Not just the importance of being quorate…

At the end of the nineteenth century a complex series of negotiations took place between the Free Church of Scotland and the United Presbyterian Church which led to their union as the United Free Church. However, a minority of the Free Church opposed the union on the grounds that their own Church and the United Presbyterians differed fundamentally on various doctrinal matters – and that the Basis of Union had therefore been a fudge. If you’d like to read the history, the best recent account is by the late, great Alan Rodger in The Courts, The Church and the Constitution: Aspects of the Disruption of 1843 (Jean Clark Memorial Lectures: Edinburgh University Press 2008).

The dissident minority took their case all the way to the House of Lords and won – see General Assembly of the Free Church of Scotland v Lord Overtoun: Macalister v Young [1904] AC 515 – with the result that they found themselves in possession of all the Church’s property. So a Parliamentary commission was appointed which recommended that Parliament should set up a further, executive, commission to make an equitable division of the property of the Free Church: hence the Churches (Scotland) Act 1905, which gave effect to those recommendations.

That’s almost enough Scots church history (Ed.) – except for one point.

In his judgment, the Lord Chancellor, Lord Halsbury, said this: “… in the controversy which has arisen, it is to be remembered that a court of law has nothing to do with the soundness or unsoundness of a particular doctrine.  Assuming there is nothing unlawful in the views held… a Court has simply to determine what the original purpose of the trust was” (at 613). Moreover, “… there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another.  Any other view, it appears to me, would be fatal to the existence of every Nonconformist body throughout the country” (at 627: emphasis added).

That appears to be an accurate statement of the general duties on trustees – both in Scots and in English law – to use the assets of the trust for the purposes intended by the settlors/trusters and not otherwise. When the trustees of the Confraternity of the Blessed Sacrament made the £1m grant to the Personal Ordinariate of Our Lady of Walsingham “to provide for theological teaching, learning and development and for the support of priests in the Ordinariate”, it would appear that they were doing precisely what Lord Halsbury had said trustees should not do: giving money for a purpose which did not appear to have been intended by the settlors.

Or have I missed something?

Gretna Green revisited?

A consequence of Lord Hardwicke’s Marriage Act (An Act for the Better Preventing of Clandestine Marriages, 1753, 26 Geo. c.32) was the growth in popularity in couples under 21 seeking to get married in Gretna Green.  Whilst the Act set the minimum age for marriage at 14 for men and 12 for women, parental consent was required if either of the couple was under 21.  Marriage by licence without consent was null and void, and although this did not apply to marriage by banns, it was likely to be challenged in the couple’s own parish.  The alternatives were marriage at another parish were their ages were not known, or in Gretna Green.  The Act did not apply in Scotland, and Gretna Green was the town in Scotland that was closest to the border, although Haildon Hill, Coldstream Bridge and Lamberton Toll Bar were also popular venues.

In Scotland, marriage required couples to be over 16 and make a declaration to be husband and wife in the presence of two witnesses.  In 1939 Scots law was changed to reflect the English provisions, but at the present time about 20% of marriages in Scotland are between couples who are not resident there.  Nevertheless, it will be a surprise to some to read in the Scottish Government’s Consultation Paper, The Registration of Civil Partnerships: Same Sex Marriage, the suggestion that:

‘The proposals contained in this paper might encourage more people to visit Scotland to register a civil partnership or get married’, [para. 4.08].


The prospect of a change to the institution of marriage being introduced using the spin-off commercial advantages as part of the argument may seem offensive to some.  Whilst the Church of England’s Weddings Project and the introduction of the ‘qualifying connection’ in the 2008 Marriage Measure  appears to have resulted in an increase in the number of marriages conducted by the Church of England – a 4% increase in 2010 against an overall trend of reduced number of marriages – these did not change the institution of marriage and had the objective of attracting more couples to church weddings.  [Owing to the disestablished nature of the Church in Wales, the extension of these provisions to the Principality through the Marriage (Wales) Act 2010 was dependent upon Alun Michael’s Private Members Bill].

Nevertheless, in the United States the availability and recognition of same-sex marriage have been shown to have significant financial implications.  Badgett and Sears note that in the mid-1990s, significant concerns were raised regarding ‘marriage tourism’ that would be encouraged following Hawaii’s recognition of same-sex marriage, and

‘[i]n response to the Hawaii Supreme Court’s ruling, forty states eventually passed laws or constitutional amendments stating that they would not recognize the out-of-state marriages of same-sex couples, and Congress passed the Defense of Marriage Act (DOMA) to allow states to do so, as well as to affirm the federal government’s policy of only recognizing marriages of different-sex couples under federal law’.

