Law and religion round-up – 13th February

Charities Bill (Northern Ireland)

The Charities Bill (Northern Ireland) passed its final stage on 8 February. In summary, it largely overrides the judgment of the Court of Appeal in McKee & Hughes v The Charity Commission for Northern Ireland [2020] NICA 13, in which the Court held that the Commission’s staff did not have any decision-making powers when acting alone, and restores what was thought to be the position prior to that judgment. It will:

  • make previous decisions taken by staff of the Charity Commission for Northern Ireland lawful except where to do so could impinge on the rights of individuals under the ECHR;
  • provide refreshed appeal rights for decisions made lawful by the Bill, extending the timeframe for those appeals from 42 days to 91 days from the date of Royal Assent;
  • ensure that charities do not have to account for past periods where they have not continued to do so voluntarily, but will instead be required to report on their first full financial year from 1 April 2022;
  • provide that some decisions required of the Commission may be delegated to Commission staff provided they are set out in a Scheme of Delegation which will be subject to public consultation while stipulating that certain decisions will never be taken by staff; and
  • provide a power for the introduction of a registration threshold below which charities would not be required to register with the Commission or be subject to annual reporting requirements, via subordinate legislation at some future point if deemed appropriate.

Cohabiting couples in England & Wales

The House of Commons Women and Equalities Committee has published the evidence taken on 2 February from Tom Pursglove MP, Parliamentary Under-Secretary of State at the MoJ, Mike Freer MP, Parliamentary Under-Secretary of State at the Government Equalities Office and Neal Barcoe Deputy Director, Family Justice Policy, MoJ – here – and from Professor Nick Hopkins, Law Commissioner for Property, Family and Trust Law at Law Commission, here.

Neil Barcoe told the Committee [Q 149] that the Law Commission was proposing to make it easier for religious-only weddings to come within the ambit of what is recognised by the state by removing the buildings element of the current law, so as long as the celebrant is authorised and it is a legal marriage. That would capture more religious-only weddings, which may currently take place in a restaurant or somebody’s parents’ home, which is not recognised. The Commission was also looking at bringing more of these weddings within the ambit by amending the law so that if one party to a wedding believes that the celebrant is authorised it would be considered a void marriage rather than as, at present, a non-marriage – which would give them full access to the financial remedies that are available on divorce.

Professor Hopkins said in reply to Q 192:

“We were urged to consider going further and we were asked to consider providing that any religiously recognised wedding would at the very least result in a void marriage rather than a non-qualifying one. In our consultation paper, we have not provisionally proposed adopting that approach because all of the difficulties that have been raised with us in relation to religious-only weddings can also arise where people have had some ceremony other than a religious one, but a ceremony that is not legally recognised—for example, a couple who have a humanist wedding ceremony and do not also have a civil ceremony, or a couple who have a ceremony conducted by an independent celebrant who does not represent a religious or non-religious organisation but provides a ceremony for them—or indeed they can arise in relation to a couple who cohabit without having any type of ceremony at all.

Our view is that there comes a point where it is wrong to focus on the ceremony. We cannot solve all these problems by looking at the ceremony; we have to look at the relationship. There comes a point where the answer is not to impose a status on the ceremony, but where the answer is to have cohabitation reform that would ensure that all of those parties—whether they have cohabited, had a religious wedding or had some other non-legally recognised wedding—are protected.”

Faculty Jurisdiction (Amendment) Rules 2022

The Faculty Jurisdiction (Amendment) Rules 2022 were passed by General Synod by a show of hands on the afternoon of Wednesday 9 February 2022. These rules will now go before both Houses of Parliament for approval and, if approved, will come into force on 1 July 2022.

The amendment proposing that works to introduce wireless satellite broadband receiving equipment be added to List B was carried without a vote. However, the amendment to move the replacements of boilers to List B was too close to call by show of hands and was lost by a narrow margin: 142 in favour, 145 against, with 12 abstentions. As a consequence, the installation of like-for-like fossil fuel boilers and new oil tanks will now be subject to a full faculty application.

Summaries of our reviews on the consistory court judgments in which heating was a major consideration from 2017 to the present time are here. The most recent judgment to be added is Re All Saints Woodham [2022] ECC Gui 1 which balances the thermal and aesthetic replacement flooring to be used in conjunction with underfloor heating. A detailed description of the proposed flooring is given by the Senior Project Consultant to the Petitioners.

