Religion and law round up – 20th July

A week bookended by two important debates, one almost concluded but the other in its very early stages

Reactions to votes for women in the C of E episcopate

Media comment on Monday’s vote in favour of women in the C of E episcopate has, on the whole, been positive and is comprehensively summarized in the Church’s Daily Digest of 15 July, Thinking Anglicans, here and here, Anglican Mainstream, here, and elsewhere. Predictably, the response from across the Tiber has been less than enthusiastic, the statement of the Roman Catholic Church in England and Wales noting that

“The Catholic Church remains fully committed to its dialogue with the Church of England and the Anglican Communion. For the Catholic Church, the goal of ecumenical dialogue continues to be full visible ecclesial communion.

Such full ecclesial communion embraces full communion in the episcopal office. The decision of the Church of England to admit women to the episcopate therefore sadly places a further obstacle on the path to this unity between us. Nevertheless we are committed to continuing our ecumenical dialogue, seeking deeper mutual understanding and practical cooperation wherever possible.”

Perhaps the tweet from Liam Beadle that “Women’s Anglican orders are clearly more absolutely null and more utterly void than men’s Anglican orders” nailed the absurdity of it all. Predictably, Fr Z suggests that Anglicans are “on the course of self-destruction” and “as soon as they start with the women, they ought also to issue their document Romanorum coetibus” – a supposed response to Benedict XVI’s Anglicanorum coetibus, “whereby our Anglican sisters and brothers will make provisions for disaffected Catholics”.  It is clearly unlikely that Archbishop Welby would engage in such blatant marketing, although Msgr. Keith Newton, head of the Personal Ordinariate of Our Lady of Walsingham was quick off the mark after Monday’s vote by inviting those who are “considering their future” to learn more about the Ordinariate.

Next steps towards women in the C of E episcopate

In his response to Helen Goodman (Bishop Auckland) (Lab) who asked “[w]hat the next steps are on the women bishops measure following the General Synod, The Second Church Estates Commissioner (Sir Tony Baldry) stated “[t]he next step is for the Ecclesiastical Committee to meet on Tuesday, when I hope it will pass the measure that was agreed by General Synod on Monday. That will at last enable women to become bishops in the Church of England”, [HC Hansard 17 July 2014, Vol Column 1010].  Readers will be aware that General Synod voted on a range of different legal instruments, with different legal effects and routes for adoption, and tomorrow we will publish a post describing these in more detail.

Assisted suicide

This week we posted a summary of the legal issues associated with Lord Falconer’s Assisted Dying Bill [HL Bill 6, 2014-15] which received its first reading in the House of Lords on 5 June [HL Hansard 5 Jun 2014 Vol  754 Column 21], followed by some extracts from speakers representing both sides of the argument in the Friday’s second reading.  We noted that it was impossible to do full justice to the debate lasting just short of ten hours that was both serious and measured, and links to individual contributions, which were necessarily time-limited in view of the number of speakers, are available here.

In his post on God and Politics Gillan Scott noted that the findings of Friday’s ComRes poll that found that although 73 per cent of the public back assisted dying in principle, this dwindles to 43% when presented with (mostly empirical) arguments against it, perhaps echoing the thoughts of Dame Catherine Wybourne who suggested that “many who have argued in favour of the bill do not seem to have read through its clauses or thought about its implications”. From our part, we both see so many problems in any legislation that might be put in place that we wouldn’t like to see it on the statute book and would rather it was left to the DPP’s guidelines.

Transsexuals, marriage and the Grand Chamber

We noted the judgment of the Grand Chamber in Hämäläinen v Finland [2014] ECHR 787, about a male-to-female transsexual who wanted her identity number changed to indicate her female gender in her official documents. She had been told that this was not possible unless her wife consented to the marriage being turned into a civil partnership (which she refused to do) or unless the couple divorced. By fourteen votes to three the GC rejected her submission that this had violated her Article 8 rights, concluding that, though it was “regrettable” that she was inconvenienced by the incorrect identity number, she could solve the problem by converting her marriage into a registered partnership with the consent of her spouse.

Along with the three judges who dissented, we felt that the majority underestimated the impact of the present situation on Ms Hämäläinen and cannot help wondering if the margin of appreciation given to states parties in cases involving matters such as sexuality and religious belief (which was a minor factor in the case) is becoming over-generous.

Ministers of religion and the National Minimum Wage

In Chandra v Arya Samaj Vedic Mission (West Midlands) [2014] Birmingham County Court (unreported), Dr Harish Chandra was recruited from India and employed by the Executive Committee of Arya Samaj Vedic Mission to work at its temple in March 2011. He was given a 12-month contract at £500 per month with a one-bedroom apartment and an arrangement that allowed him to receive commission based on those attending his courses. In the event, however, he found that he was expected to spend a very large amount of his available time working and was provided only with a small single room. In March 2012, he was awarded a new three-year contract under the same terms and conditions; but in July 2012 the Executive Committee members stood down and were replaced by new members and, shortly afterwards, Dr Chandra’s 3-year contract was terminated early.

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

The case is reminiscent of Singh v Management Committee of the Bristol Sikh Temple & Ors [2012] UKEAT 0429 11 1402 in which the issue was also what constituted “employment” of church personnel for the purposes of s 54(3)(b) National Minimum Wage Act 1998 (and in which the claimant also won).

The facts are taken from reports by the Birmingham Post  and SimpsonMillar LLP, who acted for the claimant.

The Charity Commission and the (Exclusive) Brethren

On Wednesday the Charity Commission for England & Wales registered as charities five Gospel Hall Trusts of the Plymouth Brethren Christian Church (aka the Exclusive Brethren): Bridgefoot, Coventry, Heathwood, Loughborough and Sussex Vale. Readers will recall that two linked appeals to the First-tier Tribunal (Charity) were set down against the Commission’s original refusal to register the Preston Down Trust of the PBCC, on the grounds that its activities did not demonstrate public benefit. The appeals were set down for hearing from 22–28 March 2013 but stayed until 6 January 2014, pending negotiations between the parties; finally, the Commission announced that the appeals had been withdrawn and that it would accept an application for registration. This latest development appears to mark the end of the saga. You can follow the story herehere, and here.

So it’s “Goodbye” to Dominic Grieve, then – alas

Media commentary on the Government reshuffle has tended to concentrate on the new faces in the policy Departments and the departure of one or two of the old ones, such as Ken Clarke. The legal blogosphere, however, has been rather more concerned with the sacking of Dominic Grieve as Attorney General. Shami Chakrabarti describes him as “one of the finest Attorneys General of modern times. Fittingly for the country’s most senior law officer, he always put legal principles first and party politics second”. Mark Elliott comments in Public Law for Everyone that Grieve displayed a strong commitment to the rule of law and “was clear that the UK was bound by its international obligations under the Convention”, while Carl Gardner at Head of Legal suggests that Grieve’s problem might have been that the Conservative Party had simply moved away to the Right during his time in Parliament and in office.