A more liberal/less protectionist view is now prevalent, and the same authors have conducted research on the fiscal impact of marriage for same-sex couples on: Washington, New Mexico; New Hampshire; California; Connecticut; Colorado; New Jersey; Massachusetts; Vermont; Maryland; and Iowa.  In the case of California, they calculate that extending marriage to same-sex couples will boost state and local government revenues by over $63.8 million.

Given that English is the lingua franca within Europe, and even following Denmark’s recent legislative changes, there are only 8 countries within the Council of Europe that permit same-sex marriage – Norway; Belgium; Portugal; Spain; Sweden; Netherlands; Iceland, (27 June 2010); Denmark, (15 June 2012) – the prospect of ‘marriage tourism’ is not unrealistic. However, this is dependent upon mutual recognition of same-sex marriage within Europe.  Advice on the Europa web site states that ‘marriage is guaranteed to be recognised in all other EU countries – but this does not fully apply to same-sex marriages’.  It also notes ‘[d]ifferent rules apply to partnerships other than marriage, such as registered partnerships and de facto unions


Nevertheless, ‘same-sex marriage tourism’ is probably more palatable than the cremation tourism that exists in Germany: to avoid restrictions in some states which stipulate the mandatory use of a cemetery, friedhofszwang, the bereaved arrange for the cremation to take place in the Netherlands or Switzerland, where laws are more relaxed.  Provided that the urn returned to Germany does not carry an ID tag or registration number, the authorities are unlikely to intervene, thereby giving the bereaved greater freedom in the disposal of the ‘ashes’.

The importance of being quorate

The Confraternity of the Blessed Sacrament was established in 1862 to support Anglo-Catholic priests who risked imprisonment for engaging in practices which today are commonplace: candles on altars; making the sign of the cross; and vestments.  Substantial donations were made in 19th century and the investment from these has been the source of much of its present funds.  Following the creation of the Personal Ordinariate of Our Lady of Walsingham in 2011 by Pope Benedict XVI ‘to allow Anglicans to enter into the full communion of the Catholic Church whilst retaining much of their heritage and traditions’, the Confraternity made a grant of £1M to the Ordinariate ‘to provide for theological teaching, learning and development and for the support of priests in the Ordinariate’.

Reporting on the controversial donation, the Catholic Herald stated that this ‘represents almost half of the charity’s total assets’ . . . . . ‘Trustees agreed to the grant after checking with lawyers that it would be compatible with the charity’s objects – namely, “the advancement of the Catholic faith in the Anglican tradition”’. . . . . . ‘The Confraternity changed its rules in April last year [2010] so that Ordinariate priests could become members.  Five out of six of its trustees have now been ordained as priests in the Personal Ordinariate of Our Lady of Walsingham’.

As a result of ‘a substantial number of complaints’ to the Charities Commission, an investigation was launched and in January this year it set out its provisional conclusions.  After taking legal advice, both charities registered their disagreement and consequently the Commission asked a member of its Senior Management Team to review these initial findings under its decision review procedure.

In a statement today, the Commission concluded that:

The decision to make a grant to the Ordinariate was taken at an inquorate meeting, the majority of the trustees having a (financial) personal interest in the decision. It was also in breach of the charity’s governing document.

The meeting being inquorate, the decision was invalid. There was no valid exercise of the power to make a gift to the Ordinariate and the payment was unauthorised.

The gift is held upon constructive trust by the Ordinariate for the Confraternity.

The objects of the Ordinariate are wider than those of the Confraternity. A gift given to the Ordinariate without restriction could be used for purposes which have no connection with the Anglican tradition at all.

The precise meaning of Anglican Tradition is unclear but there is substantial doubt whether the Confraternity could make a grant to the Ordinariate (even with restrictions) which could be applied by the Ordinariate consistently with the objects of the Confraternity.

The Commission therefore considered the trustees of both charities were under a duty to take action to ensure the repayment of the money.

It notes that:

We have been informed that the grant has been returned in full (with interest) by the Ordinariate of its own volition.

