Religion and law round up – 24th August

Retrospect on a quiet week…

FCO and religious freedom

Further to the reply by Lord Wallace of Saltaire on 24 July (HL Deb Vol 755 cols 1324–8) to the debate on Article 18 of the Universal Declaration of Human Rights, Lord Alton of Liverpool asked Her Majesty’s Government how many officials in the Foreign and Commonwealth Office are specifically focused on freedom of religion and for what percentage of their time; and what resources are specifically allocated for the promotion of Article 18 through United Kingdom diplomatic services. In Written Answers of 18 August 2013, the Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con) stated:

“Within the Human Rights and Democracy Department (HRDD), the Foreign and Commonwealth Office (FCO) has one full time Desk Officer wholly dedicated to Freedom of Religion or Belief (FoRB), who works closely with the Team Leader in the Equalities and Non-Discrimination Team, who themselves spend approximately 50% of their time on FoRB.  Additionally, the Head and the Deputy Head of HRDD spend approximately 5% and 20% respectively of their time on FoRB issues; one Human Rights Advisor spends 5% and one HRDD Communications Officer approximately 10%.

As FoRB is one of only six thematic human rights priorities for the FCO, a considerable number of other FCO officials in London and overseas are engaged directly on FoRB as part of their wider human rights work. Given that violations of FoRB can be closely associated with other threats to UK interests around the world, I cannot provide a precise figure for the total number of FCO officials working on FoRB, though the number is high and rising.

This year, seven FoRB projects around the world were approved and received total funding of £307,835”.

Treatment of cremation ashes

Following the publication of the report of the Infant Cremation Commission chaired by Lord Bonomy on infant cremation at Mortonhall, Edinburgh, reviewed here, the Scottish Government published its response in which it announced the establishment of a national investigation team to look into all the families’ allegations. The investigation team is to be headed by the former Lord Advocate, the Rt Hon Dame Elish Angiolini QC DBE, who also led the Mortonhall investigation. Prior to the publication of his report, Lord Bonomy noted emergence of further allegations regarding the joint cremation of babies and adults at Hazlehead Crematorium in Aberdeen. Last year, BBC Scotland revealed that no ashes had been offered to the families of infants cremated in Aberdeen over a five-year period, although the report indicated that an earlier council investigation had found no evidence of wrongdoing. Nevertheless, this week the BBC reported that a senior member of staff at an Aberdeen crematorium who was being investigated over its handling of babies’ ashes has lost his job.

However, these concerns regarding the ashes from the cremation of foetal remains contrast with attitudes towards those from adult cremations.  Another report from the BBC this week told of a single funeral director in Southampton who had the cremated remains of 405 people in its care, some dating back to 1975, which had not been collected by those requesting the respective cremations. The firm has now launched an appeal after “rigorously” searching for family members. However, this is not an uncommon occurrence in the UK, the US and Australia: a spokesperson for National Association of Funeral Directors said that many UK firms had “a large depository of ashes”, some of them dating back to the 1940s.

The disposal of ashes was first addressed in the Cremation Regulations (England and Wales) 1903 SI 286, and is virtually unchanged in the current provisions[1]: Regulation 30, Cremation (England and Wales) Regulations 2008 SI 2841 requires that after a cremation, the cremation authority must give the ashes to the applicant[2] or a person nominated for that purpose by the person applying for the cremation, such as the funeral director. If the applicant does not wish to be given the ashes and has not nominated anyone for that purpose, the cremation authority is required inter alia to retain the ashes prior to arranging for their interment or scattering, although it must give the applicant fourteen days’ notice of its intention to do so.  Many crematoria set a 30-day limit on the length of time they will keep ashes, and it has been suggested that funeral directors should adopt a similar policy.

Two important Scots legislative changes recommended by the Infant Cremation Commission are that there should be a statutory definition of “ashes” and statutory regulation of the cremation of babies of less than 24 weeks’ gestation. We noted earlier the relevance of these recommendations to the remainder of the United Kingdom; and it is significant that the Cremation & Burial Conference & Exhibition 2014 in Stratford upon Avon in July 2014 included “an exclusive video interview” with Lord Bonomy.

