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There has been much talk of constitutional reform in recent years, but the changes that have actually been taking place have often differed markedly from those that the Government has professed to espouse and have shaken the foundations of the previous system without following any coherent overall plan. Written constitutions are not without shortcomings; the conventions that held the old British constitution in place are in any case difficult to codify or enforce. But a pressing problem with an unwritten constitution is that there is no special mechanism for constitutional change. Recent reforms have therefore become associated with short-term political expediency and spin. The cure is not simple.1
As a tribute to Professor Sir John Baker QC, who has served as a member of the Editorial Board since the Ecclesiastical Law Journal's foundation and energetically continues to do so,2 I am pleased to reproduce the lightly edited text of his British Academy Maccabbaean Lecture.3 Delivered in 2009, though still topical today, it provides a cautionary critique of the direction of travel in the evolution of the United Kingdom's unwritten constitution which I hope will serve as a prelude to an occasional series of articles and comment in the pages of this Journal considering the role of the spiritual within the constitution and the established nature of the Church of England in the twenty-first century. Matters that have been ignored or marginalised in the recent constitutional revolution include the role of the Prime Minister in the appointment of bishops and archbishops and the ecclesiastical patronage exercised by the Lord Chancellor. [Editor]
There exists a substantial body of legal and historical research on the case of Fendall v Wilson, in which the Privy Council famously ‘dismissed Hell with costs’. However, the case has never been examined in the context of Anglican debate over Hell and the Last Judgment in the second half of the nineteenth century. Despite its remarkable parallels with Fendall, Jenkins v Cook has been forgotten by most modern lawyers and has never been examined in parallel with Fendall. This article analyses the parts of the two cases that deal with Hell, the Last Judgment, and the Devil in the context of mid-nineteenth-century Anglican doctrinal litigation, and of the controversy over Hell in general and Essays and Reviews in particular. It also reconstructs some of the important factual elements of Jenkins that were not recorded in the first instance or appellate judgments. The contextual analysis of the judgments and unrecorded facts shows some surprising and evasive judicial responses to the doctrinal questions of whether Hell and the Devil exist and if so in what form. The article suggests that religious politics, rather than ecclesiastical jurisprudence, are the likelier cause of those responses. The article provides a historical contribution to the growing body of research and comment on the interplay of law and religion, in particular exemplifying some of the difficulties that arise when issues of religious doctrine are brought before purportedly secular courts.
Are the University of Cambridge and its colleges peculiars? The university has always claimed independence from episcopal authority for itself and its colleges. A struggle was resolved in 1434 by a tribunal set up by the Pope, in which the Prior of the monastery of Barnwell heard both sides and decided that the University and its colleges were to be exempt from the supervision of the Archbishop of Canterbury and of the Bishop of Ely, in whose diocese the University was situated. This became known as the Barnwell Process. It established the University and it colleges as peculiars defined as having an Ordinary other than the diocesan bishop. Colleges founded later but before the Reformation claimed the same privileges. At the Reformation, the authority of the Pope was replaced by that of the King and the Archbishop of Canterbury, but the privileges that the University and its colleges enjoyed continued to apply. Post-Reformation foundations of colleges tended to claim the same exemptions from episcopal jurisdiction, but without documented evidence. This 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.
During the course of 2012 two significant developments occurred in Germany that are of wider interest for those who study law and religion internationally. This brief note draws attention to a decision from Cologne that was probably wrongly decided, the effect of which will be reversed by amended legislation, and to a directive from the Catholic Bishops' Conference concerning the excommunication of those Catholics who decline to pay their church tax.
After the Administrative Court (Toulson LJ, Royce and Macur JJ) had rejected the applications of the late Mr Tony Nicklinson and an anonymous claimant, AM, to allow doctors to end their lives without fear of prosecution, The Times reported that Anna Soubry, Conservative MP for Broxtowe and a newly appointed minister at the Department of Health, was supporting ‘the right to kill yourself’. She was subsequently supported in turn by her Liberal Democrat ministerial colleague Norman Lamb, who told the BBC that, though the issue was one for the individual's conscience and there was no Government policy on it, there was a case for looking at reform. The Ministry of Justice subsequently let it be known that there were no plans to change the existing law.
General Assemblies normally address a wide range of issues and the Assembly of 2012 was no exception. On 23 May the Archbishop of Canterbury addressed the General Assembly on the challenges facing both the Church of Scotland and his own Church – and on how they might respond.
As always, the 2012 meetings of the Governing Body addressed issues of relevance both to wider society in Wales and to the domestic life of the Church. The Archbishop's Presidential Address to the April meeting focused on the likelihood of the extension of civil marriage to same-sex partners and the issues raised by Equal Civil Marriage: a consultation. If the legislation to allow same-sex civil marriage were passed, said the Archbishop, ‘I cannot see how we, as a Church, will be able to ignore the legality of the status of such partnerships and we ought not to want to do so’. In September, on the other hand, he concentrated on what he described as ‘musings on the underlying philosophy of The Church in Wales Review Report’ and, in particular, on what the Report had to say about the Gospel and the Church as an institution.
Although six bills appeared on the agenda paper for Dublin this year there was only one of real substance. Two were to correct some cross-references in previous legislation, one was of a technical nature relating to voluntary pension contributions and a further bill imposed a requirement on dioceses to provide statistics to central Church bodies when demanded.
To a Synod with little controversial on the agenda apart from the decision about the Anglican Covenant, the Primus in his charge at the opening Eucharist spoke of the economic wilderness through which society and the Church were travelling. The Covenant had been a response to the apparent wilderness of disagreement and disorder in the Anglican Communion, and he hoped that the Synod would express its deep commitment to the version of the Communion in which members were drawn closer to one another. The Scottish Church aspired to be fully engaged in society.