Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

21.Memorandum from Norman Doe, Mark Hill, Frank Cranmer, Javier Oliva and Christiana Cianitto[184]of The Centre for Law and Religion, of the Cardiff Law School

I. OVERVIEW

The following is an outline of personal ideas of individual members of the Centre.

The absence from the HRA 1998 of a systematic definition of "public authority", and the variety of judicial tests which have emerged to determine what constitutes a public authority, would seem to combine to represent real uncertainty as to the applicability of human rights to those bodies and offices within the churches studied:

The Church of England (Hill)

— The church as a whole lacks juridical personality, but bodies and offices within it must be examined to determine whether they are public authorities—the basic function of the church is spiritual and private, not public.

— The HRA seems to provide a circular definition of "public authority", as compared with the clarity of definition applicable to "victims".

— If the establishment of the church is determinative of public authority status, this may result in discrimination between this and other religious organisations.

— However, some bodies within the church may be hybrid bodies.

The Church in Wales (Doe)

— The church is generally understood to be disestablished; a consensual society founded on voluntary association and is therefore basically a private institution.

— Whether bodies or offices within it are public authorities depends on which of the variety of judicial tests is applied to the body (and its functions) in question.

— It is possible to identify church bodies as having some public functions, such as:

the Representative Body with regard to burials;

the administration by the church of the faculty jurisdiction under the ecclesiastical

exemption;

parish clergy with regard to marriage; and

the work of chaplains in prisons.

The Church of Scotland (Cranmer)

— The church, being a national church, must have at least some of the characteristics of a public authority rather than a private institution.

— The courts of the church may be understood as having the status of public fora, even though the Court of Session is extremely reluctant to review their decisions.

— The courts of the church may be subject to the ECHR for the purposes of disciplinary proceedings which must be effected by an independent and impartial tribunal—and recent changes in disciplinary procedures would appear to be a response to that situation.

Other States of the European Union (Oliva and Cianitto)

— Spain: the law does not classify churches as public or private, but commentators consider some Roman Catholic Church bodies may be public in nature.

— Italy: while religious organisations generally are private bodies, citizens are entitled to proceed before state courts if human rights are violated by a religious organisation.

— France: religious organisations are private bodies.

II. THE CHURCH OF ENGLAND

As to the Church of England, whether it (or any of its component organs) constitute a public authority for the purposes of section 6 of the Human Rights Act 1998, certain conceptual and practical matters need to be addressed which are not necessarily engaged in the case of other churches or faith communities. Indeed certain of them already have been engaged in the recent case of The Parochial Church Council of Aston Cantlow and Wilmcote with Billesley v Wallbank. The case has a long, and as yet unresolved, litigious history having been decided by Ferris J on 28 March 2000[185] and by the Court of Appeal on 17 May 2001. [186]Leave to appeal was granted by an appeal committee of the House of Lords on 11 February 2002[187] and the matter was heard by the Judicial Committee of the House of Lords[188] on 3-5 March 2003 and, at the time of preparing this paper, speeches are yet to be delivered. The nature of both "pure" and "hybrid" public authorities was a key element in this appeal and it is anticipated that the Joint Committee will wish to have regard to the judgment in this matter, not least in relation to any gloss which may be put on the Court of Appeal's decision or reasoning in R (Heather) v Leonard Cheshire Foundation. [189]Judgment was delivered on 26 June 2003. [190]

There would appear to be three essential factors which the Joint Committee needs to consider in conducting its enquiry into the meaning of "public authority", with reference to churches and faith communities in the United Kingdom:

(i) Churches in general and the Church of England in particular tend to lack juridic personality. Composite elements of the church—bishops, dioceses, church councils etc—have legal personality as corporations sole or otherwise. Thus, an examination of "public authority" must focus on the component part and not on the whole.

(ii) There is an apparent absence of synchronicity between the provisions of section 6(3)(b) of the Human Rights Act 1998 which provides a slightly circular definition of "public authority", and section 7(7) of the Act which defines "victim" with specificity by reference to Article 34 of the European Convention on Human Rights.

Aston Cantlow

Juridic personality

With most secular organisations, it is comparatively easy to discern the legal personality which is performing any given function whether directly or through delegation. With churches this is less easy. Authority is dispersed. Those to whom legal duties are given include incumbents (by virtue of having a cure of souls of a parish), bishops (who have both a disciplinary and a pastoral role) and synods and parochial church councils. It was the latter body which is the subject matter of the Aston Cantlow appeal.

