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.