Law and religion round-up – 27th November

A long round-up of a very busy week

Religious dialogue and secularism

As part of Interfaith Week, Ed Kessler, Director of the Woolf Institute, posted The Value Of Religious Dialogue In An Increasingly Secular Age on Huffington Post. He begins from the contradiction between the dramatic increase in the number of people describing themselves as non-religious and the fact that religion “has rarely had such a central part in our national conversation”. Moreover,

“all too often religion is seen not as a source of comfort or a force for good but as a cause of division and distrust. In a world become less united by the day, religion is viewed as a powerful force pulling us apart.”

He regards that as “profoundly worrying”, both because the positive impact of religion is ignored or dismissed and because a lack of understanding will lead to communities becoming more tribalised and separate. His remedy is to promote greater religious literacy in the country as a whole and he notes that that was the underlying theme of the report by the Commission on Religion and Belief in British Public Life.

The Woolf Institute suggests

“a British Standard of Religion and Belief Literacy to which businesses and public bodies could work. Just as forward-looking organisations already examine their operations against environmentally-friendly standards, increased understanding of religion and beliefs would help improve the way companies interact with their staff, customers and local communities.”

Which is an intriguing proposal – but how would it work in practice? We both think that we are probably rather more religiously aware than the average person at the bus-stop – but what we know about Jainism, for example, would barely fill a single page of A5. It strikes us that “religious literacy” is a very worthy idea in the abstract but desperately needs to be fleshed out in practice. Hopefully, the Woolf Institute might begin to do that.

Cryonics and the law

As mentioned in last week’s round-up, on 19 November we posted a note on Re JS (Disposal of Body) [2016] EWHC 2859 (Fam), which included a report of the judgment and some more general observations. We thought that was the end of the matter. Although the media were scrupulous in observing the midnight embargo on the story and redacted it from their early rushes to broadcasters, some of the subsequent comment seemed to us to be very wide of the mark. Consequently, on Monday we had a second attempt at dispelling some of the confusion in What Re JS (Disposal of Body) is not about, a quick reprise of the court’s unambiguous judgment.

On Wednesday we cross-posted, with permission, Justice Cryogenically Delayed is Justice Denied? by Nils Hoppe, Professor for Regulation in the Life Sciences and a Director of the University of Hannover’s Centre for Ethics and Law in the Life Sciences. The article first appeared in the BMJ Journal of Medical Ethics blog and addresses a number of issues which will undoubtedly trigger further discussion. Of particular interest to us were the following comments:

“The whole concept of halting decay after death in order to wait for a miracle cure is predicated on the potential for future scientific progress. At the same time, it was clearly right for Mr Justice Peter Jackson to work on the basis of science as it stood at the time the matter came before him. The cessation of the JS’s life is, in the current scientific context, irreversible and fulfils the criteria we use to diagnose death in a legally meaningful way.”

“If [Peter Jackson J] thought that her death was, on the balance of probabilities, reversible at a future point in time, would he be entitled to decide this issue on the basis that she is dead? Most jurisdictions, including England and Wales, are clear that the death of the individual must be ‘irreversible’ to be normatively meaningful. Where this is the case, what is done with the body afterwards is very much a matter for the concerned individual and her family. There is only a reserve right for public institutions to intervene if the proposed use is deemed so inappropriate as to negate her right to decide what to do with her body after her own death.”

We strongly recommend that you read the full article.


On Monday, Lisa Nandy (Wigan) (Lab) asked an Urgent Question in the Commons requesting “a statement on the leadership, staffing, budget and structure of the independent inquiry into child sexual abuse.” In reply, the Parliamentary Under-Secretary of State for the Home Department, Sarah Newton, said very little apart from reiterating that IICSA is independent of Government and that the outcome of Professor Jay’s internal review of the Inquiry’s approach to its investigations is expected “soon”.

Late on Thursday, the Commons Home Affairs Committee published a rather critical report on IICSA: The work of the Independent Inquiry into Child Sexual Abuse. Our post on the Report’s conclusions and IICSA’s response is here.

Pope Francis and abortion

Can. 1398 of the Codex Iuris Canonici 1983 declares that “A person who procures a completed abortion incurs an automatic excommunication” [Qui abortum procurat, effectu secuto, in excommunicationem latae sententiae incurrit]. On Monday, however, Pope Francis issued an apostolic letter, Misericordia et Misera [Mercy and Misery], which, inter alia, appears to signal a much less judgmental attitude to abortion than Can. 1398 would suggest:

“[L]est any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father. May every priest, therefore, be a guide, support and comfort to penitents on this journey of special reconciliation.”

