Law and religion round-up – 16th February

Our first full week back in business since the site was suspended and restored…

… and our thanks to John Lagrue for sorting things out so speedily – and to everyone who e-mailed us or tweeted messages of support.

Egg, sperm and embryo storage limits

The current limit on storage of eggs, sperm and embryos for fertility treatment under the  Human Fertilisation and Embryology Act 1990, as amended, is a maximum of 10 years, though the legislation also makes provision for the period to be shorter or longer in circumstances specified in regulations. In March 2014 we posted Frozen sperm, posthumous conception and Article 8 ECHR, in which we reported a successful challenge brought in the area in the case of Warren v Care Fertility (Northampton) Ltd & Anor [2014] EWHC 602 (Fam).

On 10 February, the Government published Consultation document: gamete (egg, sperm) and embryo storage limits, calling for views on whether or not the storage limit should be extended. The consultation closes on 5 May.

Draft Channel Islands Measure

General Synod gave Final Approval to the draft Channel Islands Measure, which completed all stages during the February group of sessions. It makes provision for the Channel Islands to be attached to the Diocese of Salisbury instead of to the Diocese of Winchester and to transfer the relevant jurisdiction from the Bishop of Winchester to the Bishop of Salisbury. It also simplifies the process for applying existing Measures to the Islands. The changes will not take effect in the Islands until their respective legislatures have given consent – and, of course, it requires approval by Resolution of each House of Parliament.

The Explanatory Notes point out that legislation is required because there is no prerogative power under English law to alter the extent of dioceses or to change episcopal jurisdiction.

General Synod

Apart from specific legal issues, we leave the reporting of the business at General Synod to Peter Owen on Thinking Anglicans, who has posted Day 1 – Monday; Day 2 – Tuesday; and Day 3 – Wednesday. Further invaluable insights have been provided by bathwellschap (aka. Steve Lynas) with his detailed on-the-spot reports of the three days – Over the sea, on the Island(s) of Dreams *, All kinds of everything *, and You don’t know what you’ve got till it’s gone * – in addition to his scene-setting pre-Synod Return to Sender *, and post-Synod A hard day’s night *.

Synod and Climate Change

The Highs & Lows of General Synod were reviewed by The Rt Revd David Walker, Bishop of Manchester. Of note was his observation on the vote on the climate change target [our emphasis]:

“The crucial issue of selecting the year by which all this will be achieved was moved from a perhaps under-ambitious 2045 to a date of 2030. Whatever one’s views on the urgency of the climate crisis, it felt unsatisfactory that this was achieved through an amendment which was decided after less than ten minutes debate, by a majority of 15, with a turnout that meant fewer than a third of Synod members voted in favour of it. Many, I suspect, were caught in the tea room, not having expected a close vote. 2030 may be the right year, but the process felt flawed. Something that is too often the case with matters we decide at a single sitting.”

In addition to the flawed decision-making process highlighted by Bishop David, there are a number of aspects of the Church’s approach to setting the 2030 target which do not bear close scrutiny.

Consistory court news

General Synod bid farewell to Charles George, Dean of the Arches and Auditor, whose last speech (about Legal Aid) was “a model of deadly accurate-fire legal discourse”. Steve Lynas reports

“he spoke powerfully on the way in which Family Court cases now no longer get Legal Aid, meaning poor decisions are being made when couples split up. On the day of Boris Johnson’s Cabinet Reshuffle, he also pointed out that we have had 7 Lord Chancellors in 9 years – there’s no continuity or direction. This last point matters because the motion includes a call on the Government to explore ways in which the effect of the 2012 Act can be alleviated.”

Another senior legal figure who is retiring is June Rodgers, Chancellor of the Diocese of Gloucester, a number of whose judgments featured in Matt Chinery’s Top Ten consistory court judgments of the decade? Perhaps the “really, really stupid” clergy and churchwardens of the Diocese might breathe a sigh of relief, until they realize it is part of a Chancellor’s role to call out such behaviour, even if not all do so in quite as colourful a manner; Re St. Mary the Virgin West Butterwick [2019] ECC lin 7 (to be reviewed) provides a recent example, where the Reverend and Worshipful Chancellor HH Mark Bishop was highly critical of the response of the Church Buildings Council in this particular instance,

“[17] … the time taken in this case in formulating advice has been far too long and the engagement [by the CBC] in serving the needs of this parish in progressing this faculty have not been given sufficient priority, for whatever reason …”.