Grieve himself observed in a speech in 2011 that

“… there is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention … It is inconceivable that the United Kingdom could speak with any authority in the world about the need for the rights and freedoms that we hold dear and expect to be listened to if we withdrew from the Convention”.

Not a popular view in some parts of the Conservative Party: and he reiterated it in an interview with The Guardian after his sacking, throwing in for good measure the opinion that “It’s difficult to see how the UK can be a member of the EU if it’s not adherent to the principles set out in the Convention”.

We look forward to him delivering the 10th Lyndwood Lecture on Religion, Law and the Common Good to the Ecclesiastical Law Society and the Canon Law Society of Great Britain and Ireland on 11 December. And we share Shami Chakrabarti’s regret that the UK has lost a stout defender of human rights and the rule of law at a time when the debate on both has become increasingly febrile. Not to say downright silly: remember Mrs May and the cat? All part of what Adam Wagner describes as The Tory human rights “car crash”.

And finally . . . . . .

In the wake of Monday’s vote, the C of E Daily Digest of 18 July carries a story from The Times Diary column (£) which suggests that the Archbishop of Canterbury, who has resigned his membership of the Travellers Club after it voted against admitting women members, should try the neighbouring Athenaeum which has long attracted men (and, since 2002, women) of the cloth. Perhaps the Royal Over-Seas League might be a sounder option, having been open to men and women on equal terms since it was founded in 1910, i.e. well in advance of the Equal Franchise Act 1928. Whilst the Athenaeum may be convenient for the Institute of Directors, the ROSL has royal patronage, strong links with the Commonwealth and an additional club-house on Princes Street, Edinburgh.

Religion and law round up – 13th July

A somewhat fractious week, with media disagreements about assisted dying, historic child abuse and same-sex marriage

Historical child abuse and Baroness Butler-Sloss

On Tuesday the Government announced the establishment of a wide-ranging historical child abuse inquiry to be chaired by Baroness Butler-Sloss: an announcement that immediately sparked controversy because one of the issues likely to be before the inquiry is the role of the prosecuting authorities when Lady Butler-Sloss’s brother, Sir Michael Havers (who later became Lord Chancellor) was Attorney General.

We have no view on that matter, save to say that Lady Butler-Sloss is immensely experienced in child protection matters and was generally regarded as a thoroughly admirable President of the Family Division of the High Court. However, she is also chairing the (unofficial) Commission on Religion and Belief in British Public Life convened by the Woolf Institute, Cambridge, which is just starting work. Given that the historical child abuse inquiry will be very demanding, we cannot help wondering whether the Commission is going to have to look for a new chair. 

Another sexual orientation discrimination case?

A bakery in Northern Ireland which refused a customer’s request to make a cake with a slogan supporting gay marriage could face discrimination proceedings. Ashers Baking Company, a family-owned firm based in County Antrim run by Christians, refused an order from a gay rights activist, asking for cake featuring the Sesame Street puppets, Bert and Ernie. The customer also wanted the cake to feature the logo of QueerSpace, a Belfast-based LGBT campaign group.

The BBC reports that the Equality Commission for Northern Ireland sent a letter to the firm’s general manager, Daniel McArthur, saying that the firm had discriminated against the customer on grounds of sexual orientation, asking how it proposed to recompense the customer for the discrimination and threatening legal proceedings. Potentially, it’s a dispute along the same lines as  Bull & Anor v Hall & Anor [2013] UKSC 73 and we’ll be following it with interest.

The matter was raised at Wednesday’s PMQs, which the Daily Mail announced as “PM rejects call for law change in gay cake row: Cameron declines to support ‘conscience clause’ to protect Christians who are persecuted for their beliefs.  However, Hansard reported the exchange with Gregory Campbell (East Londonderry) (DUP) somewhat differently, [9 July 2014 Vol 584 Col 281], although we suspect that the outcome will be the same.

Clergy in same sex marriages

The debate surrounding the marriage of CofE clergy to their same sex partners continues as Canon Jeremy Pemberton, whose permission to officiate was withdrawn by the action bishop of Southwell and Nottingham, has also been denied the bishop’s licence necessary for him to take up a new position as Head of Chaplaincy & Bereavement Services with the Sherwood Forest Hospitals NHS Trust.  In response to a number of emails supportive of Canon Pemberton, the Archbishop of York has responded, stating

“The Bishop’s action, and more recently his decision to withhold of a licence in relation to an NHS Chaplaincy post in the Diocese, is consistent with the Pastoral Guidance issued by the House of Bishops earlier this year. The relevant sections are Sections 25-28, below.

[…]

It is clear . . . that whilst clergy are able to argue for a change in the Church’s teaching, they are expected to fashion their lives according to it.  Bishop Inwood has acted entirely in accordance with the House of Bishops guidelines.”

However, this does not address the approach taken by the diocese of Lincoln, where Canon Pemberton was issued with a formal rebuke following his marriage to Laurence Cunnington, but no action was taken in relation to the general licence he continues to hold in relation to his current employment as Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust.

Assisted dying and Dr Carey

In the run-up to the forthcoming Lords second reading debate on Lord Falconer’s Assisted Dying Bill, former Archbishop of Canterbury Lord Carey rather set the cat among the pigeons with an article in the Daily Mail in which he said that he had dropped his long-standing opposition to the legislation. He was “driven by private conscience to urge a change in the law when the matter comes before Parliament next week” and there was “nothing anti-Christian about embracing the reforms that Lord Falconer’s Bill offers”. The current Church of England briefing on assisted dying is here.

The BBC subsequently reported that the Bishop of Carlisle, the Rt Revd James Newcome, “speaking on behalf of the CofE” had called for a Royal Commission on the matter. A Commission would allow the issue to be discussed at length and, in the interim, he called for the Bill should be withdrawn – a call which, unsurprisingly, was immediately rejected by Lord Falconer.

If Bishop Newcome was indeed speaking formally on behalf of the Church as a whole (which is very likely, given that Synod is currently in session) then his statement represents a slight shift away from outright opposition – but only a slight shift. For some purposes “Royal Commission” and “long grass” are virtually synonymous.

Recent consistory court judgments

Re The Blessed Virgin Mary, Ellesmere [2014] Lichfield Const Ct, Stephen Eyre Ch.

