Same-sex partnerships and the Church in Wales

In advance of the meeting of its Governing Body[1] on 23-24 April, the Church in Wales has circulated three documents concerning same-sex partnerships: a report by the Standing Doctrinal Commission, The Church in Wales & Same Sex Partnerships; an Executive Summary of the report, and a Procedural Note. This is the first occasion in which the Governing Body has discussed same-sex partnerships, for which groups will be asked to consider the following question:

“A couple of the same sex come to worship in your parish.  After a period of attendance, and enthusiastic participation in church life, they enquire if their relationship can be blessed.  How can the Church in Wales respond to same sex couples – theologically and pastorally?”

Reports from the groups will be considered by the Bench of Bishops at its meeting in June with a view to reporting back to the following Governing Body meeting in September.  In the light of this consideration will be given to what steps the Church in Wales should take to respond to the question being considered by the groups.

Background

In March 2012, the Bishops of the Church in Wales agreed the following statement on Same-sex marriage

“We abide by the Christian doctrine of marriage as the union of one man with one woman freely entered into for life. We acknowledge that whilst issues of human sexuality are not resolved, there are couples living in other life-long committed relationships who deserve the welcome, pastoral care and support of the Church. We are committed to further listening, prayerful reflection and discernment regarding same-sex relationships.”

The Marriage (Same Sex Couples) Act 2013 makes the marriage of same sex couples lawful in England and Wales from 29 March 2014, although it

“ensures that the common law legal duty on the clergy of the Church of England and the Church in Wales to marry parishioners does not extend to same sex couples. It also protects the Church of England’s Canon law, which says that marriage is the union of one man with one woman, so that it does not conflict with civil law”.

[…]

“Should the Church in Wales decide to allow marriage of same sex couples, the Act sets out a procedure for its Governing Body to ask the Lord Chancellor to make secondary legislation enabling it to do so [2]

The latter relates to the provisions within section 8 of the Act, and was introduced during the Report stage of the Bill at the express request of the Church of Wales in order “to give full effect to the religious autonomy principle”.

In April 2013, the Doctrinal Commission was asked by the Archbishop “to examine the whole issue of same-sex relationships”, following which it met for six days, in addition to informal communication between its members.  The final, relatively brief report is designed to enable discussion at the Governing Body, but in addition a number of longer papers, mainly on scripture and doctrine, are available on the CiW website: Marriage as a Sacrament; Sexuality and the Image of God; The concept of Flourishing in Relation to Marriage as a Good, and the Question of Gay Partnerships; Same Sex Marriage – Biblical Considerations; and Fundamental Scriptural Approaches. These papers have been seen by the whole Commission, but are the views of members themselves, and are made available for “those who want to pursue those arguments”.

Report of the Doctrinal Commission

The  Introduction gives background information on the CiW’s considerations of same-sex partnerships and the associated legislation, which are addressed in the Report under the headings

- Historical Context, paras 1 to 30

- The science of Sexual Orientation: Implications for the Church’s Consideration of Same-Sex Partnerships, (paras 31 to 51);

- The place of Scripture and doctrine, (paras 52 to 54)

- Introduction to the three options, (para 55)

- Option One: Marriage as the Union Only of Man and Woman (paras 56 to 77)

- Option Two: Blessing Same-Sex Partnerships, (paras 78 to 102);

- Option 3: Marriage as a Union of Loving Equals Irrespective of Sexual Difference, (paras 103 to 113)

- The Kingdom of God and a New Creation, (paras 114 to 136)

- Conclusion : Some principles for a pastoral response, (para. 137 to 158)

Comment

The Governing Body will be presented with three options – certainly more practicable than the ten for consideration by the New Zealand General Synod in the Ma Whea? Report[3], and with a total membership of 156, a more manageable size for group considerations than the Church of England General Synod’s 467  members.  There is a certain logic in presenting the “middle ground” Option Two as a starting point for discussions, and the Report states:

“[t]he argument for blessings, rather than marriage, is in three stages.  First, across the world the Anglican Communion is experiencing the reality of faithful Anglicans forming same-sex partnerships … Secondly, marriage is in the view of many theologians to be understood as being only between a man and a woman … Thirdly, a liturgical blessing of same-sex partnerships would be a novelty in the history of Christian liturgy”.

It will be noted that the Report speaks in of “partnerships” rather than specifying same-sex marriage or civil partnerships, reflecting the comment in the Pilling Report [para 383] that

“… a willingness to offer public recognition and prayer for a committed same sex relationship in an act of public worship would, in practice, be hard to implement now for civil partnerships without also doing so for same sex marriage (which, like civil partnerships, makes no assumption, in law, about sexual activity).”

