The 30 September deadline for the second consultation on a proposed Bill of Rights is approaching and reminders have been posted on this web log and elsewhere. Frank Cranmer’s recent post emphasized the importance of letting the Commission know one’s views, whether these support something approaching the status quo or the introduction of some or all of the proposals within the consultation. Responses are to be sent to the Commission by e-mail or by post to the address here.
Of interest to Parochial Church Councils, (PCCs) and ministers within the Church of England will be question 9,
“Presuming any UK Bill of Rights contained a duty on public authorities similar to that in section 6 of the Human Rights Act 1998, is there a need to amend the definition of ‘public authority’? If so, how?”
Paragraphs 61 and 62 of the second consultation note that:
“61. Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities in the UK to act in a manner that would breach a person’s Convention rights. A UK Bill of Rights might place an identical or similar duty on public authorities in respect of the rights set out in that instrument. There might be scope, however, for a UK Bill of Rights to contain different or clearer provision on what types of bodies are covered by such a requirement.’
62. Under the Human Rights Act 1998 the term ‘public authority’ includes Government departments, local authorities, statutory bodies and courts as well as some private bodies which exercise ‘public functions’ on behalf of the state (such as those companies who run private prisons). It is ultimately up to the courts to decide whether any particular body falls within this category…”
In view of its position as the established church in England, Church of England ministers, PCCs and other Church bodies exercise certain functions which are similar to those of a public authority. Two areas of current relevance are liability for chancel repairs and performing civil partnerships ceremonies in places of worship. The House of Lords judgment in Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor  UKHL 37 is currently the principal case relating to both aspects of the Church’s activities. The Court held [at para. 166] that:
“… the PCC’s general function is to carry out the religious mission of the Church in the parish, rather than to exercise any governmental power. Moreover, the PCC is not in any sense under the supervision of the state.”
As such, the respondents were held liable for the costs of chancel repairs – £95,260.84 in January 1995 when the action began, [para 21] which with legal costs rose to a reported ~£350,000 at the time of the judgment in June 2003.
Chancel repair liability has been in the news recently, here and here, as PCCs seek to ascertain who is liable under this former common law provision, now covered by the Chancel Repairs Act 1932 as amended by the Land Registration Act 2002. The reason for this heightened activity is the deadline in October 2013 after which chancel repair liability is no longer an overriding interest under the Land Registration Act 2002 (Transitional Provisions) (No.2) Order 2003.
This has been covered in detail by Frank Cranmer’s posts here and here, which considered the additional complexity of the obligations of PCCs to enforce chancel repair liability, since as members of the Parochial Church Council they are trustees of the charity and hence bound by charity law. Whilst the Charity Commission recently informed the PCC of St Eadburgha, Broadway, that it will not be obliged to enforce chancel repair liability, this decision was based upon the particular facts of the case and did not establish a general precedent. The Legal Advisory Commission of the General Synod provides advice to PCCs, Enforcement of chancel repair liability by PCCs and it is reported that this is being revised in the light of the St Eadburgha decision.
The civil partnership issue was the subject of a Prayer to Annul debate in the House of Lords in December 2011 which considered whether a religious denomination or a local church that declined to seek to have its premises approved for the registration of civil partnerships could be held to be discriminating in a way that is unlawful under the Equality Act 2010.
The legal opinion of the Church of England concurred with that of the government lawyers in that it would not be held to be in breach of the 2010 Act; but whilst this was the ultimate conclusion of the debate, it was marked by opposing views in the written evidence of two QCs and the different opinions of two former Lord Chancellors and two members of the Bishop’s Bench. Whilst no practical examples to challenge this conclusion have yet arisen, the Church’s opposition to same-sex marriage is likely to raise similar questions if legislation is introduced following the government’s consideration of the responses to the equal civil marriage consultation.
The broader issue of the legal meaning of a body acting as a public authority has been considered by parliament on a number of occasions:
- House of Lords & House of Commons Joint Committee on Human Rights: The Meaning of Public Authority under the Human Rights Act: Seventh Report of Session 2003–04, HL Paper 39 HC 382, (2004 TSO)
- House of Lords, House of Commons Joint Committee on Human Rights: The Meaning of Public Authority under the Human Rights Act: Ninth Report of Session 2006–07, HL Paper 77 HC 410, (2007 TSO)
- Ministry of Justice: The Human Rights Act 1998: the Definition of “Public Authority” Government Response to the Joint Committee on Human Rights: Ninth Report of Session 2006-07, Cm 7726, (2009, TSO)
and was the subject of Andrew Dismore’s (failed) Private Member’s Bill which sought to “[c]larify the meaning of ‘public authority’ in section 6 of the Human Rights Act 1998”.
Furthermore, specific reference to the position of the established Churches in England and Scotland and of the Church in Wales is given in a Memorandum by Norman Doe, Mark Hill, Frank Cranmer, Javier Oliva and Christiana Cianitto of The Centre for Law and Religion, of the Cardiff Law School to the Joint Committee on Human Rights, Session 2003-04.
In relation to the Church of Scotland in particular, opinions are divided. The traditional view has been that the courts of the Kirk are courts of the Realm and that they are not, therefore, private tribunals – and there are numerous judicial dicta to that effect. Lord President Rodger took the opposite view, however, in Percy v Board of National Mission of the Church  ScotCS 65:
“The procedures of the Church courts are replete with terminology which is familiar to practitioners of Scots law. The language does nothing indeed to conceal the hand which those trained in Scots law have had in guiding such proceedings down the centuries. None the less, despite their outward appearance, the laws of the Church operate only within the Church and her courts adjudicate only on matters spiritual. In other words, the formality and indeed solemnity of all these transactions and proceedings does not disclose an intention to create relationships under the civil law; rather, it reflects the serious way in which the Church regulates the matters falling within the spiritual sphere. [para 14]”
– in short, that a Church court was a private tribunal. And though the House of Lords subsequently overturned the judgment of the Inner House, they did not address that point.
There is thus no shortage of detailed legal consideration of the issue; and the Bill of Rights consultation notes that following the House of Lords decision in YL v Birmingham City Council & Ors  UKHL 27, statutory clarification of this specific situation – the duty of private companies that provide residential care under contracts with a local authority – was brought in by section 145 Health and Social Care Act 1998.
The statutory clarification of other scenarios would not require the introduction of a Bill of Rights, which many consider as a means of undermining the UK’s obligations under the ECHR. However, such a move would need to be incorporated into primary legislation and it would also need to be compatible with the ECHR – a sensitive task in relation to the activities of the Church of England.