The Washington Post reported that in a press conference an official of the Holy See, Monsignor Rino Fisichella, said that the pronouncement covers doctors, nurses and others involved in an abortion, as well as the woman obtaining the procedure. There is a fuller report of the Press Conference here.

[Thanks to Howard Friedman.]

Charazi (application for judicial review)

Joseph Charazi was born in Israel and resident in England. He died in 1993 and was buried in a Jewish cemetery in Cheshunt, Hertfordshire. His widow, Anne, claimed that his dying wish had been to be buried in Israel but, at the time, she could not afford to comply with his wishes. Subsequently, however, she moved to Israel and sought to exhume his remains to rebury him there and to be buried next to him when she died. Four of his six children opposed his exhumation and the Adath Yisroel Burial Society, which administers the cemetery, repeatedly refused to consent to his remains being exhumed. Mrs Charazi sought permission to apply for judicial review of the Burial Society’s refusal.

Counsel for the Burial Society said there was deep concern about exhuming a body that had been buried for over 20 years and that the Society was constitutionally bound to follow the rabbinate’s decision that exhumation should not be permitted; moreover, the rabbinate was entitled to take into account the fact that four of Mr Charazi’s children opposed the exhumation.

Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge, rejected the application for permission to seek judicial review. The refusal by Adath Yisroel to permit the exhumation was a decision of a religious body in a matter of a religious nature and was of a kind that was generally not amenable to judicial review. Moreover, the claim was long out of time and there was no written statement of the deceased’s wishes to be buried in Israel. Application dismissed with costs.

[In the absence of a transcript of the judgment, the above is based on a report in the Jewish Chronicle. We should very much like to see the judgment.]

Exchanges between CofE and GAFCON UK on Lambeth I.10

Further to the strongly-worded letter from the Rt Revd Nicholas Holtam to the Church Times in response to the GAFCON statement on the 1998 Lambeth Conference Resolution Section I.10 – Human Sexuality, on 22 November the Secretary General of the Archbishops’ Council sent an equally robust letter to the Chairman of GAFCON UK Task Force, stating unequivocally:

“The [GAFCON UK] paper paints a significantly misleading picture both of the teaching and practice of the Church of England, and of Resolution 1:10 [sic] of the 1998 Lambeth Conference. I am writing to correct some of the erroneous assertions”.

The missive from GAFCON UK, also published on 22 November and entitled The Lambeth I:10 Briefing: Process and Motive, Truth and Love, was quickly followed on 25 November by a 1400-word article on the GAFCON UK website, Secretary-General’s letter shows why GAFCON UK is needed. Ian Paul has produced a balanced review of the proceedings, The discourse of the sexuality debate, in which he observes the lack of episcopal comment; he concludes:

“As the conversation becomes more fraught over the next six months (as it is likely to do), what we need is not less, but more clear episcopal leadership, articulating with clarity and credibility the Church’s teaching on sexuality. Without this, the vacuum will be filled with ever shriller voices, and the debate will descend into political and moralising point scoring on either side.”

In contrast to these lively exchanges, on 23 November, the Church of England published Statement from the House of Bishops, which was essentially a “holding statement” that revealed little that was not already known; however, had it not been issued, it is likely that there would have been criticism of a lack of information on this “hot topic” from the HoB. There relevant parts of the Press Release state:

“The meeting received an update on the work of the Bishops’ Reflection Group on Sexuality by the Archbishops of Canterbury and York in September 2016 to assist the process of consideration.

As with the meeting of the College of Bishops in September, the considerations of the House of Bishops took place in private, with reflections due to be shared with the wider College of Bishops next month.

It is envisaged the House will prepare material to bring to the General Synod for initial consideration in February 2017.”

So now you know, (or don’t).

But for those wishing to delve into the background further, earlier in the week, Thinking Anglicans has published AMiE and GAFCON UK – what’s the connection? which examines the relationship between the two organisations and identifies some of the personnel and parishes involved; and going back to the process by which the Lambeth I.10 resolution came into existence, Simon Sarmiento has helpfully republished his original reporting of Lambeth 1998 which consists of “a series of 22 near-daily and quite detailed reports written as the conference proceeded”.

The George Bell case

On Tuesday, the Church of England announced that Lord (Alex) Carlile of Berriew QC had agreed to conduct an independent review of the processes used in the Bishop George Bell case. The review, commissioned by the Church of England’s National Safeguarding Team in accordance with the House of Bishops’ guidance on all complex cases, is expected to be completed by the end of summer 2017.