The Report by the Standing Doctrinal Commission notes [para. 81] that there is “a growing movement within the Anglican Communion” for the blessing of same-sex partnerships for which the argument is “clear and consistent”. Examples in the Anglican Church of Canada; the Episcopal Church, United Stated; Australia and New Zealand are cited.  In Great Britain, it notes a degree of support within the Church of England, and the views of the College of Bishops of the Scottish Episcopal Church, within which the Provost of the Anglican Cathedral in Glasgow is identified as one of those in Scotland who conducts such blessings.

In addition to these examples, it considers the theology of blessing, stating that “a blessing is not the same as a marriage”, and quoting a TEC spokesperson, “[w]e have authorized a blessing, and a blessing is different [from] a marriage.  A blessing is a theological response to a monogamous, committed relationship.” As the Church of England experienced in relation to blessings following civil partnership, there is a spectrum of understanding in the meaning of what is meant by “blessing”.

However, the critical point raised by the question to the Governing Body is the nature of the pastoral response to the couple in question rather than the form that any blessing might take, and the theological background to such a response. Each group will therefore need to consider the whole gamut of relationships, including: marriage; civil partnership; and cohabitation, and these in turn will need to be viewed in the light of Options One and Three.

Although the Doctrinal Commission has posed a seemingly simple question, the reasoning behind the answers is likely to be complex.  The outcome of the these deliberations will no doubt be subject to detailed scrutiny.


[1] The Governing Body is composed of three “orders”: the Bench of Bishops (i.e. 6 diocesan bishops); Clergy (51 clerical representatives); and the Laity (86 non-clerical representatives).  The majority of the clergy and lay representatives are elected at a diocesan level.  Although some changes only require an overall majority, most major changes require a majority in each house to be passed.

[2] Summary in government Factsheet, which adds “[to] enable marriage of same-sex couples according to its rites, the Church of England would need to bring forward to the Synod an Amending Canon to amend its Canon law and a Measure to amend the Book of Common Prayer and primary legislation as necessary. Like all Synodical legislation the Measure would be subject to parliamentary approval.”

[3] Anglican General Synod Commission on Same Gender Blessings and Ordinations Ma Whea?/Mei Fe Ki Fe?/Where to?: Report to the General Synod May 2014.

 

Same-sex Marriage (Priests) – Church Commissioners’ Questions

On 27 March, Sir Tony Baldry (Banbury, Con) representing the Church Commissioners, provided the House with the following information relating to priests of the Church of England who enter same-sex marriage, [HC Hansard, 27 Mar 2014 : Vol 578 Col 457]:

Mr Ben Bradshaw (Exeter) (Lab): What the Church of England’s policy is on priests entering a same-sex marriage; and what guidance has been given on what would happen to a priest who did so.

Sir Tony Baldry: Clergy and ordinands remain free to enter into civil partnerships. The House of Bishops in its pastoral guidance distributed on 15 February said that it was not willing for those in same-sex marriages to be ordained to any of the three orders of ministry—deacon, clergy or bishops—and that

“it would not be appropriate conduct for someone in holy orders to enter into a same-sex marriage, given the need for clergy to model the Church’s teaching in their lives”.

As with any alleged instance of misconduct, each case would have to be considered individually by the local diocesan bishop.

Mr Bradshaw: In light of the recent Pilling report, does the right hon. Gentleman believe it would be sensible if a hard-working, popular priest got married with the full support of his or her parish and congregation and was then disciplined, sacked or defrocked?

Sir Tony Baldry: The situation is clear. The Church of England’s understanding of marriage remains unchanged: marriage is a lifelong union between one man and one woman, and under the canons of the Church of England marriage is defined as being between a man and a woman. The canons of the Church of England retain their legal status as part of the law of England and I would hope that no priest who has taken an oath of canonical obedience would wish to challenge canon law and the law of England.

Comment

No surprises then for readers of this blog, but there is now a clear formal statement in the public domain.  Not perhaps the clarity that was being sought by Mr Bradshaw and the priests mentioned in Pink News, but as we have indicated earlier: there are a number of uncertainties relating to the law in this area; these will be addressed on a case-by-case basis; discussions between bishops and their clergy have only just commenced.

Other information from the Second Church Estates Commissioner

The following are extracts of the other information provided by the Second Church Estates Commissioner.

Cost of cathedral repairs

Martin Vickers (Cleethorpes) (Con): What the current estimated cost is of necessary repairs to cathedrals in England; and what steps are being taken to ensure that cathedrals remain open to the public.

The Second Church Estates Commissioner (Sir Tony Baldry): The current estimated shortfall in the cost of repairs to cathedrals is £87 million over the next five years, over and above what the cathedrals are currently spending on repairs annually.

