Ecclesiastical Committee Two-Hundred and Twenty-Fifth Report


A. Section 1(1) and (12)(b)—The right to marry in the parish church of a parish with which the person concerned has a qualifying connection

16.  Section 1(1) sets out the basic principle which forms the "backbone" of the Measure, namely that a person who intends to be married and who can show a qualifying connection with a parish is to have the same right, but no greater right, to have the marriage solemnised in the parish church of the parish as a person who is resident in the parish or enrolled on the church electoral roll of the parish would have.

17.  By requiring a clearly defined link with the parish, the extended right thus remains firmly rooted in the parochial system.

18.  The right under section 1(1) is to have the marriage solemnised after publication of banns, and there will therefore be no need for a Special Licence where the section applies. However, the Measure leaves the Special Licence procedure unchanged. It was recognised from the outset that there would always be some individuals who had a genuine connection with a parish but who would fall outside the criteria defined by the Measure , and that it should still be possible for them, with the support of the minister of the church concerned, to apply for a Special Licence.

19.  It should be noted that the Measure does not alter the existing rights of parishioners.

MATTERS RAISED BEFORE THE REVISION COMMITTEE AND THE GENERAL SYNOD

20.  Paragraphs 21 to 43 below deal with the main issues which were raised in the Revision Committee and in full Synod. Those issues need to be viewed in the context of the Synod's decision to allow only a limited range of qualifying connections, all of which require some clearly demonstrable link with the parish. The Ecclesiastical Committee is therefore asked to consider the following paragraphs in conjunction with paragraphs 44 to 62 which deal with what constitutes a qualifying connection.

THE CASE FOR SECTION 1(1)

21.  A general argument which was put both to the Revision Committee and to the Synod was that it was neither necessary nor desirable to change the law, or at least that if any change was made it should be an extremely limited one. Three separate reasons were put forward for this approach:

  • one group of submissions, particularly from clergy, expressed concern that any new regime which gave couples an extended right to marry in a much wider range of parish churches than at present would result in a heavy concentration of weddings in some parishes - for example, because the church was a particularly attractive one or was near to a particularly attractive venue for receptions. It was argued that this could impose a very heavy burden on the clergy of the parish, as well as on the lay people (many of them serving in a voluntary capacity) including the organist, choir and bellringers, and others who were involved with marriage services in the church. It was suggested that because of this the clergy could well find it difficult or impossible to provide all couples with adequate marriage preparation before the marriage and pastoral care afterwards, and the numbers involved could also adversely affect the parishioners, because of the pressure on their clergy and because their own choice of dates for weddings would be curtailed;
  • others argued that couples who were not resident in a parish should be married there only if they had a real and living connection with the worshipping community, or at least if there was provision for one to develop. They considered that the present law was adequate for this purpose, and should remain as it stood; at most, any new provisions should be confined to, say, a person who had lived in the parish in the past or had a current parental home there and regarded the parish as "home" even if he or she was not technically resident there; and
  • there was concern that the qualifying connections would be difficult to verify, thus creating practical and legal problems for the clergy.

22.  The Revision Committee and the Synod noted that a couple, even if they were parishioners, did not have the right to insist on the marriage service taking place on a particular date and at a particular time, and the date and time of the service would have to be agreed with the minister in cases under the Measure in the same way as in cases under the existing law. Similarly, a couple did not have the right to insist on the services of an organist, choir, bellringers etc, much less the right to insist on them at any particular date and time, and this would likewise have to be agreed whether the marriage was under the Measure or under the existing law. These factors would help to put a brake on any tendency to swamp a particular church.

23.  In addition, the Revision Committee and the Synod took into account the fact that clergy can if necessary ask for help from other local clergy, and indeed that the laity can and do assist in carrying out marriage preparation. If the couple came from a distance and had real difficulty in attending marriage preparation in the parish, it might well be possible to make arrangements for them to receive preparation in their home parish, and commending the couple to the parish priest in the parish where they were to begin their married life together would put that member of the clergy in a position to continue their pastoral care after the marriage.

