Marriage of clergy to same-sex partners – update

Recent posts have considered the legislation relevant to the marriage of clergy to their same-sex partners, and that relating to black lists, blue files and the Archbishops’ List, here and here respectively. To date, attention has focused on the action taken by bishops following the marriage of clergy within their dioceses contrary to the HoB Statement of Pastoral Guidance on Same-Sex Marriage. Two further areas to be addressed are the selection of candidates for the ministry and clergy seeking new appointments; and developments with regard to the latter are reported in the Changing Attitude post Bishop refuses to licence Canon Jeremy Pemberton as health service chaplain following marriage, written by Laurence Cunnington, Jeremy Pemberton’s husband.

Background

On 22 June Pink News reported that Canon Jeremy Pemberton, who married his long-term partner in a civil ceremony in April, has had his Permission to Officiate (PTO) removed by the Acting Bishop of Southwell and Nottingham, the Rt Rev Richard Inwood, thereby revoking his permission to conduct services in the diocese. The BBC quoted the bishop as saying:

“it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives … In view of this I have spoken to Jeremy Pemberton and subsequently written to him to tell him his permission to officiate in the Diocese of Southwell and Nottingham has been revoked.”

Canon Pemberton’s position as a lay-clerk at Southwell Minster is unlikely to be affected. However, in relation to his employment as Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust in the diocese of Lincoln, the Rt Revd Christopher Lowson, Bishop of Lincoln, issued a written rebuke for contracting a same-sex marriage but took no action on his general licence in relation to his employment as a chaplain.

A PTO is issued under Canon C 8(3) entirely at the discretion of the bishop, creates no employment-like rights and can be withdrawn at the absolute discretion of the bishop without the need for a disciplinary process. In contrast, the licence upon which employment as a chaplain is linked is subject to the Extra-Parochial Ministry Measure 1967 and can only be terminated following a disciplinary process, s8(2) Clergy Discipline Measure 2003.

Canon Pemberton was recently successful in his application to become the Head of Chaplaincy & Bereavement Services with the Sherwood Forest Hospitals NHS Trust, which falls within the area covered by the Southwell & Nottingham diocese. Following its normal procedure, the NHS has requested the acting Bishop of Southwell & Nottingham to issue Canon Pemberton with a licence in order that he may take up his new job. However, Laurence Cunnington states that the Bishop has refused to issue any form of licence since, in view of his marriage, Canon Pemberton does not “model the Church’s teaching” in his life.

Laurence Cunnington is seeking support with a view to persuading the acting Bishop of Southwell & Nottingham to change his mind and issue Canon Pemberton with some form of a licence. Meanwhile, The Guardian reports that Canon Pemberton intends to investigate whether he has a legal case against the Church under anti-discrimination legislation.

Comment

Much of the analysis and comment on these latest developments has been focused on the Church’s approach to same-sex marriage and its role in the licensing of hospital chaplains. An alternative approach is to start from the point of view of the secular employer, the contract of employment between the NHS Trust and the hospital chaplain, and the role played by the bishop’s licence.

The NHS describes the general entry requirements for a hospital chaplain as

“a professional qualification, a specific vocational degree or general degree, or the equivalent … [and] a satisfactory recommendation and authorization by [the applicant’s] faith community … requirements may vary between different employers.”

It further outlines work of a chaplain as embodying “the spiritual, pastoral and religious care associated with these needs found in the healthcare setting.” Chaplains are recruited “in proportion to the belief patterns of the local population” and, consequently, the vast majority are Anglicans, while others are from the Roman Catholic, Free Churches or World Faiths.

The document Ordained Chaplains and Common Tenure, issued by the Legal Office of the Church of England in February 2011 explains the situation as follows:

The position of chaplain to a person or institution is not recognised in law as an ecclesiastical office. Unlike parochial ministry, the duties and parameters of a chaplaincy are not defined in statute or in the Canons, but are governed primarily by the requirements of the person or body that the chaplain serves and/or the person or body that appointed him or her, if different. Even in situations where there is at present no written contract, it is very likely that a Court, if asked to determine the matter, would conclude that chaplains are employees in law. Their contracts of employment, written or oral, sit alongside the licence from the bishop which authorises their ministry under Canon C 8.

[…]

Strictly speaking, the Ecclesiastical Offices (Terms of Service) Measure 2009 applies (inter alia) to all clergy who exercise their ministry in accordance with a licence from the bishop of the diocese, and therefore chaplains fall within the ambit of Common Tenure.  However, as a result of a clarifying amendment passed by the General Synod in November 2010, the legislation now states in terms that the Ecclesiastical Offices (Terms of Service) Regulations 2009, which contain the detailed provision for the terms of service of office holders under Common Tenure, shall not apply to any ministry that is exercised pursuant to a contract of employment.”

In stressing the importance of a written contract of employment, the document continues:

“[T]he contract should state who is the employer of the chaplain and should also make clear the relationship between the contract and the bishop’s licence. The 2009 Measure allows a bishop to terminate a licence granted in connection with ministry exercised under a contract when that contract comes to an end, but not otherwise except as a result of proceedings under the Clergy Discipline Measure 2003.”

Within the Church, the licensing of ministers under seal is addressed in Canon C 12, which states:

“1. A licence, granted by the bishop under his hand and seal to any minister to serve within his diocese, shall be in the form either –

(a) of a general licence to preach or otherwise to minister subject to the provisions of paragraph 4 of Canon C 8 in any parish or ecclesiastical district, or

(b) of a licence to perform some particular office or to serve for the purposes of or in connection with a mission initiative endorsed by a bishop’s mission order.

2. No bishop shall grant any such licence to any minister who has come from another diocese, except such minister first show unto him Letters of Orders or other sufficient evidence that he is ordained, and bring him testimony, from the bishop of the diocese whence he has come, of his honesty, ability, and conformity to the doctrine, discipline, and worship of the Church of England.”

Until recently, the ecclesiastical legislation associated with the employment of Anglican hospital chaplains had received relatively little attention, but in relation to private chapels, Mark Hill states[1]:

“[t]he chaplain, like any priest, requires a licence or written permission to officiate from the bishop, whose discretion in this regard is unfettered”,

adding by way of a footnote

“[s]ave, perhaps, by judicial review in the Administrative Courts were he to act unreasonably or to fail to give reasons”.

The main problem for the Church raised by recent events is one of achieving consistency in the light of: uncertainties in the application of its existing legislation and the on-going Shared Conversations on Sexuality, Scripture and Mission, GS Misc 1083. Whilst the latter are unlikely to result in changes to the Church’s basic teaching on marriage, they may, or may not, lead to a reconsideration of its approach to some of the associated issues: the blessing of same-sex couples; its tolerance of clergy in same-sex marriages; or the celebration of same-sex marriages.

Adjacent dioceses have apparently adopted different approaches to the licensing of the same priest, within the same time-frame, to undertake essentially the same role.  Neither “clergy blacklists” (assuming they existed) nor advice from the Bishop of Norwich’s group appears to have been a factor. The question that remains is whether there is scope for some form of licence that satisfies the requirements of both the diocese and the NHS Trust in relation to the duties and parameters of the chaplaincy .

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[1] M Hill Ecclesiastical Law, (3rd Edn, Oxford University Press, 2007). Section 3.105 and more generally 4.36.

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  1. Pingback: Religion and law round up – 13th July | Law & Religion UK

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