Lambeth approval for “Chuntering from a sedentary position”…
…but did the collegial approbation of the Archbishop’s speech feel like gaslighting, as some have indicated? As Francis Urquhart would have said, “They might very well think that; We couldn’t possibly comment”.
Anglican Communion
Until recently, issues concerning the Anglican Communion and the Lambeth Conference did not feature in our most read posts. Following the significant interest generated by the post by Professor Mark Hill QC, Principles of Canon Law and the Mind of the Anglican Communion, we have been following events at the Lambeth Conference with renewed interest. Updates of events relevant to legal issues are now covered in the Lambeth Conference 2022, a sub-heading of the Anglican Communion in our main Index. Links to earlier posts on the Anglican Communion (currently from March 2017) have been added as a new sub-heading. Further updating is in progress although it should be noted that inclusion does not equate to endorsement f the views expressed – only the legal issue in question.
On Friday, the second edition of The Principles of Canon Law Common to the Churches of the Anglican Communion, published by The Anglican Consultative Council, was launched at the Lambeth Conference. As well as the online pdf, it is available in hard copy. The Archbishop of Canterbury notes in his introduction that “The vast majority of the Communion, probably well over 99 per cent of its worshipping members, will have no interest whatsoever in canon law” (he’s not wrong there) “However that does not mean it is unnecessary”. Nevertheless, a reading of Part II of the Principles on “The Anglican Communion” prior to the Conference might have tempered some of the assertions and structured the debate.
COVID-19 update
Last week, the ONS published Coronavirus (COVID-19) Infection Survey, UK: 5 August 2022 showing the percentage of people testing positive for COVID-19 in private residential households in England, Wales, Northern Ireland and Scotland, including regional and age breakdowns. In the most recent week, the percentage of people testing positive for COVID-19 continued to decrease in England, Wales and Scotland, and the trend remained uncertain in Northern Ireland. The reference week is the week ending 25 July 2022 for Wales and Northern Ireland, and the week ending 26 July 2022 for England and Scotland. In England, the estimated number of people testing positive for COVID-19 equated to 3.86% of the population, or around 1 in 25 people; in Wales it was around 1 in 30 people; 1 in 17 people in Northern Ireland; and 1 in 20 people in Scotland.
With regard to the Lambeth Conference, the Episcopal News Service published COVID-19 at Lambeth: Few precautions, but also few cases – so far, in which it compared the Lambeth Conference and General Convention in Baltimore in July, the precautions in place and the adherence to them. An unscientific comparison indicates that at 1 in 28, Lambeth was little different from England – quelle surprise!
Advertising Standards Authority rulings
On 3 August 2022, the ASA reported that it had upheld complaints against two 
companies – Golden Leaves Ltd and JC Atkinson & Son Ltd. In both cases, these concerned an advertisement on the company’s website which “misleadingly implied that their medium-density fibreboard (MDF) coffins were more eco-friendly than other options, without sufficient evidence. Whilst this in itself is not strictly “law and religion” (although ASA rulings are considered in David’s Quasi Law and Religion Chapter in “Religion and Legal Pluralism” Ed. R Sandberg, [2014, Ashgate Publishing, Farnham), in adjudicating on these two complaints the ASA looked in detail at the companies’ environmental assertions and the Life Cycle Analysis (LCA) it had commissioned.
We have indicated earlier the importance of external verification for environmental performance and targets such as “net zero by 2030”. Even though an organization believes that it has done enough to justify its environmental stance, this may not satisfy external scrutiny.
Vexatious litigation and tenure
Perhaps at least of passing interest. In the late 1990s, the Revd Paul Williamson made several attempts to challenge the lawfulness of the ordination of women: see, for example, R (Williamson) v Dean & Chapter of St Paul’s Cathedral & Anor [1997] EWHC Admin 784. Finally, in R (Williamson) v HM Attorney General [1997] EWHC QB (16 July 1997) a Divisional Court concluded that he was a vexatious litigant and issued a Civil Proceedings Order (“CPO”) under section 42(1) Senior Courts Act 1981 prohibiting him from:
“1. instituting any civil proceedings in any Court and continuing any civil proceedings instituted by him in any Court before the making of this Order and
2. making any application other than an application for leave as required by section 42 of the [SCA] in any civil proceedings instituted in any Court by any person unless [the claimant] obtains the leave of the High Court having satisfied the High Court that the proceedings or application are not an abuse of the process of the Court in question and that there are reasonable grounds for the proceedings or application.”
