Complexities of church-sharing

On 26 December, the Daily Telegraph carried an item entitled Church of England should consider opening doors to Muslims and Hindus in which Sir Barney White-Spunner, Executive Chairman of the Countryside Alliance (“Promoting Hunting”, “Promoting Shooting”, “Promoting Rural Life”), suggested that churches in villages and towns were falling into disrepair and not being used enough.

“He said he was ‘hugely excited’ about opening up churches to other Christian denominations and, in the longer term, other faiths.  He also proposes making churches into community centres which host local markets, nurseries and even police contact points.”

In response, Steve Jenkins, head of media for the Church of England, is quoted as saying

“It wouldn’t be a Church of England church if it was open to other faiths. They want their own buildings anyway, they don’t want to share with us … We do, however, want people to use them for more diverse things. Most communities have churches at their heart and we want them to stay that way.”

Comment

While both parties made valid points, the article failed to capture the legal and religious complexities associated with the suggestion, and the measures that are currently in place such Open and Sustainable Churches.

So far as “formal” sharing beween denominations is concerned, the Sharing of Church Buildings Act 1969 resulted from a private Peer’s bill introduced into the House of Lords by the then Archbishop of Canterbury, Michael Ramsey (though we suspect that the bill was drafted with Government assistance). He said at the time that

“… this Bill is in no way a dramatic ecumenical project. The Churches which agree to share a place of worship will not in the normal way worship together; they will worship separately at different times, in accordance with their respective forms of worship” (HL Deb (1968–69) 298 cc 1281–1282).

The Act was therefore more a response to changing settlement-patterns and the need to build new places of worship on council estates than an ecumenical initiative – but the very act of sharing buildings meant that congregations who did so started getting to know each other, so it inevitably had a local ecumenical dimension.

Legislation was necessary partly in view of the established nature of the Church of England (and hence the regulation of its property and the need for the Sharing of Church Buildings Measure 1970) and partly because of the wider aspects of charity and trust law that would impact on such arrangements by the other parties. For example, could a building held on a charitable trust established with the object of worship according to the rites and doctrinal standards of the Strict and Particular Baptists be used by a local Russian Orthodox congregation? We would imagine not: the two are so far apart in doctrine and practice that to do so would be outside the terms of the trust-deed.

The provisions of the Act extend to beyond places of worship to Church halls or centres available wholly or mainly for activities other than worship, youth clubs and the residences of ordained ministers and lay workers.  The Act prevents church-sharing agreements with regard to cathedrals, peculiars and extra-parochial churches of the Church of England.  However, it does not preclude congregations from entering into informal arrangements with those of other denominations.

The Act has one or two slightly unusual features:

  • it applies only to England and Wales (though it has been extended to the Isle of Man by Act of Tynwald);
  • churches not listed in the original Schedule 2 to the Act can sign up to it if they wish to; and
  • it gives statutory recognition (uniquely, so far as we are aware) to the Evangelical Alliance and to Affinity – then known as the British Evangelical Council.

Generally:

  • for the C of E, sharing agreements “shall not be made without the consent of the bishop and the Pastoral Committee of the diocese concerned” while for other churches “the appropriate authority… may require the consent of any body or person specified by the authority to be given to sharing agreements…” [s 1(4)];
  • “a sharing agreement shall be binding on the successors to the parties thereto.” [s 1(9)];
  • s 2 makes provision for sharing of buildings held on trust;
  • s 3 provides for shared financial arrangements, even where the building is owned by only one of the sharing churches [s 3(4)];
  • s 4 provides a framework for worship in accordance with the forms of service of the participating churches, but subsection (3) provides that participation in each other’s worship by the sharing congregations shall be “governed by the practices and disciplines of those churches in like manner as if they worshipped in separate buildings” – so, eg, it does not provide statutory authority for Anglicans to receive communion at a Roman Catholic Eucharist;
  • s 7 makes provision about the sharing of residential buildings;
  • s 8 continues the exception or exemption from the provisions of the Charities Act 1993: many congregations are still excepted from the requirement to register with the Charity Commission for England and Wales but some are not: s 8 ensures that where an excepted and a non-excepted congregation share a building, the presence of the non-excepted congregation does not “contaminate” the exception of the other;
  • s 9 makes provision for termination; and
  • as noted above, s 10 prevents church-sharing agreements in respect of cathedrals, peculiars and extra-parochial churches of the C of E – but does not prevent joint use other than by way of a sharing agreement.

As an example of use other than by way of a sharing agreement, a Royal Charter of 1550 permitted the Huguenot refugees to worship in the Black Prince’s Chapel in Canterbury Cathedral – and they do so to this day (though no longer in the crypt) as the Eglise Protestante Française de Cantorbéry.

The 1969 Act is about formal sharing agreements rather than informal arrangements; and as early as 1994 about 60 per cent of Church of England parishes in the four northern archdeaconries of Southwark diocese were reported as hosting informally at least one “tenant” church, and sometimes up to three. And even within Christian communities there are quite different perceptions between the “parish” and “gathered” models for “church”. Within the Roman Catholic Church, concepts of sacred space differ with regard to the church as “domus Dei” (house of God) or “domus ecclesiae” (house of the People of God). At the other extreme, Quakers have no concept of “sacred space” at all: in principle, the meeting house is what keeps you dry if it’s raining. A Meeting for Worship can take place anywhere – there is a monthly MfW at Speaker’s Corner in Hyde Park.