24.  However, quite apart from those factors, the Revision Committee and the Synod considered how far the concerns set out in paragraph 21 were in fact directly relevant to the question whether there should be a change in the law. The position which the Revision Committee and the Synod accepted was that, if a case was made out for extending the range of parishes where a couple had the right to marry along the lines in section1(1), those concerns could and should be addressed by imposing appropriate limits on what qualifying connections were to be allowed and appropriate requirements about how they were to be proved. Provided that was done, the Measure would not create the major practical problems which some of the submissions had envisaged. Thus the factors listed in paragraph 21 would not in themselves negate a case for a change in the law, if one was made out on some other basis.

25.  The Revision Committee and the Synod accepted that the fundamental reasons for the change in the law, and thus for section 1(1), were those already summarised in paragraphs 5-7 above, namely:

  • the very real difficulties which the present law is creating for some couples who wish to marry in a parish in which neither of them is resident or entered on the church electoral roll but with which one or both of them have a clear and genuine connection, and the difficulties which clergy are also experiencing in these cases - see paragraph 6 above;
  • the importance which the Church attaches to encouraging and supporting marriage in general and marriage in church in particular, and to supporting and welcoming individual couples who come to it for marriage; and
  • the mission opportunities which couples coming to the Church for marriage present.

26.  The evidence also showed that a person who was not a parishioner but who was seeking to marry in a given parish with which he or she had a connection might well have stronger links with the worshipping community in that parish than with any other parish. Indeed, those links could well be at least as strong as those of a good many parishioners.

27.  These reasons were seen as justifying a change in the law on the basis set out in the Measure. Moreover, the Synod and the Revision Committee recognised that there were further arguments in favour of that basis for legislation:

  • it remained firmly rooted in the parish system. By ensuring that the couple were made welcome by the parish, encouraged to join with the worshipping community before the marriage and provided with support and good quality marriage preparation, the parish clergy would be able to build up a living and enduring connection between the couple and the parish, as well as encouraging the couple to develop such a connection with the parish where they were to begin their married life together;
  • if the Measure increased the number of couples marrying in church that was to be welcomed; and
  • it would not undermine either the existing rights of parishioners or the provisions under which, in many cases, a person who had not previously had a connection with the parish could acquire the right to marry there by worshipping there habitually for 6 months. Similarly, it would not undermine the Special Licences procedure.

QUALIFYING CONNECTION AS OPPOSED TO ALLOWING A COUPLE TO MARRY IN ANY CHURCH OF THEIR CHOICE

28.  Another but different proposal which was put to the Revision Committee and the Synod was that a couple should have the right to marry in any church of their choice, without the need for any qualifying connection (or that there should be a discretion to permit the couple to marry in any church of their choice, which also raises the further issues discussed in paragraphs 29-35 below). The General Synod had already considered and rejected this approach in a debate in July 2004 at an earlier stage in the Working Group's work. When it was raised again in the context of the Measure, a number of factors came together to satisfy the Revision Committee and the Synod that the Measure should continue to be based on the "qualifying connection" principle rather than this radically different proposal, in particular the following:

  • giving every couple the right to marry anywhere they wished would involve a risk of swamping some parishes and their clergy in very much the way that the submissions mentioned in paragraph 21 above had feared, and in particular could make it more difficult for the parish clergy to ensure that couples received proper preparation before the marriage and proper pastoral care afterwards;
  • it could also leave some churches with a very heavy concentration of weddings for non-parishioners booked a long time in advance. This would tend to have an adverse effect on the choice of dates left for parishioners' weddings, and to create a degree of competition for popular dates which could in practice put clergy in a difficult position pastorally;
  • it would amount to virtually abandoning the parish system so far as the qualification for marriage was concerned;
  • it would also represent a radically different system from that which applies to marriages in "registered buildings" according to religious rites for other Churches and faith communities. There, the couple must be married in the civil registration district where one of them is resident (unless there is no registered building in that district where one of the couple can be married according to his or her own religion) or in the usual place or worship of one or both of them;
  • there would be some risk of attempted abuse from couples seeking to enter into a "sham" marriage in a parish distant from their home parish; and
  • the Synod was aware of the recent legal developments regarding possible "sham" marriages by non-EU nationals, and that the Government would be likely to be concerned about any change in the law that increased the risk of such cases.