The error of the Court of Appeal in Aston Cantlow (which seems to mirror the approach of the Court of Appeal in Leonard Cheshire) is to adopt a test of status rather that of function. In Aston Cantlow, the court focused on the established nature of the Church of England and the fact that the parochial church council exercised powers and discharged duties specified in a measure, [191]having the same status as an Act of Parliament. [192]However, what was given insufficient weight was that the functions of a parochial church council are essentially spiritual and grounded in the better mission of the Church of England at the local level. Although operating under statute (as opposed to mutual contract as is the case with many other churches) the function of the Church of England is sacred and private and not public, in the governmental sense. A parochial church council's "general functions" are set out in section 2 of the 1956 Measure. All these functions are essentially private, pastoral and spiritual, and include "co-operation with the minister in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical".[193]

Public authority and victim: mutuality of status

It has been suggested that the identification of the church with the state through establishment may lead to its institutions being treated as public authorities under the Human Rights Act. If the established church is held to be a governmental organisation it appears that it may be debarred from complaining as a victim under Article 34 of the Convention and consequently, as a matter of domestic law, under section 7 of the Human Rights Act. [194]

It is necessary to distinguish between a governmental organisation against which a victim may bring a claim under the human rights act being a "public authority" and a religious organisation which is essentially private in its nature: see generally Holy Monasteries v Greece. [195]The Greek Orthodox Church has strong links with the state akin to establishment. The historical links in Greece between the Orthodox Church and its institutions are reflected in the 1975 constitution and in legislation. The church and its institutions were treated in Greek law as public law entities ascribed with legal personality, and some of their decisions were open to review by the Administrative Court. However, the European Court of Human Rights did not regard the legal classification of the monasteries as public law entities as decisive. The crucial factor was that the objectives of the monasteries were not analogous to those of governmental organizations, and they were regarded as non-governmental organisations.

Discrimination

The 1998 Act gives little guidance as to which bodies are "core" public. [196]Grosz, Beatson and Duffy, Human Rights (quoting the Home Secretary) refer to a category of "obvious" public authorities.

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There would appear to be few (if any) "other bodies", since those listed are the principal bodies all of whose functions are public ones, and through which the State exercises power and controls the affairs of citizens, and for which it might expect to be held to account at Strasbourg. Dawn Oliver suggests a test of:

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Most "core" public authorities derive their powers from statute. However, some of the other principal churches in the UK are governed by specific statutes: see by way of example the Baptist and Congregational Trusts Act 1951, the United Reformed Church Act 1972, and the Welsh Church Act 1914, but are plainly not public authorities. Oliver ventures, "that it would be wrong to use establishment by statute as a test rather than a possible indicator of the publicness of an institution for the purposes of the Act".[199]

The mere fact that the Church of England is the established church cannot be enough to make a Parochial Church Council a "core" public authority since, were this so, it might be argued that every priest, office holder, committee or ad hoc group within the Church of England might be likewise classified. Unlike other public authorities, it receives no public funding and is charitable in nature, in which respects it is in no different a position from private individuals or non-established churches. The spiritual nature and functions of the PCC negate any suggestion that it is a public authority. See R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann. [200]

There is a legitimate argument, however, that organs of the Church of England may be "hybrid" public authorities if certain (ie more than one) of their functions are functions of a public nature. [201]The dividing line between "hybrid" public authorities and bodies which are not public authorities at all is a fine one: contrast Poplar Housing Association v Donoghue[202] with R (Heather) v Leonard Cheshire Foundation.

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See also the tests of whether the body "performs public functions in the sense that he is regulating a field of public life and but for his offices the government would impose a statutory regime": ex parte Wachmann, [204]and whether the body is "standing in the shoes of [a "core" public authority]": R (Heather) v Leonard Cheshire Foundation. [205]Adopting the EC law approach expounded in A Foster v British Gas plc, [206]a relevant test is also whether a body was "made responsible, pursuant to a measure adopted by the state for providing a public service", whether the service it provided was at the material time "under the control of the state", and whether it possessed or exercised any "special powers". There are occasions when church representatives (not only of the Church of England) stand in place of the state in the exercise of public functions (such as marriage and education), and will accordingly constitute "hybrid" public authorities. However, contrary to the conclusions of the Court of Appeal in Aston Cantlow, none of the activities of a Parochial Church Council are "functions of a public nature".[207]

The Court of Appeal in Aston Cantlow asserted that the phrase "public authority" is "perfectly intelligible", although "its application [is not] always obvious or easy".[208] Commentators have suggested that this is not the case: "It is by no means clear what are the criteria for determining whether a particular body is a "public authority" or whether a function is a "public function".[209] The following extracts from Hansard provide helpful guidance:

20 May 1998—House of Commons Committee: Mr Straw (HC Deb 1017)

decisions of parochial church councils about the running of the parish church

In such matters Churches will not be public authorities; the requirement to comply with convention rights will not bite on them. We do not believe that, for example, the Church of England, the Church of Scotland, or the Roman Catholic Church, as bodies, would be public authorities under the Bill. I was asked to clarify that by many people, not least the Cardinal Archbishop.

