22.Memorandum from Dr Augur Pearce, Lecturer
at the Cardiff Law School
1. This submission is concerned largely
with the first point on which the Committee seeks evidencethe
meaning of "public authority" under the Human Rights
Act 1998 [HRA]with particular reference to religious bodies.
Its main focus is on the distinction implied (in the writer's
view, correctly) by the Court of Appeal in PCC of Aston Cantlow
v. Wallbank [2002] Ch 51 between the position of organs and
officers of the Church of England and that of other religious
bodies in England and Wales. [297]
2. While, in most branches of the law, it
is (despite devolution) possible to speak of the law of England
and Wales, the effect of the Welsh Church Act 1914 was to discontinue
in Wales and the marcher parishes important elements of the law
of religion applicable in the remainder of the country. Until
otherwise indicated, therefore, what follows summarises merely
the writer's analysis of the English religious constitution. [298]
I. THE ENGLISH
RELIGIOUS CONSTITUTION
3. England is a nation professing the essentials
of the universal Christian faith. [299]As
such it is, in the language of Richard Hooker (the sixteenth-century
father of English ecclesiology), itself "a church".[300]
Its developed constitution, which assigns executive and judicial
authority primarily to the monarch and legislative sovereignty
to the joint action of prince and people, applies no less to ecclesiastical
than to temporal causes. [301]
4. This church-nation could never therefore
be identified with the clerical hierarchy alone. In their provincial
convocations the clergy were formerly entitled to make canons
binding their own conduct; but such canons (whose making is now
subject to statutory safeguards and transferred to the General
Synod[302])
cannot bind lay subjects of their own force. [303]Such
authority as bishops have over laypeople derives not from canon,
but from statute or from rules anciently accepted into the common
law. [304]The
common law equally assigns to bishops as "lords spiritual"
a voice in the general counsels of the church-nation.
5. From Tudor times to the nineteenth century
the organs of the church-nation not only regulated the details
of religious practice, but also required the presence of subjects
at divine service and penalised unofficial gatherings for "alternative"
religious worship. The illegality of such gatherings represented
an exception to the generally benevolent approach which the law
took of private religious activity[305];
an approach from which nonconformity could benefit once a process
of toleration, commenced in 1689 and complete by 1846[306],
had lifted the requirements and restrictions. The legislation
from 1689 did not, however, comprehend the "alternatives"
within the national religious provision, but left them as expressions
of the religious liberty of private individuals, who might (if
they chose) combine together to secure worship conforming to their
own "alternative" tenets and dedicate property on trust
to advance religion in accordance therewith.
6. Since 1689 there has been, it is submitted,
a close parallel between the relationship of national and voluntary
churches, on the one hand and that of the modern National Health
Service and private medical insurance schemes, on the other. The
latter are, in law, essentially creatures of contract; they have
a finite membership, and are governed in accordance with the agreement
between their members and officers. Aside from certain tax privileges
their funding is wholly from private sources, and there have at
times been suggestions (once realised, in the case of the voluntary
churches) that their existence should not be tolerated.
7. The former, however, are creatures of
public law; one cannot meaningfully speak of membership unless
one refers to all inhabitants of the land, on whom (not excluding
those who are also members of voluntary bodies or private schemes)
the law confers an enforceable right to various religious (or
medical) ministrations. [307]Until
the 1830s the national religious provision was predominantly publicly
funded, whether by Crown grants of land, parliamentary grants
of money or compulsory levies in the form of tithe, fees and church
rate. Today's publicly funded National Health Service may seem
to contrast with a Church of England largely dependant on voluntary
donation; but many endowments, land or buildings allocated for
public religious purposes in the days of public endowment remain
so applied.
8. Superimposed upon this continuing public
religious provisionits worship, doctrine[308],
structures, endowments and discipline regulated by common or statute
law but (since the toleration reforms) offered freely to the general
population with no compulsion to use themaccount must also
be taken of certain initiatives taken not by the church-nation
as a whole, nor by Parliament on its behalf, but by a more limited
constituency consisting of the clergy in association with active
lay conformists to the national church. To the actions of this
constituency in the later nineteenth century both parochial church
councils (originally local committees of active conformists, convened
by incumbents with episcopal encouragement but without legal standing
or powers), and the various levels of "conference" which
culminated in the "National (or Church) Assembly" and
combined clerical members with the indirect representatives of
the active conformist laity, owed their origin.
