Thursday, 22 March 2018

Court of Appeal dismisses Pemberton case

Updated Thursday evening

The Court of Appeal has today dismissed the appeal by Jeremy Pemberton against the earlier judgement of the Employment Appeal Tribunal.

The judgement is now available online: Pemberton v Inwood [2018] EWCA Civ 564, with a printable version here.

There are numerous media reports:

Anglican Communion News Service Priest in same-sex marriage loses legal challenge to bishop’s “discriminatory” response

Guardian Gay hospital chaplain loses discrimination appeal against C of E

Christian Today Gay clergyman Jeremy Pemberton loses discrimination appeal against Church of England

Press Association via Premier Gay priest denied job after marrying partner loses discrimination appeal

BBC Gay priest Jeremy Pemberton’s discrimination appeal dismissed

Huffington Post Gay Priest Jeremy Pemberton Loses Discrimination Appeal Against The Church Of England

Newark Advertiser Jeremy Pemberton loses discrimination appeal

Nottingham Post Gay priest ‘naturally disappointed’ after his appeal over discrimination claim is dismissed

Church Times Bishop was in his rights to refuse Pemberton a licence, tribunal rules

Jeremy Pemberton has issued a press release, which is copied below the fold.

ACNS reports:

Commenting on today’s judgment, a Southwell and Nottingham diocesan spokesperson said: “We are pleased that the court has upheld the decision made with regards to the employment tribunal. We recognise that this has been a long and difficult process for many of those concerned, and we hold them in our thoughts and prayers.”

OneBodyOneFaith has issued a statement: Disappointment and gratitude as Pemberton case concludes

“…The question now is less whether the bishop acted legally - that seems beyond doubt - but whether people want to continue to support this kind of discrimination against committed, loving couples as they seek to follow Christ. There is a real sense of the need for change, the will for change and the time for change.“

Press Release from Jeremy Pemberton

The Court of Appeal has examined the issues in my claim against Bishop Richard Inwood and has dismissed them. I am grateful for the expertise of the Court, though naturally disappointed in the judgment.

I have reached a settlement agreement with the Church of England that I will not pursue this claim any further. They, on their part, will not apply for costs against me.

I am more grateful than I can say to Sean Jones QC, Helen Trotter, Justin Gau, and Susanna Reynhart of Thompson Snell & Passmore. Since the end of the original tribunal hearing they have all represented me pro bono with great skill and commitment. We have worked together for three and a half years on this case, and I count myself very blessed to have had them alongside me every step of the way. I am also very grateful to Bishop Alan Wilson, my expert witness; to my family for their support; and to the countless people who have written, messaged, telephoned and spoken to me expressing their solidarity.

The Church of England has established through this process that it can continue to discriminate legally against some LGBT people in relation to their employment, even where that employment is not within the boundaries of the church’s jurisdiction. This will seem to most people in the UK today an extraordinary result, and not one that will help commend the claims of Christ to the nation. An official position that regards the loves and commitments of LGBT people, including clergy, as sinful by definition is years overdue for thorough-going revision. The need for a revolution in attitudes and practices in the Church towards this minority is still acute – we continue to wait for real change.

I hope that I shall be permitted to return to active ministry at some point. Had I committed an infraction that was dealt with under the Clergy Discipline Measure, then I might have been told I was being suspended for a definite period, with the hope and expectation of restoration after that. Because I was never dealt with under any process, I have no permission to officiate at all, and no indication of when I might hope to have that restored. Everything is in the hands of, and at the will of individual bishops.

Finally, I owe most to Laurence Cunnington. He has been rock-like and constant in his support and love in this, as in all things. We look forward to celebrating our fourth wedding anniversary soon. I cannot thank him enough for the honour he does me in being my husband.

Posted by Simon Sarmiento on Thursday, 22 March 2018 at 12:50pm GMT | TrackBack
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Categorised as: Church of England | equality legislation

Well, now it's up to Parliament.

Posted by: Jeremy on Thursday, 22 March 2018 at 1:45pm GMT

The Court of Appeal judgments are now available to download from the BAILII website:

Posted by: David Lamming on Thursday, 22 March 2018 at 3:02pm GMT

This is a tragic outcome, with the Church's obvious straining after legalistic gnats a glaring contrast to its cavalier approach to justice (and the law of the land) being starkly exposed by the IICSA hearings.

