LGCM Legal Note

Canon Derek Belcher on the revised opinion from Chancellor Behrens,
Re: Civil Partnerships

I am grateful that Dr. Behrens has corrected the misapprehension about his note for Anglican Mainstream. We now all agree that clergy entering a Civil Partnership will not be liable to discipline.

It was entirely my fault that LGCM published parts of an earlier draft of my opinion that had not taken account of the House of Lords ruling on the Aston Cantlow v Wallbank case in The House of Lords decision, reported at [2004] 1 AC 546, that reversed the Court of Appeal decision. I apologise to LGCM for not carefully checking the final document before publication.

We are in agreement of what is formal law, which does not contain Lambeth Conference Resolutions. I agree that where no formal law exists case law may establish a precedent. In this respect Long v. Bishop of Cape Town (1863) 1 Moo PCCNS 411 at 465; 15 ER 756 at 776 (per Lord Kingsdown) is an important case. Here the Privy Council decided that “the oath of canonical obedience does not mean that every clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop is by law authorised to impose”. On this basis a refusal to give information about a lawful Civil Partnership is not conduct unbecoming.

My final view agreed entirely with Chancellor Behrens that despite the judgement of the House of Lords, we have not seen the last of the Human Rights Act (and other legislation) and further tests by other courts are inevitable. Bishops may not yet take refuge in any hope that their immune status is decided.

On the matter of questioning clergy, I find the recent statements of the Bishop of Chichester http://www.diochi.org.uk/content/leaflet/civilpart051119.htm and that of the Bishop of Durham available here: http://www.sarmiento.plus.com/cofe/NTWcivilpartnershipsadclerum.html of particular interest. The degree of questioning allowed and who judges this to be “unreasonable” is obviously a matter the bishops must thoughtfully considered. While the Bishop of Chichester is obviously aware he could be skating on thin ice the Bishop of Durham appears to be about to don his blades and throw his not inconsiderable weight onto a barely frozen surface. I believe that others will decide on what their Lordships may lawfully ask and that they may find themselves unable to discriminate between the behaviour of those who enter a Civil Partnership and a Marriage.

The changes in law surrounding those in a Civil Partnerships giving them the same protection as those in Marriage will yet have consequences neither Chancellor Behrens nor I yet fully appreciate. I look forward to hearing more from him as matters develop.

I have underlined the changes in my note and have asked LGCM to publish my opinion as finally drafted.

Canon Derek Belcher
LGCM

Secretary of LGCM
The Reverend Richard Kirker

Chancellor James Behrens: Legal Note.

Revised Text

1. Introduction

1. You have asked me for my opinion on the advice given by James Behrens, Chancellor of the Dioceses of Leicester and of Bristol for Anglican Mainstream on the Disciplining of clergy living in same sex civil partnerships, published on 30^th June 2005. I have now revised my earlier text in relation to his response. I have underlined the changes in Chancellor Behrens revised opinion, which have been omitted from the published text.

2. Chancellor Behrens reaches his view from the main sources of (i) General Synod Resolutions (GS) 1987 ; ( ii) The Bishops’ statement on Issues in Human Sexuality 1991; (iii) the Lambeth Conference 1998 and Canon B16. Reference is also made to the Primates’ meeting 2005, the Anglican Consultative Council 2005; the legal concept of Privacy, Human Rights and the nature of Civil Partnerships and Marriage. If same sex civil partnerships involve sexual activity, it is seen as contrary to the two authoritative Church of England statements on the issue of homosexuality, of 1991 and General Synod resolution of 11 November 1987.

3. Chancellor Behrens argues that Disciplining of clergy in genitally active civil partnerships is lawful, and is not a breach of clergy rights under the European Convention of Human Rights, because such rights only cover ‘marriage’ and a civil partnership is not a marriage. Although he acknowledges that entering into such genitally active same sex civil partnerships is not contrary to statute law, he argues that it is contrary to the ecclesiastical law of the Church of England so that clergy who engage in such may be disciplined under Canon B16 and the Clergy Discipline Measure. I append his full revised statement to the end of this argument.

