ECCLESIASTICAL LAW: An Introduction

Written by Justin Gau of Pump Court Chambers

The world of Anglican Ecclesiastical Law should, with any luck, be one of the very few areas of life that will remain unscathed and untroubled by the chronic uncertainties of Brexit. The possible economic chaos of Brexit which is causing such concerns within other legal circles is regarded wearily as the norm within the Church of England and is regularly spun by enthusiastic senior members of the clergy as an ‘opportunity rather than a crisis’. On a more optimistic note the thirst for litigation within the church by its members appears to proceed unabated with eye watering sums being spent by, for example, a pressure group set up to oppose the building of a Church Primary School. Indeed that litigation (Spitalfields Open Space Limited and others (Appellants) v The Governing Body of Christ Church Primary School and others (Respondents) (No 2) [2019] EACC 1) not only involved appeals to the Court of Arches on two separate occasions, but also involved the drafting of a judgment in excess of 500 pages and a reference to Philip Larkin in the final judgment. It also involved costs in excess of three quarters of a million pounds. The judgment is also a helpful reminder to petitioners to be scrupulous in the drafting of their petitions.

As a further warning to over-enthusiastic parties, or those with scant regard to the niceties of the faculty procedures, Consistory Courts have recently become increasingly willing to award costs against parties who have behaved, in the view of the Court, inappropriately (see Re All Saints Hooton Pagnell [2017] ECC She 1, Re St. Alban Wickersley [2019] ECC She 3 and Re St. Peter Chailey [2019] ECC Chi 2).

During the year considerable work has been undertaken by the Archbishops' Council to amend, consolidate and generally ‘tidy up’ the dispersed collection of measures and acts that have been passed over the decades for which hard work many who work in the field of ecclesiastical law are extremely grateful.

The year ahead will be dominated by two developments - the change in the law relating to civil partnerships and the eagerly awaited report by the Independent Inquiry into Child Sexual Abuse (IICSA).

The change in the law relating to civil partnerships will allow opposite-sex couples to contract a civil partnership rather than a marriage, and will also allow those who are married to change their marriages into civil partnerships. The government is also intent on passing legislation to ensure that no religious organisation or individual minister can be compelled to host or participate in civil partnerships (whether between a same-sex or an opposite-sex couple), to seek approval of their premises for the registration of civil partnerships, or to provide religious consent to the approval of premises. On the other hand it intends also to enable religious organisations to seek approval of their premises for the registration of either same-sex, or opposite-sex civil partnerships, or both. The Church of England’s ‘quadruple lock’ however is to be extended in relation to opposite-sex civil partnerships. The unintended consequence of the almost universal uptake on marriages for same-sex couples and the possible conversion of marriages to civil partnerships for opposite-sex couples may mean that the only candidates for same-sex civil partnerships in the future are clergy in the Church of England.

IICSA spent two weeks taking harrowing and troubling evidence from a wide cross section of the Church, from survivors of abuse to Archbishops. It is impossible to accurately predict the recommendations that it will make, but the transcripts reveal a wholesale rejection of the current Clergy Discipline Measure as being cumbersome, overly technical and generally unwieldy and unfair. Polite incredulity at some aspects of the Measure (including the role of Bishops) was expressed by the Inquiry. The Inquiry appeared to be suggesting that the Church was currently marking its own homework. There were also grave concerns expressed about the ability of the Church to properly deal with safeguarding issues. Suggestions were made in cross examination of the need to remove Bishops from their role in dealing with safeguarding allegations made against the clergy. It is fair to say that, whatever suggestions the Inquiry makes, the landscape of safeguarding and discipline in the Church is going to be very different within the next few years.