On the occasions when Churches stand in place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools. In both areas the Churches are engaged, through the actions of the minister or of the governing body of a school, in an activity which is also carried out by the State, and which, if the Churches were not engaged in it, would be carried out directly by the State.

We think it right in principle—there was no real argument about it on Second Reading—that people should be able to raise convention points in respect of the actions of the Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities, however rarely such occasions may arise.

Sir Brian Mawhinney: [quoting from a letter written to him by the Home Secretary, 15 May 1998] (1031)

"Most of the things that churches do are, in the legal context and in the context of the European Convention on Human Rights, essentially private in nature, and would not be affected by the Bill. Where the churches stand in place of the State, however, we think it is right in principle that people should be able to raise Convention points in respect of their actions on the same basis as they will be able to do in respect of the actions of other "public authorities"—however rarely the occasion may arise."

17 June 1998 House of Commons Committee: Mr Straw

(433) I wanted to avoid vexatious litigation against the Churches, which is why I was persuaded to provide them with additional protection in the Bill.

(433) Overall the difference between some Opposition Members and other hon Members on both sides of the Committee is whether we seek to define a public authority and a public function by reference to the substance and nature of the Act, or to the form and legal personality of the institution. As we are dealing with public functions and with an evolving situation we believe that the test must relate to the substance and nature of the act, not to the form and legal personality.

21 October 1998—House of Commons 3rd Reading— Mr Straw

(1341) Churches will be subject to the Act only when standing in the stead of the State and exercising functions of a public nature.

The Hansard materials confirm that it was not the government's intention that Parochial Church Councils should be "core" public authorities, and that the Court of Appeal was wrong to determine otherwise. It also follows that religious organizations were not intended to be treated as public authorities save when "standing in the shoes" of the State. To that extent ratio of the Leonard Cheshire Foundation decision is correct. The mere fact that the Church of England is "established" is no justification for it being treated differently from other faith communities since that is to confuse its function (which is identical to that of other churches) with its structure and the source of its powers (which differ from those of other churches due to historical accident). The Government will find itself answerable at Strasbourg for discriminating between the Church of England and other churches with regard to their enjoyment of their Convention rights, particularly freedom of religion. This would be particularly unfortunate in the light of section 13 of the Human Rights Act 1998 which requires the domestic courts to give particular regard to the importance of the exercise of such right by religious organisations.

III. THE CHURCH IN WALES

The following outlines the legal position of the Church in Wales, tests in civil law to determine whether a body may be classified as a public authority or as one which exercises public functions, and the applicability of these tests to a selection of the institutions and activities of the Church in Wales.

Status of the Church in Wales in Civil Law

The Church in Wales has been classified, for the purposes of civil law, [210]as, variously:

Consequently, as a general principle, "the Church in Wales is a body whose legal authority arises from consensual submission to its jurisdiction": the church has "no statutory (de facto or de iure) governmental function"; it is "analogous to other religious bodies which are not established as part of the State." [219]

Public Authorities in Civil Law: the tests

Whether institutions or offices within the Church in Wales may be classified as public authorities, for the purposes of the Human Rights Act 1998, depends on the applicability of the various tests employed by the courts of the State, or suggested in the legislative process resulting in the enactment of the 1998 statute. Such tests, broadly based on a range of ideas from status to activity, are as follows:

(1) The Governmental Interest Test

For a decision of a non-governmental body to be properly regarded as an exercise of a public function, there must be a potentially governmental interest in the decision-making power. [220]

(2) The Alternative to Statutory Control Test:

A body may exercise a public function if, as part of its self-regulatory system, that body exercises control over an activity that might otherwise be subject to statutory control. [221]

(3) The Abdication Test:

The functions of a body may be public functions if Parliament would seek to exercise those functions in the event that the body in question abdicated its control over its functions. [222]

(4) The Statutory Powers Source Test:

If the existence of a body and the manner in which it provides a service are derived from the exercise of a statutory power, this may indicate subjection to public law jurisdiction. [223]However, even the exercise of a statutory power may involve the performance of a private and not a public law function: the mere fact that a body is exercising a statutory power is not in itself enough to render its decision a public law matter. [224]A body, even one with a private organisation, may be regarded as exercising public functions if the source of its authority is a statutory power. [225]If the source of a power is contractual, it is likely that the body is not a public authority. [226]

(5) The Enmeshment/Integration and Control Test:

A private organisation may be regarded as having public functions when its structures and work are inextricably enmeshed with the delegating State body. [227]Control over a body by a standard public authority could mark off that body as a public authority. [228]If a private self-regulatory body is integrated into a system of statutory regulation it may be subject to public law jurisdiction, certainly in relation to its public functions. [229]

(6) The Public Activity Test:

Generally, a body performing a public duty is amenable to judicial review. [230]However, the fact that a body performs an activity which otherwise a public body would be under a duty to perform does not mean that such performance was necessarily a public function. [231]

(7) The Hybrid Body or Mixture Test:

A body which has functions of both a public and a private nature, though not a standard public authority, may be classified as a functional, or hybrid, public authority, but not in relation to its acts of a private nature. [232]Bodies with a mix of public and private functions, performing public functions as a result (eg) of privatisation or contracting out, may be public authorities for those tasks: "The courts will consider the nature of a body and the activity in question." [233]

(8) The Obvious Public Authority Test:

If all the functions of a body are public, then that body will represent an obvious public authority (eg government departments, local authorities and the police). [234]

(9) The Coercion Test:

If a body has special authority, in the sense of coercive powers over the civil rights of individuals, it may be classified as a public authority. [235]

(10) The Exemption Test:

If a body enjoys immunities or exemptions from the ordinary law it may have the status of a public authority. [236]

(11) The Public Accountability Test:

If a body is democratically accountable to authorities, consisting of elected representatives, whereby the public interest is promoted, this may be a strong indicator of publicness. [237]

(12) The Public Interest or Benefit Test:

If a body does not regard itself as promoting a self-serving interest, but rather promotes the pursuit of public benefit, and public utility is a consequence of the exercise of its functions, then it may be regarded as a public authority. [238]

Classification of Church Entities as Public Authorities

The following seeks by way of preliminary study to identify which, if any, institutions or persons within the Church in Wales may be classified as public authorities, or as "any person certain of whose functions are functions of a public nature," [239]for the purposes of the Human Rights Act 1998, and the applicability of convention rights to those ecclesiastical institutions, persons and activities.

(1) The Representative Body of the Church in Wales:

The Welsh Church Act 1914 provides that the bishops, clergy and laity of the Church in Wales may appoint persons to represent them and "hold property for any of their uses and purposes," and that the Crown by charter may incorporate such persons as a Representative Body. [240]Incorporated by royal charter at disestablishment, the Representative Body is a charitable trust corporation and holds title to churches, parsonages and other forms of property for the uses and purposes of the bishops, clergy and laity of the Church in Wales. [241]All property vested in it is held by the Representative Body on trust "subject to its statutory authority, powers and duties under the order and control of the Governing Body." [242]The source of the authority of the Representative Body is that of public law. [243]Whilst the Representative Body holds property for the members of the church (which seem to suggest it does not hold property for the public), its charitable status indicates that the body satisfies the test of public benefit. Moreover, some of the functions of the Representative Body, such as in relation to burial grounds (see below), would seem to satisfy the statutory control, the enmeshment and the public interest tests.

(2) The Governing Body:

Whilst it was established in pursuance of a freedom recognised by the Welsh Church Act 1914, [244]the Governing Body of the Church in Wales, the central legislature of the church, [245]has been understood judicially to be an institution of private law. [246]The domestic law of the church, created by or under the authority of the Governing Body, generally binds only the members of the Church in Wales, [247]yet church legislation concerning property may, according to parliamentary statute, be enforced in the courts of the State. [248]However, at the same time, it would seem that the Governing Body is under a public law duty to comply with the constitution of the Church in Wales in its enactment of legislation. [249]Also, in civil law, the Governing Body is the appropriate statutory authority for the purposes of the provision of consent regarding the making of church sharing agreements. [250]Moreover, elements of the law of the Church in Wales are designed to confer rights, beyond the membership of the church, on members of the public who reside in its parishes. [251]Whilst it is certainly not a standard public authority, the Governing Body may for some purposes be loosely classified as a hybrid body in so far as some of its decisions have status in public law. [252]