RIGHT RATHER THAN DISCRETION

29.  A further argument put to the Revision Committee and the Synod was that the Measure should give the minister a discretion to allow a person to be married in the parish on the basis of a qualifying connection, rather than giving that person a right to be married there. It was rejected for the same reasons which had originally led the Working Group to bring forward a Measure on the basis of the extension of existing rights rather than on the basis of discretionary provisions. These were primarily legal reasons, flowing from the HRA, on which the Working Group had received advice from the Legal Advisory Commission (LAC) of the General Synod.

30.  The LAC's advice was based on article 12 of the ECHR, which deals with the right to marry and found a family, taken together with article 14, which prohibits discrimination in the enjoyment of the rights and freedoms set out in the ECHR.

31.  The advice concluded that while article 12 did not confer a right to be married at any particular place, which was a matter for the national law of the country concerned to regulate, any limitation imposed by the national law must not, among other things, be arbitrary or discriminatory. Any differential treatment of analogous groups could be challenged as discriminatory under article 14 unless there was a reasonable justification for it on objective grounds. Thus if the criteria under the new legislation were to include a discretionary element which could be exercised on personal or subjective grounds, there would be a strong risk of challenge on grounds of discrimination contrary to article 14. The advice went on to point out that any such discretion could give rise to wide variations in practice between the way in which the Measure operated in different parishes and across the Church at large, and that in itself would give rise to serious risk of challenge under article 14. The LAC therefore advised against any discretionary element of this kind.

32.  The LAC also took the view that a member of the clergy conducting a marriage was a public authority within the meaning of the HRA. He or she must therefore not act in a way that was incompatible with a right conferred by the ECHR, and he or she would be exposed to legal challenge if, contrary to the LAC's advice, the new legislation provided for a discretion exercisable on personal or subjective grounds.

33.  For essentially the same reason, the Revision Committee rejected the idea of the legislation providing a "local discretion". The proposal here was that each individual PCC should be left to decide that marriage of non-parishioners could be solemnised in the parish only in accordance with a clearly defined policy formulated by the PCC and using objective and acceptable criteria, such as the maximum number of marriages which the parish could reasonably undertake in a year (operated on a "first come, first served" basis), or a requirement that the couple must agree to undergo proper marriage preparation. The Revision Committee accepted legal advice which it received that this would still involve a real risk of unlawful discrimination, because individual parishes would have different policies, and couples whose circumstances were identical would thus be treated differently in different parishes.

34.  The suggestion that couples could marry in any church they chose, irrespective of whether they had any prior connection with the parish, provided the minister and/or the PCC in their discretion agreed to this, was likewise rejected for the reasons set out in paragraphs 30-33 above as well as those explained in paragraph 28.

35.  In addition to the legal considerations under the ECHR, the Revision Committee recognised the great importance of consistency on these matters throughout the Church, so that couples could proceed on the basis that the same principles would apply in each parish and would be applied in a consistent manner. The same point was emphasised in the debates in the full Synod, and it was recognised that quite apart from the HRA issues, any other approach would be unsatisfactory in principle, and couples would find it confusing, frustrating and generally fraught with difficulty in practice, which in turn would create problems for the clergy whom they approached.

"OPT-OUT" FOR INDIVIDUAL PARISHES

36.  For very much the same reasons, the Revision Committee and the Synod rejected proposals allowing a parish to "opt out" of the Measure. They considered this would not be acceptable even if the option could only be exercised on the grounds that in the PCC's view the number of marriages the parish was likely to have to take under the Measure would interfere with the clergy's performance of their duties or the provision of pastoral care (including marriage preparation).

MODIFICATION OF LICENCE SYSTEM

37.  A rather different proposal which was put to the Revision Committee was also based on the idea of a discretion rather than a right. This was that the best way forward would be to modify the existing procedures for granting common licences and/or the Archbishop of Canterbury's Special Licences rather than to extend the existing rights of parishioners. Again, the Revision Committee rejected this. It accepted the advice it had received that what was proposed would effectively involve creating an entirely new kind of licence. The object of the Measure was to make it easier for a couple to marry in a parish where one of them had a clearly defined connection, and the Revision Committee shared the Working Group's view that the best way of achieving this, from both a pastoral and an administrative point of view, was through a parish-based system, operated by the local clergy. Neither common nor Special Licences would supply that.

