Tuesday, 5 March 2013
Committee scrutiny of Marriage bill continues
Updated again Friday morning
The Public Bill Committee meets again on Tuesday and Thursday this week.
Meanwhile, a further tranche of written submissions have been published. Among these:
Changing Attitude England
Supplementary evidence from Dr Augur Pearce
And from the previous tranche, this from Liberty, but also available from the Liberty website, here, and also an earlier version here.
Today the Telegraph reports (no byline) on a submission made by Patricia Morgan, which is available in full on the SPUC website (PDF).
The latest listing of amendments can be read here or as a PDF file.
Hansard record of Tuesday’s hearings:
The committee has now dealt with Clauses 1 to 8. It meets again on Thursday.
Another tranche of written submissions has been published, all listed here.
Christians for Equal Marriage
SPUC (see item above about Patricia Morgan)
Hansard record of Thursday’s proceedings:
Posted by Simon Sarmiento on
Tuesday, 5 March 2013 at 7:00am GMT
You can make a Permalink to this if you like
Augur sets aside Cantlow to make his case. Not something Prof Mark Hill will support, one guesses.
Otherwise it is a tour de force of the complexities of English law and the place of the CofE.
I agree with Martin. The Pearce supplementary memo is a tour de force. If, as many think, Aston Cantlow was wrongly decided, then the C of E is a public authority, and parishioners should have a right to be married in their parish church. If the Church authorities find that repugnant, they have a very easy remedy: disestablishment. They cannot claim the benefits of establishment (bishops in Lords, exemption from charity law etc) and shirk the burdens (e.g. obligation to marry qualified parishioners).
The headline arguments canvassed here are largely irrelevant - there WILL be same sex marriage in England and there will WILL be an en bloc opt out for the Church of England regardless of the views of individual parish clergy. Both these decisions have already been made politically and the die is cast.
But Dr Augur Pearce's paper is, despite pressing a point which has no prospects of success, a brilliant exposition of the history of marriage in the recent ecclesiastical law of England.
I particularly like his well made point that the rights of parishioners are not represented by the General Synod, since the General Synod derives its authority from the parish electoral roll, whereas the parishioners have rights even if they are not eligible to be on the roll. (This is quite apart from the point that it is obvious, following the vote on women bishops, that the General Synod House of Laity does not even reflect the views of committed laity or diocesan synods.)
I also like his point that the rights and duties of parish clergy are determined by the law or by their own conscience, and that it is a dangerous innovation to allow the Church of England to opt out of the law from the top rather than from the grassroots, or, even worse, to override individual clergy whose conscience is aligned with the equality law applied to everyone else.
Dr. Augur Pearce claims that 'the parish minister’s duty to officiate (in person or by a deputy, typically an assistant curate)' at the solemnisation of any parishioner's wedding is based on case law. He cites Argar v. Holdsworth (1758) 2 Lee 515 as his reference.
Whatever are his credentials, in this he is wrong.
As Philip Jones put it, 'the case was not directly about Argar’s right to be married, but about Holdsworth’s duty to solemnise the marriage, his duty to obey the ordinary who issued the licence'.
'Argar v Holdsworth does not positively deny the existence of a common law or a statutory right to marry in church, but it does not support it either. The 1753 Act simply did not apply to the case. Mr Argar was complaining that (with a valid marriage licence) he could not get married in church. The 1753 Act was directed at people who were the exact opposite of Mr Argar, those who refused to marry in church.'
Yes, there may be a common law duty of priests to marry parishioners, but marriage by religious rite is not a devolved public duty of government, like health care. The religious marriage is simply recognised.
Yet, Dr. Pearce asserts that 'it is no more acceptable for ministrations in the parish church to be denied to certain classes of0 inhabitant on the basis of distinctions which the law does not make than for National Health Service staff to decide to treat only female patients.'