Medieval tracery and late-Georgian stained glass forming the east window of the Grade I listedchurch had been removed in the 1880s due to subsidence, and replaced with new tracery and stained glass. The old glass and tracery were placed in storage: since 2005 the tracery had been laid out near the replacement east window and did not feature in the present petition; in 1975, the glass was given on loan to the Stained Glass Museum at Ely, where one panel of glass was restored in 1979 and now forms a major part of the Museum’s display being its only example of a Betton & Evans window. The remainder of the glass is in store and its condition is so poor that full reinstatement or restoration is unlikely to be possible, although some had been restored as a component of an MA course in Stained Glass Heritage and Conservation, and there was a possibility of additional future restoration.

The Vicar and Churchwardens sought a faculty to convert the loan of the glass to a gift, and although the petition’s papers first came before the court in March 2014, the Chancellor deferred consideration pending the decision of Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches which we reviewed here. The DAC recommended approval of the disposal of the glass because the work proposed at York would help to ensure the proper conservation of the glass, and the Chancellor agreed with the comments of the Church Buildings Council that: the separation between the glass and the church building is not itself a reason for ending the church’s ownership of the glass; and a decision by a museum to change its loan’s policy should not force churchwardens to give up the ownership of items which have been lent to such a museum on permanent loan. Of particular relevance to the Council was that the gift would ensure the “long-term conservation, protection, and display of the glass”; that there was no financial gain to the church; and that the gift would be likely to increase the public visibility of the glass.

The Chancellor noted that there is a strong presumption against a disposal by sale in Re St. Lawrence Oakley with Wootton St. Lawrence and suggested that the same approach is to be taken to other forms of disposal. The fact that no equivalent benefit is being obtained by a church meant that the Court would be wary about authorizing a disposal by way of gift.  However, he concluded that the presumption against disposal has been overcome in this case and that the faculty sought should be granted on the grounds that: the glass is and has long since been redundant in respect of its original purpose: it was intended to form the East window of the church but even if the glass were to be capable of being restored to form a window it would not again become the East window of this church; separation of the precious object from the church building does not normally suffice as a ground justifying disposal, and in this case the separation has been for over 120 years; the proposed use to which the glass will be put is wholly appropriate; and the disposal is to be by way of gift rather than sale, given that in its current condition the glass can only have a minimal value and the proposed use is a beneficial one.

Re Field Road Cemetery, Bloxwich [2014] Lichfield Const Ct, Stephen Eyre Ch

A Petition was sought for the exhumation of the body of the petitioner’s father, interred in Field Road Cemetery, Bloxwich, in 1985, for reburial with remains of his mother who had died in April 2014 but whose burial had been delayed pending the determination of the petition.  Re-interment would be in the unconsecrated part of a recently opened cemetery at Strawberry Lane, Cheslyn Hay, which had been laid out on land which the deceased had formerly farmed.

The Chancellor considered Re Blagdon Cemetery [2002] Fam 299 and in particular whether the creation of the new cemetery, arguably a markedly more appropriate resting place for the remains, is a special circumstance capable of justifying exhumation.  The change of ]circumstances in Radford: St. Nicholas [2011] Coventry Const Ct, Stephen Eyre Ch and in Walford Ch’s decision of Re Coultous [2011] Bradford Const Ct, Wlaford Ch, were not applicable since in the instant case, Bloxwich cemetery remains an appropriate resting place for the remains of the deceased.

Likewise, in Re Miresse deceased: Lambeth Cemetery [2003] Southwark Const Ct, George Ch, although an exhumation was authorized to enable interment in a mausoleum which had not existed at the time of the original interment, this had been the original intention which was frustrated through an error.  The change of circumstances in have considered whether the decision of Bursell Ch in Re Royal Burial Ground, Frogmore [2013] Oxford Const Ct, Bursell Ch. had come about through a change in the political regime in Serbia, rather than a change of mind of the relatives.

Whilst there appeared to be similarities with the successful petition in Re William Radcliffe [2008] Carlisle Const Ct, Tattersall Ch – i.e. shortly after the initial interment, a Garden of Remembrance was created in a different part of the same churchyard – this had been permitted on the basis that there was an intention to create a new family grave.

The Chancellor therefore refused the petition on the basis that: Bloxwich cemetery remains a suitable resting place for human remains; the remains of the petitioner’s father have been in that cemetery for twenty nine years; it is possible for the petitioner’s mother to be buried at Bloxwich in the same plot as her late husband; and the likely condition of the coffin in which his father was buried means that it may well not be possible to conduct the exhumation in a seemly manner.

Quick links to other stories, information and events this week

Below is this week’s selection of links to other stories &c that may be of interest to our readers

And finally . . . . .

A frequent exhortation to guest organists before being permitted to play one’s instrument is to “remember to leave the swell box open” (to make sure it doesn’t go out of tune with the rest of the organ). The phrase was given new meaning when the perfectly-preserved remains of a sandwich and a copy of the Stockport Advertiser dated 1896 were discovered in the swell box of the organ at Padiham Road Methodist Church in Burnley, Lancashire. The organ was being dismantled prior to its transportation to Germany, where its interior and pipework will be re-installed in a church near Munich.

Marriage of clergy to same-sex partners – update

Recent posts have considered the legislation relevant to the marriage of clergy to their same-sex partners, and that relating to black lists, blue files and the Archbishops’ List, here and here respectively. To date, attention has focused on the action taken by bishops following the marriage of clergy within their dioceses contrary to the HoB Statement of Pastoral Guidance on Same-Sex Marriage. Two further areas to be addressed are the selection of candidates for the ministry and clergy seeking new appointments; and developments with regard to the latter are reported in the Changing Attitude post Bishop refuses to licence Canon Jeremy Pemberton as health service chaplain following marriage, written by Laurence Cunnington, Jeremy Pemberton’s husband.

Background

On 22 June Pink News reported that Canon Jeremy Pemberton, who married his long-term partner in a civil ceremony in April, has had his Permission to Officiate (PTO) removed by the Acting Bishop of Southwell and Nottingham, the Rt Rev Richard Inwood, thereby revoking his permission to conduct services in the diocese. The BBC quoted the bishop as saying:

“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 … In view of this I have spoken to Jeremy Pemberton and subsequently written to him to tell him his permission to officiate in the Diocese of Southwell and Nottingham has been revoked.”

Canon Pemberton’s position as a lay-clerk at Southwell Minster is unlikely to be affected. However, in relation to his employment as Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust in the diocese of Lincoln, the Rt Revd Christopher Lowson, Bishop of Lincoln, issued a written rebuke for contracting a same-sex marriage but took no action on his general licence in relation to his employment as a chaplain.

