Law and religion round-up – 23rd April

A week dominated by…

…the General Election, June 2017

On 18 April we published a short post on the announcement by the Prime Minister of her intention to move a motion for an early election in the House of Commons on the following day, under the provisions of the Fixed-term Parliaments Act 2011. The House of Commons Library immediately published a helpful short guide to the election, and for anoraks, it answers the question: Will the Manchester Gorton by-election go ahead? vide infra. The House of Commons Library has also produced a briefing on the Fixed Term Parliaments Act.

On 12:57 pm on 19 April, the Prime Minister moved “That there shall be an early parliamentary general election”. [HC Hansard, 19 April Vol 624 Col 681]. After a 90-minute debate, the House divided: Ayes: 522; Noes: 13. 

Manchester Gorton by-election

On 18 April, David Lidlington MP, Leader of the House, informed the Commons that he expected that the Returning Officer would cancel the by-election. As it was due on 4 May and Parliament is likely to be dissolved on 3 May, the new MP would be elected to a Parliament which no longer existed.

[The Commons guide states “Erskine May indicates that there is no statutory provision for cancelling a by-election when a general election is in progress”. However, Wikipedia indicated that in 1924 a writ for a by-election in London University was issued during the recess on 22 September 1924 and polling was scheduled for 13-17 October. When the Government fell over the Campbell Case, the Prime Minister obtained a snap dissolution on 9 October, and the by-election did not take place].

On 20 April 2017, David  Lidington moved “That … Mr Speaker convey to the Clerk of the Crown the desire of this House that he do issue a writ of supersedeas to the writ issued on Tuesday 28 March for the said election”, telling the House that

“This will put beyond any doubt the authority of the acting returning officer to cancel the by-election process that is currently under way. I understand that this approach has the support of the other political parties in the House, as it avoids unnecessary expense and uncertainty for the candidates involved”.

Lobbying: a reminder to third-party campaigners

The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, which received Royal Assent on 30 January 2014, inter alia amends the provisions within Part VI of the Political Parties, Elections and Referendums Act 2000 on the controls relating to third-party national election campaigns, placing additional constraints “non-party campaigning” in the run-up to future elections and referendums. An analysis of the Act is in our post Charities, religious groups and pre-election lobbying.

Ironically, on the day the Prime Minister announced her decision to call an early General Election, The Guardian reported that Greenpeace has become the first organisation to be fined under the 2014 Act. In terms of the operation of the legislation, this was unremarkable: Greenpeace refused to register as a “third party campaigner” in the run-up to the 2015 election and was fined £30,000 as a consequence.

Other election issues

A piece in Christian Today by Harry Farley, Are Church of England bishops allowed to vote in the general election?, reminded us that whilst we had posted on Undue spiritual influence we had not covered this other favourite election-related question, the short answer to which is: Lords Temporal can’t; Lords Spiritual can, but don’t; when ABC, Robert Runcie did.

During the Second Reading of the Extension of Franchise (House of Lords) Bill [HL], [Lords Hansard, 5 July 2015, Vol 746(30) Col 1407] Lord Wallace of Saltaire said this [Col 1419]:

“he [Lord Dubs] remarked that Bishops in the House of Lords can vote … because they do not have permanent membership of your Lordships’ House. They retire at 70, well before the onset of statutory senility [a term used by late Lord Bridge of Harwich in relation to the then Law Lords].”

The Church of Scotland and same-sex marriage

At the 2016 General Assembly, Commissioners decided by 339 votes to 215 that the Church of Scotland should recognise ministers and deacons in same-sex marriages, as it had previously done in relation to civil partnerships. The Kirk’s Theological Forum has agreed a report to be presented to next month’s General Assembly, which concludes that ministers should be permitted to perform same-sex ceremonies. The report acknowledges the traditionalist view that Biblical writers condemn same-sex acts, but also notes:

“Scriptural condemnations of same-sex sexual activity were framed in cultural contexts very different from our own and referred to individual acts rather than committed and faithful people willing to enshrine their relationships in vows before God.”