Same sex marriage

Earlier in the week the Office of National Statistics released the first provisional statistics for same sex marriage in England and Wales up until 30 June 2014: a total of 1,409 marriages of which 56 per cent were female couples (796 marriages) and 44 per cent male couples (613 marriages). The average (mean) age at marriage for women was 37.0 years and for men 38.6.

As to the process of converting civil partnerships into marriages, we noted the Government’s determination to meet the targeted start date of 10 December 2014. If only a fraction of the couples currently in civil partnerships wish to convert these to marriages[3], register offices are likely to experience a significant increase in the demand for their services, even with the basic administrative conversion procedure initially envisaged in the draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014, here.

Canada and the Oath of Allegiance

We noted the recent judgment in McAteer v. Canada (Attorney General), 2014 ONCA 578, in which the appellants challenged the constitutional validity of the Oath of Allegiance which is obligatory for those over the age of 14 who wish to become Canadian citizens. The Ontario Court of Appeal dismissed the appeal and allowed a cross-appeal. However, that is not the end of the story because challenge to the religious requirements for the office of Queen of Canada has been scheduled to be argued before the court during August 2014. We have serious doubts as to its prospects of success; but we are keenly interested in the outcome, whichever way it goes.

Recent Consistory Court Judgments

On Thursday, we posted summaries of four recent consistory court judgments, which related to reordering, extensions and building works, which considered: the extent of a consistory court’s jurisdiction in relation to unconsecrated land situated wholly outside the boundary of a churchyard; the building of an extension over buried remains; the installation of glass doors in a porch to prevent draughts and the accumulation of leaves; and whether an unwanted font should be buried.

Quick links

And finally … Satanism and replevin???

“The forms of action we have buried,” said FW Maitland “but still they rule us from their graves.” Whether or not that is still true for the law of England and Wales (given that the process of modernisation began with the Judicature Acts 1873–5) is something we aren’t qualified to judge – but it seems that it is certainly so for the State of Oklahoma, where Archbishop Coakley, Roman Catholic Archbishop of Oklahoma City, has filed a Petition for Replevin of consecrated wafers which, he claims, are the property of the Church and which has been misappropriated by a group of Satanists who intend to use them to celebrate a “Black Mass”. (Replevin, for those readers who had a tendency to fall asleep during legal history lectures, is defined in Jowitt as “a personal action to recover possession in specie of goods unlawfully taken”: ie, an action for the recovery of the goods themselves rather than damages for their loss.)

You will not be at all surprised to learn that it’s a complicated story. The Archbishop contends that the Church owns all consecrated wafers and distributes them for specific purposes – consumption by communicants in good standing with the Church  –  and that the wafers in question were therefore stolen. However, according to the Aleteia website Adam Daniels, one of the Satanist leaders, has claimed that

“One of my priests in a foreign country is also a Catholic priest and he is the one who consecrated it himself and mailed it to me, and I’m not going to reveal his name and I’m not going to reveal what country he’s from”.

If that is in fact the case, then presumably the priest in question is not under the jurisdiction of Archbishop Coakley. And if he bought the wafers in an ecclesiastical outfitters with his own money and consecrated them himself, then it’s difficult to see how they could then become the property of Abp Coakley as representative of the Archdiocese. However, we shall never know because, according to another reportDaniels caved in. He handed over the disputed wafers to his lawyer pending resolution of the dispute and, though he thought he would win, on Thursday he agreed to give them up to the Archdiocese in exchange for the action being discontinued.

Eugene Volokh, of the UCLA School of Law, explores the matter further here. Enjoy.

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[1] In Scotland, cremation is regulated under the Cremation (Scotland) Regulations 1935.

[2] Generally an executor of the deceased person or a near relative who has attained the age of 16.

[3] At the end of 2012, there were 60,454 civil partnerships, (ONS data).

