It really must have been a fairly thin week when we lead with a piece on…
…land ownership, rectorial tithes – and confusion
In one of the more unusual stories of the week, Farmers Weekly reports the strange case of a farmer in Warwickshire, Richard Tyacke, who discovered that the Diocese of Birmingham had wrongly registered itself as the freeholder owner of 16 of his 120 hectares. In the 1880s, when the land was part of the Stoneleigh Estate, the Church of England had been granted a yearly rent-charge of £30 on the 16 hectares for the upkeep of the local church and the augmentation of the vicar’s income. Mr Tyacke’s family rented and farmed the land from 1896 until 1942 when they bought the farm, but they continued to pay the annual rent-charge. Unknown to Mr Tyacke, in 2010 the Diocese registered the freehold of the 16 hectares in its name by submitting a “statement of truth” to the Land Registry claiming ownership – which, apparently, is accepted practice where documents relating to ownership are missing.
The mess was finally cleared up, but it all goes to suggest that rectorial tithes, like the forms of action at common law, may be buried but, in Frederick Maitland’s words, “still rule us from their graves”. Or, at least, they still do so occasionally.
Religion and fiduciary duties in the US
There has been a long-running battle between competing factions in The Episcopal Church in South Carolina. A minority of congregations, headed by Bishop Charles vonRosenberg have remained loyal to the TEC, while a larger group, headed by Bishop Mark Lawrence, has broken away and attempted to take their church property with them. The underlying property dispute has been litigated in a state court: in addition, however, a suit has been filed in a Federal District Court alleging that, contrary to the Trademark Act 1946 (aka the Lanham Act), Bishop Lawrence has engaged in false advertising by asserting that he remains the Bishop of the Diocese.
So far, so pedestrian. What is interesting from a UK perspective, however, is that in vonRosenberg v Lawrence, (D SC, April 16, 2018), the court has refused to allow the claim to be expanded to assert a breach of trust by the dissidents. Last year, the South Carolina Supreme Court decided the property issue largely in favour of those who had remained loyal to The Episcopal Church and the plaintiffs sought to add a claim that “the [dissident] parishes have breached their fiduciary duties by allowing property held in trust for TEC to be used ‘in connection with a denomination’ other than TEC.” They sought an order against 28 parishes “to remove from their vestries any persons who cannot demonstrate to this Court’s satisfaction that they are capable of and willing to carry out their fiduciary obligations to The Episcopal Church…”
On the fiduciary duties point, the District Court has held that:
“The United States Supreme Court has held that a statute must ‘not foster “an excessive government entanglement with religion”.’: Lemon v Kurtzman, 403 U.S. 602, 613 (1971). Lemon concerned state aid to parochial schools, not an injunction issued under a facially neutral law-of-trusts statute, but that distinction does not mean this Court is free to use trust law entangle itself with religion like a fly in a spider web. Entry of a judicial order telling 28 congregations whom they may or may not elect to their respective parish vestries would foster excessive judicial entanglement with religion.”
Which, from a UK point of view, points up a fundamental difference in the relationship between law and religion in the US and in the UK, where the jurisdiction of the courts
“is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association … Its role is more modest: it keeps the parties to their contract”: Shergill & Ors v Khaira & Ors  UKSC 33 [48: emphasis added].
On that basis, we suspect that were vonRosenberg being heard in England or Scotland the court would certainly not reject an argument about the fiduciary duties of trustees out of hand. [With thanks to Howard Friedman.]
Seminar on mandatory reporting
On 16 April, the Independent Inquiry into Child Sexual Abuse confirmed the date of the seminar on mandatory reporting as Thursday 27 September 2018; the one-day seminar will be held on the Inquiry’s hearing centre, 18 Pocock Street, London, SE1 0BW. The aim of the seminar will be to gather information and views on whether mandatory reporting should be introduced as a response to child sexual abuse. The seminar will invite key individuals with valued insight in the subject and will examine the issues, concerns and practical implications of mandatory reporting.
Possible topics for discussion include existing reporting obligations in England and Wales, arguments for and against the introduction of mandatory reporting, and views on how it might work in practice.
High Court ruling on the two-child limit
In response to the ruling by Ouseley J in SC & Ors v Secretary of State for Work and Pensions & Ors  EWHC 864 (Admin) on the Government’s two-child rule for payment of tax credits and universal credit, the Bishop of Manchester, David Walker, said:
“We are pleased today the High Court has recognised that the two-child limit is in part unlawful and that kinship carers will now get the support they need. But this needs to be extended to all families. We will continue to oppose this policy because of the hardship it will cause to children and the damage to family life. The Government’s decision to reduce the deficit at the expense of children’s well-being is wholly unacceptable, whatever its legal status. We urge the Government to urgently reconsider this policy in light of the moral, as well as legal, case against it.”