The Confraternity has also issued a statement indicating that it ‘remain[s] firmly of the view that the grant to the Ordinariate was consistent with the founding spirit of the Confraternity and with charity law’, a view supported by its legal advisors and ‘endorsed by eminent canon lawyers’.  However, at the last meeting of the Trustees it was agreed ‘not to pursue any appeal or other legal proceedings about the grant, nor oppose the return of the grant if, as turned out to be the case, the Ordinariate should decide to return it, which it did last week’.

Lords reform: still room for the bishops

The Government has published the House of Lords Reform Bill, together with the customary Explanatory Notes, and it is expected to have a two-day second reading debate in the Commons in the week beginning 9 July. Because prisoners will not be able to vote for the new-format House the Bill is missing the customary statement of compatibility with the European Convention on Human Rights – for further and better particulars, see the posting on the UK Human Rights Blog.

The reformed House will consist of 450 members (rather than the 300 originally proposed) elected by a “Semi-Open List electoral system, giving voters the choice of voting for a party or for an individual in their region” using the boundaries used for European Parliament elections.

No doubt the minutiae of the proposals will be crawled over endlessly in the coming months: this post, however, is limited to the proposals for the continued representation of the Church of England. Under the proposals in the Bill:

  • there will be twelve Lords Spiritual in the fully reformed Upper House;
  • the Archbishops of Canterbury and York and the Bishops of London, Durham and Winchester (referred to in the Bill as the “named” bishops) will continue to have reserved places in the House;
  • the Church will be able to choose the remaining seven diocesan bishops (the ”‘ordinary” bishops) in whatever way it wishes – so the current seniority rule will go;
  • there will be transitional arrangements for a staged reduction in numbers;
  • during the transitional period it will only be possible to make replacements on the bishops’ benches if either the occupant of one of the five named sees changes or the total number of bishops in the House were otherwise to drop below twelve as a result of retirements etc;
  • bishops (other than the five “named” bishops) will be able to resign their membership of the upper House while remaining diocesan bishops;
  • the bishops will not be salaried members of the House but will be able to claim allowances.

In addition, the bishops will now be subjected to the tax deeming, disqualification and disciplinary proceedings that will apply to all other members of the House – as suggested in the Archbishops’ submission and evidence to the Joint Committee and endorsed by that Committee in its recommendations to Government.

The Government has rejected the Archbishops’ suggestion that the proposal for five “named” and seven “ordinary” bishops might not be the most appropriate balance, on the grounds that “as the five most senior positions in the Church of England it is appropriate for these positions to be permanently represented” (Government Response to the Joint Committee’s Report page 26 para 67). The Government has also rejected the Archbishops’ proposal for more flexible transitional arrangements and it has not taken on board the Joint Committee’s suggestion that the Bill should make explicit reference to the inclusion of major faiths in a reformed House. You can read the Church of England’s reaction here.

How all this will play is anyone’s guess. Will the Government get it onto the statute book with Labour support against opposition from the Conservative Right, or will the whole enterprise simply run into the sand? At the very least, it looks as if it is going to take up an immense amount of the time left to the present Parliament.

Rights under the European Convention (even religious ones) may not be invoked abusively

You cannot attempt to use the provisions of the ECHR in a way that abuses the rights of others. The European Court of Human Rights has reminded us of this basic fact in its judgment in Hizb Ut-Tahrir & Ors v Germany 27306/07 [2012] ECHR 1045 (12 June 2012).

Hizb Ut-Tahrir, whose name means “Liberation Party”, describes itself as a “global Islamic political party and/or religious society” and advocates the overthrow of governments throughout the Muslim world and their replacement by an Islamic State in the form of a recreated Caliphate. In January 2003 the German Federal Ministry of the Interior proscribed its activities on the grounds that it called for the destruction of the State of Israel and for the killing of Jews. The Ministry also concluded that Hizb Ut-Tahrir was not a political party (because it did not intend to stand for elections in Germany), nor was it to be regarded as a religious or philosophical community because it pursued political rather than religious objectives.

Hizb Ut-Tahrir took the matter to the Federal Administrative Court, claiming that because all its activities had a religious foundation it therefore enjoyed the protection of the freedom of religion provisions of the German Basic Law. The Federal Administrative Court disagreed. Articles in the organisation’s magazine Explizit contained denials of Israel’s right to exist and called for the violent elimination of the State of Israel or for people to be killed; and the Court decided that the refusal to register Hizb Ut-Tahrir had to be regarded as proportionate even if it interfered with that organisation’s religious freedom. Aside from that, Hizb Ut-Tahrir was not in any case qualified to file a complaint because it did not have a registered address in Germany and could not, therefore, claim a violation of its “constitutional rights”.