4. This note further considers the issues in detail in order that you are in a position to understand the canon law reasoning. My conclusions are summarised at section 4 below.

2. Points of difference with Chancellor Behrens

5. I agree that same sex civil partnerships are not marriages but differ from Chancellor Behrens in:

a) the status he gives to General Synod Resolutions used to support his argument.

b) the status he gives to the Resolution 1.10 of Lambeth Conference 1998.

c) the status he gives to statements of the House of Bishops on Issues in Human Sexuality1991.

d) the conclusions that he draws from the distinctive duties of the clergy.

e) the status he gives to the Primates’ meeting

f) the status he gives to the Anglican Consultative Council.

g) his conclusion that clergy can be disciplined for entering into a genitally active same sex civil partnership, by using Canon B16 and the Clergy Discipline Measure, Such disciplinary action requires an interrogative approach that goes against current sources of law in seeking proof.

h) his conclusion that there is no protection from the European Convention on Human Rights for those who enter into same sex civil partnerships.

6. Chancellor Behrens does not clarify the distinctions between all the issues at hand. Morally persuasive sources of law are given an authoritative status unwarranted by their legal status. The Resolution 1.10 of Lambeth also calls for a process of listening and thus discernment.
   

3. The Issues to be addressed

7. The status of Sources of Law: The statements of General Synod must be set within their context. They are a lower order of law than Measures, in that they express no more than an opinion of the Synod. Statements which are not part of the positive law of the Church of England only have a persuasive moral authority. Let us examine the sources quoted.

8. According to the Constitution of Synod, GS Resolution of 11 November 1987 has only the status of an opinion.¹ Such a Resolution is not positive law as in the case of a Measure or Canon.² It addresses matters of concern and is the mind³ of the Synod at that time. It is a view ‘held as probable’⁴.

9. Moreover Chancellor Behrens makes no mention of GS Resolution July 1997. This ‘opinion’ of Synod is important because it acknowledges that this was not the last word on homosexuality. Doctrine is not easily defined as evidenced by the broad approach of Canon A5 and the historical perspective on Doctrine given in GS 1554.⁵ Unlike GS Resolution of 11 November 1987 this ‘opinion’ involved separate voting by laity, clergy and bishops where there was unanimous support from the bishops. This ‘opinion’ therefore occupies greater status and therefore broadens the ‘opinion’ of GS Resolution 11 November 1987.⁶ Resolutions of Synod change and in this respect GS July 1997 clearly places ‘homosexuality’ in a process of discernment. It is not the last word.

10. Resolutions of Lambeth Conference have never been seen as positive law but only as having a persuasive moral influence and are not binding on any members of the Anglican Communion unless they so choose to be bound. This would require such resolutions to be formally taken into the law of a national church.

11. The status of episcopal statements is one of quasi legislation⁷ as they act as an ancient Synod as in Bland v Archdeacon of Cheltenham.⁸ However such statements are not law per se; rather their force is moral. Statements of the House of Bishops are not part of the formal law of the Church of England, and can only be seen as persuasive. This is not seen as a coherent source of jurisprudence.

12. Furthermore we do not know if there was any disagreement amongst bishops on Issues in Human Sexuality because their policy is to issue statements by consensus. The bishops’ views expressed in Issues in Human Sexuality 1991, still maintain a distinction between clergy and laity in relation to homosexual activity.⁹ The necessity of Repentance mentioned in the GS Resolution of 11November 1987, is not just something to be singled out for genitally active homosexuals and must be set within the possibility of a developing doctrine of sexuality for all.

13. GS Resolution of 11 November 1987 says nothing new about sexual morality. It is arguable that although clergy have distinctive duties to the laity that there should be a fairer approach to moral standards and discipline that is inclusive of the ordained and non- ordained.¹⁰ Nevertheless the present ecclesiastical law recognises a distinct class of clergy from the laity that have higher standards of behaviour. It is arguable that the laity should also be subject to the same standards.

