23 June 2011
The Church of England has today submitted its response to the
Government's consultation on Civil Partnerships in Religious
Premises.
A Church of England spokesman said: "Given the decision that
Parliament has already taken to amend the Civil Partnership Act
2004 in the Equality Act 2010, the response focuses on the need to
assure that the forthcoming regulations continue to provide
unfettered freedom for each religious tradition to resolve these
matters in accordance with its own convictions and its own internal
procedures of governance.
"That means that there needs to be an 'opting in' mechanism of
the kind that the Government has proposed. In the case of the
Church of England that would mean that its churches would not be
able to become approved premises for the registration of civil
partnerships until and unless the General Synod had first decided
as a matter of policy that that should be possible."
Notes
The full text of the submission that addresses the specific
questions raised by the consultation is set out below.
In March 2010, the then Bishop of Bradford, the Rt Revd David
James, speaking in the House of Lords, expressed concerns about the
proposals to allow the registration of civil partnerships in
religious buildings.
The text of his speech is available at:
http://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100302-0016.htm#1003037000129
The House of Bishops issued a pastoral statement on civil
partnerships on July 25th 2005 and this remains their
position. In the statement, the House said: "it would not be right
to produce an authorised public liturgy in connection with the
registering of civil partnerships. In addition, the House of
Bishops affirms that clergy of the Church of England should not
provide services of blessing for those who register a civil
partnership." (Section 17)
The statement is available at
http://www.churchofengland.org/media-centre/news/2005/07/pr5605.aspx
CIVIL PARTNERSHIPS ON RELIGIOUS PREMISES
Church of England Response to GEO Consultation
Document
The Archbishops' Council and the House of Bishops of the Church
of England are grateful for this opportunity to respond, on behalf
of the Church of England to the Consultation Document which the
Government issued on 31 March 2011.
The Civil Partnership Act 2004 was welcomed by some within the
Church of England for the way in which it addressed the injustices
that had previously affected persons of the same sex who wished to
share a common life. Others judged that it would have been better
to remedy those injustices without creating a legal framework with
so many similarities to marriage.
In July 2005 the House of Bishops issued a pastoral statement on
civil partnerships. It noted the Church of England's teaching that
'sexual relationships outside marriage, whether heterosexual or
between people of the same sex, are regarded as falling short of
God's purposes for human beings.' It also noted that the new
legislation made no change to the law of the land in relation to
marriage and that civil partnerships were not a form of
marriage.
The statement went on to say that 'people in a variety of
relationships will be eligible to register as civil partners, some
living consistently with the teaching of the Church, others not. In
these circumstances it would not be right to produce an authorised
liturgy in connection with the registering of civil partnerships.
In addition, the House of Bishops affirms that clergy of the Church
of England should not provide services of blessing for those who
register a civil partnership.'
The decision by Parliament in March 2010 to remove the
prohibition on the registration of civil partnerships in places of
worship was championed partly by a small number of religious
organisations that already offered services of blessing and wished
to go further by offering their premises for the registration
itself. It was also strongly supported by those gay and lesbian
people who wished for both the registration and the religious
service to be able to happen at the same location.
Speaking on behalf of the Church of England in the Report Stage
debate on 2 March 2010, the then Bishop of Bradford expressed
caution over the proposed change in the law, partly because of a
further perceived blurring in the distinction between civil
partnership and marriage, partly because churches and faiths
wishing to offer blessing after registrations could already do so
and partly because of a concern that what had been portrayed as
simply an option might over time become an expectation and even a
duty.
Clear assurances were, however, given in Parliament that the
arrangement would operate by way of opt-in. There was Church
of England support for amendments made at Third Reading to enable
the necessary regulations to be drafted to achieve that.
Against that background, the present objective, so far
as the Church of England is concerned, is to ensure that the
Regulations that the Government intends to make under the amended
provisions of the Civil Partnership Act continue to provide
unfettered freedom for each religious tradition to resolve these
matters in accordance with its own convictions and its own internal
procedures of governance. For most Christian denominations
as well as other faith groups the issues involved are set to remain
sensitive and, to varying degrees, contested.