9. In 1919 Parliament was persuaded that
the pressure of its ecclesiastical business would be relieved
if the framing of most necessary legislation could be relinquished
to the new Assembly and a streamlined procedure introduced for
the consideration of such legislation prior to royal assent. This
was effected by that year's so-called "Enabling Act",[309]
which allowed the two Houses' consent to religious legislation
framed in the Assembly to be signified by simple resolutions rather
than the customary three Readings. Such legislation is, however,
still ultimately enacted by the monarch with parliamentary advice
and consent. The Assembly (now renamed General Synod) is not itself
the legislator.
10. An early Measure passed under the new
procedure[310]
transferred to the informally-created parochial church councils
various powers and duties previously vested in creatures of the
common law (incumbents, vestries or churchwardens). Councils were
incorporated, and subsequently the creation of a council was required
for every parish in the country. Voluntary gifts for local public
religious purposes, formerly made to the incumbent and churchwardens,
came to be made with increasing frequency to the corporate body,
which was recognised to hold the majority of its assets upon charitable
trusts and subjected (in relation to land and permanent endowment)
to diocesan supervision.[311]
11. It is relevant to the Aston Cantlow
case that among the burdens transferred to the new councils was
that of repairing the nave of the parish church, an obligation
lying at common law with the whole body of parishioners and formerly
enforceable through the church rate. This was later extended to
repair of the chancel, in cases where a clerical rector was relieved
of that burden by statute. The obligation of a lay rector to repair
the chancel, however, continued, the new councils simply taking
over from the churchwardens the burden of enforcement, for which
a new procedure was introduced in 1932. [312]
II. THE CHURCH
OF ENGLAND
AND THE
HRA
12. Against this background one may now
consider the classification of organs and officers of the Church
of England in relation to the public/private dichotomy of the
HRA.
13. The writer contends, with respect, that
several judicial statements of recent years, whether made in the
context of domestic judicial review or in that of the HRA, have
taken insufficient account of the historical position outlined
above, or of subsisting legal institutions explicable only in
terms of that history. A classic example was the remark of Hoffmann
LJ in R v Disciplinary Committee of the Jockey Club ex p Aga
Khan [1993] 1 WLR 909:
"The attitude of the English legislator
to racing is much more akin to his attitude to religion; it is
something to be encouraged, but it is not the business of government."
15. The religious case cited[313]
concerned a federation of voluntary nonconformist (Orthodox Jewish)
congregations, and gave no impetus to Hoffmann LJ to consider
the Church of England specifically.
16. In Tyler v United Kingdom (1994)
77a DR 81, the European Commission on Human Rights "noted"
that the Church of England was "structurally a separate entity
from the State" though with some "overlapping of functions".
Unsupported by reasoning in the decision, this comment had little
bearing on the issues which the Commission decided, and can (it
is submitted) carry very limited weight.
17. Of greater relevance are Strasbourg
decisions concerning organs of two other European churches: a
number of Greek Orthodox monasteries, a Stockholm parish and the
Church of Sweden itself were all held to be "non-governmental
organisations", which meant that neither monasteries nor
parish were debarred from raising Convention claims against their
governments, but Sweden's Convention obligations were not engaged
by the actions of the Swedish Church Assembly.[314]
18. The Strasbourg decision in the monasteries'
case was amplified by saying that these did not "exercise
governmental powers", but had "essentially ecclesiastical
and spiritual" objectives quite different from "public
administration"). One might observe, with Richard Hooker,
that the European Court was reasoning
"as if God had ordained Kings for no other
end and purpose but only to fatt up men like hogges and to see
that they have their mash"[315]
20. The fact that in many European countries
(as indeed for many purposes in Wales) the sovereign power has
abandoned its spiritual responsibilities may indeed account for
the unhistorical approach of many Strasbourg judges in this area.