Return on investments

Mr David Nuttall (Bury North) (Con): What the anticipated return is on the Church Commissioners’ investments for the current financial year.

Sir Tony Baldry: The Church Commissioners are finalising their asset valuations and anticipate the total return for 2013 to be about 15% to 16%. The continued steady return will enable the Church Commissioners to continue the level of support that they give the ministry of the Church of England.

Diocesan Support

Miss Anne McIntosh (Thirsk and Malton) (Con): How much money the Church Commissioners anticipate they will be able to distribute to dioceses across England to support their mission in 2014.

Sir Tony Baldry: The Church Commissioners support the mission of each diocese depending on its need. Each diocese generally receives between £1 million and over £3 million, but that covers only a small proportion of the cost of running the Church. We must never underestimate the importance of the generous giving of church congregations, which accounts for most of the rest.

Church Growth Research Programme

Andrew Selous (South West Bedfordshire) (Con): What steps are being taken to help dioceses and parishes engage and take action with reference to the Church growth research programme.

Sir Tony Baldry: The findings from the Church growth research programme have been disseminated widely within the Church, and are informing diocesan strategies and practices at parish level. Further practical online resources are being developed and events are being planned to help dioceses and parishes to engage with the research and take action.

The role of the Second Church Estates Commissioner

For those uncertain on the role of the Second Church Estates Commissioner, during the Westminster Hall debate Women’s Contribution to the Ordained Ministry (Church of England) reported here, Sir Tony Baldry described his position as follows, [HC Hansard 20 Mar 2014 : Vol. Col. 374WH]

“…. For anyone reading the debate in Hansard, I should explain that, although I am effectively responding to the debate, I am not a member of the Government. I am by statute appointed by the Crown as Second Church Estates Commissioner, so I am accountable neither to the Government nor to the Archbishop of Canterbury. Indeed, as the Bishop of London pointed out to me shortly after I was appointed, I am, like the Dean of Westminster, accountable only to God and the Queen—that is how he put it. This is not a ministerial response, then, but one I make in my capacity as Second Church Estates Commissioner.”

A useful insight into the practicalities of how this works was revealed in a Twitter exchange reported by Thinking Anglicans:  Peter Ould asked “Who gives Tony Baldry MP the steer on what to say in response to questions in the Commons?” and churchstate (the Church of England Parliamentary team) answered “Process in a nutshell: we make suggestions after consulting senior colleagues & specialists. He then decides what to say.”

With regard to the follow-up question, in which Peter Ould asked “So how much am I to read into his response to Ben Bradshaw?” the Parliamentary team replied “Sorry Peter, but we don’t give out guidance on such things”.  Neither do we, but would observe that he is a practising barrister and head of chambers at 1 Essex Court, and as stated above, provided a clear formal statement of the law as it stands: no more, no less.

Equality and Human Rights Commission on the Marriage (Same Sex Couples) Act 2013

The Equality and Human Rights Commission has published guidance on the provisions of the Marriage (Same Sex Couples) Act 2013 and how they relate to equality and human rights law. The guidance is being published ahead of the first legally-recognised marriages of same-sex couples in England and Wales, which are expected to take place on 29 March. The accompanying key points explaining the basics of the Act, briefly, are as follows:

“The Act makes the marriage of same sex couples lawful in England and Wales. Religious organisations are free to choose whether to opt in to marrying same sex couples according to their rites and marriage procedures. Scotland and Northern Ireland both have different legislation covering marriage.

The guidance, produced by the Commission as part of its statutory remit under the Equality Act 2010, provides information about the Act targeted towards a range of groups, including employers, employees and service providers, public authorities, and religious organisations.

Under the new legislation:

  • Same sex couples will be able to get married in England and Wales and those marriages will be recognised in law (subject to meeting legal requirements).
  • Same sex married couples will be treated in the same way as opposite sex married couples in most circumstances.
  • Religious organisations can choose to opt in to conduct marriages for same sex couples. But no one can compel the organisations or their officials to participate in religious marriages of same sex couples if they do not wish to do so. Religious freedom is specifically protected under human rights law.
  • All civil marriage register offices are now designated and required by law to conduct marriages of same sex couples.
  • Commercial service providers cannot treat customers less favourably, for example by refusing to provide services on the basis that the customer is married to or intends to marry a person of the same sex. That would constitute unlawful discrimination.
  • Individuals are free to hold whatever belief they choose on marriage of same sex couples. The expression of those views can be limited, for example where it’s necessary to protect the rights and freedoms of others. Employees will need to be mindful of relevant workplace and professional policies and rules; employers should apply rules and policies consistently with individuals’ civil liberties.
  • Schools must teach the facts about marriage during relevant lessons in an objective, sensitive and professional way, especially where the national curriculum and statutory guidance applies. Schools with a religious character can continue to teach about marriage according to their religious doctrines or ethos”.