Religion and the Genuine Occupational Requirement

A German NGO that wanted to employ an assistant for its anti- race discrimination project advertised for candidates who were members either of the German Evangelical Church or of a Church that was a member of the German Christian Churches Association and who accepted the mission of the Church. The NGO is now being sued by an unsuccessful applicant for illegal discrimination on grounds of religion: the NGO denies liability and relies on the exceptions in Article 4(2) of Directive 2000/78/EC (the Framework Directive on Equal Treatment in Employment and Occupation). The Federal Labour Court has heard argument and has decided to make a preliminary reference to the CJEU for an Opinion: Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e V Case C-414/16.

[With thanks to EU Law Radar, which has posted a full note on the reference.]

Cardiff canonist makes good…

On Monday, the Archbishop of Canterbury announced that his new Ecumenical Adviser  is to be (roll of drums)… the Revd Dr Will Adam, who will also be Ecumenical Officer at the Council for Christian Unity. Apart from his day-job as Vicar of St Paul’s, Winchmore Hill, Will is Editor of the Ecclesiastical Law Journal, an occasional contributor to this blog – and also a good friend. We wish him well in his new post.

Quick links

  • Archdeacons’ News: Bulletin no. 19, November 2016: includes information on the Consultation on Quinquennial Inspection reports, which is open until 20 December; electrical works in church buildings by STROMA-certified electricians not accepted by Ecclesiastical; roof alarm grants of £1,000.
  • Sir Henry Brooke, Musings, Memories and MiscellaneaWrongful Allegations of Sexual and Child Abuse: a former Lord Justice of Appeal (who also writes one of the most interesting legal blogs on the Internet) wonders whether the relaxations of relevant rules of criminal evidence, coupled with the presumption that those who allege that they have been sexually abused should be believed, has led to the conviction of innocent defendants.
  • Church of England : Archbishops’ Council Member. The Archbishops wish to appoint a new member to fill a vacancy on the Archbishops’ Council. They are looking for someone with solid experience and a real heart for mission. It is their intention that this person will chair the Council’s Mission and Public Affairs Council. Apply before midnight on Sunday 18 December 2016 midnight.
  • Church of England: Week in Westminster, 21st-25th November. Bishops in the House of Lords led a debate about rural bus services, responded to the Chancellor’s Autumn Statement and spoke in a debate on adult social care. Bishops also asked questions about conflict in Nigeria and SRE. In the House of Commons the Second Church Estates Commissioner answered questions from MPs on the persecution of Christians overseas, the Red Wednesday campaign, church buildings, anti-Semitism and the Church’s Christmas campaign. She also answered written questions about anti-Semitism and church-owned land in Peterborough.
  • POSTNote: Genome Editing: note by the Parliamentary Office of Science and Technology covering current and future uses of genome editing, how it is regulated and the potential concerns that it raises. [23 November 2016]
  • Wyndham’s Theatre: The Trial of Hamlet, 27 November 2016: there is just time to attend this star-studded performance which examines whether Hamlet should face a life behind bars for the murder of Polonius; however, readers may examine at their leisure Ecclesiastical Law in Hamlet: The Burial of Ophelia by one Rocellus Sheridan Guernsey, which suggests that the Bard had “the most thorough and complete knowledge of the canon and statute law of England, relating to the burial of suicides that had ever been written”.

And finally…

St Michael’s Church in Camden has been granted a licence to sell alcohol and host live music on three nights a week. The incumbent, the Revd Tom Plant, said he wanted to open up the church up because “Jesus turned water into wine for a reason … We see it as outreach, not Bible-bashing, but welcoming people in.”

Canon F15(1) forbids the use of a Church of England church for “temporal objects inconsistent with the sanctity of the place” and Canon F16(1) allows plays, concerts and films that are “consonant with sound doctrine and make for the edifying of the people”.

Discuss… Or, maybe, “Cheers”.

Stop Press

On his Facebook page, Joshua Rozenberg has posted Brexit: The written arguments in which he states: “Here are the links to the written argument (or “printed case”) for the various parties and interveners in the forthcoming Brexit appeal. A few are missing: I will add them when I have them. And I shall be summarizing the arguments in due course: Brexit Secretary (UK government), appellant; Gina Miller, first respondent; Deir Dos Santos, second respondent; Lord Advocate (Scottish government), intervener ; and Counsel General for Wales (Welsh government), intervener.”

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