An earlier post considered the initiatives in progress within the Church of England “to encourage wider, more imaginative and more strategic use of its 16,000 buildings” and the complexities of the associated legislation relating to their secular and religious use.  The Church’s Open and Sustainable Churches scheme is primarily directed at the former, whilst religious issues are governed by the Sharing of Church Buildings Act 1969 and the specific provisions of the participant Churches concerned. The practical application of the latter is proving problematic in a number of areas:

• the inclusion of additional churches through the “gazetting” process;
• the registration of civil partnerships and future same-sex marriages;
• priests and congregations who leave the Church of England for the Ordinariate; and
• the use of the Crypt Chapel of Parliament.

Sharing of Church Buildings Act 1969

In addition to Churches included in Schedule 2 to the Sharing of Church Buildings Act 1969, section 11(3) provides that

“any Church for the time being represented on the General Council of the British Council of Churches or on the governing body of the Evangelical Alliance or the British Evangelical Council may give notice in writing to the General Secretary of the British Council of Churches . . . . [who] shall publish in the London Gazette a notice signed by him . . . . . .[and the ] Act shall apply to that Church as from that date and shall have effect as if an entry in respect of that Church and the appropriate authority or authorities so specified were made in Schedule 2 thereto”.

As a result of the reorganization of the Inter-Church Process in 1990/91, the structure of the British Council of Churches was changed and, in addition to being renamed as Churches Together in Britain and Ireland (“CTBI”) the organization ceased to have a General Council on which its member Churches were represented.  As a consequence, there is a possibility that any subsequent gazetting by CTBI did not have legal effect because the requirements of section 11(3) of the Act were not met.  Furthermore, there is a similar degree of uncertainty concerning gazetting by the Evangelical Alliance and the British Evangelical Council, here.  Whilst it would be possible to deal with these issues though an amendment by Act or by Measure, the introduction of such amendments is likely to be “far from straightforward”. (One might also question the legitimacy of legislating by Measure to amend a part of the Act which is  not intended for the Church of England at all, but for other Churches wishing to be brought under the umbrella of Schedule 2.)

There is a further issue of the designation of Churches under the Church of England (Ecumenical Relations) Measure 1988, although in this case it is proposed that the designation under the Measure should be uncoupled from the application to a Church of the 1969 Act.

Civil partnerships, same-sex marriage and shared buildings

Fundamental reforms to civil registration of marriage in England and Wales were considered in the 2002 White Paper Civil Registration: Vital Change; and the subsequent consultation Civil Registration: Delivering Vital Change proposed the introduction of a celebrant-based system for marriage, removing any restrictions on the time or place of marriage. However, those changes did not materialize and the arrangements for civil partnerships introduced through the Civil Partnership Act 2004 retained the “approved premises” format of the provisions relating to civil marriage.  Registration of civil partnerships in religious premises was not permitted until the Marriages and Civil Partnerships (Approved Premises)(Amendment) Regulations 2011 SI 2661 which came into force on 5 December 201 but were not practically effective until after Baroness O’Cathain had withdrawn her “prayer to annul” motion in the Lords on 15 December 2011. The Regulations place no obligation on a proprietor or trustee of religious premises to make an application for approval for such use; but for religious premises subject to a sharing agreement (or for shared buildings), the application must include the individual consent of each of the sharing Churches (or each of the Churches that uses the shared building).

With regard to same-sex marriage, in its December response to the consultation Equal Civil Marriage the UK government acknowledged [para. 4.26, page 19] that consideration needs to be given to issues around shared premises and pledged to “continue to work closely with faith organisations on such particular issues and scenarios to make sure the necessary legislative safeguards are in place”.  It also announced [para. 4.19, page 17] a “quadruple lock” of additional measures to ensure that it was beyond doubt that no religious organisation or its ministers would be forced to conduct marriage ceremonies for same-sex couples.  This has been discussed in an earlier guest post by Scot Peterson.

The Westminster Government’s response did not discuss whether it would consider the introduction of a celebrant-based system which, although overcoming some of the difficulties associated with the shared use of churches, might introduce other difficulties for bodies such as the Church of England that have expressed a “corporate” opposition to same-sex marriage.