With regard to secular use, the faculty jurisdiction of the Church of England imposes particular constraints; and in his article Shared Use of Church Buildings – Is nothing sacred? (2002) 31 Ecc LJ (6) 306 Charles George concludes

“the nineteenth-century outlawing of pure secular use on consecrated land is now part of legal history”.

Church use:

  • need not be ecclesiastical in purpose, providing the primary use of the church remains that of worship;
  • need not be ancillary to worship, or pastoral in motivation;
  • can be purely commercial; and
  • the prime motivation for allowing the use can be to raise revenue for the church.

The only impermissible uses are those which:

  • prevent the primary use of the church for worship; or
  • involve activities which are unsuitable in a church, either because of some conflict either with the teaching of the church, or because they would be unlikely to be regarded as acceptable by “right-thinking members of the Church of England.

George notes that the latter would preclude its use as a mosque or as a bookshop run by the National Secular Society.  However, possibly acceptable uses would include: post-offices; banking facilities; limited retail sales (including food and pharmaceutical goods); libraries; and doctors’ surgeries.  In addition to faculty approval, it would also be necessary to address issues relating to rating, planning and possibly listed building status.

Five legal options for the “complementary use of church buildings” are considered in the Open and Sustainable Churches initiative which is aimed at encouraging wider, more imaginative and more strategic use of the Church of England’s 16,000 buildings. It further states

“This approach will help churches to select the right legal and funding model to develop their building – in addition to the primary role of worship – for the ‘3Cs’ Community activities, Cultural events including tourism, or Commercial activities, e.g. local service provision or private hire.

There is now great flexibility in the system to allow shared use of a building – ranging from sole use for mission and worship with enhanced facilities, to mainly community or other use with occasional worship.”

David Pocklington and Frank Cranmer

Church and State III – the European dimension

Introduction: the great divide

For some people, the mere mention of “Europe” and/or “human rights” is like a red rag to a bull; and the fact that people often seem to be fairly shaky on the detail helps matters not at all. So what follows is an attempt to inform debate by setting out the basic structure of the two major European institutions: the European Union (“EU”) and the Council of Europe (“CoE”: no relation to any ecclesiastical organisation with similar initials). There are other less well-known Europe-wide political institutions, such as the Organization for Security and Co-operation in Europe, but they are of no great interest to students of law and religion.

The EU and the CoE both have ministerial councils, permanent secretariats of officials, courts to determine disputes and assemblies of parliamentarians – but their functions, organisations and legal foundations are very different. You must not confuse the two – and in any case, why bother when there are umpteen muddle-headed politicians around who will confuse them for you gratis without you even needing to ask?.

The European Union

What is now the European Union developed in stages from the original European Coal and Steel Community established in 1951 with the principal intention of creating economic ties between France and West Germany in order to make future conflict less likely. The EU developed through agreements defined in a number of treaties relating to the member states within the EU and its method of operation. Today, the principal treaties are the Treaty on European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”).

Although there were proposals to include reference to Christianity in the Preamble to the (unsuccessful) European Constitution and subsequent Treaty of Lisbon they were not accepted; and the EU remains a secular institution with no formal links with any religion or references to religion within its legislation.  However, Article 17 TFEU states that:

“1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations”.

Details of this dialogue are given on the website of the Commission’s Bureau of Policy Advisers (“BEPA”).

The EU operates through several distinct institutions, the most important of which, for our purposes are as follows:

  • The European Council is composed of the heads of government  of the member states, its permanent President – currently Herman van Rompuy – and the President of the European Commission: the permanent High Representative for Foreign Affairs and Security Policy – currently Baroness Cathy Ashton – also takes part in its meetings.

It is not to be confused with…

  • The Council of the European Union (sometimes just called “the Council” and sometimes still referred to as “the Council of Ministers”) which consists of ministers of the member states, with a varying membership depending on the matters under discussion – ECOFIN, for example, is the regular meeting of finance ministers. The Presidency rotates every six months among the governments of the member states – except that the Foreign Affairs Council is chaired by the EU’s High Representative.

In addition:

  • The European Commission, often described as “the Guardian of the Treaties”, is based in Brussels. (The term “Commission” is used to refer both to the members of the Commission appointed by the member states and Parliament and to the institution itself and its staff, who are organised into departments. The Commission operates at a supranational level, and has three major functions (Article 17 TEU):
    • to initiate Community action by making legislative  proposals;
    • to police and enforce EU legislation; and
    • to act as the executive of the Community.
  • The European Parliament holds plenary sessions in both Strasbourg and Brussels and committee meetings in Brussels: an arrangement referred to as “the travelling circus” (and just to make life hell for officials its secretariat is based in Luxembourg). It is directly elected by the people of the twenty-seven member states, each determining the method of election of its MEPs.  The majority of decisions are now made by co-decision, which is now called the ”ordinary legislative procedure”.
  • The European Economic and Social Committee (“ECOSOC”) is a consultative body of representative of employers, workers and other interest groups.
  • The Court of Justice of the European Union (CJEU) is based in Luxembourg and adjudicates disputes.

Human rights generally are enumerated in the Charter of Fundamental Rights of the European Union  of December 2000 which came into full effect with the entry into force of the Treaty of Lisbon on 1 December 2009. Article 6 (TEU) of the consolidated text of the Treaty on European Union declares that

“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.