Rather than just holding those involved in thoughts and prayers, it might be better to weigh up: the frustrated vocations of those involved; their loss of livelihood; the costs to those who wished to employ them; the denial of experienced pastoral care, witness and ministry to the sick and troubled; the waste of training and experience; and overall reputational damage that comes from being seen to publicly and enthusiastically swallow a camel.

Posted by: ExRevd on Thursday, 22 March 2018 at 3:03pm GMT

Well what a week of shame for the Church of England this is turning out to be.

Married heterosexual? Slap it on the press release.
Married non-heterosexual? Remove the licence, hire the lawyers and never, but never, give in.

Being an individual rather than a corporate litigant is exhausting, so maximum respect to Jeremy for having the courage to take this this far.

And yet again, shame, shame, shame on the Church of England for pursuing this. One day an ABC will be sat in front of an Inquiry, wringing his hands and weeping crocodile tears about this too. What point for the Church hierarchy of a victory as blasphemous and sinful as this?

Shame, shame, shame.

Posted by: Fr Andrew on Thursday, 22 March 2018 at 3:54pm GMT

"Thoughts and prayers"

Who on earth in the diocese thought this was a suitable phrase to use? It is the kind of thing that Senators funded by the NRA say after the latest school shooting. It is what Trump says. It means nothing in those contexts. Why use it?

Posted by: Jeremy Pemberton on Thursday, 22 March 2018 at 4:21pm GMT

The whole thing is a disgrace. That the Church of England - especially its clerical leadership - should consent to being an accessory to this is a black eye, a sucker punch and a kick in the backside to the vocation and dignity of all Christians.

Posted by: Daniel Berry, NYC on Thursday, 22 March 2018 at 4:33pm GMT

Isn't the shame that recognised abusers were granted PTOs but a man whose only fault is to marry... A man.. is denied one?

Can someone please explain to me how the Diocese can, in those circumstances, issue a press release indicating pleasure? Because, to me, it seems like rejoicing in ramming it to an individual while failing to act against institutional failures.

Posted by: Kate on Thursday, 22 March 2018 at 4:51pm GMT

The reality is that Pemberton would have been more likely to have kept his license if he had been diddling adolescents or parishioners instead of entering into a faithful marriage. Regardless of the official theology, that's that theology of the Church of England on the ground. Disgusting.

In addition, the diocese should rethink its "thoughts and prayers" comment. That was the standard response by spineless American politicians after each new round of mass school shootings in the U.S. The surviving victims of these shootings have attacked this response as meaningless drivel. It is. And the diocesan response is precisely the same.

Posted by: dr.primrose on Thursday, 22 March 2018 at 5:27pm GMT

'Pleased at the outcome....yet holding those involved in our thoughts and prayers....'

Does anyone in the diocese of S&N really understand just how disingenuous this statement is? I do feel it is only those who pursued this case who emerge badly.

I realised the game was truly up for opponents of same sex equality when my dear mother, 81 and a lifelong middle of the road Anglican, told me that even she didn't understand why some bishops persist with this persecution.

I suppose the waiting will have to go on, but it's mean and nasty and many, many people, religious or not, tell me that is exactly how it looks.

I'm sad, and ashamed of my Church.

Posted by: Another Fr David on Thursday, 22 March 2018 at 5:53pm GMT

Fr Andrew, it's hardly the Church of England's fault for 'pursuing this'. They've been taken to tribunal three times, and each time it's been established they acted justly and according to both the law and church doctrine. The fact that they're still willing to absorb the costs (estimated at at least £500,000) despite having done nothing wrong is admirable.

Posted by: Tom on Thursday, 22 March 2018 at 6:07pm GMT

Funny how they are able to refuse licenses for Jeremy Pemberton, remove PTOs from Jeremy Pemberton, Jeremy Timm and Andrew Foreshew-Cain, but are completely powerless to do anything at all about reported child abuses.

I shall sleep better tonight for knowing that they're at least hot on the tails of marriage criminals.

What a victory!

Posted by: Erika Baker on Thursday, 22 March 2018 at 6:08pm GMT

Particularly galling to me is the offer of "thoughts and prayers" from the Diocese's spokesperson. "Thoughts and prayers" has recently come to embody a lack of empathy or willingness to engage meaningfully; anyone in touch with current affairs would realise how this term would come across. It is not only a hollow-sounding platitude, but also ignorant of what is happening beyond the goldfish bowl of church politics.

