Welcome

Featured

Law & Religion UK is intended as a forum for academically-rigorous exploration of the interactions between law and religion, together with the associated human rights issues. We welcome pertinent guest posts and comments on current developments that reflect the views and opinions of their respective authors and meet the General Conditions applying to the site. Those that do not meet these criteria or which are otherwise unidentifiable are unlikely to be published

Frank Cranmer and David Pocklington

 

© Copyright in individual posts is reserved to their authors.

Lords probe Church on same-sex marriage clergy

In the House of Lords this morning (30 July), the Rt Hon. the Lord Fowler, (Con) sought an answer to the question[1]:

“To ask Her Majesty’s Government whether they are satisfied with the enactment and operation of the Marriage (Same Sex Couples) Act 2013”.

to which Baroness Northover (LD) responded:

“My Lords, the first marriages of same-sex couples took place on 29 March—sooner than we had originally thought possible. We intend to bring the remaining elements of the Act into force on 10 December, enabling couples in a civil partnership to convert it into a marriage, and couples to stay married, if they wish to do so, when one or both of them changes legal gender.”

However, in a follow-up question, Lord Fowler stated:

“I congratulate the Government on their progress but perhaps I could raise one point. Canon Jeremy Pemberton married his partner in April, as a result of which he has had his permission to work as a priest in Nottinghamshire revoked and been banned from seeking a new post as a chaplain and bereavement manager. Given that there are other clergymen at similar risk, will the Minister, as a matter of goodwill, look at the position and see whether anything can be done to help reconcile the difficulties?”

In response, Baroness Northover said:

“ . . . . My noble friend will know that the Bill sought to protect the position of religious organisations and that this is a matter for the Church of England. We hear what he says, and it is worth also bearing in mind that things can evolve. For example, it is good that we should soon see women bishops.”

to which The Lord Bishop of Sheffield added:

“My Lords, I thank the Minister for her affirmation that according to both the letter and the spirit of the legislation on same-sex marriage, it is for the Church of England and all faith communities to determine their doctrine and what is appropriate conduct for their clergy. Is the Minister aware that the recent guidelines of the House of Bishops state clearly that those who enter a same-sex marriage, together with children in their care, should be welcomed into the life of worshiping communities, and also that the Church of England is about to begin a two-year process of structured conversations to explore the changing attitudes to human sexuality and their implications for the life of the church and its disciplines?”

Noting the nature of these responses, (rather than a reply to the question), Baroness McIntosh of Hudnall (Lab) commented:

“My Lords, the Minister set out very clearly the Government’s intentions as far as the implementation of the Act is concerned. It was very reassuring to hear from the right reverend Prelate the current views of the church. However, I do not think that either she or—if I may say with respect—he addressed the question that the noble Lord, Lord Fowler, raised about the loss of employment that followed this incident. Can the Minister say anything further about the application, for example, of the Equality Act or any employment Act in situations where people lose their job over their sexuality?”

Those with an interest in these issues will be disappointed with these answers, for which no further clarification was offered.  However, for the record, the uncorrected minutes of the remainder of the debate contain the following exchanges:

 Baroness Northover: As the noble Baroness may remember, the protections given to various religions in the equal marriage Act protect them in this regard from the operation of the Equality Act. It is up to the Church of England, but I note what the right reverend Prelate said.

Lord Elton (Con): My Lords, to clarify the position for Church of England clergy during the next two years, will my noble friend confirm that clergy in civil partnerships are able to carry out their ministry in the normal way?

 Baroness Northover: I think I need to write to the noble Lord to clarify exactly what the situation is at the moment within the Church of England—but again, it is a matter for the Church of England.

Comment

The gentle probing in today’s debate, and the view that it is up to the CofE to address such issues, contrasts with the attitude of parliament towards the Church of England in the debates, PQs &c which followed the General Synod’s defeat on 20 November 2012 of the draft legislation to allow women to become bishops.  Furthermore, the parliamentary record indicates that during this session of parliament, Sir Tony Baldry has not been required to respond or give a written answer on the marriage of clergy to their same-sex partners.

Postscript

The BBC’s take on the debate was the headline Stop Church sacking gay vicars who marry, says senior Tory followed by the summary “[t]he government should consider intervening to stop the Church of England sacking gay vicars who marry, a former Conservative chairman has said”.

Up to a point, Lord Copper.

______________________

[1] This link to the uncorrected minutes, which are available 3 hours after the debate, will be replaced tomorrow by a link to the formal record in Hansard.

