The approach of the centenary of the disestablishment of the Church of England in Wales offers a good opportunity to reflect on legal aspects of the life of the Church in Wales since 1920. Religious equality had been the principal stimulus for the Welsh Church Act 1914. This statute, together with the release of the Welsh dioceses by the Archbishop of Canterbury to form a separate Anglican province, necessitated the formulation of a constitution for the Church. Innovation was avoided, and continuity protected. ‘Vestiges of establishment’ continued, in burial and marriage, as the result of political expediency. The original structure of the Constitution continues to this day – a complex of various instruments. Change has been piecemeal. The Church still has no modernised body of canon law and its soft law has increased dramatically. However, understandings about the purposes of the Constitution have changed, and the demand for constitutional change has quickened recently, particularly since the Harries Review of the Church in Wales in 2012.

Following a brief history and explanation of the extent and role of the faculty jurisdiction, the article considers various reviews of its working, and that of the ecclesiastical exemption, starting with the Report of the Faculty Jurisdiction Commission in 1984 and the Newman Report in 1997. The Department for Culture, Media and Sport stated in 2005 that the operation of the ecclesiastical exemption would be monitored periodically, and in 2010 that it would be kept under review to ensure the required standards of protection were maintained. The article argues that a no-holds-barred review of the faculty system would now be appropriate, with a view to achieving a less cumbrous structural apparatus, with a markedly less restrictive approach to changes within unlisted churches and a more rigorous and expert approach to changes affecting listed churches.

The seal of the confessional is often described as ‘inviolable’. The idea that what is said or done in furtherance of private confession may be subjected to scrutiny as part of litigation is often considered to be absurd. But what is the legal basis for such forthright rejection? The revised Canons of the Church of England do not address the issue at all; instead the matter falls to be covered by the unrepealed proviso to Canon 113 of the Code of 1603. In England and Wales there is no primary legislation which clearly and coherently deals with the question of the admissibility of matters said in private confession before courts and tribunals. Contrast that with the United States of America, where every single state has enacted statutory provisions which provide safeguards to admissibility, albeit to differing degrees. Recent developments in Australia have, conversely, involved the enactment of legislation making it a crime for a priest to withhold, in certain circumstances, matters said to him or her in the course of private confession. In 1990, Judge Bursell QC reviewed the existing case law on the subject (sparse though it is) and found it to be contradictory, with judgments appearing to be based upon personal opinions as opposed to legal analysis. There have been some interesting ‘post-Bursell’ developments, in terms of both legislation and case law, which are discussed in this article. In Ecclesiastical Law, Mark Hill QC suggests that ‘it is likely that a trial judge would exclude evidence of a confession made to a priest’. This article is essentially an analysis of that conclusion with a view to determining whether it is right to assume that, even if not adequately protected by legislation, things said or done in furtherance of private confession are likely to be excluded from secular criminal proceedings.

In the light of the abuse crisis in the Roman Catholic Church, several inquiries have given recommendations on what should be done in the future, to ensure that such crimes are dealt with both civilly and canonically. In 2017, the Royal Commission of Australia produced a number of specific points to be addressed. Two years later, Pope Francis introduced guidelines to be observed universally whenever cases are reported, and these addressed many of the commission's recommendations. A question remains as to whether these have gone too far or far enough.

This article describes the changes in criminal law and procedure that the author saw take place during 50 years of practice, turning a criminal justice system in which it was difficult to prosecute cases involving multiple child witnesses into one much better adapted to cases alleging sexual assault and the needs of vulnerable witnesses. The article reviews, decade by decade, the major developments in people's understanding and perception of the prevalence of physical and sexual abuse, touching on a number of high-profile events. It traces the development of the Church of England's safeguarding policy, noting how it tracks the development of secular policies. In parallel it identifies a number of significant cases of sexual abuse by clergy which were/are the subject of ‘lessons learned’ reviews. A note of caution is however sounded arising from the cases of Carl Beech and Bishop Bell, in particular the danger of not following well-established investigative procedures but jumping to judgement. The article concludes by suggesting how investigation and fact-finding might take place in the future, independent of the bishops, but under the supervision of a ‘judge’, and argues that effective risk assessments can only be based on findings of fact.

