Another Bite at the Cherry
Jonathan Redvers Harris considers the latest proposals for further marriage in church
What happened to Scott-Joynt?
Scott-Joynt has come back from the drawing board – and the House of Bishops has now issued Marriage in Church after Divorce (GS 1449). The bishops, it seems, are anxious that these latest proposals go through. Cynics may claim that the possible marriage of the heir to the throne is an influential factor, quite apart from the unity with the Methodists (who solemnize a large number of further marriages).
The Winchester report, it will be recalled, had proposed ‘further marriage’ (that is, marriage in church after divorce where a former spouse is still living) in limited circumstances, following the application of nationally-agreed pastoral criteria and involving the compulsory referral of a case by the incumbent to the bishop in the light of whose advice the incumbent would then make the decision.
Quite apart from any influence which the Cost of Conscience’s initiative Second Time of Asking may have had in demonstrating the shortcomings of Scott-Joynt, two significant factors left the proposals ‘dead in the water.’ First, there was the unfavourable response from a substantial number of diocesan synods about the proposed procedures, and secondly, legal advice received by the bishops on the civil law position and the Human Rights Act dimension has resulted in further reflection. Of these, it is the legal factor which seems to have been the more significant and I make no apology for concentrating on the legal points for a substantial part of this article.
More of the same – only worse
In a nutshell, the ten-and-a-half pages of this latest report (when stripped of all the annexed material) asks the General Synod to affirm that marriage is a life long covenant; recognize nonetheless that sometimes marriages fail and that there are circumstances in which a further marriage should take place; recognize that the decision is the cleric’s; invite the House of Bishops to issue the Advice to Clergy (contained in Annex 1); and grant general approval to rescind the Convocation regulations which prohibit the use of the marriage service for a further marriage.
Cases of particular difficulty, the report says, may be referred by a cleric to the bishop for advice, but in general the clergy are expected to use the procedure set out in the Advice for Clergy. This recommends at least two confidential interviews, following any initial meeting, using an application form (yet to be prepared), and working through a number of issues the cleric ‘may wish to consider in the light of the Church’s doctrine of marriage.’ These questions are largely based – some word-for-word – on the Scott-Joynt pastoral criteria, stripped of some of the more difficult elements (such as assessing the adequacy of financial provisions for children and the former spouse, or considering the causes of breakdown of the previous marriage). But again, just as in Scott-Joynt, the questions concern assessing the parties’ psychological and emotional maturity – one of the very reasons for the reluctance in Church of England reports to adopt ‘Romish’ nullity procedures. Question (e) – ‘Would permitting the new marriage be tantamount to consecrating an old infidelity?’ fairly admits the immensely difficult position in which the cleric would be placed, when, in the explanatory gloss, it is asked, ‘was the relationship between the applicants – so far as you can tell from the information made available to you – a direct cause of the breakdown of the former marriage?’ (my emphasis). The cleric will not, presumably, be interviewing the former spouse in addition; he or she is not conducting a trial (although see below about the possible Human Rights dimension to this), and can only respond to the information made available by the parties.
If it was felt that the incumbent in Scott-Joynt was left in too exposed a position, these latest proposals are worse still. It will be ‘a matter of concern within the parish’ – ‘a sensitive area,’ the report perceptively observes (para 4.1). The PCC, it says, ‘may offer you its views and you may refer difficult cases to the bishop, but neither can direct you. As you decide how to exercise your discretion you are entirely on your own.’ And, adds the report, you will need ‘to ensure the maximum degree of consistency in your approach (as applicants are entitled to have their cases dealt with by you consistently) as well as bearing in mind the consequences of setting a precedent which it will be hard not to follow.’ (para 4.8). For those who decide to continue (or to revert to) conducting no further marriages, there will be no Convocation regulations to fall back on (even if one third of the clergy are in breach, they do still represent the ‘official position’), and with no episcopal support you will be left defending your conscience. Who would be a cleric within the Church of England today?
