Law and religion round-up – 14th November

COP 26 and the Church of England

As we reach the end of the 26th meeting of the Conference of the Parties in Glasgow (COP 26), it is instructive to look back to the meeting in Paris in 2016, reported in the post, COP-21: Didn’t we do well?, in which we observed: 

“There has, to date, been relatively little scrutiny of the environmental performance of faith-based groups, but this is inevitable in view of their involvement in relation to the Paris talks. However, to avoid their environmental statements being labelled as “greenwash”, any organization with a serious environmental/sustainability agenda must base this on realistic time-bound targets.”

We noted that the Church of England’s Shrinking the Footprint and Church and Earth 2009 – 2016 provided a useful benchmark for the performance of other faith bodies. However, that progress was not sustained; citing criticism in L&RUK here and here (both posted in 2015 but apparently still applicable in 2018) London/Truro DSM Environmental Programmes, GS2094A commented [T]o reach 2020 without a way to ascertain progress towards our public targets [for carbon reduction] would entail a risk to the Church’s reputation, potentially even to the reputation of the Gospel”. 

However, it was two years later – on 12 February 2020 – when General Synod passed an amended resolution committing it to work towards reducing its GHG emissions to “net zero” by 2030. A summary of the action this initiated is given in our post “Net zero” in 2030 – a courageous decision? On 28 October, the Church launched a consultation on plans to get to net zero carbon in just nine years as its new Synod prepares to meet on 16-17 November. This is of direct relevance to considerations in the consistory courts, primarily on the replacement of heating and lighting systems, on which we have posted on a number of occasions. 

The closing date for the online consultation is 5 pm on Monday 28 February 2022. The consultation is primarily aimed at national Church bodies, diocesan structures (including DBFs and DBEs), and cathedrals, although responses from parishes, schools, and individuals are welcome. There are 95 questions in all, but the survey allows respondents to skip sections that are not relevant to them.

Returning to 2016, it continues to be the case that any serious environmental/sustainability agenda must be based on realistic time-bound targets. Ideally, the setting and achievements of such targets would be subject to external verification – an essential component of EU and UK statutory legislation in this area. 

Non-story of the week

Possibly with an eye on reader interest in COP-26, the Church Times included the headline DAC blocks solar-panels plan for church roof in West Holloway, an issue on which the vicar had written Churches are keen to reach net zero but there are needless barriers in the way. In this article in Christian Today, the blame for blocking the petition was placed upon the Victorian Society (VS). However, the VS is but one of the “National Amenity Societies”, named in the Faculty Jurisdiction Rules 2015, whose opinion is sought when considering faculty petitions. This relates to their role with regard to the “ecclesiastical exemption” and there is at present no requirement for seeking the views of an independent external environmental body on energy-related matters. 

The Worshipful Mark Hill QC placed these stories in context stating

“This is a non-story. The DAC advises (clue in the name) and Vic Soc has a right of consultation. Neither can “block” anything. The parish simply needs to petition for a faculty. If their case is meritorious, then one will be granted by the chancellor”,

and on costs:

“What’s the worry? Court fees are modest (when compared with the overall project costs). They are fixed by a Statutory Instrument. And petitioners will never be ordered to pay a party opponent’s costs unless they behave unreasonably. The scary costs argument is a myth.”

It would be unfortunate if general conclusions were drawn from this single, as yet, unresolved issue, and we should reserve judgement until a judgment is available. Perhaps this might include permission for the air-source heat pump for which St Luke’s has already secured funding. 

The petition is in the ether”

Not an excuse that readily falls to mind, although a timely observation for PlusNet customers in the UK who have been without internet connectivity recently. Re St James the Great Dauntsey [2021] ECC Bri 2 concerned the removal and repair of bulging medieval stained glass window in a Grade I church which the churchwardens arranged without the application for an emergency faculty. Chancellor Gau commented [7]:

“Fortunately for the petitioner, the petition disappeared into the ether and it was only towards the end of March of this year that his response was sent to me. It is only this delay that has led me not to order a full consistory court to investigate what has happened in this case, with the attendant costs.”

In addition to granting the confirmatory faculty, the Chancellor also granted a faculty for all the windows that are identified as being in need of repair and restoration to be so repaired and restored.

Personal religious views vs “official” doctrine
 
In a recent judgment on a “best Interest” decision on clinically assisted nutrition and hydration for a 70-year-old man, P, who had been in a vegetative state since suffering a massive heart attack in 2014 – North West London Clinical Commissioning Group v GU [2021] EWCOP 59 – Hayden J made the following remarks, obiter, about the need for the Court to engage with lived religion as experienced by adherents rather than merely taking account of official doctrine:
 
“[66]  Although it is not an issue in this instant case, evaluating the codes and values by which an individual has lived his life will, in many cases, involve taking account of both religious and cultural beliefs. This is not to be equated with a superficial assumption that because a person is a member of an identified faith, he will inevitably have wanted a particular medical decision to be taken. It must be recognised that within any faith or culture there will exist a diversity of interpretation and practices, some of which will be extra-doctrinal and not easily reconcilable with the theological strictures of the faith. Thus, for example, some Roman Catholics whilst having a clear religious identity may nonetheless choose to practise birth control; some Jews may not adhere to prescribed dietary requirements; some Muslims may not observe Ramadan. Even those who do not regard themselves as having a faith may have grown up in countries or families where faith-based beliefs have migrated into more general cultural values. All this is in sharp focus when considering what is often referred to as the ‘sanctity of life’, a phrase which is rooted in the religious lexicon, though it has developed a broader meaning in the law (e.g. sanctity of contract). When considering what P would want, it is his own religious views and practices that need to be focused upon and not the received doctrine of the faith to which he subscribes. The latter approach risks unintentionally subverting rather than promoting the autonomy that is integral to human dignity” [emphasis added.]
 
[With thanks to Elijah Z Granet for drawing it to our attention.]
 
Quick links
 
  • Santiago Cañamares, European Times: Religious equality in employment: Where is Europe heading to?: on the CJEU’s recent judgment in Wabe & MH Müller Handels.
  • Russell Sandberg: Education (Assemblies) Bill Reaches Committee Stage: “The Education (Assemblies) Bill, a Private Members’ Bill sponsored by Baroness Burt of Solihull, goes to Committee Stage in the House of Lords on Wednesday 10th November. The text of the Bill can be found here and Explanatory Notes can be found here. This is a welcome opportunity to reform an outdated area of law.
  • Morag Ellis: “Clean and green – law and the carbon neutral Church”:  recording of the lecture delivered to the Ecclesiastical Law Society by the Dean of the Arches and Auditor on 4 November 2022. Responses by: The Bishop of Norwich, the Rt Revd Graham Usher, the Church of England’s lead bishop for the environment, speaking live from COP26 in Glasgow; The Worshipful Philip Petchey, Chancellor of Southwark; and The Ven Stephen Taylor, former Archdeacon of Maidstone and acting Diocesan Secretary of Canterbury. 

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