This article examines how Lord Coleridge's Victorian experiences and Christian mindset played a prominent and persuasive role in the formulation of his judgment in R v Dudley and Stephens. Notwithstanding efforts to act impartially and objectively, we are all beholden, often unconsciously, to the biases and beliefs permeating the society in which we live. Coleridge was no exception, being a composite of influences: family and educational backgrounds, religious beliefs, personal encounters and societal norms. These prejudices sharpen into focus with the benefit of distant hindsight. An associated challenge is the present difficulty faced when interpreting old judgments in which allusions are made to concepts that no longer resonate in the modern world. Finally, we are left to ponder our own predicament: what are the biases that present-day jurists unconsciously possess, how do they influence the formulation of judgments and how will they be understood in a future age?

Considering the importance of their role in the life of the Church of England and the Church in Wales, there is not much written about the role of archdeacons. In her recent article in the January 2019 issue of this Journal, Jane Steen focused on the legal aspect of the role of archdeacons, and reflected on how they play a key role in shaping the Church and its ministry, delighting in its beauty and rejoicing in its well-being. In this article, the recently retired training, development and support officer for archdeacons reflects on the nature of the role and, in the light of that, on the way in which it might best be carried out. Believing that process is at least as important as outcome, and that good processes lead to better outcomes, he argues that coaching provides a useful model to enable archdeacons to exercise their ministries most effectively and promote both the mission and the well-being of the Church. It is also, he argues, a better reflection of Anglican theology.

Mr G Conisbee v Crossley Farms Ltd & Ors [2019] ET 3335357/2018 was a preliminary hearing to determine whether or not vegetarianism was ‘capable of satisfying the requirement and definition of being a philosophical belief (protected characteristic) under the Equality Act 2010’. Employment Judge Postle held that vegetarianism did not amount to a philosophical belief, comparing it to veganism. The case is the latest in the confusing and contradictory case law on the meaning of the term ‘religion or belief’ under English law.

To preserve the integrity and purity of the church, the policies of churches commonly provide for the enforcement of discipline whenever a cleric errs. The concern is that despite these provisions in the governing documents of churches, disputes challenging churches’ disciplinary exercise over their clergy are increasingly finding their way into the civil courts for adjudication. These disputes have implications for the reputation, governance and flourishing of a church. Against this backdrop, this article analyses a number of case studies to examine some legal issues arising from the churches’ exercise of disciplinary powers over their clergy within the Nigerian and South African contexts. From the analysis of the cases, a wide variety of legal issues associated with implementing church disciplinary procedures are identified to offer some lessons that may enhance the quality of legal risk management for churches.

Trinity Hall, Cambridge was founded in 1350 by William Bateman, Bishop of Norwich, for the study of canon law and civil law, as provided in its statutes. It later developed a direct connection with Doctors’ Commons in London, the College of Advocates practising in the church and admiralty courts. In the period 1512–1856, of the 462 admitted as advocates, 85 were from the Hall, including 15 masters and 45 fellows. From 1558 to 1857, the Hall had 9 out of about 25 Deans of Arches: two under Elizabeth, three at the end of the seventeenth century, three in the eighteenth century and one in the nineteenth. It has also provided more than 24 diocesan chancellors. As a result, within Cambridge University, Trinity Hall became the ‘nursery for civilians’, and the usual home for the Regius Professor of Civil Law. Among the first 12 of these (1540–1666), the Hall had 5. From 1666 to 1873, all of the next 12 holders were Trinity Hall by origin or adoption. Uniquely, all four of those holding this chair from 1757 to 1847 were clergy. These included Samuel Hallifax, Regius Professor of Civil Law 1770–1782. What follows deals with the life and career of Hallifax; his legal treatise An Analysis of the Roman Civil Law Compared with the Laws of England (with particular reference to its treatment of ecclesiastical law), its use and later editions; and the part played by it in a development which saw Trinity Hall become the centre for the new Civil Law classes (1816–1857), the forerunner of the modern Cambridge Law Tripos.

There have been a number of tribunal decisions on the admissibility of discrimination claims concerning ‘belief’ as a protected characteristic under the Equality Act 2010. Some have favoured the claimant, establishing, inter alia, that opposition to fox hunting and hare-coursing, a belief in the ‘higher purpose’ of public service broadcasting and a commitment to vegetarianism constitute ‘philosophical beliefs’ for the purposes of the Equality Act. Others do not, such that a belief in wearing a poppy or, in contrast with an earlier decision, a commitment to vegetarianism do not qualify. The admissibility of these claims tended to turn on the extent to which the belief in question was considered cogent or was sufficiently weighty and substantial. In Forstater v CGD Europe & Anor, whether or not a belief fell into the protected category focused on the rather different issue of whether or not it was worthy of respect because of its compatibility (or otherwise) with the dignity and rights of others.