In addition to its human rights provisions, in order to exercise the EU’s competences its Institutions are empowered to adopt a range of legislative acts: regulations, directives, decisions, recommendations and opinions (Article 288 TFEU):

  • A regulation has general application, it is binding in its entirety and it is directly applicable in all member states.
  • A directive is binding upon each member state to which it is addressed as to the result to be achieved but leaves to the national authorities the choice of form and methods.
  • A decision is binding in its entirety: a decision which specifies those to whom it is addressed is binding only on them.
  • Recommendations and opinions have no binding force.

The Council of Europe

The Council of Europe, based in Strasbourg, was established on 5 May 1949 by ten countries: the United Kingdom was one of the founder-members. It now includes 47 member states, ranging in size from the Russian Federation to San Marino, and covers virtually the whole of European continent – the exceptions being Belarus and the Vatican  – and a large chunk of Asia stretching to Sakhalin in the North Pacific. It seeks to develop common and democratic principles throughout Europe based primarily on the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights or ECHR), for which it carries particular responsibility and to which all member states are parties. Like the EU, the CoE has a multiplicity of institutions:

In addition, the CoE maintains a permanent advisory expert group on constitutional matters for which there is no parallel among the institutions of the EU: the European Commission for Democracy through Law, otherwise known as the Venice Commission, conducts studies and gives expert opinions on specific issues, sometimes involving religion: see, for example, its recent Opinion on the Law on Freedom of Religious Belief of the Republic of Azerbaijan.

“Religion and belief” under the two systems

Unsurprisingly, there is little detectable difference between the positions of the EU and the CoE in relation to religion and human rights.

Article 9 ECHR (Freedom of thought, conscience and religion) reads as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”.

In addition, Article 14 (Prohibition of discrimination) declares that:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Article 10 (Freedom of thought, conscience and religion) of the Charter of Fundamental Rights of the European Union declares in very similar terms that:

“1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right”.

Article 21(1) (Non-discrimination) declares that:

“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”.

The two courts: the ECtHR

The ECtHR in Strasbourg was established under the Convention of 1950 to monitor respect of human rights by states parties to the ECHR. Applications against states parties for human rights violations can be brought before the ECtHR by other states, by other parties or by individuals. (Previously, there was also a European Commission of Human Rights, elected by the Committee of Ministers, that acted as a filter-mechanism for cases by deciding whether or not a petition to the Court was admissible: it was abolished when the ECtHR was restructured in 1998.)

The ECtHR comprises a judge from each member state. When a vacancy occurs the government of the state concerned nominates three candidates for the empty seat; but it is the Parliamentary Assembly that fills the vacancy by electing one of the three nominated candidates. (Presumably the reason why the British press frequently describes the members of the Court as “unelected judges” is because your average journo has never bothered to read Article 39 ECHR.)

The Court normally sits in Chambers of seven judges; but if a sectional Chamber feels that a particular case referred to it raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgment of the Court it may relinquish jurisdiction to the Grand Chamber of 17 judges, consisting of the Court’s President and Vice-Presidents, the Section Presidents and the national judge (if not otherwise eligible) together with other judges selected by lot to bring up the number to 17.

After a Chamber judgment has been delivered, the parties may request referral of the case to the Grand Chamber. Such requests are accepted on an exceptional basis: a panel of judges of the Grand Chamber decides whether or not the case should be referred to the Grand Chamber for fresh consideration.

At the end of the hearing, the judges give their judgments: while one member of the Court will probably give the lead judgment for the majority, concurring and dissenting judgments are also delivered and recorded, in the same style as judgments in the UK and Ireland.

The two courts: the CJEU

The Court of Justice of the European Union was previously known as the European Court of Justice. Its primary functions are to interpret EU law to ensure consistency across all EU countries and to settle disputes between member states and EU institutions – often as a result of “infraction proceedings” brought by the Commission against a member state. Individuals, companies or organisations can also bring cases before the Court if they believe that their rights have been infringed by an EU institution. In addition, a national court may interrupt a case and refer a point of EU law to the CJEU for a ruling.

As well as the CJEU itself, there is also a General Court (which used to be known as the Court of First Instance) with its own judges to hear cases brought by private individuals, companies and some organisations, and cases relating to competition law.

Each member state nominates one judge to the CJEU and one judge to the General Court. In addition, there are eight Advocates-General: the A-G for a particular case presents an opinion to the Court as a kind of amicus curiae.

The Court may sit either as a Grand Chamber of 15 judges (including the President and Vice-President) or in chambers of three or five judges. Grand Chamber sittings are rare.

At the end of the hearing, the Court pronounces a single judgment: dissents are not recorded.

The two courts: the differences

EU law is binding on member states

For the United Kingdom, s 2(1) of the European Communities Act 1972 as amended declares that:

“All … rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”.

For an example in which the House of Lords held, in effect, that EU law overrode the provisions of the Merchant Shipping Act 1988 relating to ownership and registration of fishing boats see R v Secretary of State for Transport, ex p. Factortame Ltd (No. 2) [1990] UKHL 13 (11 October 1990). And because EU law is binding, so are the judgments of the CJEU because they are part of EU law,

The domestic effect of judgments of the ECtHR is equivocal

Section 2(1) of the Human Rights Act 1998 declares that

“(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)    judgment, decision, declaration or advisory opinion of the European Court of Human Rights…” [emphasis added].