Same sex marriage statistics: 2014, Q1 & Q2

On 21 August, the Office of National Statistics, (ONS), released the first provisional statistics for same sex marriage in England and Wales between 29th March, the earlier date on which these marriages could be solemnized under the Marriage (Same Sex Couples) Act 2013, and 30th June 2014, which marks the end of Quarter 2.  The ONS release provides the following information:

  • Number of marriages of same sex couples by month: A total of 1,409 marriages were formed between same sex couples in the period 29 March to 30 June 2014. Of these, 56% of marriages were to female couples (796 marriages) while 44% were to male couples (613 marriages). Over the three day period from 29 March to 31 March 2014 there were 95 marriages of same sex couples. There were 351 marriages in April, 465 in May and 498 in June.
  • Average age at marriage for men and women: The average (mean) age at marriage for women was 37.0 years, slightly lower than the male mean age of 38.6 years.  There were more women than men marrying at younger ages, particularly at ages 25 to 29 and 30 to 34 where 63% and 60% of those marrying were female. From age 55 slightly more men than women married with the exception of age 65 and over where equal numbers of men and women married. The greatest number of men and women marrying were aged 30 to 34 with 220 and 330 marriages respectively.
  • Marital status before marriage: The majority of men and women marrying had never been married or in a civil partnership before (91% of males and 79% of females). Women were more likely than men to have previously been in a civil partnership or marriage that ended in dissolution or divorce (9% of men, 20% of women). A very small percentage of marriages took place for men and women whose previous marriage or civil partnership had ended with the death of their partner (0.5% of men and 0.9% of women).

Comment

As lawyers rather than statisticians, we are not in a position to interpret these early figures for same sex marriage, or compare them with the uptake of civil partnership after this had been introduced.  However, the basic data indicate:

  • The greatest number entering same sex marriage and civil partnerships is within the age range 30 to 34 years old;
  • Over the first quarter following the introduction of civil partnerships, two thirds (66%) of partnerships were between males.  In contrast, 44% of marriages to same sex couples between 29 March and 30 June 2014 were between males;
  • The total number of same sex marriages to date (1,409) is slightly greater than the number of civil partnerships formed between 21 and 23 December 2005, (1,227);
  • The number of same sex marriages is increasing steadily month by month.

With regard to the uptake of same sex marriage, the ONS suggests

“[t]he early uptake of marriages of same sex couples is lower than the uptake of civil partnerships, possibly because before the introduction of civil partnerships there was no other option for same sex couples to formalise their relationships.”

However, it could be argued that although there is now the possibility of same sex marriage in England and Wales, latest ONS data indicate that up to the end of 2012, a total of 60,454 civil partnerships had been formed, and until 10 December 2014 none of these nor those formed subsequently will be able to be converted into a same sex marriage. We therefore await the statistics for Q4 with interest.

Civil partnership conversion to same-sex marriage: religious content

In an earlier post we reported that concerns had been raised by Baroness Thornton, (Lab), regarding the bureaucratic nature of the process by which civil partnerships would be converted to a same sex marriage, and the requirement that these could only be carried out by a senior registrar.  As a consequence, the draft Statutory Instruments[1] which were due to be debated on 29 July, were withdrawn with an undertaking that revised versions would be tabled for debate in the autumn.  In response to a subsequent question by Lord Collins of Highbury (Lab) [30 July 2014 Vol 755 Column 1583], Baroness Northover said [emphasis added]

We are indeed determined that the regulations will be in place by 10 December so that civil partnerships can be converted to marriages. As the noble Lord will remember, in the consultation prior to the Act, the emphasis that came through from people feeding in their views on this was that they wanted to make sure that their civil partnership was properly marked and could be translated into an equal marriage. They wanted that to be as straightforward as possible with as few hurdles as possible. That was what was built into the Bill.

As the noble Lord will know, since then some people have felt that they want to mark that transition. He will also know that the Bill and regulations allow ceremonies to be associated, but they want to make that link closer. We are determined to try to make sure that everything that people want in this situation can be done within the complexity that he is familiar with within the Bill. Indeed, we are determined to deliver this by 10 December, and we are happy to discuss those draft regulations.”

