Law and religion round-up – 7th July

A week spent checking that we did not “use religious jargon in a way which ontologically results in epistemological confusion”…

… as Archbishop Welby warned us against in his live Q&A at Facebook UK’s Headquarters, when he launched the Church of England’s digital charter and guidelines. In our round-up of June judgments on Wednesday, it was evident that social media comment is infiltrating the Church’s faculty jurisdiction; in Re St James Heckmondwike [2019] ECC Lee, there were issues of the accuracy of social media comment, at [7], and their acceptability, at [10] and [12]. However, the put-down was amply dealt with by the petitioner, the Revd Karen Young, who said [12]:

“St James uses formal Eucharistic liturgy and favours a traditional but liberal style. We do not recognise the terms ‘Nuts’, ‘Dumwits’ [sic] or even ‘Evangelical loons’ as mentioned on the organists’ Facebook page. As a PCC, we rely on the Faculty system and DAC advice to ensure a sense of proportion in these matters.”


Possibly the major news of the week was the Court of Appeal’s judgment in R (Ngole) v The University of Sheffield [2019] EWCA Civ 1127, in which the Court allowed the appeal of Mr Ngole, a second-year Master’s student on a social work course who was excluded from the course by the Faculty of Social Sciences Fitness to Practise Committee after comments he posted on Facebook about his personal opposition to same-sex marriage. The Court helpfully summarised the reasons for its judgment at [5] – which had the great advantage of being authoritative and objective and, incidentally, saving us a lot of work. We noted it here.

Several commentators described this as a “win” – but what the Court did was to remit the case for a new hearing before a differently-constituted Fitness to Practise Committee. Which, in our view at least, is not quite the same thing.

Church Representation and Ministers Measure 2019

The Royal Assent to the Church Representation and Ministers Measure was signified on 4 July.

Assisted dying

On Thursday, the Commons debated assisted dying, on a motion proposed by Nick Boles (Grantham and Stamford) (Ind). Replying for the Government, the Parliamentary Under-Secretary of State for Justice, Edward Argar, reiterated that the Government remained of the view that any changes to the law were an issue of conscience for individual Members: “It remains a matter for this House to decide, not the Government, but a Government must implement and work with whatever this Parliament and future Parliaments decide.”

Another Jehovah’s Witness transfusion case

On Thursday, the decision in Cardiff and Vale University Health Board v T (A Minor) (Urgent Blood Transfusion) [2019] EWHC 1671 (Fam) was published after a private hearing more than a week ago. T was in the neonatal intensive care unit of one of the Board’s hospitals and the Court had to make an urgent decision on whether it was in his best interests to be transfused without the consent of his mother, “a committed and conscientious Jehovah’s Witness” [1 & 2]. MacDonald J was “satisfied that any sustained view on the part of the mother that T should not have a blood transfusion does not, irrespective of the genesis of that view, act to alter the court’s conclusion that such a course of action is objectively and manifestly in his best interests” [21].

IICSA hearings on the Anglican Church

The first week of the IICSA hearing on the Anglican Church took place from 1 to 5 July. Links to the transcripts of the hearings and other material before the Inquiry are available from the IICSA, which on Thursday 4 July published the timetable for the next week’s hearings.

A number of commentators were astounded to hear the response of the current Bishop of Chester, Dr Peter Forster, to a question from Ms Nikita McNeill, junior counsel to the Inquiry, as to “whether someone [the Reverend Ian Hughes] who was in possession of 8,000 images of child sexual abuse could ever be a person appropriate to be in public ministry within the Church of England”, [Day 3, page 43/15 to 43/23]; he said “that’s a matter for the ministry division to consider.” These views are clearly unacceptable, but before extrapolating them to the entire Church of England, account needs to be taken of the context of the question, the bishop’s non-involvement in safeguarding issues in the diocese (since 29 March 2019), and his forthcoming retirement in September 2019.

On Day 4 of Inquiry, further evidence was presented by Dr Rupert Bursell, QC: in addition to the oral evidence, there were three evidence documents from Dr Bursell: ACE025279-1, (8 November 2017); ACE027523, (13 May 2019); and ACE027554, (23 May 2019). This is reviewed in our post IICSA: Some more legal views in which we explore the need, in Dr Bursell’s view, for parliament has to intervene in relation to mandatory reporting.

On Friday, Day 5 of the present hearing turned its attention to the Church in Wales, with evidence in the morning from the double act of Archbishop John Davies, Archbishop of the Church in Wales and Mr Simon Lloyd, Provincial Secretary; the afternoon session heard from Ms Faye Howe, Provincial Safeguarding Officer, and then from Rev. Christopher Watkins, Sampling witness. The focus again was on the confidentiality of the confessional and the need for mandatory reporting, where Archbishop John’s comment “I personally fail to see how the reliance upon the seal sits comfortably alongside what one finds in scripture”, [105/15], appeared to sum up the tenor of his evidence.

Spiritual abuse

There was debate this week on the categorisation of certain abusive behaviour as “spiritual abuse”, or not.  Whilst we would agree that the term is often used to describe a range of abusive situations, within the legal context it is of importance in relation to “clerical abuse of spiritual power and authority”, as in the case of the Revd Timothy Davis, reviewed here and here, and “undue influence — any temporal or spiritual injury, damage, harm or loss upon or against any person” under the Representation of the People Act 1983, as amended, (as reviewed in our post Undue spiritual influence” – where next?).

For those seeking a definition of “spiritual abuse”, Dr Rupert Bursell gave a concise summary of its main components in his oral evidence to an earlier IICSA hearing: 13 March 2018, Day 7 Transcript of the proceedings, [84/12 to 85/14]. He defined it as:

“the manipulation of the person concerned by reason of the ordained status and/or teaching of the abuser”.