Precisely what “must take into account” means in practice has been the subject of considerable domestic debate. In a famously-pithy judgment in the House of Lords the late, lamented Lord Rodger of Earlsferry dismissed the appeal in Secretary of State for the Home Department v AF & Anor [2009] UKHL 28 (10 June 2009) like this:

“Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed”.

In his evidence to the House of Lords Constitution Committee in October 2011, however, Lord Judge LCJ said this:

“Strasbourg should not always win… There is yet a debate to happen, it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means… when it said that the courts in this country must take account of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight and in most cases follow them, but not necessarily”.

Others have been much more fundamentally critical of what they see as a tendency for the ECtHR to give an insufficient margin of appreciation to national governments and domestic courts: see, for example, Jonathan Sumption QC (as he then was) in his FA Mann Lecture 2011:

“[T]he Strasbourg Court endeavours not only to interpret the Convention but to apply it in a uniform manner throughout the 47 states which subscribe to it. This approach conflicts with some very basic principles on which human societies are organised. National communities are diverse, even within a region such as Europe with a strong common identity. Their collective values are the product of their particular culture and history. Rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community. A principled objection to extreme exercises of state power, such as military government, torture or imprisonment without trial is no doubt common to every state party to the Convention. But the Strasbourg Court has treated the Convention not just as a safeguard against arbitrary and despotic exercises of state power but as a template for most aspects of human life. These include many matters which are governed by no compelling moral considerations one way or the other”.

References from domestic jurisdictions

National courts may refer issues to the CJEU for a ruling: there is no procedure for any such reference by a domestic court to the ECtHR – though paragraph 12(d) the Brighton Declaration of the High Level Conference on the Future of the European Court of Human Rights in April 2012 proposes that such a procedure should be introduced.

Judgments

As we have seen, the procedure of the ECtHR provides for dissenting and concurring judgments while the procedure of the CJEU does not.

The difference in a nutshell

In the words of Lord Judge LCJ to the House of Lords Constitution Committee: “the distinction is very clear. Luxembourg Communitiesbinding; Strasbourg Convention—’take account of’.”

Convergence? – and a final comment

David Hart QC points out in his helpful bluffer’s guide to human rights courts on UKHRB that

“[S]ome arguments simply go down better with the “civil” lawyers who make up most of the judges on the Court – “civil” as opposed to the common-law (or judge-made) tradition in which the UK [and Ireland] operates. Our domestic judges have become far more accustomed to dealing with some of the broad principles of EU law (such as proportionality or judicial effectiveness), but even so a supranational court may be more receptive to arguments which, say, threaten some sacred cow of common-law rule-making which looks a bit odd from a continental perspective.”

Which leads one to wonder whether some of the more extreme phobic reactions to the ECtHR in particular might not simply be based on cultural difference.

But be that as it may, Article 6 of the consolidated text of the Treaty on European Union quoted above commits the EU to acceding to the ECHR and declares that fundamental rights as guaranteed by the ECHR are part of the general principles of EU law. The EU has not yet acceded but, even so, the CJEU refers to the case-law of the ECtHR and treats the ECHR as if it was part of the EU’s legal system – and, in any case, many of the Articles of the EU’s own Charter of Fundamental Rights echo the terms of the ECHR. When the EU accedes to the Convention in its own right, however, the CJEU will presumably be bound formally by the jurisprudence of the ECtHR.

An interesting question arises as to how the interaction between the EU and the jurisprudence of the ECtHR impacts on the domestic law of member states. If “[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … shall constitute general principles of the Union’s law”, then does a member state of the EU have any option not to be a signatory to the ECHR? And even if it does have that option, does it matter anyway given that an EU member state would appear to be bound by the terms of the ECHR even if chooses to withdraw from the CoE and the Convention? Not such a hypothetical question, given the controversy around the run-up to the recent report of the Commission on a Bill of Rights.

All of which leads one to wonder whether the argument over the “UK Bill of Rights” might not be something of a sham fight.

Cite this article as: Frank Cranmer, "Church and State III – the European dimension" in Law & Religion UK, 27 December 2012, http://www.lawandreligionuk.com/2012/12/27/church-and-state-iii-the-european-dimension/

End of Term Quiz

In the seasonal spirit of the King William’s College Quiz, published each year in The Guardian, readers are asked to test their knowledge on the following lesser-known aspects of ecclesiastical legislation.  Traditionally, the quiz is introduced as “Scire ubi aliquid invenire possis, ea demum maxima pars eruditionis est” – “To know where you can find anything is, after all, the greatest part of erudition.”

King William’s pupils sit the test unseen on the day before the Christmas holiday, and on their return in the New Year, having researched the answers.  Those for the following question will be included in January’s first weekly round-up.

IMG_2055(5)1. When did an Archbishop of York (and a co-editor of this blog) reach an audience of 9.6 million?

2. Although legislation permits clergy of the Church of England to refuse to marry divorcees and those of changed gender, which “conscience clause” was removed in 1992 and what are clergy now obliged to do?

3. Why should PCCs take precautions against the group of people “who indulge in a little jiggery-pokery and hunkle-schmunkle from time to time”?

4. To what does the following advice refer:

  • the site should be more than 30 metres from any spring or any running or standing water, and   should also be more than 10 metres from any ‘dry’ ditch or field drain;
  • the site should be at  least 50 metres away from any well, borehole or spring that supplies water for any use;
  • when preparing, there should be no standing water when first dug and very sandy soil should be avoided;
  • there should be at least one metre of soil above and below the deposit?