A PTO is issued under Canon C 8(3) entirely at the discretion of the bishop, creates no employment-like rights and can be withdrawn at the absolute discretion of the bishop without the need for a disciplinary process. In contrast, the licence upon which employment as a chaplain is linked is subject to the Extra-Parochial Ministry Measure 1967 and can only be terminated following a disciplinary process, s8(2) Clergy Discipline Measure 2003.

Canon Pemberton was recently successful in his application to become the Head of Chaplaincy & Bereavement Services with the Sherwood Forest Hospitals NHS Trust, which falls within the area covered by the Southwell & Nottingham diocese. Following its normal procedure, the NHS has requested the acting Bishop of Southwell & Nottingham to issue Canon Pemberton with a licence in order that he may take up his new job. However, Laurence Cunnington states that the Bishop has refused to issue any form of licence since, in view of his marriage, Canon Pemberton does not “model the Church’s teaching” in his life.

Laurence Cunnington is seeking support with a view to persuading the acting Bishop of Southwell & Nottingham to change his mind and issue Canon Pemberton with some form of a licence. Meanwhile, The Guardian reports that Canon Pemberton intends to investigate whether he has a legal case against the Church under anti-discrimination legislation.

Comment

Much of the analysis and comment on these latest developments has been focused on the Church’s approach to same-sex marriage and its role in the licensing of hospital chaplains. An alternative approach is to start from the point of view of the secular employer, the contract of employment between the NHS Trust and the hospital chaplain, and the role played by the bishop’s licence.

The NHS describes the general entry requirements for a hospital chaplain as

“a professional qualification, a specific vocational degree or general degree, or the equivalent … [and] a satisfactory recommendation and authorization by [the applicant’s] faith community … requirements may vary between different employers.”

It further outlines work of a chaplain as embodying “the spiritual, pastoral and religious care associated with these needs found in the healthcare setting.” Chaplains are recruited “in proportion to the belief patterns of the local population” and, consequently, the vast majority are Anglicans, while others are from the Roman Catholic, Free Churches or World Faiths.

The document Ordained Chaplains and Common Tenure, issued by the Legal Office of the Church of England in February 2011 explains the situation as follows:

The position of chaplain to a person or institution is not recognised in law as an ecclesiastical office. Unlike parochial ministry, the duties and parameters of a chaplaincy are not defined in statute or in the Canons, but are governed primarily by the requirements of the person or body that the chaplain serves and/or the person or body that appointed him or her, if different. Even in situations where there is at present no written contract, it is very likely that a Court, if asked to determine the matter, would conclude that chaplains are employees in law. Their contracts of employment, written or oral, sit alongside the licence from the bishop which authorises their ministry under Canon C 8.

[…]

Strictly speaking, the Ecclesiastical Offices (Terms of Service) Measure 2009 applies (inter alia) to all clergy who exercise their ministry in accordance with a licence from the bishop of the diocese, and therefore chaplains fall within the ambit of Common Tenure.  However, as a result of a clarifying amendment passed by the General Synod in November 2010, the legislation now states in terms that the Ecclesiastical Offices (Terms of Service) Regulations 2009, which contain the detailed provision for the terms of service of office holders under Common Tenure, shall not apply to any ministry that is exercised pursuant to a contract of employment.”

In stressing the importance of a written contract of employment, the document continues:

“[T]he contract should state who is the employer of the chaplain and should also make clear the relationship between the contract and the bishop’s licence. The 2009 Measure allows a bishop to terminate a licence granted in connection with ministry exercised under a contract when that contract comes to an end, but not otherwise except as a result of proceedings under the Clergy Discipline Measure 2003.”

Within the Church, the licensing of ministers under seal is addressed in Canon C 12, which states:

“1. A licence, granted by the bishop under his hand and seal to any minister to serve within his diocese, shall be in the form either –

(a) of a general licence to preach or otherwise to minister subject to the provisions of paragraph 4 of Canon C 8 in any parish or ecclesiastical district, or

(b) of a licence to perform some particular office or to serve for the purposes of or in connection with a mission initiative endorsed by a bishop’s mission order.

2. No bishop shall grant any such licence to any minister who has come from another diocese, except such minister first show unto him Letters of Orders or other sufficient evidence that he is ordained, and bring him testimony, from the bishop of the diocese whence he has come, of his honesty, ability, and conformity to the doctrine, discipline, and worship of the Church of England.”

Until recently, the ecclesiastical legislation associated with the employment of Anglican hospital chaplains had received relatively little attention, but in relation to private chapels, ark Hill states[1]:

“[t]he chaplain, like any priest, requires a licence or written permission to officiate from the bishop, whose discretion in this regard is unfettered”,

adding by way of a footnote

“[s]ave, perhaps, by judicial review in the Administrative Courts were he to act unreasonably or to fail to give reasons”.

The main problem for the Church raised by recent events is one of achieving consistency in the light of: uncertainties in the application of its existing legislation and the on-going Shared Conversations on Sexuality, Scripture and Mission, GS Misc 1083. Whilst the latter are unlikely to result in changes to the Church’s basic teaching on marriage, they may, or may not, lead to a reconsideration of its approach to some of the associated issues: the blessing of same-sex couples; its tolerance of clergy in same-sex marriages; or the celebration of same-sex marriages.

Adjacent dioceses have apparently adopted different approaches to the licensing of the same priest, within the same time-frame, to undertake essentially the same role.  Neither “clergy blacklists” (assuming they existed) nor advice from the Bishop of Norwich’s group appears to have been a factor. The question that remains is whether there is scope for some form of licence that satisfies the requirements of both the diocese and the NHS Trust in relation to the duties and parameters of the chaplaincy .

________________________

[1] M Hill Ecclesiastical Law, (3rd Edn, Oxford University Press, 2007). Section 3.105 and more generally 4.36.

United Reformed Church moves towards same-sex marriage

On 6 July the General Assembly of the URC passed the following resolution by agreement:

“A clear majority of members of Assembly expressed the view that local congregations should be permitted to offer same-sex marriage to those who seek that opportunity. However, because our decision-making process is based on the seeking of full consensus, Assembly was unable to reach agreement.

Assembly therefore resolves to pursue this discussion in the most constructive and consultative way that it can, as follows:

(1) to invite synods and local congregations (a) to reflect on the report of the Facilitation Group, (b) to discuss whether they would wish a future meeting of the Assembly to authorise local church meetings to offer same-sex marriage services, and (c) to report their views to the General Secretary by 31st March 2015.

(2) to authorise the officers of Assembly to furnish these discussions with appropriate resources, including an offer of the support of facilitators”.

