A week in which “Happy Birthday to you” acquired a new significance
On 12 April, Jesus College, Cambridge issued a statement that having taken advice and after much thought, the College Council had decided not to appeal the judgment in Re The Rustat Memorial, Jesus College Cambridge,  ECC Ely 2 – in which the Deputy Chancellor refused to grant a faculty to the College for the removal from the College chapel of the memorial to Tobias Rustat (1607/8-1694), who had invested in the African the slave trade. The decision not to appeal was accompanied by a call for the Church of England “to change how it deals with matters of racial injustice and contested heritage” and Sonita Alleyne, Master of Jesus College, was quoted as saying the rejection of the College’s petition “demonstrates the inadequacies of the church process for addressing issues of racial injustice and contested memorialisation”. The Church of England then released a statement on behalf of the Archbishop of Canterbury in which he said that he stood by his previous comments and that “Memorials to slave traders do not belong in places of worship”.
In that context, the Cathedral and Church Buildings Division of the Church of England is establishing a new Contested Heritage Committee which “will focus on the Church’s priority of racial justice as it is manifested in the material culture in our churches and cathedrals”. It seems likely that the consistory court proceedings and the Church of England’s other involvement with the Rustat Memorial will be an early consideration of the new Committee. We note the Deputy Chancellor’s comment:
“. My detailed reasons will follow later in this judgment; and I would urge anyone interested in the fate of the Rustat memorial, and the life of the College and its chapel, to read them in full.”
Underlying the debate, however, is the issue of the ecclesiastical exemption, under which the Church of England, among others, does not need to apply for listed building consent for alterations to its churches.
Historic England describes the exemption under The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010 as operating on the basis that the exempt denominations have “their own arrangements for handling changes to historic buildings which provide the same standards of protection as the secular system operated by local planning authorities”.
The exemption was last reviewed in 2004, and in The Ecclesiastical Exemption: the Way Forward the DCMS decided that the system of exemption should continue but would “be monitored periodically”. If the Church of England makes any significant change to its criteria for authorising alterations, will that still provide “the same standards of protection” as secular controls? This is of relevance to any university chapel which is considering changing its status from that of a “peculiar” to one under the jurisdiction of the diocesan bishop, and vice versa.
Reforming the Human Rights Act
On Wednesday, the Joint Committee on Human Rights published its Third Report of Session 2021–22, The Government’s Independent Review of the Human Rights Act. The unanimous conclusion is:
- that there is no overall case for changing the Act;
- that to amend the Act “would be a huge risk, to our constitutional settlement and to the enforcement of our rights”;
- that the Act “does not unduly constrain the domestic courts”;
- that there is no case for changing the Act on the basis of its impact on the separation of powers in the UK; and
- that the Government “must be cautious about any changes to the Act that would limit the way in which individuals can access effective remedies”.
In short, a unanimous “don’t do it”.
Religion, yes, but what about belief?
IMPRESS, the “Independent Monitor for the Press” which regulates over 190 news publications, mostly local newspapers, has recently updated its Standards Code and Guidance. The section on protected characteristics now reads as follows:
“4.1 Publishers must not make prejudicial or derogatory reference to anybody based on their age, disability, mental health, gender identity or reassignment, marital or civil partnership status, pregnancy, race, religion, sex or sexual orientation, or any other characteristic that puts a person at risk of discrimination. These will now be referred to as protected characteristics.
4.2 Publishers must not refer to a person’s disability, mental health, gender reassignment or identity, pregnancy, race, religion or sexual orientation unless this characteristic is relevant to the story.”
As Humanists UK points out, entirely reasonably, the guidance “narrowly states ‘religion’ only as a protected characteristic, while the Equality Act expressly protects ‘religion or belief’. The ‘belief’ part is important because that is what refers to non-religious beliefs, such as humanism”. To which one might add that Article 9 ECHR protects “freedom of thought, conscience and religion” – not just “religion”. IMPRESS evidently just doesn’t get it.
- Sonita Alleyne, The Guardian: The Church of England promised to tackle racial injustice. Why is it defending a slave trader’s memory?