5 Attribute the following:

a) “He that would keep a secret must keep it secret that he hath a secret to keep”

b) “the truth is that in many of these statutes, the legislature has left the point open, you may as well toss a coin to decide it”

c)“… information disclosing the identity of a packer of a package, or the identity of the person who arranged with the packer of a package for the package to be made up, shall be treated as a trade secret …”

IMG_2055(3A)6. In 2012, how did Defra make the monarchy more commercial?

7. Where and why was it decided that it was not wrong for a church “to facilitate transmission of pornography . . . . .[and] to gain financial advantage thereby, however slight or modest”?

8. What is the link between St James, Swimbridge, Devon, and R (on the application of Countryside Alliance and others and others (Appellants)) v Her Majesty’s Attorney General and another (Respondents), [2007] UKHL 52?

And in advance of our forthcoming posts on the basics of European legislation,

9. Is the “droop quota”:

 a) the EU permitted level of straightness of bananas?

b) a commonly used measure in relation to Single Transferrable Voting?

c) an indication of the effects of drinking Belgian beer?

and what is its relevance to the Republic of Ireland?

10. What are classified as “red”, “blue”, “turquoise” or “pink”?

Religion and Law roundup: 23rd December

In between writing Christmas cards, doing last-minute shopping, [many hours of choir rehearsal – dp] and surviving the end of the world, we noticed the following

Abortion in Ireland: progress on the ECtHR judgment

We have reported previously on the Irish Government’s response to the judgment in A, B and C v Ireland 25579/05 [2010] ECHR 2032 (16 December 2010). On 18 December the Department of Health announced that the implementation of the judgment by way of legislation with regulations – the fourth option put forward by the Expert Group – offers the most appropriate method for dealing with the issue. The Oireachtas Committee on Health and Children will hold hearings  in January and the Heads of a General Scheme of a Bill will be drafted after those hearings. Following that, “there will be comprehensive debate in the Oireachtas “.

The reaction of the Roman Catholic hierarchy as reported in the Irish Times was predictably negative. The Archbishops went so far as to accuse the Supreme Court of having got the law wrong in its judgment in Attorney General v X [1992] IESC 1; [1992] 1 IR 1, which “unilaterally overturned the clear pro-life intention of the people of Ireland as expressed in Article 40.3.3 of our Constitution“.

Charitable status, public benefit and “closed” congregations

There were further developments in the controversy over the Charity Commission’s decision to withdraw recognition from the Preston Down and Horsforth Gospel Hall Trusts of the Plymouth Brethren Christian Church (otherwise known as the “Exclusive Brethren”), culminating in a meeting on 11 December at which various assurances were given by the Commission about its attitude to public benefit in relation to individual congregations: principally that the provision of services of public worship which are genuinely open to anyone to attend is in itself sufficient to satisfy the public benefit requirement even and that Churches may restrict access to the sacrament of Holy Communion in accordance with denominational requirements. Where problems arise is when a denomination restricts access to the worship services of which the sacrament forms a part.

Towards women in the episcopate and other Church of England business

During the past week, the media centre of the Church of England has been in overdrive in its publication a number of potentially newsworthy press releases.  Whilst that relating to Bishops’ office and working costs published, here, and the associated report may not appear to be of direct relevance to the “law and religion” agenda, the Church Times notes

“[a] more than doubling of legal costs [from £533,600 to £1,315,816], generated by clergy discipline cases, was the main cause of an increase of more than £1 million in the working costs of bishops in 2011”.

Papers for the meeting of the House of Laity to debate Canon Stephen Barney’s motion of no confidence in its Chair, Dr Philip Giddings, published here, here, and here, left a number pondering what positive impact this could have in relation to women in the episcopate and, more broadly, on the external perception of the Church, here, here and elsewhere. Inevitably, links were also made to the withdrawal of Fr Philip North from the bishopric of Whitby and the in-fighting within the Church following the women bishops debate.

To date no other diocese has followed the lead of Bristol Diocesan Synod in its vote of no confidence in the present General Synod, and the only viable show in town is that proposed by the House of Bishops on 10-11 December. On 20 December, the House of Bishops published a summary of these and other decisions taken at this meeting in Lambeth Palace, which has been followed with an announcement of the membership of the group that will work on and facilitate the new legislative proposals on women bishops. In addition, an explanatory memorandum Women in the Episcopate – Synodical Process: A summary of the legislative steps has been prepared by Secretary General to the General Synod for parliamentarians of both Houses. This was copied to General Synod and is now generally available.

At its meeting on 10 December the House of Bishops also considered an interim report from the group chaired by Sir Joseph Pilling to advise on the Church of England’s approach to human sexuality. Pending the conclusion of the group’s work in 2013,  the House announced its intention not to issue a further pastoral statement on civil partnerships. However, it confirmed that the requirements in its 2005 statement concerning the eligibility for ordination of those in civil partnerships whose relationships are consistent with the teaching of the Church of England apply equally in relation to the episcopate.

Finally, along with other religious groups, the Church of England issued a statement welcoming the Government’s Energy Bill (which had its Second Reading in the Commons on 19 December) and the opportunities it offers to reduce the UK’s carbon emissions. A joint briefing for MPs, Decarbonising our power sector by 2030: delivering a just Energy Bill, from the Church of England, the Methodist, Baptist and United Reformed Churches and the Quakers in Britain called on the Government to make amendments both to protect the fuel-poor and to work towards the decarbonisation of the UK’s energy network.