Fast forward to 2019, and he sought to bring an age discrimination claim before an Employment Tribunal relating to the termination of his tenure as priest-in-charge of St George, Hanworth Park, when he had reached 70 in November 2018. He presented his claim to the ET on 1 April 2019 without having first obtained the permission of the High Court. Subject to the effect of the CPO on the proceedings, it was not otherwise suggested that the claim itself was vexatious or would amount to an abuse of the process of the ET. David Pittaway QC, sitting as a Deputy Judge of the High Court, made an Order on 24 September 2019 granting him (1) permission to pursue the existing proceedings or, in the alternative, (2) granting him permission to issue proceedings in the ET. When the matter returned to the ET, however, it ruled that paragraph 1 of the Order by Deputy Judge Pittaway could be of no effect because it was not possible to give retrospective permission under the terms of a CPO. Therefore, the proceedings in the ET were a nullity (the ET following the High Court decision in HM Attorney General v Edwards [2015] EWHC 1653 Admin). The ET further considered that paragraph 2 of the Order was expressed in the alternative and related to the same basis of claim.
Mr Williamson appealed, and in Williamson v The Bishop of London & Ors [2022] EAT 118 the EAT held that ET had correctly ruled that the proceedings before it were a nullity; section 42(1A) Senior Courts Act 1981 imposed a substantive barrier to the initiation of proceedings by the subject of a CPO, not merely a procedural one. Appeal dismissed.
Charities Act 2022
The Charity Commission has released guidance for charities in England & Wales on changes to expect as a result of the staged entry into force of the Charities Act 2022 that will amend the Charities Act 2011. The changes will come into force this autumn and throughout 2023, and the Commission will publish updated guidance when the changes take effect. The guidance covers:
- Paying trustees for providing goods to the charity;
- Making moral or “ex gratia” payments from charity funds;
- Fundraising appeals that do not raise enough or raise too much;
- Power to amend Royal Charters; and
- Other provisions.
Disclosure and barring
The Disclosure & Barring Service has issued new guidance on eligibility for DBS checks in relation to people in the charity sector and overseas aid organisations. It applies in England, Wales, the Channel Islands and the Isle of Man, and there is separate guidance for those who work with children and for those who work with adults:
- Working with children in the charity sector and overseas aid organisations.
- Working with adults in the charity sector and overseas aid organisations.
The guidance reminds readers that it applies not only to registered charities but also to unregistered ones: so it applies, for example, to church congregations currently excepted from registration and to Scout and Guide groups.
Quick links
- Rajnaara Akhtar, The Conversation: Your dream wedding might not be legal – time to update England’s old-fashioned marriage laws.
- Alasdair Henderson, UK Human Rights Blog: Discrimination and Freedom of Belief in the Sex and Gender Debate.
- David Hunt, Farrer & Co: Can an employer dismiss an employee for expressing personal beliefs?
- National Secular Society: Over 70% Brits don’t think it’s important for PM to be Christian: given the performance of the present incumbent, hardly surprising.
- Charles Wide, The Critic: How the Church blew it on race: comment on Rustat, Archbishops’ Racial Justice Commission &c, which opines, “a secretive Church of England commission is intent on seeing bigotry everywhere”.
Vexatious litigation and tenure
In her comprehensive judgment in Williamson v Bishop of London and others [2022] EAT 118, in which she set out an extensive review of the relevant authorities, the President of the EAT, Eady J, cites the House of Lords decision in Seal v Chief Constable of South Wales Police [2007] UKHL 31; [2007] 1 WLR 1910 in support of the proposition that civil proceedings instituted without prior leave of the High Court by a person (such as Williamson) subject to a Civil Proceedings Order, are a nullity and cannot be validated retrospectively.