A minority continues to have reservations, insisting that to conduct same-sex wedding ceremonies would constitute a redefinition of the traditional understanding of marriage. However, the BBC reported that a member of the Assembly (unnamed)  said that it was “hurtful” for same-sex couples to be asked to wait to marry within their church, while the Revd Fiona Bennett of the Augustine United Church in Edinburgh told members that she was “… asking for grace. By allowing churches to opt in, we create space for diversity to hold our unity”.

So it looks as if the URC may be the first major denomination to allow its congregations to opt in to conducting same-sex weddings – but not, presumably, earlier than about September 2015.

Religion and law round up – 6th July

French burqa ban upheld

The big news of the week was that Grand Chamber of the ECtHR upheld the the French law prohibiting the concealment of one’s face in public places (Law no. 2010-1192 of 11 October 2010). Though the Grand Chamber dismissed the French Government’s contention that the complaint was ill-founded and therefore inadmissible, it held by a majority that the law does not violate Article 8 (respect for private and family life) or Article 9 (freedom of thought, conscience and religion) of the Convention and, unanimously, that there had been no violation of Article 14 ECHR (prohibition of discrimination) combined with Articles 8 or 9. Dissenting, Nussberger and Jäderblom JJ concluded that the law “sacrifices concrete individual rights guaranteed by the Convention to abstract principles” and doubted whether it either pursued a legitimate aim or was necessary in a democratic society.

The judgment in SAS v France [2014] ECHR No. 43835/11 seems to be yet another indication of the Court’s increasing tendency to give states parties a wide margin of appreciation in matters of religious observance; and first reactions have been largely critical. LautsiSindicatul Păstorul cel Bun and, most recently, Fernández Martínez all point in the same direction.

Veiling in the UK

On Thursday during the debate on the Business of the House, there was the following exchange, [HC Hansard 3 July 2014, Vol  583 Col 1092]

Philip Hollobone (Kettering) (Con): This week, finally and at long last, the European Court of Human Rights has made a sensible decision about something. Given that it has this week decided that the ban on Islamic veils in France breaches no one’s human rights, will the Leader of the House or another Minister make a statement to the House next week to say that Her Majesty’s Government intend to introduce such legislation in this country? We will never have a fully functioning, fully integrated multicultural society if growing numbers of our citizens go around with their faces covered.

Mr Lansley: I noted that decision by the Court, but part of it was about the issue of subsidiarity and the right of countries to make such decisions for themselves.  In that context I do not anticipate a statement by a Minister in the form my hon. Friend seeks.

Human sexuality and the CofE

On 30 June we posted on the next steps in the CoE’s considerations of human sexuality following the publication of the Bishop of Sheffield’s short report Shared Conversations on Sexuality, Scripture and Mission, GS Misc 1083.  We noted that there was need for a pragmatic approach to some of the more prescriptive criteria in the choice of the participants for the “regional conversations”, and the representational issues in relation to “LGBTI” views.  For the latter the spokespersons chosen would need to represent the views of all those with this broad grouping, an issue explored later in the week by Julie Bindel in the BBC Magazine item Viewpoint: Should gay men and lesbians be bracketed together?  

This week the issue of “clergy blacklists” has attracted attention on this site and elsewhere: in our post we outlined the requirements of the legislation and guidance; and Changing Attitude published the following response from the Rt Rev Graham James, the Bishop of Norwich, the lead bishop on the “monitoring and reference group” which also includes the bishops of Sheffield and Willesden:

“It was a surprise to read that I was apparently keeping a blacklist of clergy who had entered same sex marriages or was charged with acting against them. Such assertions are a very long way from the truth.

What I have agreed to do at the request of the Archbishops is to be available to other diocesan bishops for consultation as and when they have to decide what to do if clergy in their dioceses marry a same sex partner. There may well be courses of action or ways of responding which they have not considered, and I hope the reference group will ensure cases are not dealt with erratically.

I am not charged with taking any initiative, nor would I do so (it is up to diocesan bishops to contact me) but I hope that in this matter, as in all things, there is still the possibility for some pastoral wisdom.”

CA has also posted Same sex marriage guidance for clergy which includes: the HoB Pastoral Statement of 15 February; Bishop Alan Wilson’s view of the legal position, (EJM/CDM/canonical obedience); other unattributed but supportive legal opinion; practical guidance for clergy; and the Church and State definitions of marriage.

We suspect that further issues will arise as details concerning the practicalities of these provisions become available.

Hobby Lobby and the legal rights of non-natural persons

We don’t normally take note of US cases on law and religion: if we did, we’d do nothing else and, besides, Howard Friedman at Religion Clause does it infinitely better than we ever could. However, we thought it worth noting that last Monday, in another 5/4 ruling, the US Supreme Court held in Burwell v Hobby Lobby Stores Inc (S Ct June 30 2014) that requiring closely-held corporations to pay for insurance coverage for contraception under the Affordable Care Act violated the terms of the Religious Freedom Restoration Act. It is suggested that that ruling, which applied to two companies owned by Christian families, will open the door to other challenges by corporations to laws which, they claim, violate their religious liberty.

In his initial reaction Friedman says that one of the most widely-discussed questions raised by Hobby Lobby has been “Can corporations exercise religion?” and that the majority judgment by Alito J “avoids many of the difficulties posed by this question through adopting the ‘nexus of contracts’ view of corporations put forward by ‘law and economics’ scholars during the past 40 years”, thereby avoiding the question of whether an “artificial person” can exercise religion. From a UK and European perspective this is an interesting point.

One of the reasons why the Church of England was so anxious to secure a favourable ruling in Aston Cantlow, quite apart from the core issue of chancel repair liability, was the fact that had the House of Lords held that a parochial church council was a public authority for the purpose of levying a tax, then PCCs generally would have become ineligible to plead Convention rights under the Human Rights Act 1998 – because in the UK public authorities do not have human rights. As we know, their Lordships found in favour of the PCC so the problem did not arise; but in any case no-one (so far as we are aware) has suggested that in the UK non-natural legal persons generally cannot plead Convention rights – always provided the institution in question is not a public authority. It’s obviously different in the States.

Methodist Church and same-sex marriage

The Methodist Church in Great Britain issued a news release on the report on same-sex marriage brought by a working party to the meeting of the Methodist Conference in Birmingham. Its main points are these:

“The Methodist Church, in line with scripture and traditional teaching, believes that marriage is a gift of God and that it is God’s intention that a marriage should be a life-long union in body, mind and spirit of one man and one woman. The Methodist Conference did not vote on changing this understanding, or ‘opting in’ so as to permit Methodist Church buildings to be registered for same-sex marriage ceremonies or Methodist ministers to be authorised to conduct them.