A more detailed report is available on the website of the Child Poverty Action Group, which brought the action for judicial review.
Banns of Marriage and how to avoid an emergency Common Licence
The week, the e-News from the Diocese of Oxford contained an item Banns of Marriage and how to avoid an emergency Common Licence. As “wedding season” is rapidly approaching, the diocese circulated an updated reminder about the calling of Banns for British and EEA nationals. It notes that “[l]ast year we continued to receive a number of emergency applications throughout the year for couples whose Banns had either been forgotten or where a couple had moved but not told the minister until the wedding rehearsal. Included are a number of suggestions “in a bid to try to help couples and/or parishes so that they do not find themselves with the additional expense (the current fee for a Common Licence is £200) and stress of having to arrange an emergency Common Licence”.
Further information is provided by the Faculty Office. It would also be timely to remind clergy that none of the permitted forms of the banns requires the parties’ current marital status to be stated.
On 7 February 2018, seven Members of the States lodged a Requête – P.2018/24 (Deputy St Pier and 6 other Members) relating to assisted dying for future consideration at States Meetings. Items for discussion are listed in a publication known as a Billet d’état; the States decides at the end of each Meeting what is to be debated at the next meeting. The Requête – P.2018/24 on assisted dying has been placed upon the Agenda for the next meeting which will be on 16 May 2018. Details of the proposal are included in our post here.
- Grace Davie, Theos: Religion in Public Life: Levelling the Ground: one of our most distinguished sociologists of religion explores the “return” of religion to public life at a series of levels – local, metropolitan, national, and global – and considers why and how we have got here and what the future holds for religion in Britain
- Melissa Davies, The Guardian: Bishop Greg Thompson on being a sexual abuse survivor and the threats that made him resign: on the departure of the Bishop of Newcastle, NSW, after testifying to the Australian Royal Commission that he had been sexually abused by a previous Bishop of Newcastle, Ian Shevill, in 1975 when he was 19: read it and weep.
- Andrea Edenharter, Verfassungsblog: „Doomsday“ für das kirchliche Arbeitsrecht?: comment on Egenberger (in German).
- Janneke Gerards & Sarah Lambrecht, Strasbourg Observers: The final Copenhagen Declaration: fundamentally improved with a few remaining caveats: in short, not impressed but could be worse.
- Ronan McCrea, EU Law Analysis: Salvation Outside the Church? The ECJ Rules on Religious Discrimination in Employment: discussion of the Grand Chamber judgment in Egenberger.
- Harriet Sherwood, The Guardian: The race to get the Outer Hebrides’ first mosque ready for Ramadan.
- House of Commons Science and Technology Committee: Genomics and genome editing in the NHS.
- The Episcopal Church: Responses from other Provinces to its request for comment on authorisation and use of liturgical rites for same-sex marriage.
- University of Manchester, Religion, law and the constitution: President Macron: Religion and Secularism in France: “President Macron saw himself as the guarantor of the freedom to believe or not to believe, and in his view failing to engage with Catholics equated to failing to engage fully with French society.”
In its judgment in the tragic case of Evans & Anor v Alder Hey Children’s NHS Foundation Trust & Anor  EWCA Civ 805, handed down on Monday, the Court of Appeal made the following observations:
“42. On 12th April 2018 the father went to the hospital with some other people who included a foreign doctor and air ambulance staff. The father had a letter written to him by Mr Pavel Stroilov of the Christian Legal Centre which, we were told, is a campaigning organisation. In the letter Mr Stroilov, who we have been told is not a lawyer, purported to give the father legal advice. He said that it would be lawful for the father to remove Alfie from the hospital and take him to any other place he chose. The previous order made by Hayden J was said not to have circumvented ‘your parental rights’.
43. The letter, which was disseminated on social media (presumably with the knowledge and consent of Mr Stroilov), stated that:
‘as a matter of law it is your right to come to (the) hospital with a team of medical professionals with their own life-support equipment and move Alfie to such other place as you consider is best for him. You do not need any permission from (the) Hospital or the court to do so’.
44. This letter was misleading to the extent of giving the father false advice. We have been told that it had the most regrettable consequences in that it led to a confrontation in which Alfie was involved. The Police had to be called. An application had to be made as a matter of urgency to Hayden J.
45. The letter gave false advice because the previous decisions made by the courts in this case have directly addressed whether the parents have the right to decide what should happen to Alfie. The clear answer which has been given is that the parents’ wishes are not determinative.”
On Friday, the Supreme Court refused an application for permission to appeal. Tom Evans, Alfie’s father, subsequently stated: “We have instructed our lawyers to submit an urgent application to the European Court of Human Rights, and they have done so today”.
For our part, we have a disclaimer on our site that we do not purport to give legal advice because neither of us is qualified to do so – and we mean it.