On 11th August 2014, Lord Wallace of Saltaire (LD) gave a Written Answer to questions on marriage ceremonies asked by Lord Lester of Herne Hill: whether the government will ensure that registered civil partners wishing to undergo a marriage ceremony with religious elements receive equal treatment as same sex couples who are not registered civil partners and wish to marry in the same way; and why the Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014 bans the use of religious services at conversion.  Lord Wallace stated [emphasis added]:

The Government is committed to ensuring that couples wishing to convert their civil partnership in to a marriage can do so from 10 December 2014. The draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014, which were laid in the House on 3rd July 2014, provide for a simple conversion process, which is not, and was never envisaged to be, a marriage ceremony . . . . The process was conceived in line with responses from those in civil partnerships to the public consultation in 2012, which called for a simple, straightforward and low cost way for couples to convert their civil partnership into a marriage . . . . the conversion process was not envisaged to be a process which would replicate a marriage ceremony, whether religious or secular, but was rather intended to be an easy administrative process by which couples converted their civil partnerships and had these recognised as marriages from the date the civil partnership was formed.

Couples who did want to celebrate the conversion with family and friends could choose to hold some form of non-statutory celebratory ceremony following the conversion itself, if they so wished. We continue to listen to the views expressed by stakeholders during the implementation of the Act. We have heard views articulated by stakeholders in recent weeks raising concerns with the conversion process as set out in the draft regulations as laid and in particular regarding the possibility of incorporating religious elements within conversions. We will consider these views and whether suitable options exist for addressing them within the legal framework established by the Act over the summer.”

Comment

From the legal point of view, the conversion process is essentially an interim measure directed at  couples who entered into civil partnerships between its introduction in 2005 and the availability of same-sex marriage in 2014.  Nevertheless, within this period a significant number of civil partnerships have been formed: latest data from ONS indicate that since the Civil Partnership Act 2004 came into force in December 2005, there were 60,454 civil partnerships up to the end of 2012, i.e. 120,908 civil partners, an order of magnitude greater than the 11,000 to 22,000 civil partners estimated in the regulatory impact assessment.  The ONS is currently examining the trends in civil partnerships, how marriages to same sex couples will change the statistics, and how this might best be reported, here and here.

With regard to the conversion process, government priorities appear to be: meeting the 10 December 2014 deadline; and reflecting the responses in its 2012 consultation.  The delay caused by the withdrawal of the draft statutory instrument, and the potential complications associated with the introduction of a religious element are likely to limit the changes that may be introduced at this late stage. Furthermore, the potentially large number of couples wishing to convert their civil partnerships to same sex marriages may also preclude changing the proposed procedure unless present resources are augmented[2].

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[1] Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations and the Draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) (No. 2) Order 2014.

[2] There were ~183,000 civil marriage ceremonies in 2012, ONS data.

Religion and law round up – 10th August

The sort of quiet week you’d expect in early August – apart from a minor political bombshell… 

So it’s “Goodbye, then, Sayeeda”

On Tuesday Baroness Warsi, Senior Minister of State at the FCO and Minister for Faith and Communities at DCLG, tendered her resignation  evidently out of the blue. The avowed reason for her departure was her unease with the failure of the Government to say anything critical of the Israeli Government’s recent actions in Gaza:

“… our policy in relation to the Middle East Peace Process generally but more recently our approach and language during the current crisis in Gaza is morally indefensible, is not in Britain’s national interest and will have a long term detrimental impact on our reputation internationally and domestically”.

The Independent carried the text of her resignation letter in full. The Government later announced that the Faith brief would be taken on by Eric Pickles, Secretary of State for Communities and Local Government, in person. How this will turn out in practice, given his other responsibilities, remains to be seen.

C of E clergy and same-sex marriage

On Sunday the BBC reported that Canon Jeremy Pemberton, who married his partner Laurence Cunnington in April and who currently works as an NHS chaplain in the Diocese of Lincoln, has had the offer of the post of Chaplaincy and Bereavement Manager for Sherwood Forest Hospitals NHS Foundation Trust withdrawn. The new post is in the Diocese of Southwell and Nottingham; and in June the Acting Bishop, the Rt Revd Richard Inwood, revoked Mr Pemberton’s Permission to Officiate in his diocese and wrote to the Trust in July saying that he would not give Mr Pemberton a licence for the new post.