We judge that the approach taken in the consultation paper
should be capable of delivering the opt-in approach that we
support, given the decision Parliament has already taken. The
points raised in the attached appendix are, therefore, essentially
of a technical kind. Given the complexity of the legal issues, not
least in relation to ecclesiastical law it will be particularly
important that there is an opportunity for our lawyers to study the
drafting of the regulations before they are laid before Parliament
since by then they will be unamendable.
William Fittall
Secretary General
General Synod and Archbishops' Council
Church of England
23 June 2011
Church of England comments on consultation document
questions APPENDIX
Q1: Requiring consent
- We support the GEO's proposals for an opt-in system of the type
described on page 21 of the consultation paper. We agree that
it should not be possible to make an application to the local
authority for religious premises to be approved for the
registration of civil partnerships without the prior consent of the
denomination or faith group concerned.
- We agree that a denomination/faith group should be able to
specify a person or body who is competent to give such consent and
that anyone applying for relevant religious premises to be approved
would have to provide evidence of that consent having been
given.
- We can see no case for framing the Regulations in a way that
made it necessary for the specified body of a faith group which had
not given a general consent to have to consider requests for its
consent to individual applications. Until and unless the specified
body has decided that opting-in to these arrangements would be
consistent with the convictions of that denomination's/faith the
question of individual applications ought not to arise.
- This is consistent with what we understand to be the meaning of
the fourth paragraph on page 21 namely that if a faith group's
specified body were simply to remain silent on the question of
consent then that would amount to its not having given its consent
and that therefore no application for its premises to be approved
could be successfully made. That is central to the concept of
opting-in.
Q2 and Q3: who will be required to give
consent?
5. We agree that
because governance structures in faith groups are complex and
varied, the Regulations should reflect that diversity.
6. In the case
of the Church of England the relevant national decision-making body
is the General Synod. The two Archbishops are its presidents, and
it comprises a House of Bishops whose membership includes all the
diocesan and some suffragan bishops, and Houses of Clergy and Laity
whose elected members represent, respectively, the clergy and laity
of each diocese. The statutory functions of the General Synod
include legislating in respect of matters concerning the Church of
England (under legislative powers devolved by Parliament) and
considering and expressing its opinion on other matters of
religious or public interest.
7. The
specified body for the Church of England should, therefore, be the
General Synod and it should be named for that purpose in the
Regulations.
Q4 and Q5: demonstrating consent in applications to the
local authority
8. We agree with
the principle that individual religious premises should be able to
apply to be authorised premises for the purpose of registration of
civil partnerships only once consent has been given by the
specified body or person for that organisation.
9. We agree that
an applicant should have to make a declaration that the application
was made with the consent of the specified person or body.
The local authority should be required to reject an application if
it was not satisfied that a required consent had in fact been
given.
10. We also agree that there
should be a period for public consultation on all applications
received by the local authority. This should, in particular, afford
an opportunity for objections to be raised in the event of an
application being made for the approval of religious premises that
did not have the requisite consent.
11. We note that the 2005
Regulations currently provide a right of review of a decision to
refuse approval. We assume that this right will be carried
over into the new Regulations. We would additionally like to
see a right for a nominated person or body of a religious
organisation to have a right to seek a review of a decision to
grant approval on the ground that a required consent had
not been obtained. In the absence of such a right of review,
the only mechanism that would be open to a religious body whose
premises had inadvertently been approved by a local authority
without that body having given its consent would be to challenge
the approval by way of judicial review proceedings. That
would clearly not be a satisfactory position.
Q6: Reversing a decision to give consent
12. We agree that a decision
by a denomination/ faith group to give consent should not be
irreversible. That is entirely consistent with the principle that a
faith group should be able to decide whether or not it wished to
participate in the registration of civil partnerships on its
premises.
13. On a point of detail the
suggestion that in such circumstances, the holder of an approval
would have only five working days to notify the local authority
that the faith group in question had withdrawn its consent may be
too severe. Whilst we agree that the responsibility for notifying
the local authority lies with the holder of the approval, a period
of 14 days, or perhaps a month would seem more realistic.
Q7 and Q.8: Buildings issues
14. We agree that it is
important to have clarity about which faith groups qualify as
religious organisations, what buildings constitute religious
premises and if so, who is authorised to give a general consent for
that building.
15. We agree with the
Government's proposed general approach of seeking to make use of
the existing system of certification as a place for meeting for
religious worship under the Places of Worship Registration Act 1855
in so far as that system is applicable.