Manorial Rights, Chancel Repair Liability and Fracking

With Parliament and the Law Courts not sitting, and civil servants away on their holidays, now is the time for public affairs professionals to catch up on preparing their responses to any outstanding consultations, before their attention turns to the party conference season at the end of September.  Summer is also a slack period for news, and in the attempt to gain readers’ attention, the “silly season” often gives rise ill-founded news stories in the media.

Last October we reported that it was necessary for the Church of England to issue a clarification on the media’s suggested links between its minerals registration programme and hydraulic fracturing/”fracking”, an issue linked to the Land Registration Act 2002, as is Chancel Repair Liability (although through different aspects of the Act).  There is currently: an on-going DECC consultation on hydraulic fracturing; a short inquiry by the House of Commons Justice Committee on the abolition of manorial rights; and a Private Members’ Bill on the abolition of Chancel Repair Liability.

Given the short corporate memory of some media organizations – many of which are still unable to distinguish between the European Union and the Council of Europe – there is the possibility of further confusion between this consultation and two other unconnected initiatives, although only the fracking consultation is likely to have an impact.

Chancel Repair Liability

Lord Avebury’s Private Members’ Chancel Repairs Bill [HL] 2014-15, is a short three-clause Bill, for the abolition of liability to repair chancels, viz.

“No person shall after the commencement of this Act be liable as lay rector for the repair of the chancel of any church or chapel”, [clause 1]

Clause 2 makes limited exceptions to the abolition of liability effected by clause 1 in certain cases in which the need for repair arose before the Act is passed. The Explanatory Notes state that these exceptions arise in connection with what the Law Commission identified[1] as a second problem over chancel repair liability: several liability: “in most cases in which there is more than one lay rector and the liability is not rent charge liability, each is liable for the whole repair costs[2].” In terms of its financial impact there would be no cost to public funds as a result of the change, but only a redistribution of liabilities between private parties: individual PCCs and lay rectors.

However, the Bill does not have government support, and currently no date has been set for its second reading.  In a Westminster Hall debate on Wednesday 17th October 2012, reported here, it was clear from the response to the debate by Helen Grant, Parliamentary Under-Secretary of State for Justice, that the Government was not contemplating any change in the law, though the Ministry of Justice would keep the matter under review.

Manorial Rights

Manorial rights are certain rights over land that were specifically preserved when most remnants of the manorial system were abolished in 1926, and include: sporting rights and rights to timber, mines and minerals. These were the subject of the Westminster Hall debate Manorial Rights (England and Wales), [15 Jan 2014 Vol 584 Col 329WH]. As a result of changes introduced by the Land Registration Act 2002, manorial rights lost their overriding status in relation to properties if they were not protected by being registered before 13 October 2013.  This has led to large numbers of applications to enter a notice claiming manorial rights on properties in England and Wales being made to the Land Registry in recent years, and subsequent notifications of these claims being sent to landowners by the Land Registry.

The House of Commons Justice Committee received a number of representations calling for the abolition of manorial rights, and wrote to the Law Commission and the Government asking whether there were plans to review the law concerning manorial rights in order to consider whether such rights should be abolished.  It was informed that there are currently no such plans to do so, and therefore the Committee decided to undertake a short inquiry into manorial rights in order to instigate a debate on the current situation and inform any possible future review. The inquiry was launched on 20 June and the Justice Committee has asked for written submissions by Friday 5 September 2014.

Fracking

In an earlier post Fracking and the Church of England we noted that whilst landowners may not own the title to sub-surface minerals, they may currently prevent energy firms from accessing these minerals under their land through the law of trespass, following the judgement in Star Energy Weald Basin Limited and another v Bocardo SA.  On 23 May, the Government launched a consultation that would circumvent these restrictions, and would “simplify the existing procedure for shale gas and oil and deep geothermal underground drilling access.” It explains:

“The new proposals would simplify procedures which are costly time-consuming and disproportionate for new methods of underground drilling. Oil, gas and deep geothermal companies will be able to explore their potential, and will in return provide a voluntary community payment for access”.

The proposals would provide

  • Underground right of access for shale gas and deep geothermal operations only below 300m (nearly 1000ft);
  • A voluntary community payment of £20,000 per lateral well; and
  • A clear notification system to alert local people.

These proposals were accompanied by a further report by the British Geological Survey on shale gas resources in Great Britain which assesses the resources of the Jurassic shales of the Weald. The consultation closes on 15 August 2014 at 11:45 pm.

Comment

As noted above, these three issues are independent, and apart from the DECC initiative on fracking, are unlikely to progress without government support, although we would not discourage anyone with an interest in either of the consultations from submitting their views.