- ECtHR: Guide on Article 9 of the European Convention on Human Rights: Freedom of thought, conscience and religion: updated on 31 December 2021.
- HM Passport Office: The Registrar General’s guidance for the approval of premises as venues for civil marriages and civil partnerships: for England & Wales: Ninth edition, revised 6 April 2022.
- Elvira Loibl, Strasbourg Observers: Abdi Ibrahim v Norway: A new Zeitgeist regarding (intercultural) adoptions at the ECtHR: on the decision by the Norwegian authorities to allow the adoption of a child by a ‘Norwegian Christian’ foster family against the wishes of his mother, a Muslim Somali refugee.
- Giovanni Morselli, Observatory on Religious Freedom in the Jurisprudence of the ECHR): On the evolution of Religion in Europe: a case-law study on new religions, ancient spirituality and unexpected philosophies (pt. I).
- Clare Ryan, Strasbourg Observers: Lee v the United Kingdom: A trend toward heightened pleading standards?: on “gay cakes” in the UK and the US.
- Martijn van den Brink, European Law Open: When can religious employers discriminate? The scope of the religious ethos exemption in EU law: from a new, open-access journal published by CUP.
- Charles Wide QC, Policy Exchange: Did the Colston trial go wrong?
In response to comments that Boris Johnson has just claimed a historic first – the first sitting British prime minister to have broken the law – it has been suggested that the Duke of Wellington’s duel with the 9th Earl of Winchilsea might not have been entirely legal, either.
And a Happy Easter from both of us.
Thank you for this interesting article. Given that the petitioner has decided not to appeal against this judgment, and the Master of the College has said she is considering the way forward, I wonder if the answer might be to apply to the Church Buildings Council for the removal of the chapel from the list that it maintains of buildings subject to the faculty jurisdiction. I find it curious that section 38(3)(b) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 states that a building is not eligible for inclusion in the list if it is subject to the faculty jurisdiction of a consistory court. Given that the whole purpose of the list is to identify those buildings that are subject to such jurisdiction, this seems to me not to make a great deal of sense. Have I somehow misunderstood? Possibly the National Archives have transcribed this Measure incorrectly.
What you are suggesting is that having originally opted into the faculty jurisdiction, Jesus College might now opt out. But if it did that, it would then become subject to secular listed building controls. Would it have better luck convincing the local planning authority of the desirability of relocating the memorial than it had with the consistory court? I ask the question – genuinely – not knowing the answer.
The excellent article by Trevor Cooper which you published on 21 January
has already comprehensively explored this issue of contested heritage. If an application were made to the Cambridge City Council for listed buildings consent, which would be possible if the Church Buildings Council removed this chapel from its list, would probably depend in practice largely on the recommendations of Historic England. The judge quoted extensively from the letters which Historic England wrote, but Historic England did not go so far as to tell the judge what it thought he should decide, but Historic England did not favour the application. The main advantages of the secular route are these. Firstly there may be an application for a certificate of lawfulness under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990. Under subsection (2) works would be lawful if they “would not affect the character of the listed building as a building of special architectural or historic interest”. The monument is not part of the architecture of the building. Its preservation as an archeological artefact can be secured by means of a condition requiring it to be displayed elsewhere as proposed by the College. Historic England’s conclusion that removal would harm the significance of both the building and the monument can surely be shown to be irrational and without foundation. Secondly, if a certificate of lawfulness is refused, an application for listed buildings consent can be made. Thirdly, if both of these applications are unsuccessful, following the secular route, an appeal is possible to the Secretary of State, in practice meaning the Planning Inspectorate, by written representations which should be much simpler and cheaper than an appeal to the Court of Arches, which the College did not want for financial reasons as the legal costs would become disproportionate. Finally, if that also fails a planning appeal can also be made to the High Court, which is not possible from the Arches Court. Whether Rustat should be condemned as a really bad slave trader should not be an issue and it would not be considered relevant under the secular route. Also it would not be relevant that the building is “owned by God”, as it is owned by the College in a temporal and secular sense, so the views of the College should carry more weight. .