Hard copies of any of the relevant documents are available from the Commission at: correspondence@equalityhumanrights.com.

Priests and same-sex marriage – further insights from Oxford

At the Oxford Diocesan Synod on 22 March, the Rt Rev John Pritchard was formally asked:

“Following his recent Ad clerum, can the Bishop of Oxford confirm that he and the Area Bishops of the Diocese will adhere to the House of Bishops’ Pastoral Statement on Civil Partnerships, which stated that “The House of Bishops does not regard entering into a civil partnership as intrinsically incompatible with holy orders, provided the person concerned is will to give assurances to his or her bishop that the relationship is consistent with the standards for the clergy set out in Issues in Human Sexuality”,

to which he answered in the affirmative [1]. In addition, during his Presidential Address Bishop John explained the Statement and the role the Church of England is playing, [emphasis added]

“But lay people who enter into same sex marriages will continue to be welcome in our churches, to have full access to the sacraments, have children baptised and so on. Clergy, however, are not in the same position and are urged to honour their ordination promise to accept the discipline of the Church. But I’ve promised there will be no witch hunts in this diocese – we have a serious conversation about to begin and it’s no help to rush to judgement.

Comment

Since Bishop John acknowledged that his Statement of Pastoral Guidance on Same Sex Marriage “went viral”, it is probably fair to assume that his Presidential Address, which was published shortly after its delivery, was a very carefully worded document representing his current thinking.  The above statement is therefore important since it suggests a possible approach to clergy who enter same-sex marriage, and appears to be based upon the logic: at ordination all clergy are required to make certain promises regarding “the discipline of the church”; no changes have been made in the Church’s attitude to same-sex marriage; therefore clergy are “urged” to honour this promise. The use of exhortatory language – i.e. “urged” – rather than imperative or prohibitive language initially places the onus on the priest to conform rather than on the bishop to initiate action.  It does not, however, preclude the imposition of sanctions since this is a conversation “to begin with”.

The oath of obedience is also addressed in the Report from the House of Bishops, GS 1932, provided in support of the draft Bishops and Priests (Consecration and Ordination of Women) Measure and draft Amending Canon No 33.  Annex A to the Report deals with: issues of authority, theological conviction and the  exercise of ministry by a priest; and also certain legal issues. Paragraphs 34 to 36 [page 13] relate to the former [emphasis added],

Oaths

34. At ordination and on taking up any office in the Church of England priests and deacons are required under Canon C 14 to swear or affirm that they will “pay true and canonical obedience to the Lord Bishop of C and his successors in all things lawful and honest.” Bishops are similarly required to take an oath of due obedience to the archbishop of the province. Clergy and bishops also take an Oath of Allegiance to the Queen and make the Declaration of Assent.

35. These Oaths and the Declaration are important because they each involve recognition that a person does not exercise ministry in isolation or on their own authority but within a framework of relationship with others and within the tradition of faith as the Church of England has received it. The House acknowledges that the taking of the oath to the diocesan bishop or the oath of due obedience to the archbishop may, in future, raise issues for those who, for theological reasons, remain committed to a male episcopate and priesthood.

36. Nevertheless, the House believes that all ministers of the Church of England will be able, in good conscience, to take the oath. Doing so adds nothing legally to the duty of canonical obedience, which already exists in law. Rather, it is a recognition of the pattern of relationships which underpins the exercise of ministry by those who make and receive the oath. It follows from the guiding principles set out in paragraph 5 above, and the spectrum of Anglican teaching and tradition which they acknowledge, that the giving and receiving of the oath does not entail acting contrary to theological conviction,

and provide the background to Bishop John’s comments.

Certain legal aspects of complying with a bishop’s directions are covered in footnote 1 of the Annex [Page 8]:

“we are advised that, in the light of the decision of the Privy Council in Long v Bishop of Capetown (1863), the duty of obedience does not require the cleric to comply with any and every direction given by the bishop; rather, it requires the cleric to obey such directions as the diocesan bishop is authorised by law to give.”

However, it is clear from the context of Long [2] that the phrase “authorized by law” relates to the vires of the bishop to act on a specific issue, rather than the legality or otherwise of the issue itself.


[1] This approach contrasts with that of the Roman Catholic Church. On 24 March The Tablet reported that a priest in the Ordinariate has been suspended after it emerged that he had entered a civil partnershipIn this case, however, the circumstances appear to be far more complex than the priest simply entering a civil partnership. The matter came to light following an investigation by The Mail on Sunday.

