New church guidance of relevance to all CofE weddings

In February this year, the General Synod Legal Advisory Commission issued new advice on a number of issues including that of “celebrity marriages” (“the Advice”). This particular document will be of assistance to not only the clergy responsible for the conduct of such events, but for those involved in their arrangement and those wishing to attend. Furthermore, since “celebrity” affords such individuals few additional concessions in the conduct of a church service, much of the advice is applicable to all weddings.

There is a clear egalitarian thread running through the new legal advice; Celebrity Marriages – General Synod, Legal Advisory Commission commences :

“[1]. The same law applies to the weddings of celebrities in Anglican cathedrals and churches as it does to the weddings of any other persons, although there may be added complications if the couple have entered into an agreement for exclusive publicity with a magazine or other form of media. Slightly different considerations will arise if the marriage is to be celebrated in a private institution such as a peculiar or a college chapel; this is because in such circumstances there may not be a right for the public at large to enter such premises”.

[This legal advice concern legislation pertaining to the Church of England, and the term “Anglican Cathedrals” in the title and para. 1 need to be considered from this narrow interpretation].

Celebrity

The guidance wisely does not define “celebrity”; the term has no meaning in law, and in its use of the phrase “[h]owever celebrated the couple may be”, paragraph 2 suggests that there is a sliding scale of celebrity, which could possibly range from those well-known at a local level to others with a national or international reputation. The “celebrity element” of a marriage primarily comes into play in relation to publicity, admittance to the ceremony and security issues; all other issues are little different from “non-celebrity” weddings, and the organisers and participants are subject to the same ecclesiastical and statutory provisions as anyone else.

Legislation common to all marriages

Civil and Ecclesiastical Preliminaries

The preliminary requirements, which must be satisfied before a marriage may be celebrated, remain the same as for any other marriage: the calling of banns, a special licence, common licence or a superintendent’s registrar’s certificate, Canon B34. The document notes “[n]onetheless those requirements (other than a special or common licence) necessitate some publicity and that in itself may cause problems…“, the implication being that if publicity is to be avoided, marriage by Banns is not the way to do it. [See also our recent post Banns of marriage – their development and future].

Attendance at ceremony

Underpinning any considerations in this area is the long-standing legal requirement that “marriage is a public ceremony”; as a consequence:

“[3]. …at least all parishioners (including those whose names are on the electoral roll) are entitled to attend. It is also possible that those who are not parishioners are similarly entitled whether at common law (Cole v Police Constable 443A [1937] 1 KB 316 per Goddard, J; Cripps on Church and Clergy, 8th ed., (1937) Sweet & Maxwell Ltd,  at page 121) or by reason of the fact that anyone is entitled to raise genuine impediments to the formalisation of the marriage (Williamson v Dow (unreported, 16th April, 1994); R v Bishop of Bristol, ex parte Williamson, 25th March 1994, CO/764/94″.

[Footnote 2 adds: “This is so whether or not the person is an Anglican: see In re Perry Almshouses [1898] 1 Ch 391 at pages 399-400 per Stirling, J; In re Avenon’s Charity, Attorney-General v Pelly [1913] 2 Ch 261 at page 278 per Warrington, J). In the case of cathedrals it is arguable that all residents of the diocese are entitled to attend: see Re St Colomb, Londonderry (1863) 8 LT 861″]

“Such persons are entitled to attend as long as there is available seating or standing room unless a genuine question of safety or security arises. Any person with a right to seating in a particular pew cannot be denied that right.”

The last point was clearly demonstrated by Sister Annaliese and Sister Judith (a.k.a. the “ninja nuns“) who were seated in their usual places at Westminster Abbey on 29 April 2011, which happened to be next to Prince William, Duke of Cambridge, on the occasion of his marriage to Catherine Middleton. Furthermore, the security aspect is of particular relevance to the forthcoming marriage of her sister, Pippa Middleton. Although St Mark’s Church Englefield, situated within Englefield Estate is a public place of worship, several members of the Royal Family are expected to be present.

The Advice notes that  it is unclear whether any service for divine worship may be ticketed, [noting that a wedding invitation is not the same as a ticket to a service and cannot per se entitle a person to entrance to the church]. The question was left open in R v Bishop of Bristol, ex parte Williamson, which related to protests at an ordination rather than at a wedding. “Even if it may, it is likely that there must be sufficient publicity to permit those otherwise entitled to attend to apply for a ticket [Hill M,  Ecclesiastical Law 3rd ed, (2007, OUP) at page 88, note 222].