The Principal Clerk of Assembly told The Herald that the report recommended that the Kirk’s Legal Questions Committee should conduct a thorough appraisal of the law on conducting same-sex marriages:

“We need to be certain we will not lose our current protection under equalities law before we consider any change to Church law which could see ministers who wished to, being permitted to conduct same sex marriages.”

The report of the Theological Forum has now been published: we noted it here.

Church of Scotland General Assembly 2017

The Blue Book for GA 2017 is now available as a pdf.

Polygamy on trial in Canada

The Vancouver Sun reported that the trial began this week in the British Columbia Supreme Court of Winston Kaye Blackmore and James Marion Oler on charges of polygamy. The accused are both former bishops of the Fundamentalist Church of Jesus Christ of Latter Day Saints and descendants of the six founders of Bountiful, a community of about 1,500 people in southeastern BC.

The issue is complicated by the fact that, though polygamy has been practised in Bountiful for more than 70 years, local, provincial and federal governments ignored it; and because no-one complained, the RCMP did not investigate the situation until the 1990s. Though the RCMP recommended charging the polygamists, the provincial Attorney General refused to proceed on the basis that the law criminalising polygamy had been invalidated by the Charter of Rights and Freedoms in the Constitution Act 1982. In a reference to the Supreme Court of British Columbia in 2010-11, however, Baumann CJ ruled that the federal law criminalising polygamy was constitutional.

Shergill v Khaira yet again

Last week, BAILII posted the judgment in Shergill & Ors v Khaira & Ors [2017] EWHC 883 (Ch) – the latest round in a long-running dispute about the trusteeship of two gurdwaras in Birmingham and High Wycombe. We posted a summary here.

News from Trumpton

Last week, we mentioned that in January 2016 SCOTUS had accepted an appeal in Trinity Lutheran Church of Columbia v Comer – about the refusal by the Missouri Department of Natural Resources on constitutional grounds to allow a school run by Trinity Lutheran Church in Missouri to take part in a state programme that resurfaces school playgrounds with rubber from recycled tyres – but that the appeal seemed to be at a standstill. However, the appointment of Neil Gorsuch to the vacancy left by Antonin Scalia seems to have resolved the issue: oral argument was heard on Wednesday and a transcript is available for anyone interested. [Thanks to Howard Friedman.]

Consistory court judgments – April

Up to the point when David had finished packing for his walking holiday in Puglia, only one consistory court judgment had been circulated in April, Re St Michael & All Angels Croston [2017] ECC Bla 5. Consequently, this will be reviewed along with the May judgments, but for those desperate for an update on this further consideration of reordering, a copy of the full judgment is posted here. A faculty was granted for remedial work including the repair, replacement and treatment of rotten/infested roof timbers and flooring, and a number of items relating to access. Significant to the petition was the grant from the Heritage Lottery Fund (HLF) which made it possible to undertake the works “without massive and possibly unachievable fundraising”. It was claimed that unless the works were completed the future structural integrity of the church would be threatened and the building could be lost completely. Conditional on this grant were improvements in disabled access. involving: ramped disabled access adjacent to the main door; a disabled toilet within the disused south porch; permanent removal of some pews to create additional space for movement around the church and disabled/wheelchair access; and the creation of a larger family-friendly pew area at the rear of the south aisle by the removal of two pews.

Burial discoveries – I

This week it was reported that building work on the deconsecrated church of St Mary-at-Lambeth, next to the gateway of Lambeth Palace, has revealed a hidden chamber beneath the chancel with a stairway leading down to a brick-lined vault with 30 lead coffins. On top of one of them was an archbishop’s mitre, painted red and gold. Metal plates on the coffins revealed the names of five former Archbishops of Canterbury including Richard Bancroft (1604 to 1610) and John Moore (1783 to 1805), as well as  Moore’s wife Catherine and John Bettesworth (1677-1751), Dean of the Court of Arches.