14. In cases of trust law, as in re Allen, Faith v Allen and re Barnes, Simpson v Barnes, membership of the Church of England is defined as someone who is a baptised and confirmed communicant who conforms to the church’s discipline.¹¹ The 1662 Ordinal also stresses that the family of clergy should also be wholesome examples to others.¹² This is an argument for an equality of moral standards between laity and ordained. The sensitive approach given towards laity should also be applied to the clergy, in a process of discernment.

15. The Primates’ meeting has no authority other than a persuasive moral one. The Lambeth resolution 1.10 is liberally quoted with a call by the Primates Meeting for it to ‘command respect’.¹³ Lambeth statements have only a persuasive moral force; they are not even quasi law because they are not part of any recognised legal system. There is no legal concept of commanding respect where there is no legal system.

16. Higgins in The Moral limits of law (Oxford 2004)¹⁴ whilst recognising respect is based on respect for persons which is guided by conscience, starts from the premise that this is set within a legal system. A Communion legal system does not exist and so it is not helpful to use the phrase ‘command respect’ which can have no legal force unless taken into the law of each national church of the Communion.

17. If the recommendations of the Windsor Report on Core doctrine had been part of the discernment of Resolution 1.10 then there may not have been such a significant majority in favour of the resolution because this would have focused intentions and some who voted for a listening process to balance their first vote may have voted differently in relation to Resolution 1.10. Each Primate is accountable to his own national church, and I am unaware that any have canonical powers that give them an authority to make authoritatively binding statements.

18. Although the Anglican Consultative Council has been legally established as a charitable company with a formal constitution, it can exercise no legal authority over member churches of the Anglican Communion.¹⁵

19. Naturally I agree with the Chancellor Behrens’s opinion that same sex civil partnerships are not marriages. This was not the intention of the legislation. There is a presumption in law against civil partnerships being seen as a marriage and the presence of any sexual dimension.¹⁶ In the case of same sex civil partnerships there is no religious dimension and no declaration of consent or vows about love and faithfulness. The registration cannot take place on church premises. Therefore those clergy who enter into a same sex civil partnership that is a chaste relationship are not subject to any ecclesiastical discipline. They are not ‘living in sin’ or an ‘adulterous relationships’ and so do not come within the concern of Canon B16 or ‘conduct unbecoming’ of the provision of the Clergy Discipline Measure. There is no breach of duty. They would also not be in breach of Canon C18.¹⁷ There is a clear distinction to be made to those who enter into a chaste friendship expressed in a same sex civil partnership and those who enter into a sexually active one.

20. Here it is not the issue of marriage that is important, but the discernment of whether or not clergy enter into a sexually active same sex civil partnership. In Issues in Human Sexuality 1991 there is no provision for the place of conscience for the clergy – only the laity.¹⁸

21. I now consider whether a bishop is entitled to enquire into the life of a cleric. The oath of canonical obedience made at every licensing requires the cleric to obey his or her bishop in all things lawful and honest. It would be reasonable for a bishop to enquire into the consistency of the personal relationships of a cleric with the definitive teaching of the church. A cleric should always be honest and never seek to mislead their bishop in the face of a justifiable enquiry. This is a matter not just for same sex civil partnerships. However, the recent episcopal statement on civil partnerships,¹⁹ contradicts their previous view in Issues in Human Sexuality 1991²⁰ by now saying that a bishop can invade a cleric’s privacy by asking if he or she is in a sexually active homosexual relationship. Episcopal commands must be lawful to require obedience. In Long v Bishop of Capetown (1863) 1 Moo PCCNS 411 at 465; 15 ER 756 at 776 (per Lord Kingsdown), the Privy Council decided that the cleric only had to “obey all such commands as the Bishop is by law authorized to impose.”²¹ Here Professor Doe states that “clerics are obliged to obey only those episcopal directions authorized by and not contrary to law.” In relation to “honesty,” The Provincial court of the Church in Wales Re Petition Against Revd Clifford Williams (1997) saw this as referring “to the constraints of natural justice.”²² I would therefore consider a cleric whose bishop asked whether his partnership would be consummated, perfectly entitled to politely tell his bishop that this was not his concern, without the response itself becoming ‘conduct unbecoming. In relation to the Human Rights Act 1998 the Church of England occupies a unique position in that it is considered a ‘public authority.’²³ Although the House of Lords did not uphold the Court of Appeal in Aston Cantlow, at least as far as a PCC is concerned, the wider applications of the reasoning of this judgement are yet to be tested in court. Even if a PCC is not a public authority a Bishop’s powers are derived from the Queen’s ecclesiastical law and so both he and his Disciplinary Tribunal are public authorities. Bishops are appointed by the crown under letters missive or patent.²⁴ As such they act as representatives of a public authority and are subject to the Human Rights Act 1998 on matters of invasion of privacy.²⁵ Boundaries are set as to the invasion of a cleric’s privacy. It is impossible to obtain proof of homosexual genital activity without an invasion of privacy. Other forms of affection are permissible unless they constitute ‘conduct unbecoming’ which is a difficult concept to define.