The government’s enthusiasm to press ahead with fracking is clear from the announcement on 28 July that it was opening the bidding process for companies seeking licences to explore for onshore oil and gas.  The BBC reports the newly-appointed Minister for Business and Energy, Matthew Hancock as saying “companies that are granted the new fracking licences would have financial commitments to the communities where the drilling takes place”, presumably anticipating the outcome of the DECC consultation.  The areas available for these new licences cover much of the UK, and identifies where existing licences exist and where areas in which shale reserves have been identified.

_____________________________

[1] Law Commission (1985). Property Law: Liability for Chancel Repairs. London. HMSO. Extracts from the Report are included as the Annex to the Explanatory Note.

[2] However, see the comment of Greg Yerbury to our post Chancel Repair Liability – Revision Notes

Civil partnership conversion to same sex marriage – Update

Unlike the House of Commons, which rose last week, the House of Lords has continued working and does not leave for its summer recess until Wednesday. On Tuesday afternoon the Upper House was due to debate the Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations and the Draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) (No. 2) Order 2014, both of which were laid before the House on 3 July and both subject to the affirmative procedure. However, concern was raised by Quakers in Britain, who had welcomed the passing of the Marriage (Same Sex Couples) Act 2013 and eagerly anticipated when all Quaker marriages, of same-sex or opposite-sex couples, could be celebrated and reported to the state in exactly the same way. Recording Clerk Paul Parker said

 “This is more than a formality for those in civil partnerships . . . It is deeply unfair that Quaker couples are denied their opportunity to celebrate their long-term loving relationships in their worshipping community. Instead, from 10 December 2014 there will be a civil process and they will be issued a ‘certificate of conversion’ rather than a marriage certificate.”

Furthermore, the process could only be conducted by a senior registrar and, as a consequence, some might have to travel long distances in order to complete this merely bureaucratic procedure. The BBC reports that after pressure from Baroness Thornton (Lab), the draft SIs have been withdrawn and revised versions will now be debated in the autumn. It is anticipated that they will still be implemented in December.

Nevertheless, same sex marriage will be discussed by their Lordships on Wednesday morning during oral questions; and Lord Fowler (Con), will ask the Government “whether they are satisfied with the enactment and operation of the Marriage (Same Sex Couples) Act 2013”.

Choosing diocesan bishops in the Church of England

As a follow-up to Women in the episcopate: legislation and its adoption, Peter Owen has kindly contributed the following guest post on the process of appointment to vacant Sees.  Peter is a former member of General Synod, is part of the teams that publish Thinking Anglicans and Anglicans Online and has his own web site. He was member of the Liverpool Vacancy in See Committee at the time of the last two vacancies.

This is a summary of the process; for more details see, in particular, the Briefing for Members of Vacancy in See Committees [1]. At the time of writing only men can be bishops so I have referred to then as “he”. I speculate at the end on how soon this will need to be changed to “he or she”.

Key Players

1. Vacancy in See Committee

 This is a standing committee of the diocese. It includes senior clergy (suffragan bishop(s), dean, two archdeacons), the diocesan members of General Synod, the chairs of the diocesan houses of clergy and laity, lay and clergy members elected by the diocesan synod, and up to four members nominated by the bishop’s council.

2. The Crown Nominations Commission

The membership is the two archbishops and three clergy and three laity, elected by STV (single transferable vote) for five-year terms from and by, respectively, the houses of clergy and laity of the General Synod [2]. In addition the vacancy in see committee elects six of its members to join the Commission for the consideration of their particular vacancy.

The membership for vacancies at Canterbury and York is slightly different. An additional lay member is appointed to chair the CNC, and for Canterbury there is also a representative of the Anglican Communion.

 3. The Archbishops’ Secretary for Appointments (ASA) [3] and the Prime Minister’s appointments secretary for senior ecclesiastical appointments.

The ASA, currently Caroline Boddington, is secretary to the CNC. Amongst other tasks she maintains a list of people recommended as suitable for senior appointments by their diocesan bishops. Those recommended are asked to supply a personal statement and the names of three referees.

4. The Prime Minster

5. Her Majesty the Queen, who always takes the advice of her Prime Minister.

The Process

1. The current bishop announces his retirement. This may be several months in advance.

2. The Vacancy in See Committee meets on at least two occasions and (a) prepares a description of the diocese and a Statement of Needs, and (b) elects six of its members to join the Crown Nominations Commission for the consideration of their vacancy. Of these six at least three must be lay, and at most one of the senior clergy may be elected. The committee may, if it wishes, consult within the diocese before preparing the statement of needs. Typically a sub-committee prepares a draft statement before the full committee agrees the final version.