(3) Marriage in the Parish Church:

The law of the State provides that nothing in the Welsh Church Act 1914 or the Welsh Church (Temporalities) Act 1919 affects "the law with respect to marriages in Wales and Monmouthshire," or "the right of bishops of the Church in Wales to license churches for the solemnization of marriages." [253]As a result, the pre-1920 ecclesiastical law on marriage continues to apply to the Church in Wales as the law of the land, [254]as does the current general marriage law of the State.[255] The right of a parishioner to marry in a parish church of the Church in Wales, and the clerical duty to solemnise such marriages, is one of public law.[256] In exercise of this public function, it would seem that a cleric of the Church in Wales is forbidden to act in a way which is incompatible with Convention rights. [257]Also, the authority of a Welsh bishop to issue a common licence, to authorise the solemnization of a marriage otherwise than by publication of banns, is derived from and regulated by public law; [258]that such is a public function may be determined by the exemption and coercion tests.

(4) Burial and Burial Grounds:

The right of parishioners to burial in the parish burial ground is understood to be a vestige of establishment and, as such, a right operative under the law of the land. [259]The Welsh Church (Burial Grounds) Act 1945 provides for the transfer and maintenance of churchyards to the Representative Body which may make rules relating to burial (as to notice, fees and services)—to be operative such rules must be submitted to and have been approved by the National Assembly for Wales.[260] Except so far as rights are preserved by the Welsh Church (Burial Grounds) Act 1945, no discrimination may be made between the burial of a member of the Church in Wales and that of other persons in any burial ground vested in the Representative Body of the Church in Wales.[261] The application of a number of public authority tests (including those relating to governmental interest, statutory powers, enmeshment, public activity and benefit) would suggest that such arrangements in relation to burial and burial grounds involve public functions and interests.

(5) Prisons and Prison Chaplains:

A further vestige of establishment is the statutory rule that in Wales prison chaplains must be clergy of the Church in Wales.[262] The functions of the chaplain are prescribed by the law of the State, and these include duties not only to members of the Church in Wales but also to all prisoners. [263]It is clearly arguable, therefore, that prison chaplains of the Church in Wales are public authorities exercising public functions; religion, here, enters the public domain directly.

(6) The Tribunal and Courts of the Church in Wales:

The Welsh Church Act 1914 recognises for the Church in Wales a right to establish its own system of courts, but these are forbidden to exercise coercive jurisdiction.[264] It has been held, in civil law, that in disciplinary cases, the authority of the courts of the Church in Wales, as a voluntary association, is based on consensual submission to their jurisdiction; they are private bodies and not susceptible to judicial review.[265] However, with respect to property matters, it is arguable that the faculty jurisdiction of the Diocesan Court is subject to the supervisory jurisdiction of the secular courts by way of judicial review.[266]

(7) The Ecclesiastical Exemption:

The ecclesiastical exemption applies to buildings of the Church in Wales vested in the Representative Body. [267]The domestic law of the Church in Wales contains a very elaborate system for the care and maintenance of the heritage represented in its historical and other places of worship, including its cathedrals, churches and churchyards. It is possible to see the considerable number of institutions and persons within the Church in Wales involved in the administration of the faculty jurisdiction, and other schemes related to the care and maintenance of buildings and sites, as bodies or persons whose functions are to be exercised for the public benefit.[268] The abdication test would suggest that such arrangements may be regarded as involving public functions; it is not unlikely that if the Church in Wales failed to have in place such a system, it would cease to enjoy the ecclesiastical exemption, a function which would then be assumed directly by the State.

(8) Disability Discrimination:

The Church in Wales is not exempt from the provisions of the Disability Discrimination Act 1995, and a disability strategy for the Church in Wales, which contains a statement of policy, has recently been recommended for adoption by the Governing Body.[269] The implementation of this policy, itself a form of compliance with public law, may be seen as a function having direct consequences for any member of the public who attends public worship. [270]

(9) Church Schools:

It is possible that a school of the Church in Wales is a public authority for the purposes of the Human Rights Act 1998: whilst church schools maintain a distinctive religious ethos under the terms of their trusts deeds, they are underpinned by "a specific statutory regime designed to secure their special position outside local education authority control but within the State framework for most purposes".[271]

(10) Child Protection:

The voluntary child protection system of the Church in Wales provides for close cooperation between the church's child protection authorities and statutory bodies (health, social services, and the police). [272]However, autonomy is maintained by the church authorities: decision-making on child protection within the church is independent and voluntary. Nevertheless, the intention behind the church's child protection system is that of public benefit; and the implementation of the scheme is designed to effect public consequences. Moreover, the provisions of the system dealing with police checks in relation to clergy and others who have contact with children in the church may involve an element of cooperation with public authorities, though short of enmeshment. [273]

IV. THE CHURCH OF SCOTLAND

1. The courts of the Kirk

The Church of Scotland is "a national Church representative of the Christian Faith of the Scottish people".[274] It is governed by a hierarchical system of courts: a Kirk session in each parish, area presbyteries and, over all, the General Assembly. The duties of the various courts have traditionally been in part administrative and in part judicial.