16. But, as 3.14 states, the
1855 Act does not apply to the Church of England and the Church in
Wales since they are not required to register their places of
worship for the solemnization of marriages.
17. The question of how best
to define the category of buildings that should qualify as Church
of England "religious premises" for the purposes of the Regulations
does therefore require quite careful analysis and we have some
doubts whether the "belongs to" formula proposed in paragraph 3.15
will work best.
18. This is something best
explored in discussions between lawyers but the underlying point is
that buildings which are normally used for the religious purposes
of the Church of England vary considerably and include not only
parish churches and cathedrals but also the chapels of public and
charitable institutions and a significant range of other
buildings. None of these 'belong to' the Church of England in
the sense that there is a corporate body called 'the Church of
England' that owns them.
19. So, the application of a
definition that employs the expression 'belongs to … the Church of
England' (as suggested in paragraph 3.15 of the consultation paper)
is, therefore, far from straightforward. We think that in technical
bilateral discussions a suitable alternative drafting approach
could be identified.
20. We would also welcome
clarification on a question that arises from what is said in
paragraph 3.11 ff. As we understand what is said, it seems that it
is possible that there might be some premises that come within the
definition of "religious premises" in section 6A of the Civil
Partnership Act but which will not come within any of the three
categories set out in paragraph 3.15 - because, for example, the
owners of the premises have not registered them under the Places of
Worship Registration Act 1855. What would be the position in
respect of such premises? Would they simply be "religious
premises" that were incapable of being approved premises; or could
they apply to be approved as secular premises? We assume that
the latter possibility is not intended as it would undermine the
purpose of the Regulations in distinguishing the two types of
premises.
Q.9 and Q.10: Availability and public
access
21. Currently, in order to
be approved, a set of premises must be regularly available to the
public for the registration of civil partnerships and for the
conducting of civil marriage.
22. Now that places of
worship are for the first time to be able to host civil partnership
registrations the stated policy is that faith groups should have
discretion about who may seek to register civil partnerships on
their premises. As a matter of general principle, it seems to us
important that any religious body that has chosen to have premises
approved for the registration of civil partnerships should have the
ability to decide that only members of the religion in question
would be able to avail themselves of that facility. That
would be consistent with the principles described in paragraph
3.18.
23. Marriage and civil
partnerships attract certain rights, privileges and
responsibilities because of their public nature. We agree that the
registration of a civil partnership should, therefore, continue to
be in the nature of a public act and that the condition in the 2005
Regulations requiring public access during proceedings should apply
to civil partnership registrations on religious premises.
Q.11 and Q.12: Layout and general use
24. It would be very
difficult for places of worship to change their layouts to fit
similar requirements set out in the current Regulations for
approved premises. For example, some have only one building which
is multipurpose and contains eating facilities. In addition within
many faith traditions some consuming of food or drink would be a
normal part of a religious ceremony. It is difficult to see,
therefore, how the present rules in relation to secular approved
premises could be consistent with the policy intention lying behind
the relevant provision in the Equality Act.
Q.13: Religious symbols, iconography and
objects
25. It would also be
contrary to the policy intention underlying the provision as well
as objectionable in principle and impracticable if religious
premises were required to remove their religious symbols,
decorations and objects in place while civil partnerships were
registered. The proposal in the consultation document is,
therefore, sensible.
26. This does, however,
raise the theoretical possibility of pressure growing to change the
boundaries currently in place between civil and religious marriage.
As the law stands there are prohibitions on religious symbols etc
in the case of places where civil marriages are conducted (whether
they are conducted in a register office or on 'approved premises').
And a civil marriage without a religious ceremony is not possible
in a place of worship. We do not believe that the change proposed
in the consultation document provides a justification for removing
those prohibitions in relation to marriage ceremonies.
Q.14: Conduct of the ceremony
27. As the law currently
stands the prohibition on the use of any religious service applies
equally to the case of civil partnerships as to civil marriages
(whether they are conducted in a register office or on 'approved
premises').
28. That prohibition (which
is subject to detailed provision contained in subordinate
legislation) was imposed because of concerns raised both by the
Churches and by the General Register Office that civil registrars -
whose office is purely secular and who themselves might be the
adherents of any religion or none - should not have responsibility
for, or need to become involved in, religious services and related
matters.