In The Guardian Andrew Brown suggests that the refusal may be the subject of legal challenge, quoting Mr Pemberton as saying that if the refusal was not challenged

“it will send a message to all chaplains of whom a considerable number are gay and lesbian. This is an area of law that has not been tested and needs to be”.

One might have thought that, given the judiciary’s reluctance to get involved in matters of internal church discipline, the likelihood of such a challenge succeeding was not very great. But the issues of clergy employment and clergy discipline in relation to secular law are notoriously complex and it would be foolhardy to predict the outcome.

The Tricycle Theatre and the Jewish Film Festival

On Tuesday it emerged that the Tricycle Theatre in Kilburn had refused to host the UK Jewish Film Festival for the first time in eight years. The Tricycle’s director said that the theatre was not prepared to let the festival use the venue so long as the event was partly funded by the Israeli Embassy because “given the current conflict in Israel and Gaza, we feel it is inappropriate to accept financial support from any government agency involved”. The Embassy had contributed £1,400 annually, which the Tricycle had offered to make up.

We take no view on the moral rights or wrongs of the decision – but was the Tricycle’s action legal in terms of discrimination law? On UKHRB Adam Wagner analyses the decision and makes a convincing case that it might well have constituted unjustifiable indirect discrimination.

Without fear or favour…?

In United States v Odeh (ED MI, July 31, 2014) a Michigan federal district court judge, Paul Borman, refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the US and applying for citizenship. She had not disclosed the fact that she had been convicted of taking part in two terrorist bombings in Jerusalem and had served ten years in prison. In the Motion to Recuse it was argued that  Borman J might be biased because of his long history of support and fund-raising for the Detroit Jewish Federation and organizing trips to Israel. It was also argued that his Israeli connexions might have given him extra-judicial information relevant to the defendant’s claim that she had been beaten and raped while in Israeli custody.

Sharp-eyed readers may have already spotted a similarity to Helow v Secretary of State for the Home Department & Anor [2008] UKHL 62in which the House of Lords unanimously upheld the decision of the Inner House of the Court of Session that the fact that Lady Cosgrove was a member of the International Association of Jewish Lawyers and Jurists [IAJLJ] did not give rise to any real possibility that she might have been biased in determining the application of a Palestinian petitioner for leave to appeal against the adverse decision of an Immigration Tribunal. Lord Rodger of Earlsferry expressed the general view when he pointed out that

“Lady Cosgrove was a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartially. While these factors do not, of course, guarantee impartiality, they are undoubtedly relevant when considering whether there is a real possibility that the decision of a professional judge was biased” [para 23].

As to Borman J back in Michigan, in rejecting the Motion to Recuse he declared that:

“… I swore an oath to ‘administer justice without respect to persons, and [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon me [] under the Constitution and laws of the United States’ … I have honored this oath every day, and will continue to do so, as I preside over this case and all cases in this Court” [page 10].

But as Lord Walker of Gestingthorpe noted in Helow, though he had reached the same conclusion as his colleagues he did so with rather less enthusiasm, suggesting that membership of an association such as the IAJLJ could not be equated with subscribing to a daily or weekly newspaper and, moreover, that

“… the fair-minded and informed observer would be tending towards complacency if he treated the fact of having taken the judicial oath as a panacea” [para 27].

it will be well worth watching out for an appeal. Wonder if they’ve heard of Helow over there?

With thanks to Religion Clause for the lead. 

Is attending 1662 Holy Communion a “core belief”?