[2] The Bishop of Capetown had been appointed (actually re-appointed) under Letters Patent, and these did not authorize him to take the action against the Rev Long and suspend him for disobedience.  Philip Jones notes “the bishop had no power to convene the diocesan synod or summon Mr Long to it. He therefore had no lawful cause to suspend Mr Long for refusing to attend, nor to revoke his licence for ignoring the illegal suspension”.

Religion and law round up – 16th March

A week of important dates and misleading headlines, but relatively few legislative developments

With a bumper crop of updates this week, parliamentary news on the progress of the Anti-Social Behaviour Bill and the debates on Mitochondrial Transfer and Wind Turbines in the South West have been posted separately.  Similarly, the number of recent consistory court judgements and directions warrants a stand-alone post;  these cases include the reordering of churches, sale of a silver medieval chalice to the British Museum and the re-interment of unidentifiable bones.

20th  Anniversary of first CofE women Priests

In January we carried a report on the service in St Martin in the Fields Church marking 70 years since the ordination of Dr Florence Li Tim-Oi, the Anglican Communion’s first woman priest, on 25 January, 1944. It was a further 50 years before 32 women, including the Reverend Prebendary Angela Berners-Wilson, were ordained in Bristol Cathedral on 12 March 1994.  Berners-Wilson has been the Chaplain at Bath University since May 2004, and the CofE site carries an interview where she talks about her memories of the day and how life has been since her ordination.

Women in the Episcopate

All 13 dioceses that have voted to date have supported the motion. Next Saturday, we in Oxford along with Synods in Bath & Wells, Birmingham, Bradford, Lichfield, Liverpool, and Peterborough will vote.  An analysis of the results has been tabulated by Peter Owen.

First same-sex couples give notice of marriage

Thursday 13 March was the earliest day on which same-sex couples in England and Wales who wished to be among the first to marry on 29 March could give formal notice to their local register office – for most marriages or civil partnerships at least 16 days’ notice is required. No doubt many of these couples are ”likely to seek some recognition of their new situation in the context of an act of worship” and, as with civil partnerships, clearly will need to exercise their “ pastoral discretion about when more informal kind of prayer, at the request of the couple, might be appropriate in the light of the circumstances”. This aspect of the House of Bishops’ Statement appears to have received less attention from the clergy than the same-sex marriage issue.

Details of the civil requirements for same-sex marriage are provided on the website of the Department of Culture, Media and Sport and the Government Equalities Office. The site also notes that same-sex couples who married abroad under foreign law and are currently treated as civil partners will be recognised as being married in England and Wales from 13 March 2014, such as Celia Kitzinger and Sue Wilkinson who in 2006 were unsuccessful in having their 2003 Canadian marriage recognized by the courts, Wilkinson v Kitzinger [2006] EWHC 2022 (Fam).

However, couples within England and Wales wishing to convert civil partnerships into marriages, and married people wanting to change their legal gender while remaining married, will be not able to do until “the end of 2014”. Same-sex weddings in some British consulates and overseas armed forces bases will be possible for 29 March; and arrangements for same sex weddings in military chapels will be in place from June 2014.

Chapel of St Mary Undercroft

In our January post Practical church-sharing – or not, we considered different aspects of church-sharing after the same-sex marriage came into force, including the Chapel of St Mary Undercroft following a backbench debate on 12 December 2013, during which Chris Bryant (Rhondda) (Lab) suggests:

“the one place where it will not be possible to perform such a [same-sex] marriage is the Crypt Chapel of Parliament. Would it not be a good idea if that were handed over to all the faiths, rather than just one faith?”

An article in the Church Times suggested that this was “to circumvent the legal ban on same-sex marriages [in the CofE] that would continue to apply to the chapel after [these] become lawful.  This week, in a subsequent article “Westminster rules on gay marriage in shared churches and chapels”, it appears as though these moves which were supported by MPs and the Speaker have been unsuccessful.  As we noted at the time, although physically within the Palace of Westminster and ecclesiastically part of the Royal Peculiar of Westminster Abbey, the Chapel does not come under the jurisdiction of a bishop but is under the monarch’s control, i.e. Crypt Chapel is not Parliament’s to hand over. Thus once the Queen had decided to retain the status quo, any “Westminster rules” were irrelevant in this context.

Bed, breakfast and same-sex couples  yet again

The Daily Telegraph reports that yet another couple, Sue and Jeff Green, who run a bed & breakfast in Llandrindod Wells and who advertised that only married couples were allowed to occupy double rooms in their establishment, are going direct to Strasbourg after getting a letter from the Equality and Human Rights Commission telling them that they could be guilty of discriminating against same-sex couples.