38.  The Revision Committee and the Synod also noted that the Special Licence procedure would in any case continue in operation and would still be available for cases not covered by the Measure. In addition, section 2 of the Measure, which is explained in paragraphs 84-87 below, would make the common licence procedure available for cases which fell within section 1.

RIGHTS SUBJECT TO QUALIFICATIONS OR RESTRICTIONS

39.  The Revision Committee was also asked to consider a further set of suggestions flowing from the concern that some parishes might be swamped by non-parishioners seeking to marry there. It was proposed that the couples should have a qualified right to marry where one of them had a qualifying connection, but subject to giving parishioners and regular worshippers priority in choosing a date and time for their marriage. The Revision Committee concluded that even if this was acceptable in principle it would be very difficult to draft satisfactorily, and that in practice it would make the position more rather than less difficult for the clergy. In particular, it was now very common for couples to book wedding dates and times far in advance, so that a parishioner couple could well ask for a date and time which had been booked months rather than weeks before by a non-parishioner couple. Cancelling or moving that booking would place the clergy in a very difficult situation in relation to the non-parishioner couple. On the other hand, if some reserved slots were kept for parishioners, the parishioners might still prefer other dates and times and might never take up the slots, while at the same time non-parishioners would have used them if they could. Thus the Revision Committee was satisfied that the right way forward was to frame the qualifying connections appropriately, so that they did not run the risk of swamping parishes.

40.  A separate proposal which was put to the Revision Committee was that the Measure should place an upper limit on the number of marriages to be solemnised under the new legislation in any given church in a given period - the proposer suggested 75 marriages a year - on the basis that any greater number would make it impracticable to provide couples with a high quality service. The Revision Committee rejected this as running counter to the object of the Measure, and also on the ground that given the wide variations between different parishes and their churches and clergy, and between the number of marriages which different parishes could reasonably undertake in a given period, it would not be possible to set a single figure which was appropriate for all cases.

41.  Another type of "qualified right" put to the Revision Committee and the Synod for a different reason would have required a couple to undergo an appropriate course of marriage preparation before marrying under the Measure. While both the Revision Committee and the Synod strongly supported the provision of good quality marriage preparation and encouraging all couples to take advantage of it, they rejected the proposal. The reasons for this lay largely in the present law:

  • Canon B30 already requires a minister to whom a couple apply to have their marriage solemnised to explain to them the Church's doctrine of marriage and the need for God's grace to fulfil their obligations as married persons. This applies to all Church of England marriages and would thus apply to marriages under the Measure; but
  • There is no mandatory requirement for any further marriage preparation for couples marrying under the present law. It is for the clergy to encourage couples to take advantage of the further preparation which is offered, and different clergy can and do take different views about what preparation is appropriate. In any case, the Revision Committee and the Synod saw major objections in principle to imposing a mandatory requirement for marriages under the Measure which did not apply in other cases; this would run counter to the basic principle of granting couples who married under the Measure the same rights as parishioners. On the other hand, any attempt to impose such a requirement on all couples, whether they married under the Measure or not, would affect parishioners' existing rights; if that was to be done it should be done by other legislation where the issues could be fully considered, and not by the present Measure, which was intended for a different purpose.

42.  Yet another restriction which was proposed to the Revision Committee would have confined the couples who could take advantage of the Measure to those who were current worshipping members of a church (wherever it was situated), and who were entered on a church electoral roll (of whatever parish) before the marriage. This was put forward on the basis that it would create a greater sense of "belonging". However, the Revision Committee took the view that, quite apart from any other possible objections, it would be much too restrictive to be consistent with the general objectives of the Measure.

43.  Finally, the Revision Committee was asked to consider making the level of fees for marriages under the Measure higher than for marriages on the basis of the existing legal rights. Various arguments were put forward in favour of this, but the Revision Committee was clear that the level of fees should be dealt with, if and so far as necessary, under the existing mechanism and procedure for fixing parochial fees in the Ecclesiastical Fees Measure 1986, rather than by the present Measure.


 
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