Courtesy of Gavin Drake, we noted the recent case of Hodson v Secretary of State for Work and Pensions [2014] UT CJSA/3466/2013, in which the claimant, Mr Graham Hodson, argued unsuccessfully that it had been unreasonable to deny him Jobseekers’ Allowance on the grounds that he wanted to attend 1662 Holy Communion at Chester Cathedral rather than an interview with one of the Jobcentre personal advisers. Our own conclusion is that the Jobcentre could have been more accommodating but that, in law, the decision of the Upper Tribunal was correct.

And finally… racist rhododendrons?

A minor storm (well, it is August after all) erupted over an interview on Thinking Allowed with Ben Pitcher, a sociologist at the University of Westminster, about the ways in which racial meaning is produced in everyday acts of consumption. The Daily Mail reported that he had suggested that talk of “native” and “non-native” species on Gardeners’ Question Time provided a covert means by which white people could talk about white identity without appearing to be racist. He responded in The Guardian that he had done no such thing: his intention was much more subtle than that:

“I suggest that a defence of British nature – expressed, for example, when the “native” red squirrel is described as being ‘driven out by the relentless northern march of the greys‘ – can become the site of displaced nationalist sentiments. The uprooting of invasive ‘non-natives’ such as the Japanese knotweed is of course not necessarily motivated by racist intent”.

Silly season or not, however, this is not simply an artificial row: don’t forget the various discussions about the extent to which “Britain” (or as it’s more accurately known, “the United Kingdom”) is a “Christian country”. Some of the discussions seem quite legitimate: some have verged on the downright sinister. But that said, Gardeners’ Question Time as a hotbed of racist sentiment seems a pretty far-fetched notion. (And the folk on the Sleat peninsula in Skye, which is absolutely plagued with Japanese knotweed, would be grateful for an effective solution to the problem.)

Postscript

After a week “out of the loop”, enjoying the generous hospitality of the Benedictine nuns at the Hôtellerie Monastique, La Joie Saint Benoît, Bayeux, there is little to add to Frank’s summary of the week, other than a couple of observations from the environmental archive.  For legal anoraks, the removal of Japanese knotweed presents an interesting case in the demonstration of causation[1], (under the Wildlife and Countryside Act 1981, the offence (E, W) is “planting or otherwise causing to grow in the wild, any plant which is included in Part II of Schedule 9”), whilst this week has witnessed the last phase in the culling of a “non-native species” whose only fault is to be American, over-sexed, over here and with a preference for blondes -  i.e. the ruddy duck, (Oxyura jamaicensis)[2].  A report in The Guardian observes that overall the cull has cost about £800 per bird, but the great difficulty of chasing the last few has tripled the cost.  According to Defra, a European wildlife treaty binds the UK to eradicating the ruddy duck by the end of 2015, and although about 40 ruddy ducks are left, the effort is being focussed on the 10 females.  What would the listeners to Gardeners’ Question Time make of that?

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[1] D N Pocklington, ‘Polygonium cuspidatum – A knotty problem of causation?’ Environmental Law, 1997, 11, 9.

[2] D N Pocklington, “Industry Soundings: Ruddy Ducks”, (2008) 20 Environmental Law and Management, (3), 157. The blond in question is the rare white-headed duck, (Oxyura leucocephala), which is native to Spain.

“Outing” gay bishops and Article 8 ECHR

In a thoughtful piece on the ECHR Sexual Orientation Blogspot Paul Johnson, of the University of York, asks Do Church of England ‘gay bishops’ have a human right not to be ‘outed’? In response to the House of Bishops’ Pastoral Guidance on Same-Sex Marriage issued in February 2014, which states that the bishops are unwilling to ordain anyone in a same-sex marriage and that existing clergy should not enter into a same-sex marriage, Peter Tatchell has tweeted that he is “considering outing gay C of E bishops who discipline gay clergy who marry”.  Johnson concentrates on Tatchell’s assertion that

“… people have a right to privacy so long as they are not using their own power and authority to harm other people and when other people are being caused harm and suffering we have a duty to try and stop it”

– and he wonders how Tatchell’s interpretation of the “right to privacy” would stand up in front of the ECtHR.