When it was being introduced, there was a concern that the Clergy Discipline Measure 2003 would be a ‘complainant's charter’. While there was a marked increase in complaints after it came into force, this article argues that this concern was on the whole unfounded and as a result complainants have benefited. However, the Measure has had a damaging effect on respondents to the extent that reforming or replacing it is inevitable. It is argued that the current regime is potentially unfair in terms of common law and ECHR requirements to a fair trial. Therefore, any reform or replacement of the current regime must both be legally fair and also address its negative pastoral impact on respondents.

During the COVID-19 lockdown the initial British Government mantra of ‘Stay home. Protect the NHS. Save lives’, the ritualistic weekly public clapping for the National Health Service (NHS) and the overall tone of the media coverage led several commentators to raise the question of whether the NHS had become a religion. This question is legally significant. The question of whether the lockdown breached Article 9 has already been the subject of litigation. R (on the application of Hussain) v Secretary of State for Health [2020] EWHC 1392 (Admin) concerned the then prohibition on private prayer in places of worship. Swift J refused an application for interim relief to allow Friday prayers at Barkerend Road Mosque. Lockdown did infringe the claimant's Article 9 rights but this interference was only with one aspect of religious observance and the interference had a finite duration. The legitimate difference of opinion between the claimant and the British Board of Scholars and Imams was relevant to the question of justification. There was no real prospect that the claimant would succeed at obtaining a permanent injunction at trial because the pandemic presented ‘truly exceptional circumstances’ that meant that the interference would be justified on grounds of public health. Swift J was satisfied that there was a sufficiently arguable case to grant permission to apply for judicial review but he did not order that the claim be expedited. In Dolan, Monks and AB v Secretary of State for Health [2020] EWHC 1786 (Admin), an application of a judicial review of the lockdown regulations and schools closure was refused. However, in relation to Article 9, Lewis J adjourned consideration of this discrete issue because regulations had just been made that allowed communal worship which may have made the argument academic. English law provides the right to manifest religion or belief under the Human Rights Act 1998 and the right not to be discriminated against on grounds of religion or belief in relation to employment and the provision of goods and services under the Equality Act 2010. This raises the point: during the lifting of lockdown, when authorities require people to go back to their workplace or send their children to school, could individuals who refuse say they were legally entitled to decline on the basis that such a requirement breached their belief in protecting the NHS?

Readers of the Journal will recall the Ecclesiastical Law Society's long tradition of serious ecumenical engagement, embodied in the biennial Lyndwood Lecture with the Canon Law Society of Great Britain and Ireland, and recall that a number of members of the Society are regularly engaged with the Colloquium of Anglican and Roman Catholic Canon Lawyers. Moreover, ecumenical agreement and disagreement have canonical consequences, as, for example, in the debate about Anglican orders. In moral theology, particularly Roman Catholic moral theology, the relation between moral teaching, the confessional and canon law is obvious to any practitioner. My own interest in the Ecclesiastical Law Society was a direct consequence of my involvement in Anglican–Roman Catholic dialogue as successively co-secretary, member and consultant of the various embodiments of the Anglican–Roman Catholic International Commission (ARCIC) from 1974 onwards. An ecumenical conversation with Canon Graham Routledge, a founder member, led me to seek membership of the Society in its early days.

Religious education is probably one of the most attractive topics in law and religious studies – a truly bottomless pit which, every now and then, reveals new questions and new challenges. The most recent judgment of the European Court of Human Rights (ECtHR) concerning this matter is the one delivered on 31 October 2019 in the case of Papageorgiou and others. The judgment only became final at the end of January 2020, under Article 44(2) of the European Convention of Human Rights (ECHR), so as yet it has not received much scholarly attention. However, it should be expected that there will be no lack of such attention, as the judgment deserves it for at least two reasons.

The Supreme Court ruled unanimously in the conjoined cases of Miller and Cherry that the advice given by the Prime Minister to Her Majesty that Parliament should be prorogued from a date between 9 and 12 September until 14 October was unlawful, and that the resulting Order in Council and the prorogation itself were also unlawful, void and of no effect – so it was back to the constitutional drawing-board. Parliament was subsequently prorogued from 8 to 14 October, sat until 5 November and was dissolved at 00.01 am on the following day.