This would be a valid analogy if, like the NHS, the state had devolved its powers or functions of government to the Church. In fact, this is the proper test of whether a power is public in nature is that if the body did not exist would the government create a body to exercise that power. (cf. R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex p. Wachmann)
Establishment involves a relationship of recognition between the state and the CofE, not of the devolution to it of any of the powers or functions of government. Relying on the latter idea, as if it were fact, grounds the stanchions of his argument on a completely false assertion, that neither statute, nor case law can underpin. The whole edifice crumbles.
From the above article and subsequent comments; is it not timely, now, to consider disestablishment?
Theocracies are not too popular elsewhere in the world in this day and age. Very few Provinces of the Anglican Communion are so intimately connected with the State. The C. of E. can't have it both ways.
Iain: 'If, as many think, Aston Cantlow was wrongly decided, then the C of E is a public authority'
On a point of pedantry, which might actually be of considerable practical importance: the Aston Cantlow ruling was specifically that a Parochial Church Council is not a "public authority" for the purposes of the Human Rights Act. Even if that ruling is correct, the CofE centrally might still be a "public authority".
An even more interesting question in a similar vein is whether the Book of Common Prayer is still "annexed and joined" to an Act of Parliament, and if so, whether the BCP therefore constitutes "primary legislation" for the purposes of the HRA.
Feria: nice point on PCCs v The Chuch. I would have thought, though, that the BCP was no longer primary legislation after the Worship and Doctrine Measure 1974. Do you think the reservations re the 1662 BCP retain it's status? (Genuinely interested...)
" Today’s Church in Wales is a voluntary society of Cranmerian Episcopalians similar in most respects to any other religious group"
You have to give it to Dr Augur Pearce when it comes to a turn of phrase! I shall look on my friends in the Church in Wales in a new light!
I am in favour of disestablishment, but would think it worrying if the C of E were simply an organ of the state so that, for instance, it might be required to endorse the policies of whatever government is in power, from wars to public service cuts.
David Shepherd, in his wordy submission to the Parliamentary Bill Committee, harps on about the possibility of religious officiants being vulnerable to perse/prosecution if they conscientiously object to the conducting of Same Sex Marriages.
This has been so overwhelmingly refuted by academic as well as practising lawyers, that he really ought by now to realise that his fears are groundless. Hammering away at this propspective possibility brings more heat than light into the arguments surrounding S/S/Marriage.
1. If the possibility of religious and legal sanctions against individual ministers was groundless and overwhelmingly refuted, explain why there is clause 2(2) protecting individual ministers from compulsion.
2. The EHRC (rather than a conservative think-tank), having sought a legal opinion, views the clause as an interference in the Article 9 rights of religious organisations. They are in favour of same-sex marriage, so what possible self-defeating motive would prompt them to be 'hammering away at this prospective possibility' in their own submissions.
All I've done is to agree with the EHRC that the clause 2(2), as it stands, is an interference in the Article 9 rights of religious organisations who opt in to same-sex marriage. I have then contrasted this legal outcome of clause 2(2) and the result of the proposed EHRC amendment to it with the stated aims of the Bill. They are at odds with each other.
For this agreement with the conclusions of an independent statutory body supporting same-sex marriage, you would find fault. It would be more honest to admit that it's because I'm not a cheerleader for the liberal Anglican team.
It all looks very complicated. Still there seem to be some very clever people on the committee - I'm sure they'll sort it all out.
Scot: 'I would have thought, though, that the BCP was no longer primary legislation after the Worship and Doctrine Measure 1974. Do you think the reservations re the 1662 BCP retain it's status? (Genuinely interested...)'
... I asked my original question because I genuinely don't know the answer. There are a few pointers available:
If one took schedule 2 to the Worship and Doctrine Measure at face value, then one would conclude that the preamble to the Act of Uniformity has been repealed, and therefore that the BCP is no longer annexed and joined to the Act of Uniformity, and is therefore definitely not primary legislation.
However, it can't quite be that simple, because if one does draw that conclusion, then the definition of "Book of Common Prayer" in section 5(2) of the Worship and Doctrine Measure doesn't make sense (and nor, for that matter, does section 1(4) of the Prayer Book (Versions of the Bible) Measure 1965, which is still in force).