Law and religion round-up – 3rd April

We have no authority – no authority at all…

…but we have read the Deputy Chancellor’s detailed reasons in Rustatas he urges “anyone interested in the fate of the Rustat memorial, and the life of the College and its chapel to read them in full” [6].

The Rustat memorial

The decision of the Ely Consistory Court to reject the application for a faculty to relocate the memorial to Tobias Rustat to another part of Jesus College, away from the College chapel, generated an enormous amount of media comment both for and against the decision: so much so that we have published three posts on the judgment:

Overkill, maybe: but we haven’t seen so much interest in a consistory court judgment since Re St Giles, Exhall.

Peculiars in Cambridge

The Rustat case raises the issue of peculiars in the Oxbridge (and other) colleges. In 2012  Burkhard Steinberg wrote in the EccLJ, in The Peculiars of the University of Cambridge: “[t]his article argues that the continued acceptance by the Bishop of Ely of the University and its colleges as extra-diocesan confirms them to be peculiars within the legal definition”. As Paul Barber stated in an earlier EccLJ article, “it is important… to note that peculiars are jurisdictions, not places, still less buildings”. Those who persevere to the penultimate paragraph of Rustat will therefore appreciate the Gilbertian situation:

“[137] . Mr Gau began his cross-examination of the Bishop of Ely by welcoming him to his own court. Mr Gau made the point that the Bishop had appointed His Honour Judge Leonard QC as the Chancellor of this diocese; and, had he not determined that he should take no further part in these faculty proceedings, the Bishop would have been giving evidence in his own court before the chancellor whom he himself had appointed to that office: see s. 1 of the 2018 Measure.”

Clarification is available from the Church of England, which states:

It is possible for some buildings used for Anglican worship to opt into the faculty jurisdiction process. The ‘list of places of worship’ is set out in paragraphs 38-44 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018It was previously known as the Care of Places of Worship Measure 1999.”

The current list of “Other places of worship subject to the Faculty Jurisdiction” shows that Jesus College is one of the four such buildings in Cambridge, along with five colleges in Oxford, one in Durham and King’s College, London. The possibility of Jesus College opting out of the faculty jurisdiction under s 42 of the Measure has been raised as one option that the College might now consider.

Grant-aid to burial grounds

On 21 March, the Second Church Estates Commissioner, Andrew Selous, asked the Secretary of State for Justice:

“With reference to section 2.23 of his Department’s guidance entitled Burial Grounds: Guidance for Managers, which states that burial authorities may contribute towards the provision or maintenance of burial grounds in which their inhabitants may be buried, whether ‘burial grounds’ in 2.23 includes churchyards.”

On 29 March, the  Parliamentary Under-Secretary of State for Justice, Tom Pursglove, answered as follows:

“Paragraph 2.23 of Burial Grounds: Guidance for Managers refers to section 214 of the Local Government Act 1972. Subsection 214(6) provides that a local authority burial authority may contribute towards the provision or maintenance of any cemetery in which their inhabitants are buried. For the purposes of section 214(6), the definition of ‘cemetery’ (in subsection 214(8)) is ‘a burial ground or any other place for the interment of the dead (including any part of any such place set aside for the interment of a dead person’s ashes)’. This would include a churchyard if it is used as a burial ground.”

Which still doesn’t answer the question as to whether or not a parish, town or (in Wales) community council may contribute towards the maintenance of a local cemetery. However, Christopher Whitmey comments helpfully on the matter with a citation from Arnold-Baker on Local Council Administration, R Taylor 12th edn (2020) p 305, with footnotes to the Local Government Act 1972 s 214(1) and Sch 26 para 1:

“33.7 The councils of principal councils, parishes and communities are burial and cremation authorities. The parish meetings of English parishes without a parish council (whether separate or common) are burial authorities only.

At para. 25.2 it states, ‘Where a churchyard is open a local council may contribute to its maintenance (LGA 1972 s.241(6))… However, doubt has been expressed as to the use of the power to benefit churches…’.”

Pollution from burial grounds

On 1 April 2022, the Environment Agency issued guidance for local councils or other cemetery operators Protecting groundwater from human burials and also Cemeteries and burials: groundwater risk assessments. These cover developments from 1 April 2022 which require new planning permission under s57 Town and Country Planning Act 1990, and applies to proposals to: develop a new cemetery; and expand an existing cemetery. It states: “[e]xpanding an existing cemetery means extending the geographical area of a site to an extent that you need new planning permission under section 57 of the Town and Country Planning Act 1990”. Consequently, the reuse of existing graves, as envisaged in the Highgate Cemetery Act 2022, which was granted Royal Assent on 24 March, would not fall within these requirements.

Refusal to grant a get and coercive behaviour

In the roundup on 6 March, we noted the private prosecution of Alan Moher by his estranged wife Caroline for coercive and controlling behaviour, an element of which was his refusal to grant her a get after their civil divorce. He had initially pleaded not guilty but changed his plea to guilty and admitted to five years of “controlling or coercive behaviour” between January 2016 and January 2021. On 1 April, he was sentenced at Southwark Crown Court to 18 months’ imprisonment and ordered to pay £11,000 towards the prosecution’s costs.

The Jewish Telegraphic Agency reports that in his sentencing remarks HHJ Beddoe did not name the get issue but did appear to reference it: “Your wife sought to walk away from you to start a new life and as a result, you have sought to make it as difficult and painful as you could”.

Chair of the Charity Commission

In a report published on Thursday following a pre-appointment hearing, the Commons Digital, Culture, Media and Sport Committee unanimously rejected the choice of Orlando Fraser as Chair of the Charity Commission. The Committee said that, while it had no grounds for concern about Mr Fraser as an individual, “serious concerns about the process and the lack of diversity in the shortlist mean it can not formally endorse his selection”. The previous preferred candidate, Martin Thomas, withdrew from the appointment process shortly after being approved by the Committee four months ago and the Committee concluded that, in failing to re-run the appointment process, DCMS had failed to learn from its earlier mistakes.