3. In parallel with the proceedings of the Vacancy in See Committee, the two appointments secretaries consult widely in the diocese, both within the Church of England, and more widely with ecumenical partners, other denominations, local government, civic authorities, etc. They also attend the first meeting of the Vacancy in See Committee. A notice of the vacancy in placed in the church press and people can send in comments and suggested names to the appointments secretaries. A summary of these consultations is given to the CNC.

4. The ASA draws up a list of potential candidates. Members of the CNC can ask for other names to be added to the list. There is a deadline for this, which is several weeks before the first CNC meeting.

5. The archbishops prepare a statement setting out the needs of the Church of England as a whole

6. The CNC holds two meetings in private, about a month apart. The meeting is chaired by the archbishop of the province with the vacancy. The Commission also conducts business by correspondence, both before and after the first meeting.

7. At its first meeting the CNC reviews the requirements of the diocese and the national church, and draws up a shortlist of candidates to be interviewed. Typically four people are invited for interview.

8. At the second meeting the shortlisted candidates are interviewed. The CNC then chooses two names to submit to the Prime Minister. Both of the names submitted must receive the support of two-thirds of the members, voting in a secret ballot. Because the six diocesan members are more than a third of the membership they can, if they all vote the same way, effectively veto any candidate. When the two names have been identified, a further vote is taken, again by secret ballot, in order to allow the Commission’s members to express a preference between them. It is this vote which identifies the preferred name.

9. The archbishop sends the two names to the Prime Minister. Both the current and previous PMs have said that they will always choose the CNC’s preferred name.

10. The PM asks the CNC’s first preference if he will accept nomination.

11. If he does, he has a medical and DBS check (Disclosure and Barring Service check, previously CRB), the Queen is advised and she formally nominates him to the see. If for any reason he is unable to accept nomination the position is offered to the CNC’s second preference.

12. The public announcement is made typically four to eight weeks after the CNC’s second meeting. Number 10 issues a press release, and the nominee is taken on a public tour of the diocese.

13. The Queen issues instructions to the College of Canons of the cathedral of the vacant see to elect a bishop. She also tells them whom to elect. The College holds its election in private and then announces the result publicly.

14. The election then has to be confirmed by the Archbishop of the Province or by his Vicar-General on his behalf. Once these proceedings have confirmed that everything has been done correctly, the person elected becomes the bishop of the diocese.

15. If the new bishop is not already in episcopal orders he is consecrated shortly after the confirmation of his election.

16. The new bishop pays homage to the Queen. This can only happen when the Queen is in England, and her annual two-month summer stay in Scotland can sometimes cause a delay.

17. Finally the new bishop starts his public ministry with a grand, but largely symbolic, enthronement in the cathedral.

Europe

Arrangements are different in the Diocese of Europe, since its bishop is not a crown appointment.

Comment

The main constraint on the timetable is the CNC . The Commission fixes dates for six pairs of meetings per year [4], and vacancies are generally allocated to these dates in order of their announcement. At the time of writing the next vacant slot in their timetable is September/October 2015. Although there is nothing to prevent the process starting as soon as a bishop announces his retirement, in practice the early stages are scheduled backwards from the CNC meeting dates.

There are various deadlines for people to suggest names for consideration by the CNC, but the latest of these is the one for members of the CNC itself. In one recent case I understand this was two months before the first CNC meeting. I doubt that names of women would be accepted until they are legally able to become bishops, which will probably be on 17 November 2014.

The next CNC meetings are for St Edmundsbury and Ipswich (11 September and 15/16 October 2014) and Southwell and Nottingham (3 November and 2/3 December 2014), in each case too early to consider women.

The first diocese to have its CNC meetings after 17 November will be Gloucester (8 January and 19/20 February 2015) so it might be possible for women candidates to be considered. If a woman were to be chosen this would not be publicly known before March or April.

The next two dioceses (Oxford and Newcastle) will certainly be able to consider both women and men.

The process for choosing suffragan bishops is completely different [5]. The diocesan bishop makes the choice, although he consults widely. He is largely in control of the timetable. It is quite likely that some diocesans with suffragan vacancies are now moving slowly so that they can consider women candidates. Others may want to fill vacancies as quickly as possible because of the increase in their workload during the vacancy. But the timetable is such that a woman suffragan could be announced before the earliest possibility for a woman diocesan.

Peter Owen

__________________________

[1] Briefing for Members of Vacancy in See Committees

[2] Membership of the CNC

[3] Archbishops’ secretary for appointments

[4] CNC dates

[5] Nomination Process for Suffragan Bishops

 

Religion and law round up – 27th July

With the Commons in recess and the summer holidays about to start, the next round-up will be published on 17 August, provided that there’s something to report . . . .