Same-sex marriage in Northern Ireland

On Tuesday, Robyn Peoples and Sharni Edwards become the first same-sex couple to marry in Northern Ireland.

Post-Synodal Apostolic Exhortation, Querida Amazonia

 On Wednesday, the Vatican published the Post-Synodal Apostolic Exhortation of the Holy Father Francis, “Querida Amazonia”. It ranges over a wide spectrum: what it does not address, however, is the call to open up the priesthood in Amazonia to married men in order to address the shortage of clergy and rejects the possibility of ordaining women to the diaconate. Instead, Pope Francis urges bishops to pray for an increase in priestly vocations and suggests that more missionaries should be sent to remote communities where Catholics can go for long periods without attending Mass:

“This urgent need leads me to urge all bishops, especially those in Latin America … to be more generous in encouraging those who display a missionary vocation to opt for the Amazon region.”

As to the possibility of women as deacons:

“In a synodal Church, those women who in fact have a central part to play in Amazonian communities should have access to positions, including ecclesial services, that do not entail Holy Orders and that can better signify the role that is theirs” [emphasis added].

Jehovah’s Witnesses in the courts

The week on the blog has been dominated by the Jehovah’s Witnesses. Frank had just finished preparing a note on BXB v Watch Tower and Bible Tract Society of Pennsylvania & Anor [2020] EWHC 156 (QB) when Elijah Granet sent us a note on the treatment of the JWs’ “two-witness rule” – so we posted both on the same day. There was also an interesting judgment on a challenge by two JW elders to a witness summons in a child sex-abuse case: they lost. You can read the posts here:

Burial in a closed churchyard

At the Privy Council on 12 February 2020, the Queen-in-Council made an order allowing two people on their decease to be buried in a churchyard that has been closed since 1900 [scroll to page 139].

“Her Majesty, in the exercise of Her powers under section1 of the Burial Act 1855, by and with the advice of Her Privy Council, is pleased to order as follows:—

Notwithstanding anything in the Orders in Council made under the Burial Acts 1853 and 1855 on 15 ​May 1900 and 29 June 1900 directing the discontinuance of burials in All Saints Churchyard, Berrington, Shropshire, the exception to be added in that the bodies of Mrs Doreen Waters and Mr Maurice Orton on their decease may be buried in the graves in the churchyard next to Meirion Gwynfor Waters and Brenda June Orton respectively, provided that no part of the coffin containing the body shall be at a depth less than one metre below the surface of the ground adjoining the grave”.

With thanks to Mark Hill for highlighting this information “for law and religion scholars everywhere”; he further advised “Don’t overlook the Privy Council’s important and extensive ecclesiastical jurisdiction”. Point taken. 

George Pell v The Queen

The High Court of Australia is to hear the Appeal of Cardinal George Pell on 11 March –though it may be a couple of months after that before there is a decision. The Appeal Submissions can be read here and the response from the Prosecution is here.

Neil Addison (to whom our thanks) suggests that, though the case is Australian, the adjudication by such a high-level and well-respected Court will undoubtedly be important as a “persuasive” precedent in cases in other Common Law jurisdictions because the point at issue really seems to turn on how far a conviction can be relied upon where the only evidence is the accuser, however compelling or convincing the accuser appears to be. That was the issue brought to the forefront by the dissenting opinion of Justice Weinberg in the Supreme Court of Victoria case Pell v The Queen [2019] VSCA 186 (21 August 2019)

It’s goodbye from him … and it’s hello to her

Geoffrey Cox QC was sacked as Attorney General in Thursday’s Government reshuffle. He was replaced by Suella Braverman who, it has been suggested, is “perhaps the country’s leading legal practitioner in respect of stuffed toys”; she acted for HMRC on whether toy animals that contained a sound box that produced soothing sounds for helping babies to sleep were “stuffed toys” for Customs purposes. In Cloud B Ltd v Revenue & Customs [2014] UKFTT 997 (TC) the Court made the Pythonesque statement: “Our decision is accordingly that the two relevant products in this Appeal are ‘stuffed’. They look stuffed. Physically they are stuffed, and indeed ‘totally stuffed’”.