The issue is complex; and it strikes us that it is as much about the law of defamation as the right to privacy. As to possible defamation, s 1(1) Defamation Act 2013 states that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” – but s 2(1) provides that “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”. So it would appear that a claim that could be substantiated could not be defamatory under the terms of the Act. On the other hand, though same-sex partnerships are perfectly legal, wrongly to accuse a C of E bishop of being in a same-sex partnership while at the same time disciplining clergy for entering same-sex marriages would be to accuse him of hypocrisy – which would surely be defamatory even by modern standards.

But Article 8 ECHR is not about defamatory statements: it’s about the right to respect for private and family life. On that point, Johnson concludes that

“From the [Strasbourg] Court’s existing case law it would appear that any complaint to the Court from a Church of England bishop about any failure of the UK to fulfil its positive obligations under Article 8 to prevent discussion of his private life would likely be unsuccessful. This is because such a discussion would likely be judged to involve a public figure and to be an issue of general debate to which the public had a right to be informed. In short, it would be regarded as necessary in a democratic society to ‘override’ the rights of the individual subject to discussion.

A caveat to this might be that the public discussion of a Church of England bishop’s ‘sexual orientation’ might be regarded as insufficiently relevant to the issue of same-sex marriage (it not being ‘hypocritical’, some might argue, to have a homosexual sexual orientation and/or live in a same-sex relationship whilst being opposed to same-sex marriage) and therefore not necessary in a democratic society”.

We agree with Johnson’s overall analysis. But one question that does arise is whether, in an increasingly secularised society, Anglican bishops in general are public figures? In the case of the two Archbishops and the senior diocesans the answer is pretty obviously “yes”. Whether that applies to an obscure suffragan or assistant bishop is more arguable; but it may be indicative that the former Bishop of Gloucester, Peter Ball, has recently been charged not only with two counts of indecent assault but also with misconduct in public office – and all three offences relate to his time as suffragan Bishop of Lewes, not to his time as Bishop of Gloucester. So if a suffragan bishop is indeed a “public officer” for the purposes of a misconduct charge, then maybe his actions would be regarded as of sufficient public interest to override the protection of Article 8 – though whether or not the charge against Ball will ever come to trial remains to be seen.

Lords probe Church on same-sex marriage clergy

Church of England Clergy in same-sex marriage

In the House of Lords on 30 July, the Rt Hon. the Lord Fowler, (Con) initiated a short debate with the question[30 July 2014 Vol 755 Col 1583]:

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

to which Baroness Northover (LD) responded:

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

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

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

In response, Baroness Northover said:

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

to which The Lord Bishop of Sheffield added:

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

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

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

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

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

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

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

Conversion of civil partnerships to marriage

Further to the Statutory Instruments on the conversion of civil partnership that were tabled for debate on 29 July, reviewed here, Lord Collins of Highbury (Lab) said [30 July 2014 Vol 755 Column 1583]

 “ . . .  Although they made the administrative process easy, they failed to recognize that many in a civil partnership would wish to celebrate their marriage in the same way as all other same-sex couples have since March. I know that the noble Baroness understands the importance of setting the date. Will she therefore update the House on when the revised regulations will be published and tabled for debate? Perhaps on this occasion she could even offer to share a draft before they are tabled. Will she reassure us that they will still come into force on 10 December?”

To which Baroness Northover responded

“We are indeed determined that the regulations will be in place by 10 December so that civil partnerships can be converted to marriages. As the noble Lord will remember, in the consultation prior to the Act, the emphasis that came through from people feeding in their views on this was that they wanted to make sure that their civil partnership was properly marked and could be translated into an equal marriage. They wanted that to be as straightforward as possible with as few hurdles as possible. That was what was built into the Bill.

As the noble Lord will know, since then some people have felt that they want to mark that transition. He will also know that the Bill and regulations allow ceremonies to be associated, but they want to make that link closer. We are determined to try to make sure that everything that people want in this situation can be done within the complexity that he is familiar with within the Bill. Indeed, we are determined to deliver this by 10 December, and we are happy to discuss those draft regulations.”

Comment

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

Postscript

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

Civil partnership conversion to same sex marriage – Update

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

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

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

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