Law and religion round-up – 29th July

IICSA grinds on, the UKSC rejects “no-fault” divorce, vicarious liability resurfaces and the CJEU grapples with the customs tariff on hearses…

IICSA hearing 

The public hearing of the Independent Inquiry into Child Sexual Abuse (IICSA) on the Peter Ball case study took place 23 – 27 July 2018. The week’s proceedings comprised: live evidence from 17 witnesses; 118 statements; 6,900 live streams via YouTube; 5 days, 27.5 hours of content; 53,000 pages of the material disclosed to Core Participants – and reached 310,000 users on Twitter. The transcripts of the proceedings and other documents, including a Schedule of Convictions and Allegations against Peter Ball, are available here and videos will be added in due course. 

With this volume of material covering events over a long period of time, during which perceptions of the issues changed as new facts became available, the IICSA will have a difficult task in drawing up its final report. Likewise, media outlets seeking a particular headline will have little difficulty in cherry-picking appropriate parts of the evidence that align with their point of view. The IICSA’s final report is expected in the first quarter of 2019.

In a later post, we will consider the legal issues raised during the present hearing, set against a timeline of events; this will concern the uncertainties associated with the granting of PTO, the implications of a police caution; and the sanctions applicable to bishops.

Owens v Owens: the aftermath

On Wednesday, the Supreme Court unanimously – and with reluctance – dismissed Mrs Tini Owens’s appeal against the refusal to grant her divorce petition on the ground of irretrievable breakdown: we noted the judgments here. The immediate tweeted reaction from the Ministry of Justice was, “We are already looking as closely as possible at reforms to the system”. Which is very welcome: but we cannot help wondering whether any proposed reform might founder in the quicksands of that unfathomable substance, “Parliamentary time”. Governments always seem to manage to find time for things they want to do (the Dangerous Dogs Act?) but seem reluctant to get involved in matters that have any kind of “moral” dimension.

In a profoundly sensible comment on our post, Paul Kemp, an experienced family lawyer and mediator, suggested that “It might be helpful to the debate if all interested in reform were to adopt the term ‘no blame’ divorce rather than ‘no fault’.” Which makes sense to us: by the time a couple’s marriage has deteriorated so badly that they are seeking a divorce, trying to attribute “blame” seems likely to lead to nothing but recrimination and bitterness – just at the time when what they most need is calm and a willingness to compromise.

Permission to Officiate

During the IICSA hearing, there was a degree of confusion regarding permissions granted to Peter Ball, as evidenced by the exchange between Ms Fiona Scolding and Dame Moira Gibb [Day 5, 27 July,  page 125, line 11]. However, the new House of Bishops Policy on Granting Permission to Officiate provides greater certainty regarding Permission to Officiate, Licences, with the meaning of “due regard”, and what bishops and clergy “must”, “should”, “may” do. In accordance with the recommendation in the Gibb Report, the new Policy also notes that it has been agreed to set up a national on-line register of all clergy who have the bishop’s authority to minister (whether on PTO, or licensed, or beneficed)

Following the conclusion of the IICSA public hearing on the Peter Ball case study, the Diocese of Oxford issued a statement from the Rt Revd Dr Steven Croft: Lord Carey PTO. This recognises that there will be renewed questions concerning Lord Carey’s Permission to Officiate following the IICSA hearings and states that he expresses his regret that his response to Lord Carey’s request for PTO in February caused additional distress to some survivors of abuse. It notes that there were no legal grounds to deny Lord Carey’s request for PTO in February this year [2018] as he was not subject to a disciplinary process, and there has never been any suggestion that he is himself a risk to children, young people or vulnerable adults. However, the timing and content of this statement have attracted adverse comment on social media, within parts of the diocese, and from the Church’s lead bishop on safeguardingThe Guardian subsequently reported Church of England to review George Carey’s official role; however, this appears to be implicit in the final paragraph of Bishop Steven’s statement.

Vicarious liability again: Murray v Devenish

In Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus) [2018] EWHC 1895 (QB), the claimant sued the Provincial Superior of the London Province of the Sons of the Sacred Heart of Jesus for alleged sexual assault that took place between 1973 and 1974 at a school run by the Order in Mirfield. The alleged abuser, one Michael Riddle is presumed to have died in 1993, aged 93, in Kenmare, Ireland and it was accepted that, if the assaults took place and if the claim could otherwise be maintained, the Order would be vicariously liable.

The claimant was eighteen in April 1976, at which point the primary limitation period (i.e. the period that would apply unless the Court exercised its discretion under s.2D of the Limitation Act 1939 inserted by the Limitation Act 1975) began to run and would have expired in April 1979. The action was therefore well out-of-time. On balance, Nicol J decided that it would be inequitable to exercise his discretion in favour of Mr Murray and dismissed the claim.