Posted by: Tim M on Thursday, 22 March 2018 at 7:09pm GMT

Father Andrew speaks my mind, and surely for many others -and expresses it so very well.

Such brio gives one a boost, on a sad, sad day :--
'Married heterosexual? Slap it on the press release.
Married non-heterosexual? Remove the licence, hire the lawyers and never, but never, give in.'

The fact that the law, is said to permit bigotry, hardly makes it right.

Posted by: Laurie Roberts on Thursday, 22 March 2018 at 8:58pm GMT

How much has the Church of England spent on this exercise in injustice and denial of human rights? It may have won its phyric victory but in doing so shown the bankruptcy of its morality. The Archbishop of Canterbury said that the IICSA revelations made him ashamed of the Church. Many of us aren’t ‘ashamed’, we’re furious and extremely angry. Not in my name.

Posted by: Richard Ashby on Thursday, 22 March 2018 at 10:29pm GMT

‘...we hold them in our thoughts and prayers’. The meaningless formularies of the indifferent.

Posted by: Richard Ashby on Thursday, 22 March 2018 at 10:59pm GMT

"Fr Andrew, it's hardly the Church of England's fault for 'pursuing this'.

I was referring to the C of e pursuing the persecution of people in non-heterosexual marriages, not the pursuit of a legal case.

However, to suggest that Jeremy Pemberton was some sort of aggressive litigant in this is rather like blaming Rosa Parks for sitting on the bus. What else can you do if you are a (relatively) powerless victim of injustice up against a powerful oppressive institution which operates without a moral compass. You use the only tool available to you that gives you the vague possibility of justice, going to the law.

There is no way the Church of England can ever be anything but morally reprehensible in this. It's an odd perspective that sees crying out for justice against a bully as 'pursuit'.

This case has shown that the actions of the C of E are legally correct and morally execrable. Not exactly what you'd hope for from the church which fancies itself the national conscience.

Posted by: Fr Andrew on Friday, 23 March 2018 at 7:55am GMT

I can't imagine the legal position was ever in much doubt. The tragedy here is that an organisation which should focus on truth, love and equality instead uses its (unjustifiable) legal exemptions to support what constitutes bigotry.

Like others posting here, I am appalled and ashamed.

Posted by: Marc S on Friday, 23 March 2018 at 8:25am GMT

If the Church of England goes on to approve same sex marriage and continues to reconstruct the Christian faith based on lifestyle choice and the cult of the individual as against the common good, surely it will have to construct another Saviour? I realise I am dangerously sticking my head above the parapet but many if not most faithful Anglicans share my fears.

Posted by: Jill Armstead on Friday, 23 March 2018 at 8:53am GMT

Jeremy Pemberton - please be assured of my prayers for you and your husband in the midst of all of this. May you continue to be an agent of God's grace in this weary and war-torn world.

Posted by: Peter S on Friday, 23 March 2018 at 11:02am GMT

Tom: "it's been established they acted justly and according to both the law and church doctrine" On church doctrine, that's no longer my area of expertise or direct concern. And I'm certainly no lawyer. Doctrine is open to development however, and the legal landscape can change rapidly. In particular, sectoral ministries operate, de facto if not de jure, at the pleasure of the institutions that request chaplaincy services. It's not set in stone that the church will always be welcome to provide these ministries in hospitals or schools (the latter area will I think become ever more contested in the UK). Perhaps if I were an NHS manager still sympathetic to religion, I might conclude that the interference of the CofE in the appointments process made employing Anglicans not worth the hassle. Other Protestant denominations are available. This may be no bad thing for the hospital or the patients but further chips away what it is to be an established church.

You add that "the fact that they're still willing to absorb the costs (estimated at at least £500,000) despite having done nothing wrong is admirable."

And they did this how? With their own money? Or with resources they hold in trust, funds that need to be topped up from parishioners' giving (augmented by state-sanctioned tax breaks)? All supposedly offered in service of mission. How does their admirable generosity (with other people's money) further the church's mission in this case? Won't this instead erode people's willingness to give, not just from the liberal minority but across the board - if one takes the view that Mr Pemberton was rightly barred from this ministry, one may also reasonably ask if there wasn't a more efficient and economical way to enforce this? It certainly threatens goodwill from the state which makes the church's current financial and pastoral model possible.

