This follows up the posting here on 12 December concerning James Behrens’ further opinion, under the title civil partnerships: a further legal opinion.
Derek Belcher has now issued a revised opinion, which you can read in full here.
This shows that there is even less difference between these opinions than it previously appeared. Also, the opportunity has been taken to restore the markup showing the revisions made by Chancellor Behrens to his opinion, which was missing when originally published.
I’m interested to see Canon Belcher’s argument (Para 26) that “Bishops can[not] be safe from immunity if they prosecute an unjustifiable case against one of their clerics”. This is applicable to the functioning of the new Clergy Discipline Measure, in force since 1 January. There are four grounds for a cleric to be disciplined – breach of ecclesiastical law, neglect of ecclesiastical law, conduct unbecoming, and inefficiency in ministry – none of which have been (deliberately?) defined, the first few cases will be dealing with making the case law, as well as disciplining the unfortunate cleric. At every stage in… Read more »
Might I point out that the “ultimate court” is not in Strasbourg. Why are so many people whinnying about the potential legal challenges to bishops who question their clergy? We appear to have forgotten that the church’s default political stance is one of martyrdom because living as a Christian will inevitably invite persecution. Christians who experience same-sex attraction have for years known what it is like to be persecuted. If the boot is on the other foot for a while it will be no bad thing for evangelicals to remember that temporal ascendancy is not necessarily the norm for Christians.
I feel Mr Belcher is being too narrow in his reading of the House of Lords decision in the Aston Cantlow case. Whilst the specific matter was whether a PCC was a public authority my recollection is that their Lordships laid down what they felt were the hallmarks of a public authority for the purposes of the HRA. And that they did so in a form that would make it very difficult to apply that terminology to any C of E office holder. The matter hinges not around appointment (by Crown or others) nor on the performance of some duties… Read more »
I always felt that Behrens made too much of Resolution 1.10 in his first legal document, but Belcher’s opinion is clearly questionable in paragraph 9 here: “9. Moreover Chancellor Behrens makes no mention of GS Resolution July 1997. This ‘opinion’ of Synod is important because it acknowledges that this was not the last word on homosexuality. Doctrine is not easily defined as evidenced by the broad approach of Canon A5 and the historical perspective on Doctrine given in GS 1554.5 Unlike GS Resolution of 11 November 1987 this ‘opinion’ involved separate voting by laity, clergy and bishops where there was… Read more »
The Aston Cantlow case did not really touch on individual rights at all, so it is difficult to apply it to these circumstances. Of more interest is a recent House of Lords decision, Helen Percy v. Church of Scotland, in December last year. It does away with the nonsense about “office-holders” and directly opens the way for clergy to go to employment tribunals.
I am a little surprised at the weight Belcher gives to the synod statement recognising Issues in Human Sexuality is ‘not the last word.’ I am sure it isn’t, but no opinion, or even law is final this side of the eschaton.
The Percy case is of little value here. The judgement was decidedly narrow, depending both on the rather unusual nature of her duties and the particular wording of Sex Discrimination law which applies more widely than most other Employment law.
For C of E clergy the route to gaining the protections offered by Employment law lies in the passing of the “Common Tenure” Measure, which will also remove the anomaly of freehold.
Enough to make bishops grit their teeth and/or smile knowingly and turn a blind eye, isn’t it?
I think you need to read the Percy case. It overturns the notion that office-holders have no recourse to employment law and in particular the claim that clergy are somehow directly “employed by God”. Of course it gives redress to Ms Percy in her own particular set of circumstances – on which she appealed. And it specifically acknowledges that being employed as a cleric is no bar to access to an employment tribunal. The new Measure is already obsolete.
Did Chancellor Behrens really use the phrase “genitally active”??? :-0
Just goes to show that those who make efforts to expose that which should, naturally, be left PRIVATE, can only embarrass *themselves*!
J C Fisher writes “Did Chancellor Behrens really use the phrase “genitally active”??? :-0 Just goes to show that those who make efforts to expose that which should, naturally, be left PRIVATE, can only embarrass *themselves*!” I am sorry, but this post reminds me of all that can be wrong about a christian discussion of sexuality. Sex is a normal part of everyday life, so surely we can discuss it openly, rather than offer a blushing impression of a schoolboy shocked when his biology teacher mentions the word breast. Those of us living in same-sex friendships within a christian context… Read more »
Simon D, I don’t disagree that all our “dangly bits” (if that’s the best way of putting it: a little androcentric, perchance?) are made by God: they’re good, the pleasure one can derive from them is good, and when one’s Beloved Partner is providing loving touch is best of all . . . That said, I don’t why you’re being quite so set-off by the concept of *privacy*. I don’t want to know what het priests are doing in *their* bedrooms, and I don’t imagine too many of them would want their bishops to inquire about it (as long as… Read more »
I must say that I don’t think it is realistic to try to insist that people’s sexual relationships are 100% “private”, and anyway it makes no difference to clergy discipline.
The position of the church of England (as opposed to the Episcopal position) is that homosexual genital activity is sinful and that clergy must [try to] live up to the moral standards of the church. Whatever the temporal authorities say or legislate we have, as Sean pointed out, a Higher court than Strasbourg. I hope the + Newcastle, +Durham and ++York will act accordingly over the recent defiance.
David Walker writes “The Percy case is of little value here. The judgement was decidedly narrow, depending both on the rather unusual nature of her duties and the particular wording of Sex Discrimination law which applies more widely than most other Employment law.” In fact, sex discrimination law is no narrower than sexual orientation discrimination law – both use the same concepts and the same language. Furthermore, both are subject to European law, which tends to be applied generously rather than restrictively, especially by the European Court of Justice, which is the final court of appeal on these matters. Sexual… Read more »
We were a little surprised when Mr William Fittall first mentioned the advice given to the Church of England which David Walker asserts above. The Church of England is at least a hybrid authority and our advice was that their Lordships judgment did not allow such a wide interpretation as Mr Fittall claimed. The House of Lords stressed that it was the nature of the function being performed that should determine whether a body was in a particular case a functional public authority(Hybrid). While we agree that bishops are unlikely to be seen as liable authority while serving tea to… Read more »
Badman is clearly correct, this is a fundamental change.
The Law here is developing – and at something of a pace! There are some first class lawyers who specialise in Canon Law, I cannot believe the CofE is getting this advice either.
I would really like to hear what Chancellor Mark Hill’s view is on all of this, he has a very sharp mind and his opinion would be very much worth a read.
It is the most profound legal change for almost a century and achieves at a stroke almost all of the things the clergy union was campaigning for. Perhaps that is why the church authorities are reluctant to admit the significance of the Percy case?
Well if the effect of European HR law and the Percy ruling is that religions lose the right to express their own moral codes within their own organisational structures then European HR law is exposed to be totalitarian! What freedom of religion is there if it only extends to those issues on which the secular law is silent? Isn’t a religion allowed to be “wrong”? Next thing we know only state approved religions will be allowed.. just like the good old communist regimes – which also thought of religion and religious people as backward, enemies of the state and in… Read more »