Church and State

We posted the second instalment of our well-received mini-series on Church and State. Our intention is to produce Church and State III in the New Year, looking at the basics of European law and institutions so far as they affect religion and belief.

Commission on a Bill of Rights

The Commission on a Bill of Rights published its report to a chorus of badly-stifled yawns. We did our best, here; but even Adam Wagner and his colleagues at UKHRB found it difficult to sound very interested – though Amy Williams made a valiant attempt to breath a little life into the corpse.

Same-sex marriage

The contention over the Government’s proposals for same-sex marriage in England  and Wales continued, not least because it appeared that the Church in Wales had not been consulted about the terms of the “quadruple lock” in advance of the Government’s announcement. Scot Peterson, of Balliol College, provided us with an interesting guest post on the politics of the issue

The Scottish Government published its own considered proposals on reforming marriage law, together with a draft Marriage and Civil Partnership (Scotland) Bill. and announced a consultation on the detailed provisions. The Scottish proposals go rather wider than same-sex marriage and take a rather different approach from that adopted for England and Wales. One of the more radical departures is to provide for a third category of marriage ceremony in addition to civil and religious celebrations, to be known as “belief”: “belief” celebrants will be authorised along the same lines as religious celebrants.

Scientology, worship and non-recognition

The Administrative Court handed down judgment in R (Hodkin) & Anor v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin) and decided that it could not overturn the Registrar General’s refusal to register a chapel of the Church of Scientology as a place of meeting for religious worship under under s 2 of the Places of Worship Registration Act 1855 – on the grounds that the chapel was not, in fact, a place of “religious” worship. Ouseley J regarded himself as bound by the previous decision of the Court of Appeal about the nature of Scientology in R v Registrar General ex parte Segerdal [1970] 2 QB 697. But he made a pretty strong suggestion (or so it appeared to us) that the unsuccessful applicant – who wished to be married in a religious ceremony in the Scientologists’ chapel in central London – should appeal.

And finally…

Martin Webber, Reader in Social Work at the University of York, has written a very interesting piece on his blog: Blogging: An essential research engagement and dissemination tool? His views chime very much with our own: blogging is no substitute for properly-researched and peer-reviewed journal articles but it is a useful way of engaging with an audience (especially a non-specialist audience) that wouldn’t go trawling through the journals. “Blogging your research,” he suggests, “creates the opportunity for flexible engagement with networks of interested people from practice, research, education and users of services.”

It’s also several orders of magnitude quicker than the l-o-n-g, s-l-o-w process of academic publishing.

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And a very happy Christmas to all our readers

Decisions by the House of Bishops

On 20th December the House of Bishops published a summary of the decisions taken at its meeting in Lambeth Palace on 10-11th December.  Whilst under normal circumstances a report of their decisions would not be of interest to those outside the Church of England, in view of two issues covered by the summary – Synod’s vote on women in the episcopate and issues surrounding human sexuality – it is likely that the summary will be received with greater attention by the media.  To those following these events there would be few surprises; but the statement is nevertheless useful in providing an up-to-date picture of the current situation.

Ordination of women to the episcopate

The Bishops’ summary noted that the House “recognised and felt the profound and widespread sense of anger, grief and disappointment experienced by so many in the Church of England and beyond” and “considered that the present situation was unsustainable for all, whatever their convictions”.  It acknowledged that the Church of England now had to resolve the issue through its own processes as a matter of great urgency.

The timeline of future events reported in the Bishop’s statement following its 10th December meeting, and listed in an earlier post, was reiterated, viz.

  • the establishment a working group before Christmas for the preparation of new legislative proposals;
  • an event early in 2013 at which the bishops will share with a larger number of lay and ordained women – in the context of prayer and reflection – questions about the culture of the House’s processes and discussions, and how women might more regularly contribute;
  • during the week of 4th February, discussions with a wide range of people of a variety of views, facilitated by the working group;
  • an additional meeting of the House of Bishops in February immediately after those discussions; agreement at its May meeting the elements of a new legislative package to come to General Synod in July.

On 19th December, the Archbishops announced the composition of the working group on new legislative proposals on women bishops, with tricameral General Synod representation together with a senior member of clergy who is no longer on the Synod.  The group has been tasked to arrange facilitated discussions in February with a wide range of people of a variety of views following two initial meetings in January. When the draft legislation is ready for introduction to the Synod the membership of a new Steering Committee will be decided. This will comprise members of Synod supportive of the legislative proposal and have the responsibility for the management of the legislation through Synod.

The explanatory memorandumWomen in the Episcopate – Synodical Process: A summary of the legislative stepsprepared by the Secretary General to the General Synod for parliamentarians is now generally available.  It concludes

“It would, therefore, be possible for legislation introduced in 2013 to complete all its stages in the lifetime of this Synod, which ends in July 2015. Pending the discussions with all interested parties in the early months of 2013 it is too soon, however, to offer a confident prediction of what the timescale will be given the imperative need to avoid a second failure”.

Human sexuality

The House of Bishops is currently considering two aspects of human sexuality: one group (the membership of which was announced on 1st December 2011) is providing advice on the bishops’ review of the 2005 civil partnership statement and another has been set up to advise the HoB on the more general issues relating to human sexuality. The membership of the latter group was announced on 5th January 2012. With regard to the latter, the House considered an interim report from the group; but pending the conclusion of its work in 2013, (ie the preparation of a consultation document) announced its intention not to issue a further pastoral statement on civil partnerships.  However, it confirmed that the requirements in the 2005 statement concerning the eligibility for ordination of those in civil partnerships whose relationships are consistent with the teaching of the Church of England apply equally in relation to the episcopate.