When the matter got to the European Court of Human Rights the applicants complained both about the ban and about the unfairness of the subsequent court proceedings, relying on a raft of Articles of which the most important were the provisions on fair trial, religion and freedom of association.

The Court referred to its case-law under Article 17 (prohibition of abuse of rights). The purpose of Article 17 was to make it impossible for groups or individuals to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention. Hizb Ut-Tahrir had attempted to deflect its rights under Article 11 from their real purpose towards ends that were clearly contrary to the values of the Convention: notably the peaceful settlement of international conflicts and the sanctity of human life. By a majority, therefore, the Court declared the application inadmissible.

Health & Safety and the PCC

An incident on 3rd March 2010 in which a self-employed joiner fell from a balcony and sustained serious and permanent injury, resulted in the Parish Church Council (PCC) of St Paul’s, Onslow Square being fined in Westminster Magistrates’ Court in April this year.  The incident occurred during construction work to install an adjustable floor and hand rail so the area could be used in a stepped church seating style or a flat raised position for seminar use.  Although a high barrier had been in place to guard against falls, this had been taken down following claims that it interfered with the movement of materials during the work.  This has been replaced by a lower rail which was over 1m high when the floor was in a stepped position, but was reduced to only 20cm with the floor in the raised position.  A planned new handrail had not been installed.  The PCC was prosecuted by the Health and Safety Executive, (HSE), and admitted breaching the Health and Safety at Work etc. Act 1974.  Following strong mitigation by defence counsel, it was fined £5,000 and ordered to pay costs of £4,457.60.

In another incident in Kent, the PCC of St Botolph’s, Northfleet was fined £3,000 with £685 costs after a volunteer injured his spine in a fall from the bell tower.  In an investigation by Gravesham BC, it was discovered that a structural survey had revealed that the floor in the bell tower had been suffering from beetle attack and it is reported that the recommended further surveys and remedial works had not been undertaken.  At Dartford Magistrates’ Court in July 2010, the PCC pleaded guilty to failing to maintain the structure of the building in a safe condition and failing to safeguard the health of people not in their employment.

There is also an on-going issue at St Botolph’s concerning the carbon monoxide poisoning of four of its bellringers in November 2011 from a recently-serviced gas boiler.


These cases demonstrate the application of the law, rather than its development.  No new legislation is involved, and as they were tried before magistrates, neither case is binding.  One might comment on the levels of the fines and costs imposed in relation to the relative culpability of the respective parties, but these too were within the limits set down by the legislation.  In the ‘religion’ context of this web log, the important aspect of these cases is that: health and safety legislation is applied no differently in relation to the activities of a faith group than elsewhere; within the Church of England, the body with general responsible for ensuring that the health and safety policy is implemented is the Parochial Church Council, (PCC); both self-employed workers and volunteers are covered by the 1974 Act through sections 3 and 4 respectively.  This can be problematic since: few PCC members are health and safety professionals; they do not have day-to-day contact with the church; and places of worship can pose specific risks by virtue of their design, construction or age.

Comprehensive H&S advice specific to churches is available from the insurers Ecclesiastical, here and here, and from the Churches’ Legislation Advisory Service (CLAS), in relation to the running of occasional events, here.  However, as a result of the ‘jobsworth’ implementation of the legislation by local officials and its depiction in the media, health and safety has a poor image, despite the initiatives of the HSE and of its chairman, Judith Hackitt.  Furthermore there is a public perception that any measures that are introduced to reduce risk are going ‘over the top’ or are ‘health and safety gone mad’. However, Health and Safety incidents within churches are few and far between, and whilst most activities within a church are ‘done right’, the associated documentation lags behind the practice, and different aspects of health and safety are often treated as a ‘one off’ with little overall policy or strategy.

Following the recent statutory Annual Parish Meetings (which must be held before 30th April), all newly-elected PCCs will be sorting out their agendas for 2012-2013.  This is perhaps timely occasion on which to review their Health and Safety arrangements.

Same-sex marriage: breakdown of society as we know it?

As readers will be aware, Equal civil marriage: a consultation has attracted a wide range of comment both in this blog and elsewhere, ranging from those who do not see it as a threat to the Church to those who foresee dire consequences.