But there is in any event good ground for the Court of Appeal's
distinction in Aston Cantlow, at para 33, between the tests
appropriate for "the principal category of public authority"
and for the "hybrid class".
21. By joining in the European Convention
of 1950 the King (constitutionally advised) gave a commitment
that certain human rights would be observed within his British
Isles dominions, which included the church-nation of England.
He and his ministers stand directly and obviously forsworn whenever
an organ of the church-nation violates such rights, and it is
only if independent bodies (correctly identified as such
by a "status test") violate human rights that closer
examination (including a "functions test") may become
necessary to see whether the royal word has been compromised or
not. The HRA, whose object is to enable the Queen's judges to
make good her international commitment by domestic enforcement,
therefore rightly applies the "functions test" only
in section 6(3)(b).
22. Applying the "status test",
therefore, neither in Greek nor in Swedish law can one find the
same degree of identification between church and nation as in
England.
23. English parallels are closer in Sweden
than in Greece. The Commission gave less attention to the Swedish
position, merely assuming an analogy to the earlier Greek decision
of the Court. But in any case there are mechanisms whereby one
can formally leave the Church of Sweden while remaining a Swedish
resident; England knows no such mechanism, but rather has reduced
the obligations of "membership" to a point where it
carries no irritation for any nonconformist. One may freely cease
or decline to conform to the English Church; but one leaves
it only by leaving England. Furthermore, the King of Sweden now
has, in his ecclesiastical and national roles, a "divided
legal personality"; while the position of the English monarch
has not altered since a statutory oath required Elizabeth I's
recognition as "Supreme Governor of this realm, as well in
ecclesiastical causes as temporal"[316],
albeit the oath itself is no more.
24. The Greek Constitution recognises the
religion of the Orthodox Church as "dominant", not universal;
while the church itself does not consider Greeks to be its members
unless they have been baptised. A significant number of enforceable
rights in the Church of England, including marriage and church
attendance, are not dependant on baptism. Above all the Greek
Orthodox Church ascribes to its clerical hierarchy a supreme authority
which the law has not ascribed to England's prelates since the
Reformation: Greece's organs of general government therefore act
as external, rather than internal, actors in ecclesiastical decision-making.
25. The Strasbourg decisions that the Greek
and Swedish bodies concerned were "non-governmental"
are not therefore in point when considering the English religious
establishment; and the Court of Appeal's reasoning in Aston
Cantlow cannot be impugned on the basis of Strasbourg jurisprudence.
The respondent in Aston Cantlow was held to be a public
authority because it possessed coercive powers beyond those of
private individuals, had the responsibility to enforce a liability
imposed not by contract but by the common law, and was "created
and empowered by law [and] forms part of the church by law established".[317]
The writer would concur that these final words in particular,
when viewed in the light of England's historic religious constitution,
serve to identify many officers and bodies operating in the religious
field as organs of the English church-nation and thus within the
"principal category of public authority".
26. To argue that this conclusion "discriminates
against the Church of England" in comparison with other religious
bodies and so violates Art. 14 of the Convention is, in a sense,
circular. It is individuals and groups of individuals who enjoy
Convention rights, a description that now applies to most churches
and religious bodies in Europe. But if the reasoning above is
correct, the organs of the Church of England are neither. They
therefore enjoy no Convention rights in whose exercise discrimination
might take place, but are on a par with local authorities barred
from proceeding in Strasbourg. [318]
27. The organ in question was, however,
a parochial church council, and the history of such bodies may
give pause in reaching this conclusion. There are, of course,
some genuinely private initiatives associated with England's public
religion. If, for example, an individual gives land to trustees
to set up a school whose religious instruction will reflect the
content of the Prayer Book, those trustees do not become organs
of the church-nation. Should their school become maintained by
an authority required by law to secure education, this brings
them (insofar as they still take decisions affecting it) into
Sir Andrew Morritt V-C's "hybrid" class. Given that
parochial church councils first existed as unofficial committees,
the bestowal of functions upon them by the 1921 Measure and the
1932 Chancel Repairs Act might be argued to make them "hybrid
authorities" on the same basis.