It is the celebrant-based system that is being proposed by the Scottish Government in its current Consultation on the Marriage and Civil Partnership (Scotland) Bill. The Sharing of Church Buildings Act 1969 does not apply to Scotland because there was no perceived need for it. When the matter was originally raised at second reading of the Bill the House of Lords was told that

“… there is no law, civil or ecclesiastical, against the sharing of churches in Scotland. Nor has the General Assembly [of the Church of Scotland] ever sought to regulate the matter” [HL Deb (1968-69) 298 cc 1306].

The Scottish Government considers that

“it would be preferable to leave it up to the religious bodies amongst themselves to decide whether or not premises should be used for civil partnership and same sex marriage. That is more in line with our tradition of approving celebrants rather than buildings and removes any potential interference by the state in discussions between religious bodies.”[para. 59, page 43: emphasis added]

The consultation addresses some of the potential issues raised by this approach but notes that

“the government does not consider it appropriate to provide in legislation that a tenant could stop same-sex marriage or civil partnership ceremonies from taking place in the landlord’s premises. This would constitute interference by government in private property relationships and contracts. The government considers it preferable for landlords and tenants to come to their own private arrangements about the use of premises”  [para. 60 page 43],

and in relation to the use of other premises by religious bodies,

“the government considers that a local authority who refuses to let premises to a body of the basis of the religious beliefs of the body risks a successful claim of discrimination. The public sector equality duty does not mean public bodies can discriminate where the 2010 Act says that it is unlawful” [para. 65, page 44].

Kelvin Holdsworth’s blog provides an interesting Scottish insight on these developments.

The Ordinariate

The issue of church-sharing is a particular concern for priests and congregations leaving the Church of England for the Personal Ordinariate of Our Lady of Walsingham; and the possibilities of the use of existing church buildings by Ordinariate congregations is addressed inter alia in The Roman Catholic Ordinariate of Our Lady of Walsingham – some questions and answers on the legal implications for the Church of England, GS MISC 979.  The document indicates that, recognizing the unlikely possibility of their continued use of their places of worship, the Roman Catholic Church acknowledges that “in most cases … the Ordinariate congregations will probably use their local diocesan Catholic church”. The document notes that although it possible in law for any “church building” (including inter alia church halls) to be used by an Ordinariate congregation under a sharing agreement within the 1969 Act, there are a number of practical issues to be resolved, such as the parties to such an agreement.

For the Roman Catholic Church this would probably be the bishop of the Roman Catholic diocese in which the church building was physically situated rather than the Ordinary of the Ordinariate, although additional consent may be needed from such person or body as that Roman Catholic bishop might specify, which might include the Ordinary.

Alternatively, the regular use of a church building by an Ordinariate congregation might be undertaken under a licence agreement or under a lease using the power conferred by the Pastoral (Amendment) Measure 2006.  In either case faculty authorization would be required and this would be subject to the approval of the church concerned and of the bishop: see Canon B43 §9. Whilst use on an infrequent basis might not require the authorization of a faculty it would nevertheless be subject to local approval and that of the Ordinary.

In December 2010, the Rt Revd Richard Chartres, Bishop of London, gave an address to the London Diocesan Synod in which he is reported as saying this

“There does however seem to be a degree of confusion about whether those entering the Ordinariate … might be able to negotiate a transfer of properties or at the least explore the possibility of sharing agreements in respect of particular churches.

For the avoidance of confusion I have to say that as far as the Diocese of London is concerned there is no possibility of transferring properties. As to sharing agreements I have noted the Archbishop of Westminster’s comment that his ‘preference is for the simplest solutions. The simplest solutions are for those who come into Catholic communion to use Catholic churches’.

I am also mindful that the late Cardinal Hume, whom I greatly revered, brought to an end the experiment of church sharing after the Synod’s decision of 1992 because far from being conducive to warmer ecumenical relations it tended to produce more rancour”.