Kirk session consists of the parish minister as permanent moderator together with the elders (who, it should be remembered, are ordained). Parish property and finances are overseen by a congregational board subsidiary to Kirk session itself. [275]Kirk session is enjoined

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Individual members of the congregation are answerable to Kirk session for their manner of life, and it is open to a Kirk session to remove an elder from membership—though not to depose him or her from the office of elder. Disciplinary proceedings in Kirk session against elders are now exceedingly rare; the more usual course is to refer alleged breaches of discipline to presbytery. In 1976, for example, at the instance of his Kirk session, an elder was deposed from office by presbytery for having undergone a "second baptism", contrary to the doctrine of the Kirk and, therefore, to his ordination vows. [277]

The presbytery consists of all active ministers and retired ministers on the roll, an equal number of elders, and those deacons exercising a formal ministry. It exercises collegially the oversight of the charges within the bounds that in episcopally-ordered churches is exercised by the bishop, and conducts a quinquennial visitation of each parish. [278]It is consulted on legislation affecting the constitution of the Kirk, and until very recently was the court of first instance for (quasi-criminal) trials by libel of ministers, probationers and deacons. [279]

The General Assembly, consisting of an equal number of ministers and elders, are the supreme legislative authority for the Kirk; and their Judicial Commission finally determines appeals on points of law in disciplinary cases (except in matters of doctrine) and in cases arising under the Act i of 1988 [anent Congregations in an Unsatisfactory State]. [280]It should be stressed that the function of members of the General Assembly (who are always referred to as "commissioners" rather than "representatives") is not primarily to represent the views of their congregations but to rule over the Church.

Most importantly for the present discussion, the courts of the Church of Scotland, as well as being deliberative bodies, are treated by the Court of Session as courts of law in the strict sense, with a parallel jurisdiction to its own. The Court of Session therefore routinely declines to review the decisions of church courts; and there are numerous judicial dicta to that effect, for example:

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Or:

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The Court of Session will not sustain a claim for reparation against a court of the Church of Scotland for a judgment in a proper case of discipline duly brought before it. In addition, the courts of the Kirk are immune from suit for defamation in respect of their proceedings when acting in a judicial capacity. The doctrine of separation between the Court of Session and the Courts of the Church was reasserted fairly recently in Logan v Presbytery of Dumbarton. [283]

During the debate at report stage in the Commons on the Human Rights Bill [Lords] (which became the Human Rights Act 1998), the then Secretary of State for Scotland, Donald Dewar, summed up the position as follows:

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It should be noted that the refusal of the Court of Session to review the decisions of the courts of the Kirk cannot rest on the proposition that such decisions do not contain any public law element since under Scots law (unlike the situation in England) the decision of a court does not need to have a public law element to make it reviewable. [285]Moreover, the Court of Session is certainly prepared to review the proceedings of the judicatories of other churches in Scotland where a patrimonial injury or a civil wrong is averred; [286]and the Outer House has awarded reparation to two clergy of the Free Presbyterian Church of Scotland against their suspension sine die as a result of a theological dispute, on the grounds that due process had not been observed. [287]In this respect, the courts of the Kirk are qualitatively different from the internal tribunals of the other Presbyterian churches in Scotland. [288]

II. To What Extent is the Church of Scotland a Public Authority?

Very few proceedings in the courts of the Church of Scotland are now judicial, even in the General Assembly. [289]The traditional system of trial by libel before presbytery of ministers, licenciates, graduate candidates and deacons was replaced in 2001 by investigation by Presbyterial Commission, [290]not least because there were serious doubts as to whether a presbytery was an independent and impartial tribunal within the terms of Article 6 of the Convention. As noted above, however, elders remain responsible for their manner of life and doctrine to their Kirk session in the first instance.