 . . . . however, we will continue to publish on the important developments in law and religion, and on Monday there will be a timely guest post from Peter Owen on the processes involved in the appointment of bishops.  Nevertheless, even we take holidays[1], and David will be holding the fort next week whilst Frank is away and will then be touring Normandy with the choir of SS Peter and Paul, Wantage.

Eid and Diwali as Bank Holidays

On Friday in Public holidays, religion and the law, we reviewed the sparsely attended Westminster Hall debate on whether Eid and Diwali should become bank holidays – they couldn’t become “common law”/public holidays.  We noted that the debate/government response did not provide the “positive answer” that MP Bob Blackman suggested the largest e-petition deserved; and  squeezing the debate into this odd spot, before MPs leave on their 5-week break, raises questions about the rigid bureaucracy associated with the e-petition system.  The debate was also reviewed by the NSS, for which its executive director, Keith Porteous Wood, said:

“Some of the UK’s public holidays have Christian (and before that, Pagan) associations, but in our secularized country are now celebrated as much by non-Christians as Christians. Any further public holidays granted on religious grounds will however prompt the next largest religion to demand its most revered days off, and then the next, which is unsustainable. Both the religious and non-religious should be able make arrangements to enjoy time off with their friends and family on days which are important to them. Schools and employers should be free to make their own arrangements as to what days they close, and presumably, reduce other annual leave entitlement and general holidays accordingly”.

Ecclesiastical Committee

The Ecclesiastical Committee of the Houses of Parliament met on 22 July to consider the Bishops and Priests (Consecration and Ordination of Women) Measure, following which Sir Tony Baldry reported on Twitter that it had been approved unanimously.  No formal report of the meeting is yet available, but there is a recording of the public part of their meeting, here.  For those not wishing to view this for the full for 1 hour 16 minutes, John Bingham of The Daily Telegraph has summarized aspects of the meeting in his article Church of England to use positive discrimination to boost women bishops.  There is a certain irony that the Church now has to justify the  future positive discrimination of women in the appointment process; and the new tranche of legislation which now contains provisions to accommodate the views of PCCs opposed to women in the episcopate; whereas its previous concerns in this area where the discrimination against women in the episcopate – all within the provisions of the 2010 Equality Act.

Exclusive Brethren again

The Office of the Scottish Charity Regulator (OSCR, or “Oscar” to its intimates) has confirmed the charitable status of two independent schools affiliated to the Plymouth Brethren Christian Church, otherwise the Hales Exclusive Brethren:  Focus School – Laurieston Campus and  Focus School – Millden Campus. OSCR paid particular attention to the Brethren community’s disciplinary practices of ‘shrinking’ or ‘excommunication’ and explored with the schools any consequences for a pupil whose parents were subject to the processes of shrinking or excommunication within the Brethren community. The charity trustees advised OSCR that shrinking and excommunication were used by the Brethren community in general only as a last resort and were not applied to children under the age of 17. Moreover, where a child’s parent or other family members were subject to shrinking or excommunication the child was still welcome at the school. On that basis, OSCR concluded that there were no unduly restrictive conditions on obtaining the benefit provided by the schools, nor was there evidence of disbenefit arising from their activities.

Coming as it does after the Charity Commission’s recent decision to register five meeting halls of the Exclusive Brethren in addition to Preston Down (which was registered in January), OSCR’s decision seems to end the uncertainty about the charitable status of the Exclusive Brethren – at least for the moment.

The murky world of marginal employment

Partly as a result of a query that Frank received, we published a note on.the rather confused status of church-workers who are not office holders or employees on standard contracts of employment. This is an issue that becomes more complicated by the month; and the only sensible conclusion is to be extremely careful when entering agreements to take on interns or similar and to remember that in case of a dispute courts and tribunals will look at the factual situation and the intentions of the parties, whatever they may have put in writing and whatever they may have thought they might have agreed.

And we’re still waiting to see what the Court of Appeal will make of Sharpe.

Halal food in French prisons?

Last November the administrative tribunal in Grenoble ruled that Saint-Quentin-Fallavier prison must begin serving halal meals in its canteen, citing French laws guaranteeing “free exercise of religion” and Article 9 ECHR after an appeal by a Muslim inmate. It was the first time that a court or tribunal had ruled that a prison must provide food in accordance with inmates’ religious beliefs and was hailed as “a major breakthrough” by the lawyer acting for the applicant.

But not for long. The Conseil d’Etat suspended execution of the judgment pending an appeal and on Tuesday the Cour Administrative d’Appel of Lyons annulled the direction to serve halal meals in prison. In justification, the court argued that

“… taking into account the opportunity for detainees to benefit from meals without pork or vegetarian meals, the availability of suitable food at major festivals and the ability to buy halal meat through the canteen, a balance was struck between the needs of the public service and the rights of detainees in religious matters”.