It was Sir Humphrey Appleby who, in Yes, Minister, preferred the use of ‘legal objections’ to confound any new proposals because these could be made the most incomprehensible. Perhaps that is how some will react to the advice given by the Synod’s four Legal Officers (who include Sheila Cameron, Dean of the Arches, and Stephen Slack, the new Legal Adviser to the Synod) contained in a note, among the report’s annexed material, which is as long as the report itself.
The first question which the lawyers are called upon to address is Canon B30 Of Holy Matrimony. Upon this they all agree; it would not need altering if further marriages were to go ahead, because its wording only speaks of marriage ‘in its nature’ as a permanent and lifelong union; following the 1978 Lichfield report, they note this can mean ‘either the characteristic and normative nature of marriage or its determinative and invariable essence.’ So far, perhaps, so good. Lawyers are paid to find loopholes.
Of perhaps more interest to us are the Legal Officers’ views on the civil law position – because behind the original Scott-Joynt proposals and this second bite at the cherry lies the provision in section 8 of the Matrimonial Causes Act 1965 (that a cleric shall be compelled neither to solemnize further marriages nor to permit them in his church). Although, when read strictly, this statutory provision appears merely to grant a freedom or privilege from the general duty to marry, church lawyers tend to interpret this section more widely as conferring a right, or discretion, to choose. The Synod’s Legal Officers are no exception, maintaining that this provision gives a right to the cleric – a ‘conscientious right of objection’ which means that no one and nothing (whether a bishop, a tribunal, or compulsory guidelines) can require the cleric to decide in a particular way. This, as the Legal Officers note and as other church lawyers maintain, means that even the present Convocation regulations themselves may be illegal as fettering this ministerial statutory discretion. Yet this right of conscientious objection is not one of wanton subjectivism (otherwise clerics might discriminate between couples, favouring their friends or those donating to the tower restoration fund – and Mark Hill, Chichester’s Chancellor and one of today’s leading ecclesiastical law authorities, writes that ‘a capricious refusal, not based upon a conscientious objection, might be actionable under the Human Rights Act 1998’). The Legal Officers of General Synod do not use the language of a ‘properly informed conscience’ but in their note about this right of conscientious objection they do say that:
‘in deciding whether to take advantage of the right by refusing to conduct a service of further marriage, a cleric should only have regard to factors which were relevant to whether the further marriage would be consistent with their understanding of the Church of England’s doctrine of marriage.’ (p31).
With the exception of the words ‘their understanding’, I would agree – only I would not accept that the Convocation regulations are an unwarranted fettering of this conscientious discretion, but rather are in harmony with the Church’s teaching – which, as Canon B30 reminds us, is found in the marriage service in the Book of Common Prayer (and not in the banal pastoral introduction to the marriage service in Common Worship with which this latest report opens, nor in the inadequate silvery pamphlet Marriage issued just before Scott-Joynt). As to how a cleric’s conscience may be guided in a particular case the Legal Officers do not agree. The majority maintain that there is some scope for the Church to issue guidance to enable the clergy to decide whether or not to conduct a further marriage, such guidance needing to be in the form of an ordinary resolution rather than an Act of Synod (which would impact upon the conscience of the clergy and therefore be open to legal challenge as fettering the conscientious right of objection).
On the new dimension presented by the Human Rights Act 1998 (which gives effect to the European Convention of Human Rights into the domestic law of our land) the Legal Officers (following Mark Hill) agree that a cleric may well be a ‘public authority’ and thus caught within the Act if he or she acted in a way incompatible with a Convention right. The legal note takes it for granted, and this seems generally accepted, that the ‘right to marry’ of Article 12 extends to the right to re-marry, but that this does not confer the right to marry (or re-marry) in any particular place or form. The difficulty presented by the Act lies, rather, in the right not be discriminated against (‘on any ground’ or by virtue of any status) in Article 14 in the enjoyment of the Convention rights such as the right to marry – yet this right has to be balanced by Article 9’s ‘right to freedom of thought, conscience and religion’ which protects the cleric’s right. All this, say the Legal Officers, means that ‘similar cases had to be treated in a similar way’ and that discrimination in this area would be justified provided that the end in view was the protection of the cleric’s right of conscientious objection.