During the third reading debate in the House of Lords on the Human Rights Bill [Lords], the then Lord Advocate, Lord Hardie of Blackford, addressed the question of whether or not the courts of the Kirk were courts for the purposes of clause 6 of the Bill. Clause 6(1) (now section 6(1) of the Act) stated that, "it is unlawful for a public authority to act in a way which is incompatible with a Convention right" and Clause 6(3) defined a court or tribunal as a "public authority" for the purposes of 6(1).

Lord Hardie began from the position that the courts of the Kirk

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He conceded that the courts of the Church might in some circumstances be regarded as "public authorities" for the purposes of Clause 6 of the Bill, citing in particular the requirement under Article 6 of the Convention that disciplinary proceedings should be adjudicated by an independent and impartial tribunal. [292]However, he concluded that the effect of the 1921 Act was to disestablish the Kirk and to define it as a non-public or private institution in the sense that its affairs were no concern to the State. Moreover, he thought it illogical to say that the State had no interest or jurisdiction over the affairs of the Church and its courts while at the same time saying that those courts were nevertheless courts for the purposes of a public general Act. [293]

On the motion of Lord Mackay of Drumadoon, the Lords amended Clause 6 to add the following subsections:

(5) In subsection (3) "court or tribunal" does not include any court or tribunal when it is exercising a jurisdiction, recognised but not created by Parliament, in matters spiritual.

(6) In relation to a particular act, a person is not a public authority . . . if the act is done by or on behalf of a religious body exercising a jurisdiction, recognised but not created by Parliament, in matters spiritual.

However, those words were later removed, and subsection 6(3) of the Act as it received Royal Assent merely states that:

In this section "public authority" includes—

(a) court or tribunal; and

(b) any person certain of whose functions are functions of a public nature.

In his speech referred to above, Lord Hardie argued that

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Lord Hardie's view has received support from Lord President Rodger in a recent case in which the appellant, an associate minister in the Church of Scotland, sought reparation for what she regarded as an unfair dismissal, averring that she had been discriminated against contrary to the Sex Discrimination Act 1975. [295]In dismissing the appeal, the Lord President described the position of the courts of the Church as follows:

296

That must undoubtedly be the case. The problem is Lord Hardie's twin contentions that the courts of the Kirk "operate in relation to matters which are essentially of a private nature" but that "[i]f a Church body to which the Bill applies commits a wrong in convention terms, it would fall to the civil courts to right it". The case-law would appear to suggest that the Court of Session is extremely reluctant to review the actings of the courts of the Church of Scotland in any circumstances: so if, for example, a deposed minister claimed that the Judicial Commission had misdirected itself on a point of law in dismissing his appeal, it is difficult to see by what mechanism the kind of investigation contemplated by Lord Hardie could take place.

In conclusion, if the courts of the Kirk are courts of the Realm, then it is at least arguable that they are public authorities within the terms of section 6(3) of the Human Rights Act 1988 and are bound by the provisions of the Act—at least until the Court of Session takes a different view about the independence of their jurisdiction. On that analysis the Church of Scotland, uniquely among the Scottish churches, must have at least some of the characteristics of a public authority rather than being simply a private institution.

ANNEX

THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS CONCERNING RELIGIOUS DENOMINATIONS IN OTHER EUROPEAN JURISDICTIONS (COORDINATED BY CRISTIANA CIANITTO, UNIVERSITY OF MILAN AND JAVIER OLIVA, UNIVERSITY OF CARDIFF)

I. Are religious denominations considered public authorities in other European countries? Or are they considered private bodies? If so, do they fulfil public functions?

France (Anne Fornerod)

— According to the law of 1905 [Law of separation between State and Churches] religious bodies enjoy a private law status. However, they perform important functions in public life, mostly in education.

— Furthermore, they can benefit from some financial advantages as a consequence of their consideration as associations culturelles.

Greece (Kostas Papastathis)

Distinction according to the nature of the specific religious denomination:

— Public bodies: The Orthodox Church is considered the official religion of the State (art. 3 Constitution 1975) and has legal personality under public law. The Jewish and the Muslim minorities enjoy the same legal status [moral persons of public law] due to historical and political reasons.

— Private bodies: The Roman Catholic Church, several Protestant confessions and new religious movements need the license of the courts so as to acquire moral personality of private law. Nevertheless, they have public authority restricted to a few functions [eg permission for marriage].

Italy (Dr Alessandro Ferrari)

— The Italian Constitution (1948) recognises the principle of mutual independence of State and Churches. The two main consequences are: 1) Principle of autonomy of religious bodies. 2) Principle of bilateral relationships between the State and religious denominations.