One for Strasbourg, perhaps?

Quick Links

Below is a selection of links to other stories in the news this week that may be of interest to our readers.

And finally (with Yahoo) . . . . .

The Washington Post reports that Yahoo Japan has launched service to delete users’ files and send email to their relatives when they die.  It explains that in Japan, preparing for major events in life has become an institution: “shukatsu,” when seeking a new job; “konkatsu,” when looking to get married; and “ninkatsu,” for when hoping to become pregnant.  Recently, Yahoo has launched the “Yahoo Ending”[2] a service directed at the problems encountered by families who lack the passwords or legal authority necessary to close down the Facebook or other online accounts of relatives who have died.

When users register for this service, which costs $1.80 a month, they receive a booking number to share with someone they trust and when they die, that person calls a Yahoo Ending number and provides the booking number, and then the deceased’s funeral preferences are shared.  The funeral home sends the cremation permit to Yahoo to trigger the sending of e-mails and the deletion of files.

___________________________

[1] However, anyone coming across Four Weddings and a Fumarole will realize that over the last few years, David’s annual walking holiday in Italy has been accompanied by a short post on another site.

[2] “shukatsu”: pronounced the same but written differently in Japanese from the job-searching term.

Public holidays, religion and the law

On Monday 21 July, a Westminster Hall debate considered the e-petition relating to making Eid and Diwali public holidays.  This e-petition is due to close on 8 August 2014, and at the time of the debate had attracted 122,991 signatures, the largest e-petition that has come to central Government since e-petitions began in August 2011 [1].  The Department for Business, Innovation and Skills issued the following response after the 10,000 signature threshold had been exceeded:

“The Government is grateful for this e-petition. We are very aware of the importance of these festivals which are widely celebrated in the UK. The Government is committed to bringing people together in strong, united communities. We encourage and support people to have shared aspirations, values and experiences. Festivals such as Eid and Diwali contribute to this objective.

We regret however that we cannot agree to create new bank or public holidays to mark these festivals. The Government regularly receives requests for additional bank and public holidays to celebrate a variety of occasions including religious festivals. However the current pattern is well established and accepted. Whilst we appreciate a new national holiday may benefit some communities and sectors, the cost to the economy remains considerable and any changes to the current arrangements would not take place without a full consultation.”

The pressures on the parliamentary timetable before the summer recess [2] required that, unusually, the debate was held in Westminster Hall on a Monday afternoon, for if scheduled otherwise the petition would have fallen and no debate would have taken place.  In another twist of fate, the time scheduled for the debate coincided with a debate in the Commons on Ukraine (Flight MH17) and Gaza, [HC Hansard 21 July 2014 Vol 584 Col 1149], and the photograph in the BBC report indicate a near total absence of parliamentarians or public.  Nevertheless, the circumstances and the content of the debate explore important aspects of religious holidays and the e-petition process itself.

Bank and Public holidays in the UK

Although the terms “bank holiday” and “public holiday” are used interchangeably, there are important legal differences.  Bank holidays are holidays when banks and many other businesses are closed for the day, whereas Public holidays (or “Common law holidays”) are those which have been observed through custom and practice.  The Banking and Financial Dealings Act 1971 provides the statutory basis for Bank Holidays.  Replacing the earlier Bank Holidays Act 1871, it is essentially a financial provision:

“to confer power to suspend financial and other dealings on bank holidays or other days, and to amend the law relating to bills of exchange and promissory notes with reference to the maturity of bills and notes and other matters affected by the closing of banks on Saturdays, and for purposes connected therewith”.

Schedule 1 to the Act names four statutory bank holidays for England, Wales and Northern Ireland [3], and each year, there are two further holidays by Royal proclamation under the provisions of the Act [4].  The only holidays which coincide with the feast day of a major Christian festival are the “common law” holidays on Christmas Day and Good Friday.  Although “Easter Monday” is clearly associated with the events of the preceding days, it is not celebrated as part of Holy Week and is a remnant of former post-Easter week of secular celebration which was reduced to one day in the 19th century.

Comment

In view of the earlier BIS response to the petition, it was quite clear that the government was unlikely to concede additional bank holidays for Eid and Diwali.  However, this could be accomplished within the existing legislation: whilst difficult to justify as “common law”/public holidays, holidays for Eid and Diwali could be proclaimed annually under the 1971 Act, a procedure that would take into account for the variability in the dates on which these festivals fall.