Much more seriously, however, in an article for ConservativeHome last month, she wrote:

“Parliament must retrieve power ceded to another place – the courts … The political has been captured by the legal. Decisions of an executive, legislative and democratic nature have been assumed by our courts. Prorogation and the triggering of Article 50 were merely the latest examples of a chronic and steady encroachment by the judges.”

Further:

“Now I am not lambasting the judiciary and nor is this a diatribe against human rights. What I am arguing is that the delicate relationship between law and politics is off-balance. I don’t challenge the quality of our judges, but I do question their trespass into inherently political terrain for which a legal answer is wholly insufficient. Such political disputes can only be resolved through a democratic, consultative process so that public confidence is sustained.”

So does that mean that the present mechanism for judicial review is sound, or not? And if it is not regarded as sound, what then? Maybe, to quote AP Herbert (from R E Megarry’s Miscellany at Law):

If anything shall seem, The Minister shall deem:

His certificate of demption Shall confer complete exemption.

Quick links

And finally…

Speaking ahead of the final vote at the General Synod on climate change, The Rt Revd Nicholas Holtam, Bishop of Salisbury and the Church’s lead bishop on environmental matters, is reported to have said: “This is a game-changer, folks…and I don’t know how we’re going to do it, but we’ve said we’re going to do it.” As a “starter for ten”, perhaps he should look at the post by Archdruid Eileen, Ten Top Ways to Get the Church to Carbon Neutral, which concluded:

10. Zero-New-Christians
By putting out confusing directives about sexuality, fighting over the best kind of worship and sustaining feuds between quires, ministers, organists and congregations, it may be possible to achieve a zero-new-Christians target. This will result in the Church being completely carbon neutral by about 2050, all on its own.”

 

1 thought on “Law and religion round-up – 16th February

  1. Frank: You report (under the heading ‘Synod and Climate Change’), Bishop David Walker’s blog comment that “Whatever one’s views on the urgency of the climate crisis, it felt unsatisfactory that this was achieved through an amendment which was decided after less than ten minutes debate, by a majority of 15, with a turnout that meant fewer than a third of Synod members voted in favour of it.”

    As, if not more, serious, I suggest, is the attitude of many Synod members to legislative business. As Elizabeth Paver (vice-chair of the House of Laity) said, this is one of the key functions of the General Synod: see para 6(a)(i) of Schedule 2 to the Synodical Government Measure 1969. Yet, for the revision stage in Synod of the draft Diocesan Boards of Education Measure on Wednesday afternoon (12 February), only 124 members (out of 483) were present in the chamber (according to one member who had gone to the gallery to count) and the debate only continued after the chair ascertained (by asking the bishops, clergy and laity to stand in turn) that Synod was quorate, a quorum being one-fifth of the members of each house: SO 16(1). Important amendments had been tabled, including one supported by the Dean of Arches, Charles George QC, designed to improve the governance and accountability of DBEs, yet all these lapsed for lack of 40 members standing after they had been resisted on behalf of the steering committee. The Dean (given a fulsome farewell by Archbishop Justin the next day) was reported to be ‘incandescent’ at the way the whole debate on the Measure had proceeded.

    Moreover, at the second meeting of the Revision Committee on 3 December 2019, when some of the proposed amendments had been rejected, only the Chair of the Revision Committee plus three members of the Steering Committee were present. Given that Synod Standing Order 54(2) provides that “The members of the Steering Committee may not form a majority of the membership of the Revision Committee”—a provision clearly intended to ensure that any draft Measure, and any proposed amendments, are given proper scrutiny by people independent of those promoting the Measure—the way the Measure was ‘revised’ on the floor of the Synod was doubly regrettable.

    It is to be hoped, not only that the Steering Committee, before bringing the Measure back to Synod for final approval din July, will reconsider some of the amendments that were not even debated by Synod on 12 February, but also that the Business Committee will consider ways to seek to ensure that legislative business receives proper consideration by the Synod.

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