28. But ultimately these "unofficial"
parochial church councils were not merely empowered; they were
replaced. In 1922 the rules for lay representation scheduled to
the Church Assembly constitution, which had been drawn up by a
"representative church council" without legal standing,
were replaced by new rules scheduled to a Measure of the King
in Parliament. [319]It
is submitted that at this point any voluntary body actually ceased
to exist; and that the statutory parochial church council that
took over its functions should be considered a new public body,
wholly a creature of the law.
III. VOLUNTARY
RELIGIOUS BODIES
AND GROUPS
29. The remainder of this submission considers
briefly the `hybrid' status of voluntary religious bodies in England
and Wales. Such bodies are, since the toleration legislation,
lawful combinations of individuals for a purpose which the common
law generally favours. They benefit from charitable privileges,
and are often, by political practice as opposed to constitutional
right, consulted by government as reflecting significant elements
of serious public opinion. Among their number is the voluntary
association known as the "Church in Wales", formed initially
by those who had conformed to the public religious provision in
Wales until its cessation in 1920, and chose to adhere to the
"deemed contract" offered by the Welsh Church Act for
the provisional continuance of protestant episcopal Christianity
thereafter.
30. Those who participate in such activity
are making a personal choice to do so, admittedly with a strong
(and, as they may see it, a "high") motivation (though
no stronger and arguably no "higher" than that of individuals
who enter into political or philanthropic unions or various types
of emotional relationship). They are not doing what the law assumes
that in principle everybody does, unlike those who conform to
the Church of England. They claim a right, which English conformists
do not enjoy, to decide for themselves independently of public
law whom to admit to or exclude from their fellowship. They may
use vehicles which the law offers to all to give permanence and
certainty to their dealingstrust, contract, incorporation
as companies or by charter, even private legislation. But their
structures are not creatures of the law as are the organs of the
national church.
31. It is generally accepted that the organs
of voluntary religion are, in HRA terms, "private".
Whether their activities may be public functions so as to bring
them within the scope of the Act has not yet received much judicial
consideration, save in Aston Cantlow, where it was held
that the enforcement of chancel repair liability would be a public
function even if the respondent council were essentially "private".
Several cases, though, tend to suggest that religious bodies'
decisions often lack the governmental nature necessary to make
domestic judicial review procedure appropriate. [320]One
might anticipate similar outcomes in HRA proceedings; though the
cases on hybrid authorities of a non-religious nature show the
line to be always a fine one to draw.
32. Because the focus of this submission
is on religious bodies, the writer will not attempt to address
the correctness of the non-religious cases. The Committee's HRA
focus also requires little to be said about the judicial review
cases, save to point out that if the Church of England is indeed
the framework of national government in the spiritual arena, there
cannot be such an antithesis between "government" and
"spiritual" as would prevent any "spiritual"
function, by whomever discharged, from ever being "public".
Nor can one assume that if a body has some "spiritual"
functions that are not governmental, these must necessarily be
primary and colour all its other functions: there is nothing obviously
"spiritual" about exacting money from a local landowner
in order to repair a public building.
33. The recent reluctance to hold "spiritual"
activity "public" in principle is not entirely supported
by precedent. The interpretation of a voluntary body's doctrinal
tenets, for example, may be potentially public in the sense that
a court has to do it when property rights are at stake.[321] Jewish
law is not generally a matter for the courts; but if marriages
according to Jewish custom are exempted from formalities required
for other marriages by statute, and a question arises whether
a marriage complied with that custom and so qualified for the
exemption, then a court will have no choice but to rule. [322]
34. Jurisdiction over marriage in the English
church-nation was originally undivided, covering capacity, preliminaries,
solemnisation, issues of validity and legitimacy and enforcement
of marital obligations. Reforms have led to the diffusion of this
responsibility: validity, legitimacy and remedies passing to the
church-nation's temporal courts, while preliminaries are shared
by the clergy with other public officers (registrars) and solemnisation
with both registrars and nonconformist ministers (as the nominees
of meeting-house trustees). It is nevertheless suggested that
the remedies passing to the temporal courts did not thus become
"public" for the first time; and that what was a governmental
function in the hands of public religious officers cannot cease
to be such a function in other hands.
