Law and religion round-up – 24th March

A week that saw the Home Office reach a new low in religious illiteracy…

… and continued interest in Robert Meakin’s 2016 post, Gilmour v Coats Revisited on public benefit and the advancement of religion.

Religious illiteracy or just plain nastiness?

The social media was awash with reports last week that a Home Office official had rejected an asylum application from an Iranian Muslim who had converted to Christianity in the belief that it was the true religion of peace – because the Home Office did not believe the veracity of the claimed conversion. In the refusal letter, the official quoted several “nasty” bits from the Bible to show that Christianity was not as peaceful as the Iranian Christian claimed it to be – which, in his view, proved that the conversion was not genuine.

As we reported, this drew a sharp rebuke from the Bishop of Durham, who suggested that “To use extracts from the Book of Revelation to argue that Christianity is a violent religion is like arguing that a Government report on the impact of Climate Change is advocating drought and flooding.” Archbishop Angaelos, Coptic Orthodox Archbishop of London, also commented adversely on the Home Office letter. To which there is nothing we can usefully add.

Clergy discipline, theological education and sexuality

A professor has been dismissed from the Presbyterian Church’s Union Theological College mainly due to a contribution he made to BBC Radio Ulster’s Talkback programme. The BBC reports that a disciplinary panel of the Presbyterian Church in Ireland has found the Revd Prof Laurence Kirkpatrick guilty of “gross misconduct” as a result of his participation in a Talkback panel on BBC Radio Ulster in June 2018 and that he has been “summarily dismissed” from his post at the College after 22 years. Neither the Presbyterian Church nor Prof Kirkpatrick was prepared to comment.

Prof Kirkpatrick was a guest on Talkback after the Presbyterian Church’s decision to loosen its ties to the Church of Scotland, mainly as a result of the Church of Scotland’s more liberal attitude to same-sex relationships. During the programme, he said that he would be “horrified” if a student at the College was taught that a same-sex, sexually active relationship was sinful and was subsequently suspended from teaching at the College. According to the dismissal letter, six charges against him were upheld but only the two relating to his appearance on Talkback were adjudged to constitute “gross misconduct”. The letter said that his remarks had brought the College and, by association, the Church into disrepute and had had a “significant and material adverse impact” on the Church’s relationship with Queen’s University Belfast.

Coming, no doubt, to an Employment Tribunal in the not-too-distant future.

Update: There is a slightly fuller report in The Irish Times.

For the public benefit?

The National Secular Society has recently published a report, For the public benefit? The case for removing ‘the advancement of religion’ as a charitable purpose, that is highly critical of the advancement of religion as a charitable purpose. The report claims that some religious charities promote controversial views, including several Christian ministries which promote so-called “gay conversion therapy” and charities that promote the non-stun slaughter of animals for kosher and halal meat. It also has some criticisms of sharia courts and batei din that are also registered charities, claiming that ‘they may undermine the principle of “one law for all,” ie British [sic] law, resulting in parallel legal systems and further segregation between different communities’. The report argues that religious organisations that wish to be registered as charities should be required to demonstrate that they provide a public benefit under another charitable head: for example because they alleviate poverty.

The NSS’s Chief Executive Officer, Stephen Evans, has written to the Chair of the Charity Commission, Baroness Stowell, calling for a rethink on whether or not religious organisations should continue to qualify for charitable status simply on the ground of advancing religion. According to The Guardian, a spokeswoman for the Charity Commission said:

‘We are aware of the National Secular Society’s report on charity and will review it carefully. As a general principle: like all charities, a small proportion of religious charities are misused by others and used in ways the public would not expect. The Commission deals with these issues robustly where they arise.’

We have previously expressed our own doubts about the lack of clarity in the legislation – most recently here – and noted the strong reservations of the House of Commons Public Administration Committee in 2013 about the fact that the Charities Act 2006 required the Charity Commission to produce public benefit guidance without specifically defining “public benefit” But nothing has happened since the publication of that report – and we cannot imagine legislation being brought forward in the immediately foreseeable future.

Exhumation and public benefit?

Last week we posted the second part of our review of the courts’ deliberations where exhumation is sought with a view to obtaining information from the remains of the deceased. In Part I, we looked at the identification of the remains for historical and other purposes, and this recent post considers their use in the proof of ancestry. Next week will focus on exhumation to assist medical research, and we will attempt to draw some conclusions on the application of the law in this area. In determining whether any special circumstances could justify a departure from the presumption of permanency of burial, the potential public benefits resulting from the information retrieved is one of the factors taken into consideration by the courts. In Re St Mary, Sledmere [2007] York Const Ct, Collier Ch., the Chancellor stated:

“[19]. … applying principles of proportionality: the greater the public benefit that might ensue, the less weighty the ground that is required to tip the balance in favour of permitting the proposed exhumation.

[20]. So if the public benefit is only in terms of increased historical knowledge, such as in the Bosham and Sevenoaks cases, then grounds that are very weighty and have a high likelihood of success are required; whereas if the public benefit is in terms of possibly providing answers about and advances in the treatment of dangerous diseases, then grounds of less weight and with perhaps an uncertain chance of success may suffice.”