Hearses in Italy

At the request of the Regional Tax Court in Rome, the CJEU gave a preliminary ruling in Case C‑445/17, involving an Italian firm, Pilato SpA, and the Agenzia delle Dogane e dei Monopoli, in which it was asked to determine whether a hearse is for transporting people or goods. However, considerations of “no property in a human body” did not come into the Court’s thinking as the case concerned aspects of vehicle design relevant to an essentially Brexit-related issue – the tariff and statistical nomenclature and the Common Customs Tariff within Regulation 2658/87, as amended.

For the curious, the Tenth Chamber held that “the answer to the question referred is that the CN [Combined Nomenclature] must be interpreted as meaning that hearses such as those at issue in the case in the main proceedings must be classified under CN heading 8703 [i.e. for carrying people rather than goods]” [41].

Quick links

And finally…I

Heartiest congratulations to our good friend and occasional guest contributor, Russell Sandberg, on his promotion to a Professorship at Cardiff, where he is Head of Law.

And finally…II

From The Conversation: Gary Lewis of Royal Holloway College on publishing a spoof article in a so-called “predatory journal”. Very much in the “you couldn’t make it up” category – but there’s a serious point behind it. Both of us get regular e-mail invitations to submit papers to online journals we’ve never heard of, usually on subjects that are way outside any expertise that we might have. We’ll stick to the Ecclesiastical Law Journal and Law & Justice, thanks – but some people evidently get caught out.

3 thoughts on “Law and religion round-up – 29th July

  1. One of the side issues exposed in the evidence adduced during the ‘Peter Ball’ case study hearings at IICSA is the scandalous role played in 1991 by Sir Robin Catford, the then Prime Minister’s Appointments Secretary in advising and, effectively, securing the appointment of Peter Ball (then suffragan Bishop of Lewes) to be the next Bishop of Gloucester, rather than [Redacted], having been the first choice of the Crown Appointments Commission (now the CNC). This is revealed in a startling memorandum by Catford to the then Prime Minister, John Major, dated 25 October 1991, (inquiry document CAB000013) provided to IICSA by the Cabinet Office only a week before the hearing (see transcript, 24 July 2018, page 37 line 21 to page 38, line 4.)

    The name […] is redacted in the memo as published on the IICSA website but, aided by a copy of the 1991/92 Crockford, it did not take much detective work to ascertain that he was the other name and the CAC’s preference. The only partially (and, thus, ineffectively) redacted CV details on pages 2-3 of the memo fit him precisely.

    Despite the preference of the CAC … (by 8 votes to 4), Catford argued the case for appointing Ball, including that by appointing Ball to the see of Gloucester it would leave … available to be appointed to Bradford, commenting (p.5 of the memo): “The Archbishop of York [John Habgood] has told me privately (this cannot be quoted) that he greatly hopes that [name redacted] will be available for Bradford.” In the event, … was not appointed to Bradford, but he did become Bishop of Manchester in 1993. John Major’s acceptance of Catford’s advice is shown by his manuscript note at the top of page 1 of the memo: “OK – Peter Ball J 26/10”.

    Incidentally, Catford appears to have misled John Major in stating that the CAC preference vote of 8:4 in favour of … “only just reached the two-thirds majority which Standing Orders require before a preference vote can be valid.” My understanding is that both names submitted to the Prime Minister must have the support of two-thirds of the members of the CNC, with only a simple majority required to express a preference, and that this was also the position with the CAC.

    Lord Carey was clearly shocked by the memo: “I find this very deeply disturbing. I didn’t know this was going on, so very clearly the secretary was influencing the mind of the Prime Minister and going beyond his responsibilities. I find this quite appalling.” (transcript, 24 July 2018, pages 46, line 24 to 47, line 3.) Fiona Scolding QC (counsel to the inquiry) called it “inappropriate political pressure to bear… upon the Prime Minister. (p. 50, lines 2-4)

    If Sir Robin Catford were still alive and in post, this disclosure would surely require his immediate resignation.

    As the transcript also reveals, the appointment of Ball was received with dismay in the diocese of Gloucester (“You have given us a man who is opposed to the ordination of women and our diocese wants one in favour.”: page 44, lines 14-19) but (unlike the situation in Sheffield in 2017) the appointment stood, only for Ball to be forced to resign less than 18 months later.

    One is left to wonder what other “inappropriate political pressure” has been brought to bear on Prime Ministers in relation to episcopal appointments. The system has changed since 1991, principally with Gordon Brown’s announcement that he would always accept the CNC’s first name, but this disclosure of the Catford memo underlines the need for greater transparency in the process of appointing diocesan bishops – something that General Synod may have the opportunity to debate in 2019 if the Oxford Diocesan Motion and my Private Member’s Motion (on the see of Sheffield and the Five Guiding Principles), which now has 101 supporting signatures, are included in the agenda.

    • Thanks. I have touched on a number of these in my next post on the IICSA, but will cross reference to your comments to give a more complete picture. dp

  2. Pingback: Peter Ball – legislation, then and now (I) | Law & Religion UK

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