by Professor Iain McLean, FBA FRSE, Professor Emeritus of Politics, Oxford University and a fellow of Nuffield College. As a Quaker, he was a consultant to Britain Yearly Meeting of the Religious Society of Friends (Quakers) for their lobbying on the ‘Alli amendment’ (to the Equality Act 2010, permitting faith communities to conduct civil partnerships) and on the Marriage (Same Sex Couples) Act 2013
(the second in a series of four. based on a presentation to the June 26th Symposium on Same-Sex Marriage in the Church of England organised by Sir Ben Bradshaw and Jayne Ozanne)
On 21 March 2023, Ben Bradshaw MP (Lab., Exeter) introduced a Ten-Minute Rule Bill ‘to enable clergy of the Church of England to conduct same sex marriages on Church of England premises in certain circumstances’. It was co-sponsored by parliamentarians from the Conservative, Labour, Liberal Democrat, and Green parties (no nationalists; the bill would apply in England only). Introducing it, Mr (now Sir) Ben Bradshaw stated that it had the support of Sir Tony Baldry (former MP (Cons, Banbury) and Second Church Estates Commissioner). He also stated that
My preference—and, I imagine, that of most colleagues—would be for the Church to do this itself….The main motivation in introducing it is to encourage the bishops to stick to the commitments and timetable agreed by February’s Synod and resist any delay or backsliding at the next Synod in July.
The current Second Church Estates Commissioner, Andrew Selous, responded
[I]t is necessary to respond to the Bill in my capacity as Second Church Estates Commissioner because it seeks to usurp the role of the democratically elected General Synod of the Church of England, as well as to remove the freedom of the Church of England to decide its own doctrine, a freedom that members from all parts of this House champion for religions and beliefs all over the world and one that we should therefore apply equally to the Church of England (Hansard, Commons, 21 March 2023).
Earlier, in response to an Urgent Question, he had said:
In order to change canon law on the doctrine of holy matrimony, there has to be a two-thirds majority in the House of Bishops, the House of Clergy and the House of Laity of the General Synod, which is itself a devolved body of this Parliament, and the vast majority of whose members are elected. There is not currently a two-thirds majority in the General Synod to change canon law on the doctrine of holy matrimony (Hansard, Commons, 24 January 2023).
… although he modified this answer two days later to say
the advice I was given then was by the Church legal office, and I was yesterday asked to make a small clarification. A simple majority in each of the three Houses of the General Synod could suffice to pass a measure and amending canon to change the definition of marriage in ecclesiastical law, but circumstances could also arise in which two-thirds majorities in the House of Bishops and the House of Clergy would be needed, and, as with all authorised forms of service, a two-thirds majority in each House would be required for the approval of the Synod as a form of service for the marriage of a same-sex couple (Hansard, Commons, 26 January 2023).
A Ten-Minute Bill is purely expressive speech. Mr Bradshaw’s bill received a first reading without a division, but is tabled for its second reading on a day when Parliament will not be sitting. Nevertheless, the matter remains of current interest. The General Synod of the Church of England meets in July and November 2023. The agenda for July contains no such proposed Measure. If the Synod declines to introduce a Measure to permit those clergy who so wish to conduct same-sex weddings in their churches, can Parliament intervene with a Private Member’s Bill, which unlike a Ten-Minute Bill receives substantive debate? And should it?
Can Parliament intervene?
It certainly can. The orthodox doctrine of Parliamentary sovereignty maintains that Parliament remains supreme, even when it has delegated authority to bodies such as the Scottish and Welsh Parliaments, and the General Synod of the Church of England. Since delegating authority to what is now the General Synod in 1919, Parliament has intervened in the doctrine of the Church of England, most notoriously in the ‘Prayer Book controversy’ of 1927-8. Twice, the House of Commons turned down the Church of England prayer book, on the grounds that it was too close to Roman Catholicism. The decisive majority included Calvinist MPs from Scotland and Ulster. They could vote, because of parliamentary sovereignty, even though it was an England-only matter.
The doctrines of the Church of England have less protection from Parliamentary interference than do those of the Church of Scotland. Both Parliament and the courts interfered with the doctrines of the Kirk, the former by the Patronage Act 1711 and the latter in various court judgements culminating in the Free Church case (Bannatyne v. Overtoun [1904] AC 515). In 1711 Parliament enacted a right for lay patrons to nominate ministers. In 1904 the judicial House of Lords awarded all those assets of the large United Free (UF) Church of Scotland that had come from the former Free Church to the tiny continuing Free Church, on the grounds that
the Establishment principle and the Westminster Confession were distinctive tenets of the Free Church; that the Free Church had no power, where property was concerned, to alter or vary the doctrine of the Church; that there was no true union …; and that the appellants were entitled to hold for behoof of the Free Church the property held by the Free Church before the union in 1900.