In a measured piece in The Times on 21 June (no link provided, website behind paywall) David Pannick sets out to demolish the thesis that legislation for same-sex civil marriage

“… would be vulnerable to attack on discrimination grounds, reinforced by the right to religious freedom, if it were to deny a religious body the power to conduct a civil marriage ceremony on religious premises if it, and the happy same-sex couple, wished to do so”.

He suggests that lying behind the Government’s restriction of its proposals for same-sex marriages to civil ceremonies only is the fear that if it were to allow religious bodies to conduct same-sex marriages on religious premises there would be a risk that the courts might turn permission into compulsion – a fear which he regards as misconceived.

Citing Schalk and Kopf v Austria 30141/04 [2010] ECHR 1996, Pannick points out that in cases engaging Article 9 ECHR, the European Court of Human Rights

“… has repeatedly stated that religious freedom is ‘one of the foundations of a democratic society’ and a ‘precious asset’ for believers and non-believers. The courts impose civil and criminal standards on religious bodies in many contexts … But it is clear beyond argument that no human rights court would compel religious authorities to conduct a marriage service for two men or two women, in breach of its own religious doctrines. All the more so where the State has provided for civil marriages for same-sex couples. Whether to allow a religious dimension is a matter for the religious authorities”.

That said, however, he agrees with the Church of England’s contention that if same-sex marriage is introduced it will be difficult for the Government to maintain its opposition to heterosexual civil partnership. He suggests that an opposite-sex couple who wished to enter into a civil partnership rather than a marriage, perhaps for reasons of conscience, might well have a good discrimination claim – and we know that there is at least one couple, Tom Freeman and Katherine Doyle, who have expressed both their wish to enter a civil partnership and their intention of taking the matter to Strasbourg if necessary.

On the other hand, a view from left-field comes from Lapidomedia, which describes itself as promoting “religious literacy in world affairs”. It  quotes fellow-blogger Neil Addison as follows:

“‘If same-sex marriage is legalised then it is inevitable that legal polygamy will be requested. After all, if heterosexuality is no longer to be part of the legal definition of marriage, why should monogamy continue? After all, if the individuals concerned are ‘in love’ and voluntarily want to enter a multi-partner relationship, what business is it of the state to prevent them registering their relationship? Indeed, surely it is discriminatory to prevent it. On what logical, non-judgmental basis should a bisexual person be denied the right to have both a husband and a wife if the proposed partners are willing to consent to being part of such a polyamorous relationship?”

Comment: The answer to Neil Addison’s question – strictly on a logical, non-judgmental basis – is very probably, “none”. But the courts do not operate on a “non-judgmental basis”: being judgmental is precisely what judges (and, for that matter, politicians) are in business for.

One might equally ask, “On what logical, non-judgmental basis should a fourteen-year-old boy and a fourteen-year-old girl who love each other and who wish to establish a permanent relationship be denied the right to marry?” – and I dare say (comparative family law not being my starter for ten) that in some jurisdictions  they would be able to do so. The reason why they are not permitted to do so in Great Britain is that since the enactment of the Age of Marriage Act 1929 a marriage contracted by a person under the age of sixteen has been regarded as void and contrary to public policy (similar provision was made by the Age of Marriage Act (Northern Ireland) 1951). Consider: is it remotely conceivable that Strasbourg might in the foreseeable future set aside that rule on grounds of interference with the rights of parties under Article 12 ECHR?

The thrust of the judgment in Schalk and Kopf was that on the question of same-sex marriage, “[i]n the absence of consensus, the State enjoyed a particularly wide margin of appreciation” (para 46). Moreover, “… a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy” (para 97). Presumably that margin of appreciation would apply to Addison’s example of a bisexual person denied the right to establish a matrimonial troika. Moreover, if the Grand Chamber judgment in Lautsi is any guide – given that it reversed the perfectly reasonable conclusions of the Second Section: see Lautsi & Ors v Italy  30814/06 [2011] ECHR 2412 – the margin of appreciation in moral and religious matters seems to be growing wider rather than more restrictive.

The Government’s proposals on same-sex marriage are not without flaw: most obviously in that they appear to regard “civil marriage” and “religious marriage” as qualitatively different whereas, in reality, they are simply different means of achieving the identical end: marriage. But I very much doubt that their long-term effects would be as Lapidomedia suggests.