35. In this respect the Church in Wales
is a special case. The cessation of public religious provision
in Wales in 1920 did not apply to the law of marriage, which was
preserved as though the Act of 1914 had not been passed. [323]However
the public ecclesiastical offices whose holders had exercised
functions in relation to marriage before 1920 were abolished by
the 1914 Act; appearing at first sight to render application of
the preserved law impossible. The office-bearers of the new voluntary
Church in Wales acted, however, as though they had stepped into
the shoes of the former public officers whose titles they had
adopted; a development approved by the courts in Powell v Representative
Body of the Church in Wales [1957] 1 WLR 439. This is only
explicable by reading into the 1914 Act a tacit authorisation
and requirement of such office-bearers to perform the public functions
concerned. The argument for holding Church in Wales clergy "hybrid
authorities" in the marriage field is therefore even stronger
than for the ministers of other voluntary religious bodies.
36. In fact judging by other European experience,
the major fields in which religious bodies' amenability to the
HRA may arise in the future are not those considered above, but
rather educational, social and medical services. Certainly in
the case of the Church of England, these fall outside the responsibilities
of ecclesiastical organs created by the common law, being undertaken
instead by the collective enterprise of individuals forming charitable
trusts; there is accordingly no distinction from the similar undertakings
of nonconformists.
37. So long as services provided by such
groups are on a small scale and genuinely supplemental to public
provision, no great difficulty arises if their private status
gives exemption from HRA requirements. However serious difficulty
arises when religious groups, who understand their tenets to require
action or discrimination in violation of Convention rights, provide
the sort of services considered above either with the aid of public
fundingwhich is thus denied to rival non-religious institutionsor
on a near-monopoly basis because public provision is reduced to
take account of the "church" provision. If, in such
a case, the trend of the judicial review cases is followed and
the courts hold the religious group in question not to be a "hybrid"
authority, then as the Committee has said, "a narrow application
of responsibilities . . . may lead to gaps and inconsistencies
in human rights protection'. Public funding would render this
particularly objectionable, since victims of the discrimination
or other contentious action may well themselves be taxpayers whose
involuntary contributions were thus supporting the infringing
body.
38. If the religious group is not a hybrid
authority, but an inferior public authority intervenes between
it and the statutory framework of the service in question, a workable
solution may well lie in contract. The public authority would
be obliged to secure the observance of Convention rights;
national conditions requiring such observance could be prepared,
and the authorities could make entry into a contract incorporating
such conditions the prerequisite for entrusting the service concerned
(with its associated funding) to the religious group. If the Convention
rights in question were genuinely contrary to the group's tenets
it would of course refuse to enter the contract; but in that case
it would be unlawful for the authority to entrust the service,
or allocate the funding, to that group. While the Convention right
to manifest religious beliefs would support the group in its refusal,
it would not give it any right to insist on providing the service.
(There is no Convention right to provide public services, and
the group could not complain of discrimination in the entrusting
of such services to other organisations.)
39. This solution would not work, however,
if a function were entrusted to religious groups by statute without
the intervention of any public authority that could be made the
object of HRA proceedings; since such proceedings cannot lie against
Parliament itself. This is in itself a strong argument for the
conclusion that if functions are entrusted by Parliament directly
they must be seen as public functions. But it would be wise for
future legislation which entrusts potentially public functions
to the voluntary sector either to interpose a clearly public authority
or expressly to state the public nature of the function within
the meaning of the HRA.
20 April 2003
297 The writer is not seeking to support the reasoning
of the Court of Appeal that the enforcement of common law chancel
repair liability violated Convention rights; but merely its ruling
on the "public authority" issue. Back
298
The "marcher parishes" is a reference to those parishes
which, straddling the border between English and Welsh counties
at the date of the Welsh Church Act, were detached by the Act
from English dioceses and whose English territory must now be
treated for purposes of the law of religion as part of Wales.