To forestall any repetition, the Church of Scotland and the UF Church, who were merging, obtained a remarkable abnegation of Parliamentary sovereignty in the Church of Scotland Act 1921 c.29 (‘An Act to declare the lawfulness of certain Articles declaratory of the Constitution of the Church of Scotland in matters spiritual prepared with the authority of the General Assembly of the Church.’). These Articles Declaratory, drafted by the General Assembly, trump any statutes that might conflict with them.
This ancient history illustrates two bad ways of interfering with religious freedom. Both 1711 and 1927-8 were instances of what is now called the ‘West Lothian Question’, in which a measure affecting only one part of the UK is enacted against the majority vote of members from that part. The majority of Scots MPs voted against the 1711 Act. The majority of English MPs voted in favour of the Prayer Book. And the courts would not now presume to wade in to identify the fundamental tenets of a religion and use that as a basis for assigning property. Are there, though, any good grounds for parliamentary involvement in religion?
Should it?
There are two main arguments against introducing a bill to permit C of E clergy to solemnise same-sex marriage, and two main arguments in favour.
The first argument against is that what is delegated should stay delegated. By delegating authority to the Church of England, Parliament extricated itself from what had been very time-consuming and messy arguments about, for instance, divorce, the Roman Catholic presence in England, and marriage to a deceased wife’s sister. The second argument against is that espoused by Andrew Selous above: that intervention would ‘remove the freedom of the Church of England to decide its own doctrine’.
The first argument in favour of intervention is that a purely permissive measure cannot be detrimental to religious freedom. On this argument, individuals have freedom; organisations, not so much. In its zeal to protect the religious freedom of clergy opposed to same-sex marriage, the Marriage (Same-Sex Couples) Act 2013, it is argued, tramples on the religious freedom of clergy supportive of same-sex marriage. As noted in the Ten Minute debate, various denominations have opted in under the 2013 Act or its Scottish equivalent, in all cases permissively. Both Acts protect the conscience of those unwilling to conduct same-sex marriages when their faith group has decided to be open to them.
The second argument is that the Church of England is for some purposes an agent of the state. Ever since 1753, when it was granted a monopoly of marriage in England & Wales (except for Quakers and Jews, who are still treated differently), it has regulated property and succession rights on behalf of the state. All parish clergy act as registrars – a civil function – when they officiate at a wedding. In addition, they have a common-law duty to marry parishioners, and couples have a common-law right to ask to be married in the parish church of either of them. However, as the Explanatory Notes to the 2013 Act make clear:
Subsections (4) and (5) provide that any duty of a member of the clergy of the Church of England or the Church in Wales to solemnize a marriage does not extend to same sex couples. In addition, any corresponding right of parishioners to be married by such clergy does not extend to same sex couples. The effect of this is that the common law duty on the clergy of the Church of England and the Church in Wales to marry parishioners is not extended to same sex couples.
Examples…
A man lives next door to a Church of England parish church and wishes to get married there. He is getting married to a woman. Neither of them has ever attended services at the church or professes to be Christian. He speaks to the vicar who agrees to marry the couple, given his legal duty to marry parishioners.
A man who lives next door to a Church of England parish church wishes to get married there. He is getting married to a man. Both of them regularly attend services at the church and are committed Christians. He speaks to the vicar who has to refuse to marry the couple, since it would not be lawful for him to do so and the legal duty to marry parishioners does not extend to same sex couples.
For a text presumably drafted by civil servants and/or parliamentary drafters, this seems unusually forthright.
The ‘quadruple lock’ inserted in the 2013 Act at the request of conservative denominations contains a couple of tumblers that are unique to the Church of England. They are section 1 subsections 3-5:
(3) No Canon of the Church of England is contrary to section 3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of this realm) by virtue of its making provision about marriage being the union of one man with one woman.
(4) Any duty of a member of the clergy to solemnize marriages (and any corresponding right of persons to have their marriages solemnized by members of the clergy) is not extended by this Act to marriages of same sex couples.
(5) A “member of the clergy” is—
(a) a clerk in Holy Orders of the Church of England, or
(b) a clerk in Holy Orders of the Church in Wales.
Subsection (3) is declaratory, and nobody’s religious freedom would be impaired by its repeal. The effect of repealing subsections (4) and (5) would be to remove the anomaly highlighted in the Explanatory Notes.
I conclude that a Private Member’s Bill to repeal these subsections would be a simple way of granting parliamentary approval of the consciences of clergy who wish to conduct same-sex marriage, while preserving all the protections already in the 2013 Act for clergy who do not. If such a bill won parliamentary time (which requires at least the tacit consent of the government of the day), the votes on it would be classically ‘conscience’ matters and no party would be expected to whip its members. Unlike in 1927, however, Scottish and Northern Irish members should not vote.