Same-sex marriage and the Methodist Church

On Wednesday, the Methodist Conference passed the following resolution:

“10/8. The Conference consents in principle to the marriage of same-sex couples on Methodist premises throughout the Connexion and by Methodist ministers, probationers or members in so far as the law of the relevant jurisdiction permits or requires and subject to compliance with such further requirements, if any, as that law imposes.”

You can read the resolution and the other resolutions associated with it here.

France and a “right to die”

In July 2015 we noted the judgment of the Grand Chamber ECtHR in Lambert & Ors v France [2015] ECHR 545 about the dispute over whether or not Vincent Lambert, who is in a vegetative state following a serious road accident, should have his life-support withdrawn. In May 2019, the BBC reported that the situation appeared to have been resolved and that treatment was to stopped, but it was then further reported that his medical team had switched his life-support on again after the Paris Court of Appeal had reversed the previous decision at the request of Mr Lambert’s parents. In April 2019, his parents  asked  the UN Committee on the Rights of Persons with Disabilities (CRPD) to review the case, pursuant to article 1 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities; and in May the CRPD requested France to ensure that Mr Lambert’s life-support was not withdrawn during its examination of the request.

The Grand Chamber of the Cour de Cassation has now resolved the issue. In Arrêt n°647 du 28 juin 2019 (19-17.330; 19-17.342) it held that the right to life did not fall within the scope of individual liberty within the meaning of Article 66 of the Constitution and that the decision taken by the State not to comply with the request for interim measures made by the CRPD did not, therefore, infringe individual freedom. It also held that, in view of the rulings on Mr Lambert’s case by the Conseil d’État and the ECtHR, the Government’s decision had not been manifestly perverse. It therefore annulled the judgment of the Paris Cour d’Appel.

Gay non-cakes in Poland

Reuters reports that the Constitutional Tribunal of Poland has ruled that a printer who refused to make posters for an LGBT foundation on grounds of his religious beliefs should not have been convicted. The printer, one Adam J, had been convicted in 2017 of refusing to provide a service without a justifiable reason, and the Justice Minister, Zbigniew Ziobro, referred the case both to the Supreme Court and to the Constitutional Tribunal. The Supreme Court upheld the conviction but the Constitutional Tribunal ruled that the law under which the printer was convicted was unconstitutional, because punishment for refusing to provide services on the grounds of beliefs interfered with service providers’ rights to act according to their conscience.

Same-sex relationships in Botswana

We previously posted on the judgment of the High Court of Botswana in Motshidiemang v Attorney General [2019] MAHGB-000591 16, in which it held that the criminalisation of sexual relations between consenting adults of the same sex was unconstitutional, observing at [142] that “Sexual orientation is innate to a human being. It is not a fashion statement or posture”. However, the BBC reports that the Attorney General, Abraham Keetshabe, said in a statement on Friday that having read the judgment he believes that the High Court erred in its conclusion and that he would be taking the case to the Court of Appeal.

Reuse of grave space at Highgate Cemetery

As with other cemeteries within the UK, Highgate Cemetery will soon run out of space; it is over 180 years since the first burial at Highgate Cemetery but within the next few years the space available will significantly diminish. The Friends of Highgate Cemetery Trust are considering “… taking back long-abandoned graves [in order that] the future of the Cemetery can be assured. Where graves are no longer wanted by their historic owners, they could be made available for the present generation” – a process is euphemistically referred to as ‘grave renewal’ in the document Keeping Highgate Cemetery alive. This explains: “[t]o become sustainable, Highgate Cemetery needs the power to take back the ownership of graves which are no longer wanted and of the memorials on top of them. New burials could be made in empty graves, on top of part-used graves or in space created by lifting and reinterring earlier remains at greater depth.”

Highgate Cemetery was established by a private Act in 1836 and, consequently, legislation allowing other London cemeteries to re-use burial spaces does not extend to Highgate or to other private cemeteries. Recently, the New Southgate Cemetery Act 2017 gave similar powers to another private cemetery, it is planned to bring forward a new private Bill in November that Highgate Cemetery can be managed in a similar way. In our post, New Southgate Cemetery Bill – Update, we commented on the lengthy passage of this particular Bill, which was presented in the Lords on 27 November 2015 and received Royal Assent on 16 November 2017.

[David’s branch of the family has no links with the Pocklington Mausoleum in Highgate Cemeterypictured above]

Burial of the dead next to motorways and trunk roads?

Readers of Friday’s Metro may have spotted the above headline, based upon an article in the Journal of the Royal Society of Medicine in which Professor John Aston said we could run out of burial space within five years. Hardly a surprise to readers of L&RUK since the lack of action on this issue has been a recurring theme. However, it is notable that in addition to his position as Professor of Statistics, Statistical Laboratory, University of Cambridge, he also the Chief Scientific Adviser, Home Office. The clickbait headline extracts only the final sentence of Professor Aston’s academically-titled paper Necropolis in crisis: housing the living is one thing, there is also a problem in housing the dead; the entire article makes interesting reading.

Quick links

And finally…

Following the photos of Brexit Party MEPs turning their backs as the European Union anthem was played in the Strasbourg Parliament, the comment of the week comes from Bruvver Eccles:

“We never got used to the change between ad orientem and versus populum”.

And so ended a very busy week in which, ontologically speaking, we were as epistemologically confused as ever…

3 thoughts on “Law and religion round-up – 7th July

  1. Thanks Frank. Just a note- that should be Katy “Barnett” who was the author of the Opinions on High summary of Masson v Parsons. Feel free to delete this post once read!

  2. Pingback: Law and religion round-up – 22nd December | Law & Religion UK

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