Conduct of service

For any wedding, “it belongs to the minister of the parish to decide what music shall be played, what hymns or anthems shall be sung, or what furnishings or flowers should be placed in or about the church for the occasion”, Canon B 35 §5, and “[i]t is the duty of the minister to ensure that only such chants, hymns, anthems, and other settings are chosen as are appropriate”,  Canon 20 §3.

The use of the organ is also subject to the approval of the minister, the PCC, and sometimes the “resident organist”, Legal Opinions concerning the Church of England 8th Ed. (2007, Church House Publishing) at page 108. Likewise the use of the bells {Canon F8 §2 and Canon F15 §1) and choir (Canon B §1) are subject to the approval of the minister: see also Harrison v Forbes and Sisson (1860) 6 Jur NS 1353; Redland v Wait (1862) 31 JP Jo 742). .

The advice also indicates that the minister must be careful to respect any contract(s) that may exist with the “resident organist” or choir. This part of the advice is somewhat confusing since “resident organist” is not a commonly used description, conjuring up images of the Tower Ballroom, Blackpool rather than a church or cathedral; furthermore, it might result  in enquiries being directed to someone who does not necessarily have the vires to give an authoritative opinion. There are no standard job titles in this area, as evident in Canon B 20 Of the musicians and music of the Church which refers to the “organist, choirmaster (by whatever name called) or director of music”. Often the Director of Music is responsible for, and conducts, the choir whilst the Assistant Organist plays the organ, but not always.

In addition to its advice on “celebrity weddings”, in February 2017 the General Synod Legal Advisory Commission has published Parish Music: organists and choirmasters and church musicians which explores the application of Canons 20 and 35 in detail.

Use of copyright material in service

Our post Copyright and religion: an idiot’s guide includes a description of the activities that may involve this aspect of copyright and the licences required in relation to the performance of music &c, and the reproduction in orders of service. However, additional aspects of copyright are pertinent to celebrity weddings, infra.

Parochial Fees

Whilst the same scales of fees applies to all weddings, it is likely that “celebrity weddings” will require more “extras” than most, and it is clearly important to agree on the scope of these at an early stage.

In order to remove uncertainty from the charges relating to the “occasional offices”, (i.e. weddings and funerals), the Church of England introduced a new scheme through the Ecclesiastical Fees (Amendment) Measure 2011, which became effective on 1 January 2013. In addition to the statutory fees for occasional offices, here, churches may require payments for “extras”, for which paragraph 23 of the Guide to Church of England Parochial Fees gives a non-prescriptive, non-exhaustive list, viz.

• additional heating of the church, specific to the marriage;
• the services of a verger;
• the services of an organist, choir or bell-ringers;
• sheet or recorded music that has to be specially purchased;
• the provision of recorded or taped music;
• the taking of films, video or sound recordings (where permitted);
• flowers;
• special furnishings.

These charges for “extras” are payable to either the PCC or the person providing the item (e.g. the organist or choristers) and are subject to local agreement between the incumbent and the PCC, taking account of any guidelines laid down by the diocese. “Extras” can only lawfully be charged for items over which those receiving the ministry have been given a genuine choice. Payments for “extras” are contractual payments, not fees. As such, the PCC is acting as “agent”, and must make sure that proper records are kept for audit and other purposes. It must also make clear to those receiving payments that they (not the PCC) are responsible for declaring their payments to HMRC for tax purposes.

The Church of England has produced a downloadable Wedding Fees Form, which may be completed on-line with details specific to each couple. This provides an itemized, unambiguous list of: mandatory legal fees payable to the church; “extras which a couple may choose or decline”; and voluntary contributions to the church, with details where these are Gift Aided. Further details on these payments are included in our post Church weddings, increased fees and “extras”.

Celebrity Marriages

Copyright – exclusive publicity agreements

In addition to the use of material subject to copyright during the service, supra, a common feature of celebrity marriages is the commercial agreements into which the parties involved have entered, e.g. “agreements for exclusive publicity with a magazine or other form of media”. Paragraphs 7 and 8 of the Advice are particularly important in this respect:

“[7]. No videos should be made without the agreement of the minister taking the service but, in addition, no video may be made while the organ is being played without the consent of the organist. [Ref 5. The taking of any video without such consent would be an infringement of the Copyright, Designs and Patents Act 1988, s 182(1)]

The organist may make his or her consent contingent upon the payment of remuneration or fees although in practice the organist often agrees in his or her written agreement specifically to include the payment of such monies either within his or her ordinary remuneration or within the calculation of the PCC’s fees for such occasions.

However, an exclusivity agreement is likely to require that all photographs and videos of the ceremony are the exclusive right of the magazine or media involved. However, the agreement is only binding upon the parties to that agreement and can in no way bind non-parties, such as the minister and organist.”