In a more recent development, on 2 January 2013 Archbishop Vincent Nichols of Westminster announced that in Lent the church of Our Lady of the Assumption in Soho, the church in which the John Henry Newman first attended Mass, would be “dedicated to the life” of the Ordinariate.  The establishment of a focal point in London within a Roman Catholic Church is a major step in the development of the Ordinariate.

The circumstances are different in the case of the eleven Sisters of the Community of St Mary the Virgin in Wantage, (CSMV) who were received into the Roman Catholic Church via the Ordinariate on 1 January 2013, here.  The Sisters had wished to remain at the convent, with Anglican and Roman Catholic Sisters worshipping together with “appropriate Eucharistic provision”; and although the 1969 Act is not applicable, the new Community is in the early stages of development.  The new community, the Sisters of the Blessed Virgin Mary (SBVM), was erected by decree of the Ordinary of the Personal Ordinariate, Monsignor Keith Newton, on New Years’ Day and initially will exist as a Public Association of the Faithful, under Canon 301 §3 CIC.  Reverend Mother Winsome notes that “after considerable discussion with the authorities of the Church of England and the Ordinariate it has become clear that [sharing the convent] would not be possible.”

A Joint Statement from Mgr Newton and the Bishop of Oxford said

“The departing Sisters, the Bishop of Oxford (the Rt Revd John Pritchard, as Visitor to the Community) and Mgr Keith Newton have been discussing with their professional advisers how the CSMV and the SBVM would be able to continue their religious lives in their separate communities. Terms have been agreed in principle to enable the departing Sisters to establish themselves and to live and work as the new SBVM community. The departing Sisters have left Wantage and, after a period of formation in their new tradition, are expected to locate themselves elsewhere in England. The Bishop wishes them well as they move on to this next stage in their Christian vocation.

The CSMV will continue in being as an Anglican foundation and new charity trustees have been appointed, following consultation between the previous Trustees (who had all decided to join the new Roman Catholic community) and Bishop John Pritchard. The new Chair of CSMV Trustees is Baroness Judith Wilcox”.

Chapel of St Mary Undercroft

A different aspect of church-sharing was brought up during the 12 December backbench debate on women in the episcopate, when Chris Bryant (Rhondda) (Lab) stated:

“the one place where it will not be possible to perform such a [same-sex] marriage is the Crypt Chapel of Parliament. Would it not be a good idea if that were handed over to all the faiths, rather than just one faith?”

Possibly so, were it not for the fact that the Chapel of St Mary Undercroft is a Royal Peculiar which, as the UK Parliament’s own web site states,

“means it does not come under the jurisdiction of a bishop but is under the monarch’s control. The monarch exercises this via the Lord Great Chamberlain. Black Rod, who is also the Secretary to the Lord Great Chamberlain, has responsibility for managing the use of the Chapel chiefly by Members of both Houses and their families for weddings and christenings.”

In a Lords debate in 1999 concerning the possibility of hereditary peers who cease to be members of the House of Lords by virtue of the House of Lords Act 1999 still retaining their right to use the Chapel, Lord Carter stated that

“The Chapel of St Mary Undercroft is ecclesiastically part of the Royal Peculiar of Westminster Abbey, as has been said. It is located physically within the Palace of Westminster. Control of its use is the responsibility of the Lord Great Chamberlain. It is nothing to do with the House of Lords or indeed the House of Commons. In practice, the Chapel and access to it are managed by Black Rod, in consultation with the Speaker’s Chaplain. This is not a matter for legislation to decide, or indeed for the Government to express a view on. It is for the authorities of the Palace of Westminster. If there were to be a proposal for any change in the arrangements, it would be a matter for the Lord Great Chamberlain to discuss with the Speaker of the House of Commons and the Lord Chancellor, the Speaker of the House of Lords” [emphasis added].

In short, the Crypt Chapel is not Parliament’s to hand over.

Incidentally, it will be of interest to canon lawyers that during the 1860 to 1870 restoration works by Edward Barry, the embalmed remains of William Lyndwood, canonist and Bishop of St David’s (d.1446) were found in the chapel’s north wall.  He was reburied in the cloister of Westminster Abbey.