The couple has gone direct to the ECtHR because last November, in Bull & Anor v Hall & Anor [2013] UKSC 73, the Supreme Court unanimously dismissed Mr and Mrs Bull’s appeal against the Court of Appeal’s ruling that they had discriminated unlawfully against Mr Hall and Mr Preddy by refusing them a double-bedded room in their private hotel on the grounds that they believed as Christians that sexual activity should take place only within the context of (heterosexual) marriage.

How long this will take to get to court is anyone’s guess. The likelihood of its failure, however, is slightly more predictable.

St Margaret’s Children and Family Care: no further appeal

On 14 March the Office of the Scottish Charity Regulator announced that it would not be appealing against the decision in St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator [2014] Scottish Charity Appeals Panel App 02/13.

Simon Hughes and secular marriage

We reported Simon Hughes’s speech to the Liberal Democrat spring conference in which he called for the separation of civil and religious marriage in England and Wales, with a secular, state-regulated ceremony following which the couple could exchange religious vows if they so wished. In short, the French model.

Our feeling is that what has brought this to a head is the Supreme Court ruling in R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 – and Hughes said as much himself, suggesting that Hodkin had left marriage law as a “terrible muddle”. That, we think, is misconceived. Hodkin was about the registration of buildings as places of public worship and whether or not Scientology is a “religion” and what Scientologists do is “worship”: the marriage issue was very much secondary to that. If marriage law in England and Wales is a mess (which it probably is) it is not Hodkin that has made it so.

Assisted suicide

On Friday we had a closer look at the whether assisted suicide has really “moved a significant step closer” as suggested by the Daily Telegraph, or “… could be legal in months” as reported by the Daily Mail. The current position was outlined by Lord Faulks, (Con), Minister of State, Ministry of Justice, in his summing up of the short debate secured by Baroness Jay of Paddington (Lab), Hansard HL Deb 5 March 2014, vol 752, col 1409,

“any change to the law in this area is a matter for Parliament to determine as an issue of individual conscience, [i.e. a "free vote"]. In amending the Suicide Act by section 59 of the Coroners and Justice Act 2009, Parliament confirmed that it should remain an offence to intentionally encourage or assist suicide or an attempted suicide”.

[…]

“[t]he Government will take a collective view on Lord Falconer’s Bill in order to respond to the debate on its specific provisions at, but not before, Second Reading. As things stand, however, no date has been set for Second Reading of the Bill”.

Nevertheless, this Friday the Church Times reported “Government sets up free vote on assisted-dying Bill” following comments made by “a spokeswoman” from the MoJ, which although have yet to be translated into a date for the Second Reading.

House of Bishops’ Statement

The HoB Statement of Pastoral Guidance on Same Sex Marriage continues to attract a substantial amount of comment, which by Tuesday 11 March had reached volume 10 on the Thinking Anglicans site, and sometimes gives the impression that it must have been directed ad scholas. However, the lack of attributed legal comment appears to reflect the uncertainties in the application of the legislation in this sensitive area, on which an outline of the basic facts is posted here. At the present time, discussions between bishops and their clergy are at an early stage and speculation on possible sanctions, whether via the Ecclesiastical Jurisdiction Measure or the Clergy Discipline Measure, seems premature.

Richard III judicial review

The two-day judicial review into the grant of the licence by the Ministry of Justice for the exhumation of remains of persons unknown that might have been those of Richard III concluded on Friday 14 March with judicial humour; Mr Justice Ouseley commented “I would have thought he [Richard III] would have raised an eyebrow at the thought of a public consultation over where he should be buried.”

The BBC reports that Lady Justice Hallett, sitting with Mr Justice Ouseley and Mr Justice Haddon-Cave, said the court would take time to consider its judgment, which commentators interpret as being within four to six weeks.  Neil Parpworth of De Montfort University, (Leicester’s other university) placed the judicial review in context:

“Since this is a review not an appeal, the University of Leicester will retain the power to decide where the remains are to be reinterred, as per the exhumation licence granted to it by the Ministry of Justice.

What it may well have to do, however, is to undertake a consultation process whereby interested parties, such as the alliance, are given a proper opportunity to express their views. At its conclusion, which may be a number of months later, the university will be entitled to reach a decision which may be the same as its original decision.

Crucially, that decision will be beyond further legal challenge, since it will now have been reached in a procedurally fair manner and the authorities will be able to continue with their plans for Leicester Cathedral to be Richard III’s final resting place”.