29. There are therefore good
reasons for keeping the existing prohibition. Moreover, it
would, on the face of it, be anomalous to remove the prohibition on
the use of any religious service in relation to the registration of
civil partnerships but to retain it in relation to civil
marriage. Persons wishing to marry in a civil ceremony might
have some difficulty in understanding why same sex couples can have
a biblical reading in a ceremony conducted by a civil registrar,
for example, but not those wishing to be married.
30. It is sensible,
therefore, as the consultation documents envisages, that a
condition for couples to have a religious ceremony following the
registration where the religious body in question agrees should be
that the two elements are kept distinct.
Q.15 - 20: Approval of premises
Who can apply
31. As noted above, there
are some complex technical issues that arise in relation to Church
of England buildings about the identity of the 'owner'. The
consultation document's use of the concepts of 'trustee' or
'proprietor' are potentially problematic in relation to
ecclesiastical law and need further discussion with our
lawyers.
Fees
32. We agree that local
authorities will need to recover some of the costs of administering
the process of registration. Any fees should be proportionate to
the cost of applying to be a registered place of worship for the
purpose of solemnization of marriage.
Revoking approval
33. We agree that local
authorities should be able to revoke the approval of religious
premises that ceases to meet the conditions on which it was
granted.
Training and information
34. Para 3.27 and para 3.33
state that guidance for faith groups and individual ministers of
religion on the process and requirements for applying to become an
approved premises will be provided. We would be interested to know
how this will be done. It may be best, given the contentious nature
of this issue for very many denominations/ faith groups, if the
information were simply available on a website and sent when
requested to those who wish to offer this service once general
consent had been given.
Q 21: Other issues
The faculty jurisdiction
35. In English law, all
parish churches of the Church of England and a number of other
ecclesiastical buildings are subject to the jurisdiction of the
consistory court of the diocese. This aspect of the court's
jurisdiction is called "the faculty jurisdiction". It extends
to controlling not only the making of physical alterations to a
church building and to the introduction or removal of articles to
or from the building, but also the uses to which a church building
may lawfully be put with the consent of the bishop through his
chancellor.
36. Any non-sacred use of a
church building which is subject to the jurisdiction of the
consistory court (other than a use which is expressly authorised by
legislation) requires the authority of a formal permission - called
a 'faculty' - from the consistory court in order for that use to be
lawful.
37. The registration of
civil partnerships in a church building would, as a matter of law,
amount to a non-sacred use of that building. It would,
accordingly, require the authority of a faculty. The
regulations need therefore to be drafted in a way that leave no
doubt that that they are without prejudice to the jurisdiction of
the consistory court of the diocese.
Religious celebrants
38. The suggestion outlined
in para 3.24 to allow faith groups to have their own registrars to
conduct civil partnership registration would constitute a further
erosion of the essentially civil nature of civil partnerships and
their distinctiveness from marriage. The implications of this merit
further thought.
Q.22: Potential legal challenges
39. The exposition of the
legal positions in paragraph 3.35 is helpful and accords with our
own understanding that it would not be possible to bring a
successful discrimination claim on the basis of religious premises
- which were available for the solemnization of marriages - not
being available for the registration of civil partnerships. It
would be helpful if Ministers could read this analysis into the
Parliamentary record when the Regulations are eventually
debated.
Q.23 - Q.25: Impact assessment
40. The number of
individuals who might wish to register their civil partnership on
religious premises each year is unknowable. All of the figures
quoted in the document need therefore to be treated with a good
deal of caution.
41. The appendix quotes
figures for ministers of religion and, presumably because of the
ready availability of our table of fees, draws on some Church of
England figures in relation to clergy and weddings. For the record,
therefore, the cost figure used by the Church of England for the
new proposed method of calculating parochial fees for clergy is
£44,000 pa or £21.25 per hour. The time estimate is 7.5 hours (for
all the administration and pastoral work relating to an average
Church of England religious marriage). The value to the minister is
calculated at £36,500 pa or £17.65 (approx) per hour. This includes
estimates for all the non cash benefits of the clergy remuneration
'package'. The national average stipend for clergy is £22,570 pa or
£10.90 per hour.
Church of England
June 2011