Doctrine of Marriage

The House was updated on a draft document in preparation from the Faith and Order Commission of the General Synod, (FAOC), in relation to the doctrine of marriage. The House agreed that, once further revisions had been made, it could be issued with the agreement of the Standing Committee as a Faith and Order Commission (FAOC) document and commended for study.

Comment

The General Synod’s rejection of the proposed legislation to permit the ordination of women to the episcopate precipitated action by the House of Bishops to facilitate a reconsideration of the matter which would better reflect the wishes of the majority of the dioceses. Unlike other “knee-jerk” reactions, the bishops’ plan of action provides a timetable of actions directed at achieving a stated objective – the presentation of a new legislative package to the meeting of General Synod in July 2013. Commitment to this timetable was in place prior to the debate by backbench MPs on 12th December, and whilst the desire to hold such a debate is understandable, Helen Goodman’s Early Day Motion

“[t]hat this House regrets the decision not to go ahead now with the consecration of women bishops by the Church of England Synod; and urges the Church to bring forward legislation again at an early date”

tabled on the same day as the backbench debate seems a trifle otiose.

To date, the Bristol Diocesan Synod’s vote of no confidence the General Synod has not been followed by others. The Church has published the papers for the meeting of the House of Laity to here, here, and here on Canon Stephen Barney’s motion of no confidence in its Chair, Dr Philip Giddings.

In contrast to the Bishops’ prompt action in this area, although the Church has been proactive in its involvement with government in the development of same-sex marriage, consideration of its underlying position on human sexuality and the doctrine of marriage appears to be progressing at a more leisurely pace.

Marriage, places of worship and Scientology

Louisa Hodkin and her fiancé Alessandro Calcioli are Scientologists and they want to marry in a Church of Scientology chapel in central London. However, the chapel is not registered under s 2 of the Places of Worship Registration Act 1855 as a “place of meeting for religious worship” and is therefore not a “registered building” within s 26(1)(a) of the Marriage Act 1949. Because it is not registered under the 1855 Act, no application can be made under the 1949 Act for it to be registered for the solemnisation of marriages. When in May 2011 the Church of Scientology Religious Education College Inc (the second claimant and owner of the chapel) applied to the Registrar General for its registration as a place of meeting for religious worship under the 1855 Act she refused on the grounds that the chapel was not, in fact, a place for “religious worship”.

In R (Hodkin) & Anor v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin) the Registrar justified her decision on the grounds that she was bound by the previous decision of the Court of Appeal in R v Registrar General ex parte Segerdal [1970] 2 QB 697 (of which Philip Jones has posted a helpful summary) which had upheld her predecessor’s refusal to register another Scientologist chapel as a “place of meeting for religious worship.” She pointed out that the couple could be married in the chapel in whatever form of ceremony they chose, provided that they were also married in a civil ceremony. Equally, Scientologists could apply to have their chapels approved for civil marriage ceremonies – but not, under the present law, for religious ones. Whether or not the judgment of the Court of Appeal in Segerdal was on the grounds that Scientology was not a religion or on the grounds that no worship was undertaken was a matter of dispute; but the Registrar General submitted that both she and the Administrative Court were equally bound by the Court of Appeal’s decision.

The claimants argued that even if Segerdal was binding it did not preclude the Administrative Court from finding on the evidence that the London chapel was a place of religious worship on various grounds:

  • the understanding of Scientology as a religion had developed since 1970;
  • further, better and updated evidence was now available and a more expansive approach was now required to the meaning of a place “for religious worship” in what was now a more obviously multi-faith society;
  • the effect of the Human Rights Act 1998 and the Equality Act 2010 meant that the distinction drawn by the Court of Appeal between Buddhism and Scientology was no longer tenable; and
  • the Registrar General’s practice of registering Buddhist and Jain temples as places of religious worship but not registering Scientology chapels was discriminatory.

In short, life had moved on since 1970 and a different and broader approach was now required to the 1855 Act.

The situation was further complicated by the fact that in 1999 the Charity Commission had examined the beliefs and practices of the Church of Scientology and had rejected its application for registration as a charity established for the advancement of religion. The decision of the Commissioners was that, though Scientology was a religion because it believed in a Supreme Being, its services (which included auditing and training) did not constitute “worship” according to the Segerdal criteria. And

“… the crucial point on which the Court of Appeal held against the registration of Scientology chapels concerned “worship” not “religion”. The Charity Commission report does not advance either side’s case, beyond the factual material it contains” (paragraph 88).

Ouseley J was unconvinced that Scientology had moved on very much since Segerdal:

“It may be that there is more reference to God in their services, but there is no evidence of any development in its thinking about the nature of the Scientologist God or Supreme Being, or its relationship to Scientologists. They do not now believe in a God or Supreme Being in a way which is different from what they believed in the 1960s and 1970s” (paragraph 67).

Even so, though he dismissed the application he appeared to have some misgivings about doing so:

“100. While I can accept that the 1855 Act should be given an interpretation which reflects the way in which religions are regarded at the present, and not how they would have been regarded in 1855, and that what constitutes worship should be treated in the same way, the words still have to be given effect. The words a ‘place of meeting for religious worship’ must still be applied. I cannot thereby evade the decision in Segerdal. On the evidence, the acts of worship have not changed significantly, and so it remains binding.

