot agree on this issue, somebody will have to decide, and that will be me. It is not a task, I assure you, that I relish, but somebody will have to do it.”

We hope to post a note on the case when judgment is handed down.

Religious divorce

And while we are more-or-less in that territory, The Independent reported that the London Beth Din, with the active encouragement of the Chief Rabbi, had taken the unprecedented step of using the Jewish Chronicle to publicise the refusal of a man to grant his wife a religious divorce. We posted about it here.

EVEL in the House

Monday 2 November saw the second reading in the Commons of the Housing and Planning Bill. Whilst not directly relevant to law and religion, the Bill was of constitutional importance, being the first to be “certified” by the Speaker as having England-only sections which, under the new English votes for English laws (EVEL) procedure, can only be passed with the approval of a majority of English MPs: see Commons Hansard 22 Oct 2015 vol 600(55) col 1159. A point of order on this certification was raised by Ms Tasmina Ahmed-Sheikh (Ochil and South Perthshire) (SNP) [Commons Hansard 2 Nov 2015 vol 601(62) col 719], to which the Speaker responded:

“I remind the House that I have certified some provisions of the Housing and Planning Bill under Standing Order No. 83J in relation to England, and some in relation to England and Wales. I further remind the House that this does not affect proceedings in the debate on Second Reading, or indeed in Committee or on Report. After Report stage, I will consider the Bill again for certification and, if required, the Legislative Grand Committee will be asked to consent to certified provisions.”

Consistory cases

Although we usually publish a monthly round-up of consistory cases, a couple caught our attention as possibly meriting an audience wider than Anglican ecclesiastical lawyers.

  • In Re St Leonard Beoley [2015] Worcester Const Ct a faculty was sought for “the temporary removal from the vault beneath the Sheldon Chapel of a skull, possibly that of William Shakespeare” for various archaeological investigations to verify or disprove the truth of the claim. The petition was refused.
  • Re Putney Vale Cemetery [2015] Southwark Cons Ct was the latest in a complex st of proceedings involving the exhumation of the remains of Tich Trinh Hong from Plot 162 (Block 8) in Putney Vale Cemetery and their reinterment within Plot 279 (Block 13) in the same Cemetery, in order to fulfil the obligation in Vietnamese tradition and culture for the eldest son of the family to carry exhume his deceased father’s body 10 years after it was first buried, and then to re-bury it. Both plots being within consecrated sections of the cemetery, a faculty was required; in the circumstances, it was granted.

Rough sleepers in the (closed) churchyard

On 23 October, The Independent carried the brief news item entitled Vicar threatens homeless people sleeping in his churchyard, which stated the Rev Canon Dr Andrew Bunch “was ‘sympathetic’ to those who had set up tents among the gravestones of Oxford’s St Giles’ Church but had told the BBC that ” ‘it was becoming a bit of problem’, and in a letter to those sleeping rough, he said the church would get a court order unless they moved on”. A follow-up letter from Dr Bunch addressed some of the pastoral issues the church had engaged in; with regard to the legal issues, he commented:

“[when they refused to move on] we started the process of seeking an eviction order. In the event this was not required as the churchyard is closed for burials and its care and maintenance has become the responsibility of the local council. Once this was confirmed by our lawyers, the council moved the rough sleepers away from the site”.

This is one aspect of a Council’s duty relating to closed churchyards that is not generally considered, although it has parallels with the Occupy London protest camp at St Paul’s Cathedral and the resignation of the Rev Dr Giles Fraser, the then canon chancellor of St Paul’s, after the Corporation of London confirmed that it would seek a High Court injunction to remove the camp.

The next Bishop of Oxford

Not being regular readers of the Church of England Newspaper, we missed this link on the Jobs page to the vacancy for the Bishop of Oxford, posted on 22 October. It indicates that the Crown Nominations Commission will meet (yet again) on 4 February and 7-8 March 2016 to consider Bishop John’s successor. Anyone wishing to comment on the needs of the diocese or the wider church, or who wishes to propose candidates, has an opportunity to do so before 23 November.

Gay conversion therapies?

Of at least marginal relevance to “law & religion”, on 4 November, Mike Freer (Finchley and Golders Green) (Con) introduced a Westminster Hall debate on the use of so-called “gay conversion therapies” within the NHS, [Commons Hansard: 3 Nov 2015 vol 601(63) col 301WH]. The UK Council for Psychotherapy (UKCP) issued a Press Release on 3 November stating that

“[a]ll the major psychological professional bodies believe that conversion therapy is unethical and potentially harmful. Improving training among professionals and raising awareness among the public will make it more difficult for those who seek – against the evidence and accepted ethical practice – to promote conversion therapy.”