Records of the Southwark diocese indicate that the present church replaced an earlier mediaeval one of which only the tower remains. Contrary to some reports, little of the 14th-century church is likely to have survived when the whole building, except the tower, was pulled down and the present church erected in 1851 to the design of Philip Charles Hardwick. it was declared redundant in 1972 when Anglicans and Methodists formed a Local Ecumenical Partnership and a further Pastoral Scheme in 1977 led to its lease in 1979 to the Tradescant Trust as the Museum of Garden History, its present use.

Although the church no longer falls within the faculty jurisdiction, the churchyard remains vested in the Rector of North Lambeth but under local authority control; the boundary walls and gates are separately Grade II listed and three tombs (of Admiral Bligh, William Sealy and John Tradescant) in the churchyard are Grade II*. It was known that “several Archbishops of Canterbury” were buried there: Parish Churches of London, Basil F L Clarke, Batsford, 1966. Further information is in the Survey of London: Volume 23, Lambeth: South Bank and Vauxhall, originally published by London County Council, London, 1951. Following their discovery, the steps leading down to the vault are now visible through a glazed panel in the chancel floor but the coffins have been left undisturbed, exactly where they were discovered.

Burial discoveries – II

On 19 April, the Daily Mail carried the non-story Revealed: Mystery unmarked grave discovered in a 12th century churchyard belonged to a four-month-old baby who died in 1987. Earlier in the month, “bones were found after they were stumbled across in the grounds of St James’ Church of England, Stanstead Abbotts, Hertfordshire. A startled member of the public discovered the remains after spotting gravel covering a random area in the church’s graveyard”. Following a police investigation and forensic examination, it was found that the burial was legal but the grave was unmarked as parents of the baby could not afford a headstone. A mix-up with the church records meant the grave was listed as new and it was reported to the police. Err, that’s it.

Lambeth Palace and Archbishop Bancroft again

On 18 April, the London Borough of Lambeth Planning Committee voted 5-1 in favour of the proposals for the new Lambeth Palace Library.  The Library, founded in 1610 after Archbishop Bancroft bequeathed his books and manuscripts to the public, is the second-largest religious collection in Europe after the Vatican’s, with over 4,600 manuscripts – the earliest dating to the 9th century – and nearly 200,000 printed books.  It is still open to the public but is currently housed in cramped conditions across 20 rooms within the Grade I-listed Palace buildings. The new contemporary brick building with its eight-storey tower will provide state-of-the-art archive facilities for conservation and storage. There is a dedicated website for the New Lambeth Palace Library

Quick links

And finally… I

This week tweeted: “I’ve just learnt that there is a bishop who has the role ‘Clerk of the Closet’. Thought you’d like to know.” For the record, it’s +Carliol, not +Norvic.

And finally… II

The Guardian reported that India’s Supreme Court set aside a decision of the Himachal Pradesh High Court because the text of the judgment was so convoluted as to be incomprehensible even to the lawyers in the case, which concerned a property dispute between landlord and tenant. Readers will be able to judge for themselves from the following extracts:

“[The]…tenant in the demised premises stands aggrieved by the pronouncement made by the learned Executing Court upon his objections constituted therebefore … wherewithin the apposite unfoldments qua his resistance to the execution of the decree stood discountenanced by the learned Executing Court.

However, the learned counsel … cannot derive the fullest succour from the aforesaid acquiesence … given its sinew suffering partial dissipation from an imminent display occurring in the impunged [impugned???] pronouncement hereat wherewithin unravelments are held qua the rendition recorded by the learned Rent Controller…”. 

Verb sap? (That said, though, Frank came across “adminicle” for the first time last week, in Ilona and Ors v Vaughan [2007] CSIH 3per Lord President Hamilton at [15]: he had to look it up…)

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