The Conference resolved that its previous ruling that there was no reason per se to prevent anyone within the Church, ordained or lay, from entering into or remaining within a civil partnership, should also extend to those entering into legally contracted same-sex marriages.

The Conference agreed revised guidelines that will allow local churches and ministers to consider the appropriate pastoral response to requests for prayers and blessings of same-sex couples.

The Conference directed the Equality, Diversity and Inclusion committee to work on the production and dissemination of clear guidance on what is to be regarded as homophobia”.

Conference appointed a new working-party to oversee the two-year period of reflection concerning relationships and living with difference and to report to Conference in 2016.

Thinking Anglicans has a fuller report.

Commission on Religion and Belief in British Public Life

We drew attention to the Commission on Religion and Belief in British Public Life, convened in 2013 by the Woolf Institute at Cambridge under the chairmanship of Baroness Butler-Sloss, formerly President of the Family Division of the High Court. Our interest was sparked by the fact that the Commission has just put up a website and announced a call for evidence. Independent, self-appointed freelance Commissions are a growing phenomenon and some seem to be fairly spurious – the opinionated in pursuit of the unfathomable – but the Butler-Sloss Commission is emphatically not in that category, as its membership confirms.

CofE assistance to future climate change refugees

An unexpected aspect of the CofE’s land and property portfolio is the news that it has recently sold a stretch of land currently covered by dense forest to the people of Kiribati, a group of islands in the Pacific Ocean particularly exposed to climate change. The Guardian reports that President Anote Tong has recently finalized the $8.77m purchase of 20 sq km on Vanua Levu, one of the Fiji islands and about 2,000km away from Kiribati.  With a population of about 110,000 scattered over 33 small, low-lying islands extending over a total area of 3.5m sq km Kiribati, along with Tuvalu and the Maldives, is one of the small islands in the Pacific and Indian Oceans at risk being extensively or even completely submerged. In places the sea-level is rising by 1.2cm a year: four times faster than the global average. In the immediate future the land purchased by Kiribati is likely to be used for agricultural and fish-farming projects to guarantee the nation’s food security: there are growing food shortages as a result of catastrophic coral bleaching and from the progressively contamination of the atolls’ groundwater by sea water.

Another rubbish church?

Still on an environmental theme, Thursday’s CofE Daily Digest carried the story of the Holy Trinity, Parr Mount, St Helens,  a Grade II church constructed “entirely from waste material from chemical works”, that has been awarded £239,000 lottery funding for restoration work.  The St Helens Star provides a fuller account than the source BBC material, and states that eight years ago the Victorian Society pleaded for its rescue after suggestions that its construction impeded repairs and it ought to be replaced with a community centre.  Built in 1857 (Architects W&J Jay), the apse (J Hay) was added in 1883-4 and its construction is rubble walling of industrial waste with sandstone dressing[1] with a slate roof.

Surprisingly there is another Grade II church in St Helens which is also constructed from industrial waste, the Sutton Oak Welsh Chapel of 1850, of squared industrial waste with brick-faced front and stone dressings and a slate roof. However, neither of these appear in the new edition of Betjeman’s Best British Churches, although Richard Surman’s new section on Scottish churches has an entry for the perhaps better-known Grade A Italian Chapel at Lamb Holm in Orkney. This was constructed by Italian POWs led by Domenico Chiocchetti during World War II using materials left over from their work on the Churchill Barriers, the four causeways that were created to block access to Scapa Flow. The chapel is based upon two end-to-end Nissen huts covered with plasterboard, with: “tin for lanterns, plasterboard for the panelling, moulded concrete for the altar and altar rails … the screen is from reinforcing rods for concrete”.

Child marriage?

The BBC reported on Tuesday that Graca Machel (widow of Nelson Mandela) and Desmond Tutu are campaigning to end the practice of child marriage. The report notes in passing that “It is thought that more than ten million girls around the world are married before they turn 18″.

Very likely true – but hang on a minute: did they really mean eighteen? In all three jurisdictions in the UK the minimum age at which one can contract a valid marriage is sixteen: the minimum age was set at that level for both sexes by the Ages of Marriage Act 1929, since overwritten by subsequent legislation. And though in England, Wales and Northern Ireland someone below the age of eighteen requires parental consent to marry, in Scotland no consent is required. Indeed, prior to 1929 Scots law allowed a girl to marry at twelve and a boy at fourteen without any requirement for parental consent.

We all know what Archbishop Desmond and Ms Machel are concerned about: child brides (and, presumably, child husbands). And there is at least a tenable case for arguing that few, if any, sixteen-year-olds have sufficient emotional maturity to marry. But we can’t see any of the UK legislatures changing the law any time soon.

Quick links to other stories, information and events this week

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

And finally . . . . . . .

Most people consider that the mid-summer is far too early to be thinking about Christmas festivities but developments this week may have an impact on two groups of this year’s potential revellers. On Monday 30 June, in response to a question from the Bishop of Chester on whether the Government intends to reclassify carol-singing as busking, Baroness Williams of Trafford noted [30 Jun 2014 : Vol 754 Col. 1531] that “it depends on the carol singers. If they were being disruptive they might well be” but continued:

“we have no plans to issue guidance in relation to how the two existing Acts [the Metropolitan Police Act 1839 and the Police and Criminal Evidence Act 1984] are applied to buskers. However, we have undertaken, as the noble Baroness says, to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year.”

Presumably before Advent. And perhaps we should alert the Royal School of Church Music? But there is also a serious point here. In the run-up to Christmas, Salvation Army bands play in shopping-malls and high streets all over the country – and they do so partly for fundraising but partly, also, as evangelical outreach. If playing Christmas music is going to get swept up into “anti-social behaviour” then the Army may have legitimate cause for concern.

Meanwhile, on Thursday 3 July the Amsterdam District Court ruled that Zwarte Piet, (a.k.a. “Black Pete), the “helper” of St Nicolas in the Sinterklaas festival, was insulting to black people and perpetuated racist stereotypes. Zwarte Piet is usually depicted by a white person performing in blackface with red lips, curly wigs and earrings and, historically, has been portrayed as unintelligent and servile: we reported on the growing controversy surrounding the custom, which had attracted the attentions of UNESCO, last November.

The District Court gave the city’s mayor, Eberhard van der Laan, six weeks to reconsider the permit he granted for the annual parade featuring the character next December. However, the ruling is applicable only in Amsterdam; and unless similar action is taken elsewhere, there is no legal requirement for other cities to follow suit. And Belfast Cathedral’s Black Santa is presumably safe for at least a few more Christmases yet.

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[1] Some accounts suggest that it is faced with copper slag blocks and cement.