UKCP has signed the Memorandum of Understanding (MOU) detailing how professional therapy bodies should operate in this area: according to Stonewall, the Nursing & Midwifery Council, the Care Quality Commission, the General Medical Council and the Health and Care Professions Council are not yet signatories. In contrast to these views, MPs had been circulated with the document, “Parliamentary Debate on ‘Stamping Out’ Gay Cure (sic) Therapies in the UK from Core Issues which suggested that their discussion should take into consideration a number of “evidence-substantiated statements”. However, this received little support; and Wes Streeting (Ilford North) (Lab) suggested that the Trust had got the links with mental illness the wrong way around [Col 303 WH]:

“It is discrimination and the suggestion that there could be a gay cure makes all LGBT people, and young people in particular, feel that they are different and somehow alien. That is what causes them mental ill-health, not their homosexuality.”

Responding to the debate, the Parliamentary Under-Secretary of State for Health, Jane Ellison, wholeheartedly agreed with Mike Freer’s opening premise:

“[t]he Government do not believe that being lesbian, gay or bisexual is an illness to be treated or cured. We are concerned, therefore, about the issue of so-called gay-to-straight conversion therapy and we have consistently spoken out against the need for that practice.”

Although the Government had decided at this stage not to take a legislative approach, it wished to maintain the momentum and, following the anniversary of the MOU, should convene another roundtable in the new year “at which [Government would] ask the original signatories to report on their progress and challenge them to identify where we can be more ambitious on ending conversion therapy” [Col 303 WH].

Quick Links

  • Meg Russell, Constitution Unit, UCL: The Lords, Politics and Finance: “In the aftermath of the Lords defeats on tax credit cuts there has been much talk of a ‘constitutional crisis’. Professor Russell argues that whilst that vote was certainly unusual, the most significant change is the wider political context: that it is a Conservative government on the receiving end of repeated defeats in the Lords.”
  • House of Lords Library: Conventions on the relationship between the House of Commons and House of Lords: a briefing paper which sets out the conventions on the relationship between the two Houses of Parliament and their origins. On 4 November 2015 the Leader of the House of Lords announced the terms of reference of the Government’s review into how to secure the decisive role of the elected House of Commons in the passage of legislation. This briefing paper also sets out the background to the review.
  • Philip Jones, Ecclesiastical Law: Part Time Churches: Closed for Regular Public Worship, but Open for Occasional Public Worship: An exploration of the legislation relevant to the recent Church of England suggestions on the future management of church buildings (Church Buildings Review Group Report, September 2015).In the House of Commons, the Second Church Estates Commissioner answered questions from MPs on women bishops, funeral poverty, the tribunal case of Jeremy Pemberton, the Church’s carbon footprint and a memorial day for civilian casualties of the Second World War.
  • Peter Hitchens blog, Mail Online: An Article from the Church of England Newspaper about George Bell “In case anyone thinks that I am alone in my concerns about the treatment of George Bell, this article in the Church of England Newspaper shows that my misgivings are shared elsewhere (as did a letter, already mentioned, in The Times of Friday 6th November from a number of 1950s Chichester Cathedral choirboys, some of them now distinguished musicians, all of whom had known George Bell when he was alive and were unhappy about the way he was being treated)”. See also Michael Ainsworth’s widely-read piece, Hymns (and other things) to avoid?
  • Church of England: Week in Westminster, 2nd to 6th November. This week bishops led a debate on the impact of pornography on society and spoke on the need to support the steel industry. Bishops also asked questions on counter extremism, Universal Credit claimants, support payments to farmers, rural exceptions from the under-occupancy charge and support for interreligious and intercultural dialogue.

And finally …

… “more and better sex” is no longer guaranteed by the CofE, alas. Whilst the earlier version of the Church’s website Your Church Wedding suggested “[m]arriage provides more and better sex: sex within marriage has an enduring and unifying quality”, its new website launched this week is more nuanced, stating that “[m]arriage can create the right conditions for a lifetime of physical pleasure – not just for meaningful and rewarding sex, although that is really important, but also enjoying each other’s company, talking, listening, holding hands and a deep affection that long outlasts plain lust.”

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