Other such parishes were assigned wholly to English dioceses and
their Welsh territory must be treated as part of England; this
submission's references to "England" and "Wales"
should be construed accordingly. Back
299
Ecclesiastical Licences Act 1533, 2.13 Back
300
Of the Lawes of Ecclesiasticall Politie, Book VII (pp.
318-9 in the Folger Library Edition) Back
301
This is declared, in relation to the monarch, by the Act of Supremacy
1558. The outcomes of the Civil War and Glorious Revolution, however,
placed beyond question that the constitutional principle of royal
government by representative consent applied in religious no less
than in other national affairs. Back
302
Submission of the Clergy Act 1533, Synodical Government Measure
1969 and Canon H1. Back
303
Middleton v Crofts (1736) 2 Atk 650. Back
304
The common law in the "broad sense" of the term, as
used by Lord Blackburn in Mackonochie v Lord Penzance (1881)
6 App Cas 424, 446. Back
305
As exemplified by the "repair of churches" reference
in the preamble to the Charitable Uses Act 1601. Back
306
Toleration Act 1689, Religious Disabilities Act 1846 and intervening
statutes (the 1846 Act extending the benefit of toleration to
non-Christian congregations) Back
307
Instances are the right to attend divine service (Cole v PC
443A [1937] 1 KB 316), to receive the holy communion if confirmed
(Sacrament Act 1571, [1912] AC 533, or to have one's marriage
solemnised in one's parish church (Argar v Holdworth (1758)
2 Lee 515). If a testator (Re Allen decd [1953] Ch 810)
or even a statute (Cemeteries Clauses Act 1847) speaks of "members
of the Church of England" it may be possible to determine
that a particular individual falls within the contemplated group;
but there is no authority defining who may be outside it. Back
308
The unwritten law of doctrine consists largely in the offences
of apostasy and heresy cognisable in the Episcopal courts, but
for which no sanction has existed against laypeople since the
abolition of the lay disciplinary mechanism in 1963. Until 1974
this was supplemented by a written law of ministerial doctrinal
standards found both in canon and in Tudor and Stewart legislation.
That year's Church of England (Worship and Doctrine) Measure repealed
this legislation alongside the statutes that had regulated public
worship since the Reformation, and left the detail of both liturgy
and doctrinal standards to be governed through canons binding
upon the clergy. However ultimate control remains with Parliament,
not only in the power to amend the Measure, but in its provisions
(a) requiring continued availability of the 1662 Prayer Book and
(b) prohibiting any change in liturgy or standards which the General
Synod cannot reconcile with a statement on doctrinal sources set
out in the Measure. Back
309
Church of England (Assembly) Powers Act 1919. Back
310
Parochial Church Councils (Powers) Measure 1921. Back
311
Parochial Church Councils (Powers) Measure 1956. Back
312
Chancel Repairs Act 1932. Back
313
R v Chief Rabbi of the United Hebrew Congregations of Great
Britain and the Commonwealth, ex p Wachmann [1992] 1 WLR 1036. Back
314
Holy Monasteries v Greece (1994) 20 EHRR 1, Hautaniemi
v Sweden (1996) 22 EHRR (CD) 155. Back
315
Of the Lawes of Ecclesiasticall Politie, Book VIII (p352
in the Folger Library Edition). Back
316
Act of Supremacy 1558, italics supplied. Back
317
at para 35. Back
318
See Gemeinde Rothenturm v Switzerland (1988) 59 DR 251. Back
319
Representation of the Laity (Amendment) Measure 1922. Back
320
eg Wachmann (above), Ali v Imam of Bury Park Mosque
ex p Ali (unrep., 12.5.93, CA), R v London Beth Din ex
p Bloom (unrep, 18.11.97), R v Provincial Court of the
Church in Wales ex p Williams (unrep, 23.10.1998). Back
321
A-G ex rel Mander v Pearson (1817) 3 Mer 353. Back
322
Lindo v Belisario (1796) 1 May Con App 7. Back
323
Welsh Church (Temporalities) Act 1919 s. 6. Back
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