Ultimately the church will need to choose: pursuit of the law (as long as it doesn't change) and a particular interpretation of adherence to doctrine on the one hand; and on the other, showpiece churches in every (wealthy) neighbourhood and a network of planted congregations elsewhere; but also: no palaces? derelict - or nationalised - cathedrals?... who knows? But certainly, and far more importantly, (even) less presence in the culture, less overlap with secular institutions, (further) erosion of trust among the already sceptical, and diminished rights of pastoral presence - with yet more reduced capacity to offer it.

I do want to add however I respect you advancing an alternative point of view here, and puncturing a bubble of debate. Thanks for doing so.

Posted by: ExRevd on Friday, 23 March 2018 at 12:08pm GMT

Tom, it may be the law but it isn't just, as so many others have commented. To begin with, it's an affront to very many people that the state Church has an exemption from the Equality Act. Then, the Church is always upholding marriage as an ideal, then punishes Pemberton for being faithful to that ideal. He could have lived with his partner and incurred no penalty, but when he had their union solemnised he was punished. That's hypocrisy. The job he was prevented from taking wasn't even in the Church, it was in hospital chaplaincy. And finally, as others have said, it's excruciatingly clear that the Church does nothing if you violently abuse little children, but will spend a huge amount of money punishing you for a union which most of the country - and much of the Church - would see as an occasion for congratulations and celebration.

If the Church wants to alienate much of the population and very many of its members and supporters, it's going the right way about it.

Posted by: Janet Fife on Friday, 23 March 2018 at 12:24pm GMT

Simon (perhaps wisely) didn't post a rant of mine on another thread.

But to summarise: it appears that the Church of England's senior leadership is much more interested in dealing with the "problem" of homosexuality, than it is on dealing with the rather more real problem of child abuse. It is firm on the former, indifferent to the latter. It apparently thinks that as a long-term proposition, an organisation that excludes gays while welcoming and forgiving paedophiles is in tune with the nation, and in tune with its membership. Were I a betting man, I would bet that this is not a good strategy.

Posted by: Interested Observer on Friday, 23 March 2018 at 12:38pm GMT

Interested Observer wrote: "it appears that the Church of England's senior leadership is much more interested in dealing with the 'problem' of homosexuality, than it is on dealing with the rather more real problem of child abuse."

Isn't this what should appall the most? CofE leaders want to maintain Cantuar's position in the Communion, so they fight an expensive and, ultimately, losing battle on same-sex marriage in England. English hierarchs are putting their own personal interests--preservation of their own global position--ahead of celebrating the sacrament of marriage for faithful English people.

It's a breach of duty to Canterbury's English flock.

And on a practical level, let's consider what a waste of time, energy, and money it is. Especially when we consider the need for safeguarding improvements. The CofE should re-rank its priorities and re-allocate its resources accordingly.

If it doesn't, then is it time for Parliament to tell the Church of England that it should cease discriminating or face disestablishment?

Posted by: Jeremy on Friday, 23 March 2018 at 2:30pm GMT

“If the Church of England goes on to approve same sex marriage and continues to reconstruct the Christian faith”

Fear not Jill. There is no sign of the former on the horizon, and it’s been doing the latter since 597.

Posted by: Fr Andrew on Friday, 23 March 2018 at 2:47pm GMT

the legal situation was very much in doubt, and I still do not understand how they could have lost this case.

All courts ruled that the CoE is a qualification body.
Its exemption from the Equality Act is solely for the purpose of religion.
During the tribunal hearing, the church said several times that NHS Chaplaincy was not for the purpose of religion - this is recorded and verifiable.

With that, it should have been case closed.
Instead, all courts ruled that, despite the witness statements, NHS Chaplaincy was for the purpose of religion and that the exemption from the Equality Act therefore applied.

It makes absolutely no sense to me at all.

Posted by: Erika Baker on Friday, 23 March 2018 at 3:04pm GMT

I've always been surprised that more was not made of Article 32 in this case.