101. The definition of worship in Segerdal, inadequate though it may be for non-theistic and similar beliefs, nonetheless applies to them. Without Segerdal, an updating interpretation might have been possible. But Segerdal, in the absence of a significant change in the way Scientologists worship, still binds me to hold that they do not worship. Even if in principle, an updating interpretation can be applied to an otherwise binding decision on the statutory interpretation and application of the Act, I do not think that times have moved on to the extent required to make Segerdal no longer binding”.

That said, however, he concluded with an open invitation to appeal his decision:

“102. … Forty years on from Segerdal, the Court of Appeal may find the route at least to reconsider its decision in Segerdal, with the fuller material now available”.

Comment: While there was no way that Ouseley J could have avoided following Segerdal, one cannot help wondering whether the view of “worship” advanced in Segerdal might not have been unduly restrictive even by the standards of 1970. How, for example, could it have been applied to zazen (sitting meditation) in Zen Buddhist practice? Equally, one doubts very much whether Denning MR or Winn LJ had ever spent an hour in a completely silent Quaker Meeting for Worship (unlike the author of this post).

Lord Denning’s explanation at 707B does little to advance the case:

“It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind,it seems to me the governing idea behind the words ‘place of meeting for religious worship’ is that it should be a place for the worship of God. I am sure that would be the meaning attached by those who framed this legislation in 1855”.

With enormous respect to one of the greatest common lawyers of my lifetime, the problem with that statement is that once you have admitted the exception you have blown a gaping hole in your own argument. If Buddhism, why not Scientology? Moreover, while I am sure that Lord Denning was right his interpretation of the intentions of the draftsmen in 1855, are we still bound by their intentions some 150 years later?

Whichever way it goes, the appeal judgment will make fascinating reading.

Charitable status, public benefit and “closed” congregations: an update on Preston Down

In an earlier post we reported that notice of appeal to the First–tier Tribunal (Charity) had been given on 19 July against the recent decision of the Charity Commission to withdraw recognition from the Preston Down and Horsforth Gospel Hall Trusts of the Plymouth Brethren Christian Church (otherwise known as the “Exclusive Brethren” and not to be confused with the mainstream “Open” Christian Brethren).

The controversy over the Commission’s decision was fuelled by a letter in which the Commission’s Chief Legal Adviser referred to the decision in Independent Schools Council v The Charity Commission [2011] UKUT 421 (TCC) (13 October 2011), as follows:

“We think it is clear from the Upper Tribunal Tax and Chancery Chamber decision UKUT 421 (TCC)  that in so far as there was a presumption of public benefit, which was removed by section 3(2) of the 2006 Act (now section 4(2) of the Charities Act 2011), this related to the benefit aspect of public benefit and not the public aspect i.e. the extent to which a purpose has to be beneficial. This decision makes it clear that there is no presumption that religion generally or at any more specific level is for the public benefit, even in the case of Christianity or the Church of England (paragraph 85). The suggestion that some purposes to include the advancement of religion had a quality of being beneficial to the public which was sufficient to make it charitable was not agreed. It confirms that evidence must be brought in every case about the public benefit which a particular purpose achieves in the context of the particular institution unless that is considered to be so clear and obvious that no evidence needs to be adduced” [emphasis added].

It was the inclusion of the words “even in the case of Christianity or the Church of England” that sparked the controversy. (It should be said that what Kenneth Dibble did was to conflate para 84 g and para 85 of the judgment – which does not include the words that he cites in precisely that form. But the sentiments as he expresses them are not an unreasonable summary of what is actually in the two paragraphs.)

Anthony Collins Solicitors LLP has now issued a briefing on the latest developments in the controversy which repays reading in full. It reports the outcome of a meeting on 11 December between the Commission’s Chief Legal Adviser,  the Commission’s Head of Policy, two representatives of the Evangelical Alliance and Phil Watts (a Senior Associate in the charities team at Anthony Collins) at which the following clarifications and assurances were obtained:

  • that under the current law the provision of services of public worship which are genuinely open to anyone to attend is in itself sufficient to satisfy the public benefit requirement even if, in practice, the numbers attending such services are small;
  • that there is no difficulty in restricting access to the sacrament of Holy Communion in accordance with denominational requirements: difficulties only arise if restrictions are imposed upon access to the worship services of which the sacrament forms a part;
  • that the Commission will not involve itself in matters of doctrine except where the outworking of particular doctrinal beliefs impacts upon the public benefit of the organisation: in practice, the Commission understands this to mean situations where the outworking of particular doctrines may give rise to detriment or harm, in which case this must be weighed against the positive public benefit in order to determine whether or not, on balance, charitable status is appropriate; and
  • the Commission’s decision-making process is likely to become more streamlined, increasing the likelihood of appeals concerning decisions of the Commission having to be made to the First-tier Tribunal.

The Tribunal’s latest directions hearing was on 3 December.

In the House of Commons, Peter Bone, Conservative MP for Wellingborough, successfully presented a Ten Minute Rule Motion on 19 December that “leave be given to bring in a Bill to amend the Charities Act 2011 to treat all religious institutions as charities; and for connected purposes”. The motion was approved by 166 to 7. However, his bill is highly unlikely to make any further progress: one simply cannot imagine the Government countenancing amendment of the law in such a sensitive area except after considerable forethought and prior consultation.