Safeguarding in the Church of England

The Safeguarding (Code of Practice) Measure 2021 (Commencement and Transitional Provision) Order 2022, SI 2022/118 appoints as 1 March 2022 the day on which sections 1 and 2 of the Safeguarding (Code of Practice) Measure 2021 come into force. This Order also makes transitional provision to keep in operation any guidance made by the House of Bishops on matters relating to safeguarding children and vulnerable adults until that guidance is replaced by a code of practice under the new section 5A of the Safeguarding and Clergy Discipline Measure 2016. A failure to have due regard to any such guidance which continues in operation continues to be misconduct for the purposes of the Clergy Discipline Measure 2003. [With thanks to Benjamin Lewis for highlighting this SI.]

“Liking” Tweets

On Wednesday we posted CDM Tribunal considers “liking” tweets, which reviewed a recent case considered by the Bishop’s Disciplinary Tribunal for the Diocese of Southwark that addressed the issues resulting from a priest’s use of the “Like” function on his Twitter account. The Tribunal stated: “[t]he consequence of the Respondent liking these images was that those who followed him would be exposed to those images without any action being required on their part” [14]. This statement raised the question of how Twitter operates, and in particular, the operation of the “Like” function.

New religious movements: a new book

At the risk of being accused of vulgar self-advertisement, Frank and Russell Sandberg have a chapter, ‘Regulating Religious Diversification: A Legal Perspective’, in a new book edited by Beth Singler and Eileen Barker, Radical Transformations in Minority Religions (Routledge, 2022), which was published on Thursday.

We explore how English and Scots law deal with New Religious Movements and religious schisms within them and within more traditional religions. We argue that, though the law in both jurisdictions is supposed to protect the right to manifest religion or belief in any form, in reality, the courts are at times reluctant to recognise new forms of religiosity or doctrinal developments. In particular, though legal provisions are protected as individual rights, the courts readily assume a direct link between credal belief and behaviour and fail to protect those who profess membership of a religion but adhere to a personalised interpretation of that religion, and so feel themselves to be bound to manifestations that are not common within that religion as a whole.

Quick links

And finally…

2 thoughts on “Law and religion round-up – 13th February

  1. Further to your ‘quick link’ to Kaya Burgess’s story in The Times on 10 February, ‘Gravedigger finds loophole in church rules so family can be buried together’ (or ‘Gravedigger’s tunnel vision solves burial plot mix-up’ as it was headlined in Thursday’s print edition at page 15: there are also several differences in the two versions of the report), of particular interest is that Mr Barnacle (the 57-year-old gravedigger) informed The Times that “he had employed the trench method around 20 or 30 times to relocate remains in a gravedigging career that began when he was 12.”

    I’ve not previously seen a public acknowledgement that coffin sliding’ (as it is usually termed) is as frequent a practice as Mr Barnacle reveals, and I suspect both that is not confined to Lincolnshire and the East Midlands and that, in most cases, it takes place without obtaining the faculty which, as the report records, Chancellor Mark Bishop said was necessary “because it interferes with human remains after burial, which would be unlawful without lawful permission”: Re St Andrew’s, Horbling [2022] ECC Lin 2, para [10], cited also in the L&RUK weekly round-up, 6 February 2022.

    A similar Lincolnshire case of burial error (but not coffin sliding) occurred in 1989 and produced a memorable comment from one of the parties, recorded in the judgment of Chancellor Michael Goodman. The case, Re St Luke’s Holbeach Hurn, is reported at [1991] 1 WLR 16. In that case a grave space reserved for the petitioner next to the grave of her late husband had been used for the burial of the widow of the person buried on the other side of the reserved space. Judge Goodman decided that the petitioner’s legal right to be buried in the reserved space should be respected and he authorised the exhumation, but only after a short adjournment to enable the parties to discuss a suggestion, put to the petitioner in cross-examination, that she might be buried in the vacant plot in the next row at the foot of her husband’s grave, which she could apply to reserve. This proved not acceptable, the chancellor being told “that her husband had never bullied her or trampled on her in life and that she did not like the idea of being under his feet.”!

    The letters editor of The Times was clearly also amused by this remark as he published my letter yesterday recounting the story: ‘Grave issues’, The Times, 12 February 2022, page 28. However, as published it was (understandably) shortened and omitted this paragraph at the end of my letter as submitted:
    “Judge Bishop’s observation in the recent Horbling case that ‘the failure to have an accurate churchyard plan easily available has led to this distressing and wholly avoidable situation’ echoes similar comments made 32 years earlier by Judge Goodman in his judgment. Clearly, the message needs wider publicity.”

  2. “We cannot solve all these problems by looking at the ceremony; we have to look at the relationship” – a welcome antidote to the commercial &c emphasis on ‘getting married’, rather than the religious stress on ‘being married’.

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