The comparability of UK leave entitlement with that in mainland Europe and elsewhere was well covered during the debate, although the costs and benefits of additional holidays bears further consideration.  The CEBR estimate that “the average bank holiday costs the [UK] economy £2.3 billion” is often quoted, although the associated Press Release describes these as “rough and ready calculations”, notes the Department of Culture Media and Sport estimate that the Royal Wedding last year cost the UK £1.2 billion or 0.08% of GDP, and states that “this [the number of bank holidays] is more a social than an economic judgement. Money is not the only thing and a healthy lifestyle needs time off to reflect and relax”. Indeed.

Concluding the debate for the government, Jenny Willott (Cardiff Central) (LD), an Assistant Government Whip, stated [21 July 2014  Vol 584 Col 376WH]

“The Government do not believe there should be a public holiday to mark these two particular occasions.  I know that will disappoint some people, but I am very grateful to my hon. Friend for raising the issue today. It is important that we should be able to discuss it and put on the record the value of the huge diversity and wide range of different faith groups represented in our communities, and the massive contribution they all make to our local communities and to society as a whole.  I thank my hon. Friend for raising the matter today and for his continuing dedication to and support for the work of those communities”.

Whether or not

“people who have been listening to us are at least happy and satisfied that we have debated the matter at length and that all of us have put on the record our belief that the contribution made by faith communities in the UK is critical to the way our society functions”

is another matter.  Clearly not the “positive answer” (or even “positive response”) that Bob Bob Blackman suggested the largest e-petition deserved.  Certainly, squeezing the debate into this odd spot before MPs leave on their 5-week break, raises questions about the rigid bureaucracy associated with the e-petition system. We await to see whether “this debate will be the beginning and not the end.”

_________________________

[1] Public petitions that secure the backing of 100,000 signatures are eligible, though not certain, for debate in Parliament, and as from September 2012, those exceeding the threshold of 10,000 signatures trigger a written response form the government department responsible.

[2] 22 July to 1 September.

[3] Easter Monday; the last Monday in May; the last Monday in August; 26th December, unless it is a Sunday; and 27th December in a year in which 25th or 26th December is a Sunday.

[4] New Year’s Day, (as from 1974); and May Day Holiday, (as from 1978).

Religious workers, interns, volunteers and the National Minimum Wage

Recently I had a query in the course of the day-job from the financial administrator of a church who raised the issue of the employment status and remuneration of the church’s youth-worker.

Without going into the details of a specific case, the discussion raised several general questions in my own mind about the status of interns, part-timers, work-experience students and volunteers. Twenty years ago those distinctions were much more clear-cut; but changing patterns of work, the decisions of employment tribunals and the introduction of the National Minimum Wage have all combined to blur the overall picture. Moreover, arbitrary labels are misleading: expressions such as “internship” or “work experience placement” have no status in law. Generally, the rights of people at work depend on their employment status: whether someone is an employee, a worker or an office holder. These categories are not necessarily mutually exclusive and every case falls to be determined on the facts.

Furthermore, their employment status may be classified differently in according to tax or employment law: and with regard to the latter, establishing employment status is essential for accessing many employment rights such as protection from unfair dismissal.

Right to the National Minimum Wage

An intern with the status of a worker is entitled to the National Minimum Wage; and an employer cannot avoid the duty to pay the NMW merely by stating that it does not apply or by concluding a written agreement stating that the person in question is not a worker or that that person is a volunteer.

An intern is classed as a worker and is entitled to the National Minimum Wage if he or she is promised a contract of future work.

Interns are not entitled to the National Minimum Wage in the following circumstances:

  • Student internships: a student required to undertake an internship for less than one year as part of a UK-based further or higher education course is not entitled to the NMW.
  • School work experience placements: work experience students of compulsory school age (ie under 16) are not entitled to the NMW.
  • Voluntary workers: volunteers are not entitled to the NMW if they are both working for a charity, a voluntary organisation, an associated fund raising body or a statutory body and are not paid except for limited benefits such as reasonable travel or lunch expenses.
  • Work-shadowing: the employer does not have to pay the NMW if an internship only involves shadowing an employee: no work is carried out by the intern and he or she is only observing the person being shadowed.

Those who are purely volunteers do not have employment rights at all. The Supreme Court so decided in X v Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59: Lord Mance, delivering the judgment of the Court, held that Directive 2000/78/EC ”does not cover voluntary activity” and was not prepared to refer the matter to the Court of Justice of the EU for an Opinion.

Attempting to circumvent the rules: Autoclenz

In case of a dispute, the courts and tribunals will look at the factual situation and the intentions of the parties, whatever they may have put in writing; and the Supreme Court undertook just such an analysis of an alleged self-employment relationship in Autoclenz Ltd v Belcher & Ors [2011] UKSC 41.