What’s in a name?

The Guardian reports that a French couple has been refused permission to call their baby son “Griezmann Mbappé“ – after two footballers, apparently. A family judge in Brive-la-Gaillarde ruled that naming the boy after the footballers would be “contrary to the interests of the child”.

As we have noted before, until 1993 the choice of names in France was restricted by a law that decreed which names were permissible; since then, there has been a free choice – unless the name is held to be contrary to the child’s interests under the terms of Article 57 of the Code Civile. The only comparable UK example that we can think of is the decision in C (Children) [2016] EWCA Civ 374, in which the Court of Appeal, invoking the inherent jurisdiction of the High Court, upheld an order of the Swansea Family Court and refused to allow a mother to name her daughter “Cyanide”.

It’s a “No” to religious dress in Bavarian courts

The Bavarian Constitutional Court [Bayerischer Verfassungsgerichtshof] has upheld the ban on judges, prosecutors and state attorneys appearing in court wearing clothing or symbols that manifest their religion or belief. The applicant, an Islamic religious community and its President, had alleged that the ban violated freedom of conscience and the principle of equality because, though the scheme had been created with the aim of excluding court officials wearing hijabs, the display of crosses would continue to be allowed in courtrooms. The result was a law aimed at a particular religious group, contrary to the principles of the Bavarian Constitution.

The Court took that view that the legislature had struck a fair balance between conflicting values protected by the Constitution. It had concluded that the institutional neutrality of the judiciary was particularly worthy of protection – and it was not constitutionally objectionable that it had given greater emphasis to institutional neutrality than to the fundamental right of officials to freedom of expression of their faith. Nor was the ban discriminatory as between the sexes, since it applied not only to the hijab but to all religious symbols and clothing, such as the kippah or the turban. [With thanks to Georg Neureither.]

Brexit and women in the episcopate

Those following the statement of the Speaker of the House on Monday regarding the House being repeatedly asked to pronounce on the same fundamental proposition will be aware that a similar dilemma faced the Church of England in November 2012 following the 8-hour consideration of the proposal on the ordination of women as bishops and archbishops, and its narrow defeat by 6 votes in the House of Laity. However, the possibility was foreseen in the Note from the Secretary General in October, GS 1034, which stated:

‘If the Measure is rejected the effect of Standing Order 61(d) is that it cannot be considered again on the First Consideration Stage in the same form until a new Synod comes into being unless the Presidents, the Prolocutors and the Chairman and Vice-Chairman of the House of Laity give permission for such a motion to be moved and make a report in writing to the Synod setting out a summary of the case for reconsideration and their reasons for giving such permission.”

However, whilst the Synod procedure is based on its Standing Orders and has a clear mechanism to override the bar, the Commons bar is based on “practice of the House”; and, so far as we are aware, the only way to override the Speaker’s ruling would be to table – and carry – a motion that the ruling in question “be not cited nor drawn into precedent”.

New Head of Church of England Legal Office appointed

The Church of England has announced the appointment of the Revd Alexander McGregor as new Head of its Legal Office and Chief Legal Adviser to the Archbishops’ Council and the General Synod. He is currently Deputy Head of the Legal Office and will commence the new role after Easter 2019. He has held his current role for ten years, in addition to which he took on the responsibility of Deputy Official Solicitor to the Church Commissioners in 2017.

Legislative Reform (Patronage of Benefices) Order 2019

This draft Legislative Reform Order is laid on the instruction of the Archbishops’ Council. The draft order, with an explanatory document, is laid before General Synod pursuant to section 5(1) of the Legislative Reform Measure 2018. The draft order and explanatory document have been published on the General Synod website as required by Standing Order 69A(4)(a). It has also been circulated to Synod Members by e-mail.

This draft Order is subject to the procedure provided for in ss.6 and 7 of the Measure and in Standing Orders 69A to 69I, and automatically stands referred to the Scrutiny Committee. Under Standing Order 69E, a member or other person may make representations on it to the Scrutiny Committee within the period of 35 days after the day on which the draft order is laid (for ease of reference this will be Thursday 25 April).

In addition, a new FAQs document has been produced, which answers a number of questions regarding the Church’s Simplification progress to date.

Thanks to David Lamming for bringing the above two items to our attention. 

Quick links

And finally…I

On Monday ITV reported, “Norfolk church vandalised over Bell-ringing practice“. The words ‘No bells’ have been sprayed on a side door of St Nicholas Chapel in King’s Lynn in response to the weekly evening ringing practice sessions being held there. The church is the country’s largest chapel of ease and was reopened in 2015 after a £2.7M conservation and regeneration project.

The consistory court in the north-west corner of the chapel is a very rare survival, dating from 1617. From the Guide Book (page 24), it appears that the court is not dissimilar to that of St Peter, Carmarthen, shown in the photograph. Among the Things to see and do suggested by the Churches Conservation Trust is “Explore the Consistory Court and delve into the dress up box to pass judgements on your friends and family” – who could resist? (And just in case you’re wondering what the faculty jurisdiction has to do with your family, there was a time when the jurisdiction of the consistory courts was much wider than it is now.

And finally…II


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