Chancel repairs in the news yet again

Andrew Glover had a piece on the BBC website on Thursday: Chancel repair liability: The ancient law that could hit house prices. As we stated in our recent post Chancel Repair Liability – Revision Notes, there have been no new legal developments (or apparently any claims) regarding CRL since the deadline of midnight on 12 October 2013, which does not quite square with Saturday’s National Secular Society link “Chancel repairs causing untold distress all over the country – NSS quoted”.

Religious slaughter

Last week the President-elect of the British Veterinary Association, John Blackwell, told BBC Radio 4′s Today programme that animals should be pre-stunned before slaughter to render them “insensible to pain until death supervenes … It’s important at the time of death for the animals’ welfare not to be compromised”. He added that he “respected the beliefs of religious sects”; however, if pre-stunning became obligatory it would bring a total end to kosher slaughter and probably to halal slaughter as well.

But it won’t happen so long as David Cameron is Prime Minister. On Wednesday he told the Knesset that

“When people challenged kosher shechita I have defended it. I fought as a back-bench Member of Parliament against the last attempt to do something to change this. And there’s no way I’m allowing that to change now I’m Prime Minister. On my watch shechita is safe in the UK”.

End of story. Possibly.

[But what is  the PM's position on food-labelling, which could have a significant indirect impact?]‬

President of the LDS in court (sort of)

Regular readers may remember that Thomas S Monson, President of the Church of Jesus Christ of Latter-day Saints, was summoned to appear at Westminster Magistrates’ Court in response to a private prosecution attempt by Tom Phillips, a disaffected former Mormon who argues that asking members of the Church to make financial contributions while promoting theological doctrines which “might be untrue or misleading” could be a breach of the Fraud Act 2006.

On Friday, oral argument in the case was heard  before District Judge Riddle. According to a brief report in the Salt Lake Tribune, Monson’s counsel, James Lewis QC and Neil Addison, argued that the statements complained of were matters of faith, not statements of fact, that the court could not legitimately rule on the veracity of religious beliefs and that the private prosecution was vexatious,

Judgment is expected this coming Thursday. We shall report the result asap.

And finally . . . . . 

For those having trouble with their diet during this penitential season, the Lent and Lenten Practices Q&As on United States Conference of Catholic Bishops web site provide the definitive answer:

“Abstinence laws consider that meat comes only from animals such as chickens, cows, sheep or pigs – all of which live on land. Birds are also considered meat… Fish are a different category of animal. Salt and freshwater species of fish, amphibians, reptiles, (cold-blooded animals) and shellfish are permitted.”

This supports the assertion of Archbishop Gregory M Aymond that during Lent US Roman Catholics are permitted to eat alligator. The Archbishop said: “God has created a magnificent creature that is important to the state of Louisiana and it is considered seafood.” The Catholic Herald reports that “in accordance with this statement, Catholic can, if they wish, also consume turtles, snakes, lizards, and tortoises on Lenten Fridays. Alligator is a delicacy of Louisiana where it is often served deep-fried, in sandwiches, and even in cheesecake”.

[Alligator cheesecake???? No accounting for taste...]


[1] Although the developments at East Anstey, Chittlehampton and Black Torrington involved only two wind turbines at each site, their height (to the tip of the blade) was 25m.

[2] R Flello, Stoke-on-Trent South, (Lab)] 12 Mar 2014 : Col 170WHF.

[3] J Reese-Mogg, North East Somerset, (Con), 12 Mar 2014 : Col 168WH.

St Margaret’s Children and Family Care: no further appeal by OSCR

As regular readers will know, on 31 January the Scottish Charity Appeal Panel (SCAP) issued its decision to quash the direction issued by the Office of the Scottish Charity Regulator (OSCR) to St Margaret’s Children and Family Care Society: see St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator [2014] Scottish Charity Appeals Panel App 02/13, about which we posted our own analysis.

OSCR has now issued the following statement in response:

“OSCR’s Board has carefully considered the Panel’s decision and its note of reasons, informed by Senior Counsel’s views.  OSCR’s has also considered the Note of Reasons provided by the Panel: we find aspects of this wider commentary difficult to follow and to accept. Important amongst those considerations were the following:

  • The Panel made a number of findings in fact.  OSCR’s clear view is that it is unlikely that the Court of Session would decide to revisit these and an appeal would therefore be unlikely to succeed.
  • The decision relates only to St Margaret’s and to the facts in that case; the wider implications for OSCR’s policies and regulation are limited.
  • OSCR can clarify a number of secondary matters without recourse to an expensive appeal process.

Taking all this into account, OSCR’s Board has decided that an appeal in this case is not justified.

We note also that the recent passing by the Scottish Parliament of the Marriage and Civil Partnership (Scotland) Act 2014 changes the basis of law on which both OSCR and SCAP decided.