The one Convention right which this legal advice fails to note is the ‘right to a fair trial’ (Article 6). This right includes ‘the determination of [a person’s] civil rights’ before an independent and impartial tribunal established by law, which is arguably what a cleric is by virtue of section 8 of the Matrimonial Causes Act 1965. Now, if it were known that a particular cleric conducted some further marriages but not others – and by the precedents created and by the known and consistently applied criteria – there may possibly be a right, or an incipient right, here on the part of the applicants. The difficulty for an incumbent is that he or she may fall foul of the requirement to be independent and impartial (if either of the parties is known to the cleric), and the confidential interviews in the latest proposals would certainly not represent the ‘fair and public hearing’ required by this Article. In other words, to avoid a possible Human Rights Act challenge here may mean either further marriage for ‘all comers’ or for none at all: the very opposite of what the Bishops want.
What does all this tell us? Partly what we all already know: that wherever there are lawyers there will be differing opinions. But, if the Synod’s Legal Officers’ analysis of the civil law position is correct, then Scott-Joynt was fundamentally flawed from its beginning, resulting in considerable unnecessary expenditure and energy. Does it show that the bishops are at last listening to the lawyers (who could have given the same advice before Scott-Joynt’s report)? What I fear is that the lengthy legal annex has been included because it tells the bishops what they want to hear: that it’s all a very complicated and difficult business, and that by far the safest option is for bishops to wash their hands of any direct responsibility for marriage or further marriage, and leave the parish priest exposed in the firing line – exposed to defend his or her decisions, exposed to justify a conscientious objection, and exposed to possible legal claims.
In the face of this episcopal abdication, there are, it seems to me, two options. One is to leave well alone and keep the Convocation regulations intact – even in the face of widespread indisciplined and varied practices. The other is more radical, and has never been favoured by Church of England reports: universal civil marriage, followed by a church ‘blessing’ for church people. Shorn of the consequences (in civil law) of marriage in church, the Church of England – her institutions and clerics – would then no longer be a public authority caught within the Human Rights Act and free to introduce a marriage discipline in keeping with the western Church’s tradition. Although the most recent report stresses the ‘qualitative difference’ of marriage as opposed to cohabitation – not least in the ‘public vows before God and other people’ (para 3) – we have, surely, to acknowledge that many, perhaps most, marriages in church, simply by virtue of today’s ever-increasing and all-pervading ‘divorce on demand’ culture, contain an inevitable conditionality in the vows and hence carry a question mark over their theological validity.
A radical solution
There is, however, a further alternative, which some exasperated priests may be tempted to adopt, and one with which I have considerable sympathy. It is, quite simply, to solemnize no marriages in your church at all – whether first or second – and so begin the movement for reform (to universal civil marriage followed by church nuptial blessing in some cases) at grass roots level. Immediately, of course, it will be objected that this would be in breach of the general duty to marry all ‘first-timers’ resident in the parish (even if unbaptized) – and, indeed, this is the view unquestioningly shared by many church lawyers. But not unanimously. Professor Norman Doe, perhaps our leading church lawyer today, questions the assumption that there is this general right among parishioners, saying that, although in practice today it is treated as having acquired the force of law, it exists really only as a ‘powerful legal fiction’, based on a misunderstanding of early case law. In any event, by whom and how would such a perceived duty be enforced – an action for damages, or a High Court order of mandamus, compelling the cleric to marry (unlikely, given that parish churches today are simply one of a number of scenic settings available)? Refusing to marry anyone, but offering instead a nuptial service where the union fulfils the characteristics of marriage in the tradition of Western Christendom, could only be a disciplinary matter between bishop and cleric – and in marriage matters, as the latest report shows, the bishops are evidently washing clean their hands.
The Reverend Jonathan Redvers Harris is Vicar of Houghton Regis in the Diocese of St Albans.
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