I was especially interested to see, also, the references (in paras 44(3), 61 and 67.3 of Eady J’s judgment) to Re St George Hanworth [2016] ECC Lon 1 (noted at 18 Ecc LJ 383). As Eady J records in para 44(3), that case, in which I appeared for the local authority, Hounslow LBC also involved the Revd Paul Williamson. As Eady J notes, the issue of Mr Williamson’s CPO had been raised (by me) at a case management/directions hearing before Chancellor Seed QC on 5 May 2015.
I think the judge is probably right to say (para 61) that “the issue of nullity was not raised” (Wilkie J’s judgment in the Edwards case, Attorney General v Edwards [2015] EWHC 1653, which Eady J applied, was given a week after the case management hearing in Hanworth.) It is true that the term ‘nullity’ was not used, but it was I who alerted Hounslow to the CPO in an Advice I provided to the council earlier in January 2015 when instructed to advise on the underlying substantive issues about the extent and status of St George’s churchyard.
This is what I wrote in paras 18-21 of my Advice dated 16 January 2015:
The Reverend Paul Williamson – Civil Proceedings Order
18. … Mr Williamson is well-known to the authorities of the Church of England, having conducted a protracted campaign in the 1990s against the ordination of women to the priesthood, involving repeated applications for leave to apply to judicial review. As a result, on 16 July 1997, on the application of the Attorney-General under section 42 of the Senior Courts Act 1981, the Divisional Court (Rose LJ and Jowitt J) found him to be a vexatious litigant who had “habitually and persistently and despite the courts having ruled against him continued without any reasonable grounds continued with his litigation.” Accordingly, a Civil Proceedings Order (CPO) was made against him, which remains in force. The effect of the CPO is that “no civil proceedings shall without leave of the High Court be instituted in any court by the person against whom the order is made” and “no application (other than one for leave under this section) shall be made by him, in any civil proceedings instituted in any court by any person, without the leave of the High Court”.
19. The question, relevant in the present circumstances, is whether the words “any court” in section 42(1A) include a consistory court. If so, Mr Williamson cannot bring his application for an injunction without first obtaining the leave of the High Court. As far as I am aware, there is no authority on the point. However, the underlying purpose of section 42 would seem to apply equally to consistory courts as it does to secular civil courts. Indeed, I would not be surprised if the Registrar of the London Consistory Court (who is likely to be aware of the 1997 CPO against Mr Williamson) refused to issue the application unless Mr Williamson first obtains leave from the High Court.
20. There is no definition of ‘civil proceedings’ in section 42, nor any help to be gained from the Interpretation Act 1978. However, some, albeit limited, assistance, can perhaps be gained from the decision of the Chancellor of Salisbury Consistory Court, Judge Ellison Ch, in Re St Andrew’s Heddington [1977] 3 WLR 286 in which he held that the prohibition on taking photographs in court (in section 41 of the Criminal Justice Act 1925) extended to the church when being used for the purpose of holding a consistory court. In that case, the section did include a definition of ‘court’, namely that “the expression ‘court’ means any court of justice, including the court of a coroner.” But equally section 42 of the 1981 Act is cast in wide terms, referring to “any court.”
21. … my advice is for my Instructing Solicitors to write to the Registrar, drawing to his attention that Mr Williamson is subject to a CPO, as well as pointing out that the intended proceedings are misconceived.”
I have omitted the footnote references, but one pointed out “that the copy application at Tab 5 of my instructions, which Mr Williamson says, in his letter of 1 January 2015, that he sent “out of courtesy”, purports to be made jointly by Mr Williamson and a Janet Tewkesbury, described as ‘churchwarden’. Ms Tewkesbury is not the subject of a CPO and therefore could bring the application without leave, but I note that she has not signed the copy application, although Mr Williamson has.”
Prior to the directions hearing on 5 May 2015 I had included this in a ‘position statement’ setting out the position of the respondent local authority to the injunction application:
“Civil Proceedings Order
Mr Williamson is the subject of a Civil Proceedings Order (CPO), made under section 42 of the Senior Courts Act 1981 by the Queen’s Bench Divisional Court (Rose LC and Jowitt J) on 16 July 1997 and which remains in force, by the terms of which he is debarred from instituting civil proceedings “in any court” without the leave of the High Court: R v Williamson, ex parte Attorney-General CO/1159/97. The Respondent [i.e. Hounslow] submits that the CPO applies to proceedings in a consistory court. There is no evidence that Mr Williamson has obtained the leave of the High Court to bring this application and, accordingly, to the extent that he is the applicant, these proceedings are not properly brought and should be dismissed in limine.”