4. Conclusion

22. There can be no assumption that civil partnerships are sexually active. They are not marriages, either theologically or legally. Any episcopal request for a cleric to divulge private information about their personal life, without just cause, is unwarranted and unsustainable in law.

23. A cleric cannot be disciplined for entering into civil partnerships or for refusing to divulge to his or her bishop any private information that affects his or her human rights. Synodical opinions are of a low order of law where both Lambeth Conference Resolutions and statements of both bishops and primates only have persuasive moral force. They do not command respect and observance as in the case of Measures Canons and Orders.

24. I am not aware of any compelling argument for the disciplining of a cleric who enters into a civil partnership which is not genitally active.

25. In view of the points that I have raised, I do not think a Diocesan Bishop would be able to successfully make a legal case against one of his clergy simply for entering into a civil partnership. Ultimately the courts are the final arbiters.

26. The Judgement concerning Aston Cantlow was about PCC’s and does not argue against Bishops or their Disciplinary Tribunals as public authorities. I do not therefore consider that Bishops can be safe from immunity if they prosecute an unjustifiable case against one of their clerics.

The Reverend Canon Derek G Belcher LLM

1 Synodical Measure 1969 Schedule 2 article 6 and 7

APPENDIX

A Further Opinion regarding Civil Partnerships

Dr James Behrens, barrister

1.This further opinion is a response to a paper by Canon Belcher for the LGCM which comments on my written opinion of 30 June 2005 published by Anglican Mainstream.

2.Canon Belcher and I are not as far apart as may be thought. Some people have read my written opinion as saying that the mere fact of entering into a civil partnership is a matter for ecclesiastical discipline. That was not my intention, and it is not my opinion. I am sorry that confusion has been caused. I make it clear now that it is active homosexual practice which is a matter for ecclesiastical discipline, rather than the fact of civil partnership itself. If the relationship between the parties to a civil partnership is chaste, the matter is not one for ecclesiastical discipline.

3.I annex to this note a slightly revised text for my written opinion which, I hope, makes my position clear. I have underlined the differences from the original version for ease of reference.

4.I agree with Canon Belcher that the resolutions of General Synod, the statement of the House of Bishops, and the resolution of the Lambeth Conference are none of them formal law. But a matter does not have to be formal law to be a matter for ecclesiastical discipline. There is no formal law that a priest shall not get drunk,¹ yet Bishop of Rochester v Harris [1893] P 137 makes it clear that habitual or frequent drunkenness is an ecclesiastical offence. There is no formal law that a married priest shall not make sexual advances to an unmarried woman. And yet this was the charge made against the Very Revd Dr Brandon Jackson, Dean of Lincoln, in 1995.² Habitual or frequent drunkenness or the charges made against Dr Jackson, if they had been proved at trial, would have amounted to ‘conduct unbecoming’. In the same way, there is no formal law to prohibit clergy from engaging in homosexual activity; but this fact does not prevent such conduct being charged as ‘conduct unbecoming’.