XXXII. Of the Marriage of Priests.
Bishops, Priests, and Deacons, are not commanded by God's Law, either to vow the estate of single life, or to abstain from marriage: therefore it is lawful for them, as for all other Christian men, to marry at their own discretion, as they shall judge the same to serve better to godliness.

Posted by: Kelvin Holdsworth on Friday, 23 March 2018 at 4:05pm GMT

I was very disappointed that the NHS caved in so easily in the early stages of this saga...issuing a bog standard press release or reply to anyone questioning their decision not to proceed with the appointment....I think there are issues there that certainly need looking at. As for Richard Inwood - I think he should hang his head in shame.....and as for the C of E using our money - it is a pyrrhic victory. I'm just totally frustrated and angered by it all...just what do we do to move things on?
Jeremy I'm so sorry you have had to go through all of this, it is a disgraceful episode in the life of the Church of England.

Posted by: Robert Ellis on Friday, 23 March 2018 at 5:03pm GMT

‘I've always been surprised that more was not made of Article 32 in this case.’

Thanks to the Equalities Act religious exemption, presumably it’s both legal for a priest to contract a marriage and for their bishop to then sack them for that marriage because they subscribe to an infantile view of both God and human sexuality (or they’re afraid of those who do).

The solution is surely not recourse to the 39 Articles (after all there’s some stuff best left well alone in that particular repository of faith). The solution is the removal of the religious exemption from the Church of England. It is, after all, part of the English State.

Posted by: Fr Andrew on Friday, 23 March 2018 at 6:10pm GMT

Here as so often, the law's an ass: by treating Jeremy differently in different dioceses, on the basis of nothing but a bishop's whim, the CoE acted in an arbitrary manner. Multiple judges accepted the legalistic justification at face value instead of substituting their own judgment.

I'm sure Jeremy's had enough of English courts and their pretended justice to last anyone a lifetime, but there may yet be scope for someone else to take a different course, and try and get the Equality Act exemptions struck down ... sorry, "disapplied" for failing to properly implement the relevant European directives.

Posted by: James Byron on Friday, 23 March 2018 at 7:45pm GMT

I'm no expert in employment law, to be sure. But I'm surprised there isn't a strong case against the NHS trust. It is they who have denied employment to this man - on grounds that surely amount to discrimination. There are enough other cases where actions have been held to be discriminatory due to indirect issues. Why isn't this case similar? The CoE may be exempt. The NHS isn't. Why sue the first instead of the second?

Posted by: Andrew on Friday, 23 March 2018 at 9:20pm GMT

There's an assumption in many comments that Parliament can remove the relevant exemption if it wants. I am not certain that is the case. Most equality legislation flows from various EU instruments. I think the exemption in this case was one of those.

There are separate exemptions which apply only to the Church of England, mostly in relation to conducting same sex marriage services and marriage of people who have undergone gender reassignment. Those could be removed fairly easily but I don't think that would impact this case at all.

Nor would a change in national policy prevent cases like this. A Diocese, or even parish, could, I think, still win a case like this even if national policy changed. All they need to show is that a significant number of believers do not believe in same sex marriage. Given worldwide numbers, that is a pretty low threshold.

Suggesting we look to Parliament to solve this is probably futile as well as ignoring the elephant in the room which is that parts of our church want to discriminate on sexual orientation and we let them.

If we don't want more cases like this, then we have to stop Dioceses from being allowed to discriminate because, otherwise, I don't think anything else works legally.

Posted by: Kate on Friday, 23 March 2018 at 10:14pm GMT

The CoE being a state church, the British Parliament can simply change her doctrine, as the Danish legislature changed the doctrine of the Folkekirken.

Alternatively, the exemption can be narrowed, as it originally was before the House of Lords amended it.

In the meantime, how every affirming member of a congregation refuses to donate a penny unless their church agrees to withhold their entire parish share until CoE policy changes? If, as we're constantly told, a majority of members believe in equality, this could force a change within months.

Posted by: James Byron on Friday, 23 March 2018 at 11:02pm GMT

"In the meantime, how every affirming member of a congregation refuses to donate a penny unless their church agrees to withhold their entire parish share until CoE policy changes? If, as we're constantly told, a majority of members believe in equality, this could force a change within months."

I believe this is the correct way forwards. The point has come, I think, that in donating to the Church as things stand we make ourselves complicit in the discrimination, especially now we have learned that the Church of England has spent 500k getting courts to uphold that discrimination.