Because of our concerns about aspects of the Panel’s Note of Reasons, we consider it will be helpful to set out for charities and the wider public how we will exercise our functions.  The attached explanatory note sets out how OSCR will continue to undertake these functions. In particular, it explains that we will continue to regard unlawful discrimination by a charity as a serious concern and an issue which is likely to call charitable status into question”.

Comment: Compare and contrast with the Catholic Care litigation in England.

Clergy, same-sex marriage and (quasi-) law

Following our post on the publication of the Statement of Pastoral Guidance on Same Sex Marriage issued by the House of Bishops of the Church of England on 15 February, we considered the possibility of sanctions against clergy who marry same-sex partners, here and here.  With regard to the relevant legislation, we and others have noted:

- the Church appears to be on “pretty safe ground” with regard to equality legislation;

- although clergy are subject to canonical obedience, the term is ill-defined and would be difficult to enforce;

- as part of the Church’s “quasi-legislation”, House of Bishops’ Statements have persuasive authority within the ecclesiastical courts, but are nevertheless not part of the “laws ecclesiastical”;

- the Statement makes a number of references to the doctrine of marriage, and if pursued as a doctrinal offence it would fall within the ambit of the Ecclesiastical Jurisdiction Measure 1963, although in the past recourse to the Court of Ecclesiastical Causes Reserved has only rarely been pursued;

- a case for misconduct might be brought under section 8(1)(d) Clergy Disciplinary Measure 2003, as amended – “conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders”[1].

Comment

In view of the uncertainties relating to some aspects of these provisions; the range of disciplinary sanctions that may, or may not, be applied; the fact that any action taken is likely to be case-specific; and the sensitive nature of the issues concerned, ecclesiastical lawyers have been reluctant to speculate on possible courses of action. However, there have been a number of other developments [2] :

- a letter from the Rt Rev John Pritchard, Bishop of Oxford, to his clergy giving some background to the HoB’s Statement, and an outline of his approach ;

- a speech by the Rt Revd Ian Brackley, Bishop of Dorking, to the Guildford Diocesan Synod, echoing much of Bishop John’s letter on the writing of the Statement;

- involvement of the Faith Workers branch of the Unite union, whose response to the Statement indicates its concern regarding: “paragraph 27 in particular, [which] may discriminate against LGBT clergy” and “the vagueness of the guidance in paragraphs 20 and 21”;

- additional concerns of the Evangelical Group on General Synod, (EGGS), regarding the absence of guidance on lay people holding a bishop’s licence or commission; and a lack of clarity on acts of worship after a civil same-sex wedding, paragraphs 19 to 21.

- criticism by some evangelicals of setting of a different sexual standards for clergy and laity; also querying access to the sacraments to same-sex couples and their children.  The latter is more relevant as an aide memoire to bishops, as no priest on their own has the authority to deny such access, and to do so would be an ecclesiastical offence under the CDM.

Kevin Bocquet’s report on this week’s Sunday programme on Radio 4 drew a number of these issues together [3] in his interviews with Rev Andrew Cain, who is planning to marry his partner in June; Bishop John Pritchard; Rev Andrew Symes of Anglican Mainstream; Rev Dean Henley of Unite; and Joshua Rozenberg.  Unite said that since the Bishops’ Statement was published, it had received 25 new applications from LGBT clergy [4], and Bishop John indicated although he would take action if one of his clergy were to marry their same-sex partner, any such talks he would have with them would be in a pastoral context rather than a disciplinary one.

It was reported that a number of gay and lesbian clergy had been summoned to meetings with their bishops, which is unsurprising in the circumstances, although the subsequent applications for Unite membership reflects concern on the implied threat of disciplinary action within the Statement that could impact on their home, livelihood and vocation.  However, the presence of union representative at a meeting with one’s “father in God” might be seen as anticipating a disciplinary rather than a pastoral discussion.

For the moment, the focus appears to have shifted from the legal issues to these discussions with the bishops, whose task is to balance the “holding nature” of the Statement against the more pressing needs of the clergy concerned.


[1] The quasi-legislative nature of the House of Bishops’ statement would preclude an action relating to “the laws ecclesiastical”.

[2] For completeness, we should also note that of the 284 responses to the Church Times’ question of the week for 21 February, “Should there be tougher sanctions against clergy who marry their same-sex partner?” 34.9% voted “Yes”; and 65.1% voted “No”.  While measures are in place to prevent multiple voting, we are not in a position to assess the significance of the result from this self-selecting group of respondees

[3] Starting about 35 minutes into the programme.

[4] As with the Church Times Question of the Week, [n2], it is not possible to assess the significance of this number.