5.Canon Belcher argues that a bishop is not entitled to enquire into the life of a cleric. He does so in reliance on the Human Rights Act 1998, and by reference to the decision in Aston Cantlow v Wallbank. With the greatest respect, Canon Belcher makes a serious mistake in paragraph 22 of his paper. He says the Church of England is considered a ‘public authority’ in relation to the Human Rights Act. He refers (in footnote 20) to the Court of Appeal decision reported at [2001] 3 WLR 1323. He says ‘The PCC was considered a public authority. The decision was upheld by the House of Lords.’ The House of Lords decision, reported at [2004] 1 AC 546, in fact reversed the Court of Appeal decision. The House of Lords held unanimously that a PCC was not a public authority, and its action in enforcing its rights under the Chancel Repairs Act 1932 was not liable to challenge on human rights grounds. To quote Lord Nicholls of Birkenhead:

‘Historically the Church of England has discharged an important and influential role in the life of this country. As the established church it still has special links with central government. But the Church of England remains essentially a religious organisation. This is so even though some of the emanations of the church discharge functions which may qualify as governmental. Church schools and the conduct of marriage services are two instances. The legislative powers of the General Synod of the Church of England are another. This should not be regarded as infecting the Church of England as a whole, or its emanations in general, with the character of a governmental organisation.’

6.As Benjamin Franklin said, in the world nothing can be said to be certain except death and taxes. No barrister with any experience would advise that any case is certain, especially if the Human Rights Act is involved. That said, it is my opinion that bishops may lawfully enquire whether or not their clergy are engaging in homosexual activity; and clergy who are asked such a question must give a direct and honest answer. A refusal to answer the bishop’s question could itself be grounds for alleging misconduct under the Clergy Discipline Measure.

James Behrens
Lincoln’s Inn
1 August 2006

Discipline of clergy living in civil partnership

(Revised Text)

The Church cannot prevent two clergy entering into a civil partnership. If the clergy do so, it is a valid civil partnership in terms of the law of the land. However there is no reason why a church should not discipline its clergy who do this if the relationship involves sexual activity. Active homosexual practice is contrary to the two authoritative Church of England statements on the issue of homosexuality, namely the 1987 General Synod resolution of 11 November 1987, and the House of Bishops Statement of 1991 'Issues in Human Sexuality'. It is also contrary to Resolution 1.10 of the Lambeth Conference 1998, which is the official teaching of the Anglican Communion on the subject, and which has been recently reaffirmed by the Primates at their meeting in Ireland in February 2005 and by the Anglican Consultative Council at its meeting in Nottingham in June 2005.

The 1987 General Synod resolution calls on persons in active homosexual relationships to repent. The House of Bishops Statement says that because of 'the distinctive nature of their calling, status and consecration' the clergy 'cannot claim the liberty to enter into sexually active homophile relationships'. Lambeth Resolution 1.10 rejects homosexual practice as incompatible with Scripture.

To discipline a member of the clergy in these circumstances is not a breach of the clergy's rights under the European Convention of Human Rights - because that specifically refers to the right to 'marry', and it is clear that a civil partnership is not marriage.

Canon B16 allows a parish priest to refuse Holy Communion to persons in 'grave and open sin without repentance' if the diocesan bishop has given permission. As a temporary measure the parish priest can refuse communion where there is 'grave and immediate scandal to the congregation' - but he must within 7 days tell the bishop, and obey his direction regarding the matter. This canon is most frequently used to exclude from communion persons, using the old phrase, ‘living in sin’, or who are in an adulterous relationship. Persons living in an open homosexual relationship could likewise be excluded from communion where the relationship is scandalous to the congregation.

Of course a bishop could exercise more serious discipline against clergy who enter into a civil partnership involving sexual activity. Such a partnership is clearly contrary to the official position of the Church of England as set out above. It is therefore ‘conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders’ under the Clergy Discipline Measure.