Autoclenz was a car-valeting business and the claimants valeted the cars. They had all signed statements declaring unequivocally that they were self-employed, rather than employees of Autoclenz; and they were taxed on that basis rather than under PAYE. Nevertheless, they sought a declaration that they were, in fact, workers entitled to holiday pay and the NMW under the Working Time Regulations 1998 and the National Minimum Wage Regulations 1999. It was common ground between the parties that if the terms of the written declaration were valid then, as a matter of law, the claimants could not be workers within the meaning of either set of Regulations. They won their original claim; and when the matter got to the Supreme Court the unanimous conclusion was that valeters had, in fact, been working under contracts of employment. Delivering the sole judgment, at para 35 Lord Clarke JSC agreed with Aikens LJ’s conclusion in the Court of Appeal  [Autoclenz Ltd v Belcher & Ors [2009] EWCA Civ 1046 para 91] that the correct approach was to discover the actual legal obligations of the parties: “This may be described as a purposive approach to the problem. If so, I am content with that description”. The ET had therefore been “… entitled to hold that the documents did not reflect the true agreement between the parties … [and] to disregard the terms of the written documents, in so far as they were inconsistent with them” [para 38].

The purposive approach

So on the basis of that “purposive approach”, if, for example, a charity says to an intern, “We can only afford to pay you the NMW for twenty hours a week but you could work the rest of the week as a volunteer”, how would that play before an Employment Tribunal?

My suggestion is that, on the principle of looking at the actual situation rather than the written or verbal agreement, an ET would need to be satisfied that any work over and above the contracted twenty hours was in fact entirely voluntary and wasn’t merely a device to get round the NMW Regulations. That, in turn, would depend at least in part in the nature of the work. If, for example, a church youth-worker took occasional church services as a lay volunteer or ran part of the church’s Sunday-school, an ET might take the view that that was the kind of activity that any committed member of a church might reasonably undertake without reward. If, on the other hand, a claimant did twenty hours of paid work a week followed by fifteen hours of “more of the same” an ET might take the view that the reality was that the claimant was in fact working a 35-hour week for less than the NMW hourly rate.

Recent cases

My suggestion would appear to be supported by two recent cases involving a Sikh gurdwara and a Hindu temple. In Singh v Management Committee of the Bristol Sikh Temple & Ors [2012] UKEAT 0429 11 1402 in which the issue was whether or not a granthi (temple priest) was “employed” for the purposes of s 54(3)(b) National Minimum Wage Act 1998. The relationship between the parties appeared to be based on voluntarism: Mr Singh did not have a formal written contract with the Management Committee and he and his wife were supported by the congregation’s voluntary contributions and lived rent-free at the gurdwara. However, the EAT concluded that the lower Tribunal had erred on the questions of mutuality and personal performance of services. Though the relationship was indeed based on “voluntarism and a traditional interpretation and application of the Sikh scriptures” [para 39] there had been no finding that a contractual relationship would be inconsistent with the practice and beliefs of the Bristol Gurdwara. The appeal was allowed and the case was remitted to the original Tribunal for reconsideration.

The issue surfaced again very recently, as noted in the last weekly round-up. In Chandra v Arya Samaj Vedic Mission (West Midlands) [2014] Birmingham County Court (unreported), in March 2011 Dr Harish Chandra was employed by the Executive Committee of Arya Samaj Vedic Mission to work at its temple on a twelve-month contract at £500 per month with a one-bedroom apartment and an arrangement that allowed him to receive commission based on those attending his courses.It turned out, however, that he was expected to spend a very large amount of his available time working and was provided only with a small single room. In March 2012, he was awarded a new three-year contract under the same terms and conditions; but in July 2012 the Executive Committee members stood down and were replaced by new members who, shortly afterwards, terminated Dr Chandra’s new contract.

HHJ Purle QC concluded that since there was no clause in Dr Chandra’s contract specifying the number of hours to be worked, his payment was therefore for “unmeasured work” rather than a salary (and, in fact, he had ended up working a 65-hour week). The Executive Committee had therefore failed to pay him the National Minimum Wage rate, even taking into account the statutory accommodation offset rate of £34.37 per week currently prescribed by the National Minimum Wage Regulations. He was awarded just over £62,500 in damages.

Comment

Once one strays outside the traditional pattern of a contract of employment, with tax paid through PAYE and the normal entitlements to such things as holiday pay, and moves into the murky world of internships, voluntary work and expenses, employment law becomes extremely complex and highly fact-specific. Religious organisations need to treat employment issues with great care – not least because of the reputational risk to the organisation of getting it wrong.

Frank Cranmer