The late Patterson J agreed with my submission. In her written ruling dated 8 June 2015 on Mr Williamson’s subsequent application for leave to bring proceedings, she wrote: “Leave for the institution of proceedings or for the continuation of any proceedings or for the making of an application in any proceedings in any court by a person who is the subject of such an order is not to be given unless the High Court is satisfied that the proceedings are not an abuse of the process of the court and that there are reasonable grounds for proceeding. The proposed proceedings, therefore, require the leave of the court.” (Patterson J. underlined the words ‘any’.)
Eady J says (para 61) that in Hanworth “the issue of nullity was not raised.” As I say, it is true that I did not use the term ‘nullity’ in the Council’s position statement but, unlike the case before her, there was a second-named applicant, namely the churchwarden, Janet Tewkesbury. What happened subsequently was recited in paras 4-12 of Chancellor Seed’s reserved judgment of 2 February 2016. (copy available from the ELA website). I was not involved in the decision of the Chancellor to allow the PCC to be substituted at the applicant, only being instructed again after that had occurred and when, in advance of a substantive hearing, I was instructed to draft a statement of the Council’s case on the issues of ownership and consecration. After the passage from her ruling quoted by Seed Ch in para 9 of his reserved judgment, Patterson J concluded: “No leave or permission is required for the applicant to be a witness or to speak on behalf of St George’s Parochial Church Council as a witness in any court proceedings.” Hence, para 11 of Seed Ch’s judgment.
The hearing on 20 January 2016 got rather heated with, at one point, Mr Williamson (who the Chancellor had required to take the oath to enable him to speak as a witness) accusing the Chancellor of, in effect, bullying Janet Tewkesbury, who was clearly out of her depth in presenting the case for the PCC which was, in reality, a hopeless case being brought by Williamson without having taken any legal advice. In the end, I succeeded in obtaining an order for costs against the PCC in the sum of £10,734: see Re St George, Hanworth (No. 2) [2016] ECC Lon 3; 18 Ecc LJ 397. (Seed sensibly recused himself from deciding the costs application, which was determined by the Deputy Chancellor, HH Judge David Turner QC.) Williamson did carry out his threat to report Seed to the Bishop of London (then Richard Chartres), only to be informed by the Registrar that there was no mechanism for reporting alleged misconduct by a diocesan chancellor! See this report in the Church Times on 1 April 2016.
Hearing left churchwarden ‘almost in tears’
A CHURCHWARDEN was almost reduced to tears during a consistory-court hearing before the Chancellor of the diocese of London, the Worshipful Nigel Seed QC, last month, according to the Priest-in-Charge of St George’s, Hanworth, the Revd Paul Williamson. The PCC of the church has made a formal complaint to the Bishop of London. Fr Williamson said that he was refused permission to speak during a hearing about a land boundary. The Chancellor also made “offensive remarks” to him, and shouted at his churchwarden, Janet Tewkesbury, he said. “We are left in disbelief at the travesty of a hearing when evidence was refused, and the pictorial evidence was ridiculed.”
I have to agree that Seed did behave badly and that Williamson’s complaint was, to that extent, justified. I note (i) that Seed retired as a circuit judge with effect from 1 August 2022, and (ii) there is now a protocol setting out the procedure for making a complaint against a chancellor or deputy chancellor relating to “misconduct in the performance of their office” which, by way of example, “might include rude or bullying behaviour, or inordinate delay in the conduct of proceedings.”
A five-judge panel of the Court of Appeal has recently applied the principle in the Seal case in holding that the Attorney General cannot consent retrospectively (purportedly pursuant to section 27(1) of the Public Order Act 1986) to criminal proceedings alleging an offence under section 18(1)(a) of the Act (stirring up racial hatred): R v Lalchan [2022] EWCA Crim 736; [2022] 3 WLR 385.
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