Nevertheless, Fraser’s appointment was confirmed on Friday.

Hate speech, religion and sexuality in Finland

On Wednesday, a district court in Finland dismissed all charges against a member of the Finnish Parliament and an Evangelical Lutheran Bishop arising from their religious views. Dr Päivi Räsänen, a medic and former Minister of the Interior, along with Bishop Juhana Pohjola of the Evangelical Lutheran Mission Diocese of Finland, had been charged with hate speech for sharing her views on marriage and sexual ethics in a 2019 tweet in which she had described homosexuality as “a shame and a sin”, in a radio debate in 2019 in which she had categorised it as a “genetic degeneration” and in a pamphlet published in 2004. A member of the Church of Finland, she had also questioned the Church’s official sponsorship of Pride 2019. Bishop Pohjola faced charges for publishing Ms Räsänen’s pamphlet for his congregation.

In a unanimous ruling, the court concluded that “it is not for the district court to interpret biblical concepts”. While some might object to Ms Räsänen’s statements, there had to be “an overriding social reason for interfering with and restricting freedom of expression”. It concluded that there was no such justification. However, the judgment is not final and Associated Press reported that the prosecution was likely to appeal. [With thanks to AP and Scottish Legal News.]

Grants to the Churches Conservation Trust Order 2022

The Grants to the Churches Conservation Trust Order 2022, SI 2022/408  (“the Order”) provides the statutory basis for the Government’s financial support of the Churches Conservation Trust (CCT). The Trust was established in 1969 as the Redundant Churches Fund and is now called the Churches Conservation Trust. The Trust cares for Church of England churches of historic and archaeological interest or architectural quality no longer required for regular worship and for which no suitable alternative use can be found. The Government currently provides 66% of the Trust’s statutory funding, the remaining 34% being provided by the Church Commissioners.

This Order is required to renew the CCT annual funding order, in order to facilitate the payment of grant-in-aid. The Redundant Churches and Other Religious Buildings Act 1969 requires that any order made under it regarding the CCT, such as the funding order, is subject to affirmative resolution in the Commons. The current Funding Order expired on 31 March 2022 and this Order ensure the funding can continue.

Article 2 of the Order specifies the period beginning on 1 April 2022 and ending on 31 March 2025 for the purposes of s 1 of the Redundant Churches and Other Religious Buildings Act 1969. As a result, the Secretary of State may, with the approval of the Treasury, make grants to the Trust during that period of such amounts, payable at such times and subject to such conditions, if any, as s/he may from time to time determine. Article 3 of the Order specifies the sum of £8.739 million as the maximum aggregate amount of the grants that may be paid in that period. The previous Order made under s 1 of the 1969 Act is revoked.

Most-read posts

There were few surprises from recent WordPress statistics for the blog as at 31 March 2022, with little change in the “all-time” readership figures for the “top ten” posts, and unsurprisingly, the “7-day” data dominated by posts from the past week. However, unlike earlier months, the quarterly figures include a greater number of recent posts.

Quick links

And finally… O stulti et tardi corde ad credendum

On 1 April, it is difficult to discern whether Tweets are fact or fiction, but perhaps the best in the latter category was the detailed offering from Bosco Peters: Anglicans Welcome Disaffected Catholic Latin-Mass Lovers. Briefly:

“Archbishop Justin Welby and Pope Francis came to a landmark agreement being promulgated on 1 April, 2022. In a document, Stultus Aprilis, the Archbishop of Canterbury and the Pope have agreed to a pastoral solution to care for conservative Christians who feel threatened and neglected under the current papacy”.

3 thoughts on “Law and religion round-up – 3rd April

  1. Re the report on ‘Hate speech, religion and sexuality in Finland’, may I add that the ecclesial body to which Bishop Juhana Pohjola belongs, the Evangelical Lutheran Mission Diocese of Finland, is *not* part of the Evangelical Lutheran Church of Finland [EVL] (with which, through the Porvoo Agreement, the Anglican churches of Britain and Ireland are in full intercommunion). This ‘Diocese’ is a breakaway conservative grouping opposed to the ordination of women, and linked (I believe) with the conservative Lutheran Missouri Synod in the United States. Similarly, Päivi Räsänen’s political party, the Christian Democrats, speaks for the religious right. This case is therefore about the extent of legal licitness and civil tolerance for assertive but not ‘ultra’ religious-right discourse in a liberal democracy profoundly committed to the rule of law.

  2. Grant-aid to burial grounds. Thank you for reporting the written question and answer. I’m slightly puzzled by your comment, “Which still doesn’t answer the question as to whether or not a parish, town or (in Wales) community council may contribute towards the maintenance of a local cemetery.”.

    In substance the question was, “… burial authorities may contribute towards the provision or maintenance of burial grounds in which their inhabitants may be buried, … [does] ‘burial grounds’ in 2.23 includes churchyards[?]”.
    Answer, “…This would include a churchyard if it is used as a burial ground.”

    Burial Laws Amendment Act 1880:

    1 After passing of Act notice may be given that burial will take place in churchyard or graveyard without the rites of the Church of England.

    Any relative, friend, or legal representative having the charge of or being responsible for the burial of a deceased person may give … “Notice of Burial,” … that it is intended that such deceased person shall be buried within the churchyard … of such parish … without the performance, in the manner prescribed by law, of the service for the burial of the dead.

    The Act provides that every inhabitant of the parish has a right to be buried in the parish churchyard: so long as it is not closed by Order. So surely the question is answered? Albeit indirectly.

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