Clergy blacklists, blue files and the Archbishops’ List

Andrew Brown’s article “Second priest defies Church of England to marry his same sex partner” (The Guardian, 22 June) stated: “[t]he bishops have appointed the bishop of Norwich, Graham James, to maintain a blacklist of clergy who will not be considered for any future roles”. However, this was amended following the statement from the Church of England:

“[t]he recent press report that the Bishop of Norwich has been asked to keep a blacklist of clergy who marry same sex partners is untrue. The House of Bishops agreed in February to establish a small informal monitoring and reference group which is available to diocesan bishops who may wish for information or advice. The group has no formal powers. The Archbishops of Canterbury and York asked the Bishop of Norwich to chair the group and for the Bishops of Sheffield and Willesden to be members,”

and the following  correction added:

“[t]his is not the case. Rather, James has been asked to be available to diocesan bishops seeking advice on individual cases“.

Nevertheless, some Thinking Anglicans readers were unconvinced, as were others commenting on Changing Attitude’s piece Bishops of Willesden and Manchester reveal truths about the “blacklist” that isn’t. The latter included views from the Rt Revd Pete Broadbent, Bishop of Willesden, who is on the Bishop of Norwich’s group, and the Rt Revd David Walker, Bishop of Manchester, who isn’t.

+David Walker commented

“ . . . outside of this site I have heard no mention of a list, nor can conceive of circumstances in which I would want to have access to any such list, or to add names onto one”,

whilst +Pete Broadbent wrote

“[a]s Andrew Brown says, the role of the Group is to advise. Only the Diocesan/Area Bishop with whom the priest holds licence or PTO has the role of pastoral care and discipline in relation to that priest (or another bishop in the Diocese to whom discipline has been delegated under the Clergy Discipline Measure).”

Legislation

The origins of the terms “being in one’s black books” and “blacklisting” date back to the reigns of Henry VIII and Charles II respectively [1], but currently a “black list” is generally regarded as meaning “a list or register of entities or people who, for one reason or another, are being denied a particular privilege, service, mobility, access or recognition.” Such “blacklists” have been used to deny employment to individuals on account of their trade union membership or their involvement in highlighting health and safety deficiencies in working practices, often within the construction sector.

In this context, there are a number of statutory provisions [2] that have been introduced to safeguard the rights of trade union members [3], and there is  an associated a corpus of case law [4]. In contrast to lists such as these, there are circumstances in which blacklists are legislatively sanctioned, such as the “barred lists” of the Disclosure and Barring Service, (DBS), required under s2 Safeguarding Vulnerable Groups Act 2006. In both cases, the use of personal data falls within the overarching requirements of the Data Protection Act 1998 and the provisions of Articles 8 and 11 of the ECHR.

Use of lists by the Church

The Church of England web page, Records Management Guides from the C of E, provides general guidance on data protection and includes a series of 11 factsheets – “the records management tool kit covering various records management topics” [5]. The document Personal Files Relating to Clergy – Guidance for Bishops and their staff (revised March 2013), addresses issues relating to the management of clergy personal files [42 to 75] and the sharing of information in clergy personal files, [59 to 76]. With regard to the former it notes:

“43. For a number of years, the Bishoprics and Cathedrals Department has provided files in the form of blue card folders, with sub-divisions (hence the widely accepted use of the term ‘blue files’ when referring to clergy personal files). These folders have no official status and bishops are not obliged to use them. They have, however, been found helpful in promoting consistency. The format of these folders will be updated from time to time.”

In contrast, s38 Clergy Discipline Measure 2003, as amended, places a duty of the Archbishops acting jointly to compile and maintain a list of all clerks in Holy Orders:

(a) on whom a penalty or censure (by consent or otherwise) has been imposed under this Measure or the 1963 Measure; or

(b) who have been deposed from Holy Orders under the 1963 Measure; or

(c) who have executed a deed of relinquishment under the Clerical Disabilities Act 1870 (c. 31); or

(d) who have resigned preferment following the making of a complaint in writing against them under section 10(1) above or under the 1963 Measure; or

(dd) whose name is included in a barred list [6]; or

(e) who, in the opinion of the archbishops, have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment.

The relevant Archbishop is required to take all reasonable steps to inform the person in writing of his or her inclusion and the particulars that have been recorded. Where inclusion is under grounds (a) to (dd), the person may request the President of Tribunals to review the matter, following which the President may either direct the continued inclusion under the same or revised particulars, or should be not be included on the List.

In relation to ground (e), there is an additional requirement that the Archbishop’s notification is accompanied by an invitation to send comments or representations in writing within twenty-one days: the Archbishop will then decide whether or not to include that person in the list and the person will be informed of the decision in writing of their decision.

In an earlier post we noted the relevance of paragraphs 3 to 11 of Personal Files Relating to Clergy – Guidance for Bishops and their staff which relate to: “Circumstances in which personal information will be shared”; and the use of Episcopal Reference and Clergy Current Status Letters (‘CCSL’). Guidance concerning the personal files of readers, other licensed lay ministers, and those who are exploring a vocation to ministry or who are in training but not yet ordained is addressed in separate documents.

Comment

The legally-sanctioned Archbishops’ List was in existence well before the publication of the House of Bishops’ Pastoral statement of Pastoral Guidance on Same Sex Marriage, and provides a vehicle for the collation, assessment and recording of information on the activities of “all clerks in Holy Orders”, including those: “who, in the opinion of the Archbishops, have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment.”  However, the non-statutory CDM Code of Practice indicates that in relation to a Permission to Officiate, [para 19]

“If a complaint is made under the Measure against a priest or deacon who has the bishop’s written permission to officiate [PTO]  . . . . . the bishop can, nonetheless, terminate the PTO for misconduct without taking any action under the Measure (unlike a Licence, which cannot be terminated for misconduct except by way of proceedings under the Measure). In serious cases of misconduct, however, the bishop may choose to deal with it under the Measure, so that that person’s name may be included in the Archbishops’ List.”

This emphasizes the discretionary nature of the PTO, and indicates that unless proceedings are taken under the Measure, a person’s name may not be included on the Archbishops’ List.  However, details may be recorded in the person’s personal file, [para 124],

“If the bishop considers on the evidence that there has been misconduct, but decides to take no further action on the complaint under the Measure because it is not of sufficient seriousness, the bishop may nonetheless advise and warn the respondent in writing as to future behaviour. A copy of the advice and warning should be kept in the respondent’s personal file (known as the blue file) for an appropriate period. No record of it will be entered in the Archbishops’ List.”

