Law and religion round-up – 23rd January

Vicarious liability: where next?

In TVZ and Ors v Manchester City Football Club Ltd [2022] EWHC 7 (QB), Barry Bennell coached for the club but was not employed by it – he was unpaid. He sexually abused a number of boys in the 1980s and they subsequently sued Manchester City. The club accepted that the abuse had occurred and, as a method of alternative dispute resolution, had set up a compensation scheme for Bennell’s victims, but it did not accept vicarious liability for his activities. It also argued that the action was out of time. The claims were dismissed.

On the issue of vicarious liability, Johnson J held that the club was not liable because Bennell’s relationship with the club was not “akin to employment”, for reasons set out at length at [313] to [319]. Interestingly, from the perspective of vicarious liability for sexual abuse in religious communities, he noted Catholic Child Welfare Society & Ors v Various Claimants & The Institute of the Brothers of the Christian Schools & Ors [2012] UKSC 56 and observed that “in the cases of religious organisations, it has been observed that the ‘ties of loyalty and obedience [are] even tighter than those imposed by a contract of employment” [317].

The facts in TVZ would appear to be distinguishable from those in Catholic Child Welfare Society, but it will be interesting to see what will happen should the judgment be appealed. In Catholic Child Welfare Society, Lord Phillips PSC observed at [19] that “The law of vicarious liability is on the move”. Might that move have now been arrested, or even reversed?

For a much more detailed analysis, see Jake Richards, UK Human Rights Blog: Barry Bennell abuse claim falls on limitation and vicarious liability.

Freedom of religion or belief

On Thursday, the Foreign Office announced that the Prime Minister had appointed David Burrrowes as his Deputy Special Envoy for Freedom of Religion or Belief. He will support the Prime Minister’s Special Envoy, Fiona Bruce, in bringing together faith representatives, faith organisations and civil society stakeholders from around the world to promote religious tolerance overseas. He will also work alongside the Minister responsible for Human Rights, Lord Ahmad of Wimbledon, “to drive forward the implementation of the Bishop of Truro’s recommendations on Foreign Commonwealth and Development Office (FCDO) support for persecuted Christians around the world”. He was MP for Enfield Southgate between 2005 and 2017 and is the co-founder and Parliamentary Director of the Conservative Christian Fellowship.

COVID-19 and funerals in England

The Government updated its guidance on funerals and commemorative events to remind readers that from 27 January there will no longer be a legal requirement to wear a face-covering in any setting, though it suggests that people continue to wear face-coverings in crowded and enclosed spaces where they may come into contact with others they do not normally meet. It is shortly to update the guidance on funerals to include more information on these changes.

Equivalent updates have been made to guidance for marriage and civil partnerships, places of worship and other government guidance relating to England. Advice from the Health and Safety Executive has also be updated, with links for England, Wales and Scotland.

Contested heritage

On Friday we posted Trevor Cooper’s review of the issues surrounding “contested heritage” – Contested heritage – A review of the Church of England guidance. This article summarises the current position in the Church of England on memorials related to slavery, and compares it to the secular position, discussing a number of aspects that might usefully be subject to further development.

Also this week, the judgment Re Jesus College Cambridge [2022] ECC Ely 1, was circulated. This concerns a petition regarding the memorial to Tobias Rustat (d 1694) in the Chapel of Jesus College. The Petitioners (the College) wish to remove the memorial from the Chapel, for conservation and retention elsewhere, as they wished to avoid the risk of worshippers at the Chapel being offended by the memorial, in view of Rustat’s involvement in the slave trade in the late 17th century. There were several objectors to the proposal. This judgment concerns procedural and evidential issues, including the refusal of the objectors’ application to adjourn the hearing, which is listed for 2-4 February 2022, in order to obtain the expert evidence of a historian and refusing the petitioners’ application to call an eighth witness.

“Contested heritage” is of growing interest and last year we posted an Index with links to posts and comments on L&RUK (most of which have been captured in Trevor’s recent post). As with our other indexes, new links are added each time the particular issue is considered on this blog.

Consistory court judgments

The Ecclesiastical Law Association (ELA) has posted a lists of all consistory court judgments circulated in 2021, and for “all time” in relation to the judgments available on its site.. These lists relate to the position as at 20 January 2022.

A total of 136 judgments was reported by the ELA for 2021, the majority of which (i.e. 128) are have been summarized in our monthly reviews. Links to these, plus other relevant decisions and determinations are at Ecclesiastical court judgments 2021. As in previous years, we have covered since 2017, about 50% of judgments concern reordering, 25% churchyards, and 18% aspects of exhumation.

Net zero” and the faculty jurisdiction

The Church of England’s General Synod to be held at Church House, Westminster, 8 to 10 February 2022, considered amendments to the Faculty Jurisdiction Rules 2015 SI 2015/1568, as amended by the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 and SI 2019/1184. The relevant documents are Faculty Jurisdiction Amendment Rules, GS 2245 and Faculty Jurisdiction Amendment Rules Explanatory Notes, GS 2245 X. Amendments are proposed in three main areas:

  • Requirement to have due regard to net zero guidance (s2);
  • Consultation before starting faculty proceedings (s3); and
  • Changes to Lists A and B (s4 and Schedule),

– in addition to some Minor Amendments and Transitional Provisions (s5 and s6). Whilst some media reports focussed on amendments that “encourage priests to install more carpets and cushions” – i.e. the provision in Lists A and B, the proposed provisions relating to “net zero guidance” have the potential for greater impact, as noted by the Church Times, which considered the issue of boiler replacement. The proposed Rule 2 makes provision concerning the guidance that the CBC will issue on reducing carbon emissions under existing statutory powers. Section 55 of the Dioceses, Pastoral and Mission Measure 2007 empowers the CBC to issue such guidance, and should that guidance receive synodical approval it will then have statutory authority. This guidance will be of importance both in faculty applications and List B approval without a faculty.

And a historical curiosity

Jacob Gifford Head recently bought an Opinion written 200 years ago by Dr Arnold, a member of Doctors’ Commons, concerning a dispute about what is now the Church of Christ & St Mary in Armathwaite, Cumbria. He has transcribed and annotated it here: A Doctor-of-Law’s Opinion from 1822. Fascinating stuff.

Quick links

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