“[8]. It is always the right of the minister of the parish to decide what photographs or videos (if any) are permitted during any service or within the church precincts; this is so whether or not the photograph or video is intended for private consumption only [i.e. it includes wedding guests taking videos on mobile phones]. Any such decision should be communicated both to the couple themselves (especially as it may impinge on their own contractual agreement) and to any persons attending the wedding”.

Whilst the filming of Lady Mary’s wedding for Downton Abbey did not constitute a “celebrity wedding” in the context of the present discussion, the sensitivity of the production company to mobile phones on set, and physical shielding the principle actors from the long lenses of the paparazzi as they walked to and from the church, was a clear indication of the contractual issues involved.

Security and disturbances

With regard to potential disturbances &c, the new Advice observes that whether or not the couple have entered into an exclusivity agreement they may not wish persons other than those they have themselves invited to attend the marriage ceremony itself. However, there are limits as to what restrictions may be placed on attendance at a public event such as a marriage, supra, and for these present at the marriage ceremony:

“[9]. There is a common law right for anyone to remove a person who is causing a disturbance during divine service: Glever v Hynde (1673) 1 Mod Rep 168; Burton v Henson (1842) 10 M & W 105 at page 108 per Alderson, B). This apart, whether or not there are ushers and/or security personnel the enforcement of good order and decency in the church and churchyard lies in the hands of the churchwardens; they may be assisted by properly appointed sidesmen or women: Canon E 1, paragraph 4; Canon E 2, paragraph 3; see, too, Bursell Liturgy, Order and the Law (Clarendon Press, 1996) at pages 257-260.”

Within the broad scope of S2 Ecclesiastical Courts Jurisdiction Act 1860 which is applicable to all cathedrals, churches, and places of worship in England and Ireland , section 3 already provides limited powers of arrest, viz.:

“Every such offender in the premises after the said misdemeanor so committed immediately and forthwith may be apprehended and taken by any constable or church warden of the parish or place where the said offence shall be committed, and taken before a magistrates’ court, to be dealt with according to law”.

Our post York Minster constables given police powers indicates that there are five CofE cathedrals which maintain their own constabulary with the same powers as regular police constables, within the cathedral’s precinct.

“Genuine question{s] of safety or security” are also an important consideration in relation to fire safety and evacuation procedures. The Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) came into force on 1 April 2006, and advice is available from the Legal Advisory Commission, the Churches’ Legislation Advisory Service, and others.

Unlike “celebrities” who have no special status in law, there are some provisions specific to certain members of the  Royal Family, in addition to the generally-applicable marriage legislation.

Under the Succession to the Crown Act 2013, the first six persons in line to the throne must obtain the sovereign’s approval before marrying. Marriage without the Sovereign’s consent disqualifies the person and the person’s descendants from the marriage from succeeding to the Crown, but the marriage is still legally valid.

The marriage of Prince Charles, Prince of Wales, to Camilla Parker Bowles raised issues relating to their marriage by a civil ceremony, and the marriage venue itself. With regards to the former, the exclusion of the Royal Family from the provisions of Lord Hardwicke’s Act [the Marriage Act 1753, ‘An Act for the Better Preventing of Clandestine Marriage’ 26 Geo II c 33] was carried over into the civil marriage

The questions regarding the marriage of Prince Charles to Camilla Parker Bowles in Windsor Guildhall on 9 April 2015 were addressed by a written ministerial statement by the Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): HL Deb 24 February 2005 c WS87. [see also R Probert, ‘The wedding of the Prince of Wales: Royal privileges and human rights’ (2005) 17 Child & Family Law Quarterly (3) 363-382].

With regard to the marriage venue, a civil marriage can only take place in a Register Office or in premises approved by a local authority. However, it was not possible to obtain a ‘one-off’ approval for a specific marriage venue: any licence would run for a minimum of 3 years giving members of the public entitlement to marry in Windsor Castle. The venue was therefore changed to the Windsor Guildhall.

Comment

The Church of England’s web pages Your Church Wedding provide an easy-to read introduction to those wishing to have a “church wedding”, although the relevant legal issues got beyond the summary in the legal requirements pages since these are restricted to those factors necessary to ensure the marriage complies with both UK civil and church law. The new Advice on “celebrity weddings” provides valuable additional information which is directed towards the conduct of the service. However, the bottom line appears to be: “it doesn’t matter how much of a celebrity you think you might be, there are certain legal provisions which must be complied with; any exclusivity agreement is only binding upon the parties to that agreement and can in no way bind non-parties, such as the minister and organist; and it is the incumbent who has the final say on the conduct of the service”.