In view of the uncertainties in applying sanctions under ecclesiastical law summarized here and elsewhere, and the Bishop of Gloucester’s observation that the Pastoral Statement “did not signal as fully as it might have done that there is, inevitably, a variety of views in the House of Bishops”, there are clearly problems in achieving a consistent approach throughout the Church.  The establishment of the Bishop of Norwich’s reference group goes part way towards the achievement of this objective but has no formal powers and will only be accessed by those diocesan bishops seeking information or advice.

Rather than focussing on which clergy have been blacklisted, perhaps the focus should be on how consistently the Church addresses those clergy who enter into same-sex marriages – Quis custodiet ipsos custodes?

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[1] A “Black Book” listing abuses in the monasteries was compiled during the reign of Henry VIII and subsequent references to “black books” became associated with censure or punishment: the associated word “blacklist” is said to originate from a list made by Charles II of the fifty-eight judges and court officers who sentenced his father, Charles I, to death in 1649.  When Charles II was restored to the throne in 1660, thirteen of these regicides were put to death and twenty-five sentenced to life imprisonment; the others escaped.

[2] For completeness, reference should also be made to the potential use of the common law tort of ‘unlawful means conspiracy’ in relation to the claims against the construction firm Robert McAlpine concerning the blacklisting of workers.

[3] Including: ss 2 and 13, Employment Relations Act 1999; Employment Relations Act 1999 (Blacklists) Regulations 2010 SI 493; ss 146, 295 and 296, Trade Union and Labour Relations (Consolidation) Act 1992, as amended; ss 44 and 230, Employment Rights Act 1996.

[4] For example: Smith v Carillion (JM) Ltd and Schal International Management Ltd EAT Appeal No. UKEAT/0081/13/MC.

[5] In addition to Personal Files Relating to Clergy – Guidance for Bishops and their staff, these include: Chapter and Verse – The Care of Cathedral Records (published June 2013); Cherish or Chuck? – The Care of Episcopal Records, (published December 2009); Save or Delete? – The Care of Diocesan Records (revised December 2008); Keep or Bin? – The Care of Your Parish Records (revised April 2009); (revised March 2013).

[6] A persons in Holy Orders who is included in a barred list is under a duty to inform the appropriate bishop or archbishop within the period of twenty-eight days following their inclusion and the reasons for such inclusion, [s34A of the 2003 Measure].

Same sex marriage and civil partnership: update

Further to our post Same sex marriage at British Consulates overseas, which reported that as from 3 June 2014 same-sex couples will be able to marry at British Consulates in 23 countries, under the Consular Marriage and Marriages under Foreign Law Order 2014, there has been further progress in the implementation of the Marriage (Same Sex Couples) Act 2013.

Approved premises

On 24 June, HM Passport Office published the Approved premises list, also available in Excel format, which summarizes the premises that have been approved for civil marriages and civil partnerships in England and Wales. It notes that venues are authorised on a regular basis; and because not all the current venues may be included it recommends contacting the appropriate local authority for the most up-to-date information about approved venues.

 Review of civil partnership in England and Wales

On 26 June, the Government Equalities Office and Department for Culture, Media & Sport published the report on its conclusions following the review of civil partnership in England and Wales as required under section 15 of the Marriage (Same Sex Couples) Act 2013. The Government concludes that “[g]iven the lack of consensus on the way forward for civil partnership, [it] will not be making any changes”. All the documentation relating to the consultation, including a summary of the responses, is available here.

Paragraph 1.4 of the initial consolation document stated that:

“The Government’s decision not to make changes to civil partnership in the Act was because civil partnership currently plays an important role in the lives of many couples. Civil partnership was created to give same sex couples access to equivalent legal rights to marriage at a time when they did not have access to marriage itself. The Government saw little benefit at that stage in changing a well-understood legal institution without evidence of a clear need to do so and of the impact such a step would have”.

Given the Government’s initial stance, its conclusion is hardly a surprise.

As to extending civil partnership to opposite-sex couples, the analysis reveals that this was opposed by respondents by about three to one: 21.8 per cent in favour and 76.2 per cent against. But that might not be the end of the story. Ferguson & Ors v United Kingdom (Application No. 8254/11), in which the applicants argue that the UK’s failure to provide civil partnerships for opposite-sex couples breaches their Convention rights, is currently awaiting a decision at Strasbourg as to whether or not it is admissible.

Marriages by non-religious belief organisations

On 26 June, the Ministry of Justice announced a consultation on Marriages by non-religious belief organisations on whether the law should be changed to permit marriages by non-religious belief organisations.  The consultation document explains [page 13]:

“During the passage of the 2013 Act a number of opposition amendments were tabled to allow the British Humanist Association, and potentially any other non-religious belief organisation, to solemnize marriages. The Government had not consulted on belief marriages as part of its consultation on marriage of same sex couples and felt that a public consultation should take place before a decision was reached on further amending marriage law in this respect”.

As a consequence, section 14 was introduced into the 2013 Act: it requires the Secretary of State to arrange for a review and full public consultation of whether an order should be made permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar and, if so, what provision should be included in the order. The outcome of the review had to be produced and published before 1 January 2015.

The consultation, which closes on 18 September, asks for views on:

  • whether there is a substantial case for changing the law in England and Wales to establish non-religious belief ceremonies as a third type of legal marriage ceremony alongside religious and civil ceremonies;
  • which non-religious belief organisations could meet the Section 14 definition ["an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality or ethics"] in order to be registered to conduct belief ceremonies, whether the definition is appropriate and what the issues would be related to such changes;
  • where, if allowed, such marriages should take place;
  • which safeguards would be needed to deal with any resulting risks, and
  • what would the equality would impacts.

As to the issue of location, the paper invites views on three options for change:

  • Option 1: permit non-religious belief organisations to solemnize marriages within their own buildings or buildings where the organisation meets to manifest its beliefs and that are certified for that purpose.
  • Option 2: permit non-religious belief organisations to solemnize marriages anywhere (other than religious premises) meaningful to the couple, including outdoors.
  • Option 3: permit non-religious belief organisations to solemnize marriages at “approved premises” (other than religious premises), such as a stately home or a hotel.

The document notes that

“In Scotland, the law has been changed in recent years to allow for humanist and other non-religious belief marriages within a system in which individual celebrants are registered to solemnize marriages. We have a different system, with different safeguards, predominantly based on the registration of buildings”.

And so we do: but we can’t help wondering whether the Scottish version might not be simpler to administer and generally less cumbersome than the English one. In recent years the authorities in England and Wales have tied themselves into knots over registration of buildings and one of the reasons for that has been the comparative inflexibility of registration under the Places of Worship Registration Act 1855: see R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77. Because the Scots simply license individuals rather than buildings, their system is much more flexible.

David Pocklington & Frank Cranmer