We should aim for one simple piece of church legislation , "The Church of England and her ordained ministers shall not collectively or individually discriminate on the basis of sexual orientation or gender history." Until that is in place, I absolutely agree with a call to withhold all donations.

Posted by: Kate on Saturday, 24 March 2018 at 5:42am GMT

"If the Church of England goes on to approve same sex marriage and continues to reconstruct the Christian faith based on lifestyle choice and the cult of the individual as against the common good, surely it will have to construct another Saviour?"

As recently as 3 years ago I would have agreed with you, Jill but then I came to realise that the Savior described in the Bible wouldn't discriminate on grounds of sexual orientation or gender history. Moreover, the single biggest issue addressed by the Church in the years after Jesus's death was whether the new Grace applied to Gentiles too. If the Church can say yes to that, given the entire opposite focus of the Old Testament, no-discrimination must have been a foundational value.

For me, NT teaching without reference to the OT is very clear : we should not discriminate against any group and we should avoid marriage if possible. There is only a problem with same sex marriage because so many Christians want sex and marriage: if everyone lived a celibate life dedicated entirely to Jesus there would be NO doctrinal problems with ssm.

If Christians want sex and marriage then it is clear that God is willing to relent on that point but it is a special concession intended to make it easier for us to serve in other ways. As a special concession, I see nothing suggesting that God withholds that concession from any particular group, indeed I find it offensive if people suggest that God would discriminate in making a merciful concession.

So, I understand where you are coming from, but for many of us our reading of Scripture is very different to yours.

Posted by: Kate on Saturday, 24 March 2018 at 6:15am GMT

Kate, the teaching that Christians should avoid marriage comes from St. Paul's epistles, particularly 1 Corinthians 7. Epistles are letters, in this case written to answer specific questions (7:1) and advise how to live and behave in specific circumstances. In this section St. Paul makes it clear that the teaching is his own, not the Lord's.

When I taught an expository series on 1 Corinthians some years ago I reached the conclusion that if St. Paul were writing now he might advise differently. When writing to the Corinthian church he thought 'this world as we know it is passing away'. He also thought single people had fewer cares. This might have been true when unmarried people lived with members of their extended family, and in all probability had servants. The single person nowadays usually has to manage all the cares of running a house on their own, with only one skill set and no one to share the various tasks. It's tough especially on single parents.

I do wonder what St. Paul would say now about same sex marriage, given his teaching that it's better to marry than to be sexually tempted. HIs denunciation in Rom 2:1ff of the judgemental thinking of Rom. 1:26-32 (how the chapter break skews our reading of this!) might give us a hint.

Posted by: Janet Fife on Saturday, 24 March 2018 at 8:58am GMT

Janet, Matthew 19:10-11 is pretty clear but it is supported by others like Matthew 8:18—22 on making Jesus, not family, one's focus.

It is always unclear precisely what proto-Gospel Paul relied upon which makes the Epistles (even those securely attributed to Paul) difficult but 1 Corinthians 7 seems to repeat the Gospel teaching and add explanations: avoid marriage if possible but if that is too high a burden, then marriage is not a sin, essentially it is what Catholics call an indulgence. It is a distinct change from OT teaching, which pretty much made marriage a right,even an obligation.

Posted by: Kate on Saturday, 24 March 2018 at 10:36am GMT

*especially now we have learned that the Church of England has spent 500k getting courts to uphold that discrimination*

Next time the Church of England is pleading poverty, and next time it's criticising others for not being sufficiently charitable, this can be borne in mind. That half million could have paid for quite a lot of food banking. But instead, Welby thinks it's more important to fight legal cases in furtherance of the culture wars.

Posted by: Interested Observer on Saturday, 24 March 2018 at 2:44pm GMT

So, when are One Body One Faith, or their members and supporters in the General Synod, going to propose a Measure to change the Church of England's position?

Posted by: Steve on Monday, 26 March 2018 at 1:30am BST

Kate...'I think, that in donating to the Church....'
Well...first it's paying your own minister...and second, if you initiate a war with money then that's certainly not going to end well. I'm not convinced it will anyway but this is a sure fire catalyst for a buffer-stop experience.

Posted by: Ian H on Monday, 2 April 2018 at 10:24am BST
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