— As a result of this, in terms of nature, religious denominations are not public authorities. However, they could enjoy a sort of public nature in the performance of their activities.

Spain (Dr Juan Antonia Alberca de Castro)

— The Spanish legislation does not declare whether religious denominations are public or private authorities:

Some commentators consider that religious bodies, mostly the Catholic Church, have a public nature.

Most of them, however, would insist on the public dimension of some of their activities, assuming they are private bodies.

— Religious bodies can enjoy a special status, if they wish, through their registration in a specific list of the Ministry of Justice.

II. Are religious denominations bound to respect the European Convention on Human Rights 1950?

Greece (Kostas Papastathis)

— Theoretically, all religious denominations, either public or private bodies, respect human rights.

— In practice, this is not the case, because their juridical system is based on their own religious laws and not on the secular one. Some of these religious practices are clearly against secular human rights considerations and the Greek State respects the autonomy of religious bodies even to this extent, eg:

the Muftis of Western Thrace are the competent authorities to judge family and inheritance cases according to Islamic Law [Sharia], many provisions of which are contrary to human rights: discriminatory status of women

in the Episcopal Courts for priests and deacons of the Orthodox Church, the bishop is at the same time the prosecutor, the interrogator and the judge of the same legal case.

Italy (Dr Alessandro Ferrari)

— The Convention has an influence on religious denominations, even indirectly, because it has been ratified by an internal law, n. 848/1955.

Pellegrini v Italy

Spain (Dr Juan Antonia Alberca de Castro)

— The European Convention on Human Rights must necessarily be respected by public, and by private institutions and citizens in Spain, taking into consideration that it has become internal law, once ratified, according to art. 96 of the Spanish Constitution 1978. Despite this fact, private bodies are subject to these provisions in a more flexible way than public institutions, especially if they have an ideological nature (according to the constitutional provisions concerning freedom of ideology, art. 16 of the Spanish Constitution).

— Consequently, citizens are entitled to take actions before the national Courts, whether they consider violations of provisions of the Convention by religious denominations have taken place. Furthermore, art. 10.2 of the Constitution requires that fundamental rights must be interpreted in compliance with the Universal Declaration of Human Rights and other international treaties and agreements on the same subjects that have been ratified by Spain (the ECHR is a clear example). Moreover, even though the national courts did not consider it proved, citizens will still be able to address the issue before the European Court of Human Rights.

184 Norman Doe is a Professor at Cardiff Law School and Director of the Centre for Law and Religion, Javier Oliva is a Research Fellow, Mark Hill (a practising barrister) and Frank Cranmer are Honorary Research Fellows, and Cristiana Cianitto is a Visting Scholar. Back

185 (2001) 81 P & CR 14; [2000] 2 EGLR 149. Back

186 [2002] Ch 51; [2001] 3 WLR 1323; [2001] 3 All ER 393 per Sir Andrew Morritt V-C, Sedley and Robert Walker LJJ. Back

187 Lord Hutton, Lord Hobhouse of Woodborough, and Lord Millett. Back

188 Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, and Lord Rodger of Earlsferry. Back

189 [2002] 2 All ER 936. Back

190 [2003] 3 WLR 283, [2003] 3 All ER 1213; One of the co-authors of this paper was junior counsel for the appellants in the House of Lords. Back

191 Parochial Church Councils (Powers) Measure 1956. Back

192 Church of England Assembly (Powers) Act 1919, s 4; R v Ecclesiastical Committee of Both Houses of Parliament and the Archbishops of Canterbury and York ex parte The Church Society (1994) 6 Admin LR 670. Back

193 The PCC has powers and duties, formerly exercised by the churchwardens, with respect to the financial affairs of the local parish church including the collection and administration of all moneys raised for church purposes and the keeping of accounts in relation to such affairs and purposes, and the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof: s4(1)(ii)(a), (b). None of these is obviously a public function. Back

194 See I Leigh, "Freedom of Religion: Public/Private, Rights/Wrongs" in M Hill (ed) Religious Liberty and Human Rights (Cardiff, University of Wales Press, 2001) 128 at 136. Note in particular Rothenthurm Commune v Switzerland (1988) 59 DR 251, and Ayuntamiento de M. v Spain (1991) 68 DR 209 where local authorities were debarred from making a complaint to Strasbourg. See also D. Oliver "Chancel Repairs and the Human Rights Act" [2002] PL 651 at 652; and D Rook, "Property Law and the Human Rights Act 1998: A Review of the First Year" (2002) 66 Conv 316 at 335. Back

195 (1995) 20 EHRR 1. Back