Joint Committee On Human Rights Written Evidence


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 evidence—the 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 provision—its 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 them—account 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 dealings—trust, 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 funding—which is thus denied to rival non-religious institutions—or 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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