Jeremy Pemberton appeals the tribunal case

_76182996_tpjeremy3I previously reported on the Employment Tribunal case of Jeremy Pemberton versus Richard Inwood, retired Acting Bishop of Southwell and Nottingham, and the debate on BBC 2’s Victoria Derbyshire show between Jeremy and myself. Jeremy has been gracious enough to comment on the blog from his perspective, and a couple of days ago his partner, Laurence Cunnington, notified me that Jeremy has been granted leave to appeal the case.

There are various interests at play here. For Jeremy, I am sure there is a sense of having nothing to lose. I was curious that he said he was not surprised to have lost the tribunal itself (and the decision was extremely clear in law and definitive in its conclusion) so perhaps he won’t be surprised if the appeal is also lost—but perhaps there is some slim chance of a different perspective? Any organisation interested in the broader question of gay rights will want to see this process pushed to its furthest possible conclusion, including any legal team pushing a gay rights agenda. And, curiously, the Church of England also has an interest in the appeal, since an employment tribunal sets no precedent, but an Employment Appeal Tribunal ruling does set a precedent in law. If the EAT upholds the original verdict, then this gives those supporting the Church’s current teaching significant legal security—though there is then the question of whether Jeremy would take his appeal to the next level.

Andrew Goddard has just published a detailed piece on the case on the Fulcrum website. In the first half, he looks at Jeremy’s argument that Article XXXII On the Marriage of Priests allows him to marry whom he chooses. Andrew points out five main problems with Jeremy’s argument here: the article is about whether priests can marry, not whom they may marry; it is circumscribed very clearly by both Scripture and the doctrine of the Church; and it is directed against Roman teaching on clerical celibacy. In its historical context, it is hard to see it offering the support that Jeremy wishes to draw from it. Andrew concludes:

It is, therefore, clear that the very Articles to which Jeremy Pemberton appeals as “our rules” against the bishops’ pastoral guidance make his interpretation of them highly idiosyncratic and implausible.  To further claim this reading as not just possible but central to the church’s doctrine of marriage is without foundation.  Even were there to be some plausibility in his argument about Article 32 to undermine the foundations of the church’s case faces the further hurdle that in defining doctrine as he does he is privileging his novel reading of this one Article as fundamental in the face of all the clear definitions of marriage found (and cited by the bishops) in the Church of England’s authoritative sources, and claimed to be revealed in Scripture, including most clearly canon B30.

In the second half of his article, which I reproduce here with permission, Andrew explores the wider implications of the possible result of the appeal, which is perhaps another reason why there are multiple interests in the process.

Canon Pemberton presents himself as someone who has been unjustly punished and discriminated against by the refusal of a bishop to provide him with a licence and, as a result, his inability to be appointed to a post he was otherwise suited for because such a licence was required by the employer for him to take up the job.  There is no doubt that this is a painful and distressing situation for him and others.  It is one in which, by appearing to be a victim of prejudice and the imposition of others’ beliefs to his detriment, he has gained much sympathy and support.

The outcome if Jeremy Pemberton succeeds

But what Jeremy Pemberton is seeking will have a similar effect on others.  He is asking the court to require any bishop not to refuse him a licence to minister on the grounds he has entered a same-sex marriage.  It was quite clear that one major reason Bishop Inwood did not issue a licence was because of his understanding of the church’s teaching and his own ordination vow to uphold this (his words are quoted at para 203 of the judgment where he speaks of “my own Oath of Obedience and requirement to uphold the doctrine of the Church”).  That doctrine was clearly set out by the bishops based on numerous authoritative sources.  Jeremy, along with others, does not believe what they said is true in relation to marriage nor does he believe that it is, in fact, church doctrine.  But this question of the doctrine of marriage is not all that is at stake.  There is also the question of who determines and defines doctrine and on what basis.

What Jeremy is asking is for a secular court to tell bishops that they are wrong in their definition of the church’s doctrine.  Furthermore, they should state that as the bishops’ error leads them to discriminate in the eyes of the law they must therefore not apply what they believe to be doctrine in the exercise of their office of bishop within the church of God.  In other words, were he to win his appeal, two major consequences would follow, particularly given the appeal judgment will have wider application than his own specific case:

  1. A secular court would have determined the church’s doctrine and reading of Scripture over the heads of, and in contradiction of, the bishops of the church
  2. Nobody would (unless what is currently held to be the doctrine was restated clearly by the church or the ruling over-turned by higher court) be able to continue to minister as a bishop, or be appointed as a bishop, if their conscientious understanding of their role and the Bible’s and the church’s teaching required them to refuse a licence to someone who was in a same-sex marriage.

The level of state control of the church that this represents is something that I have not heard anybody defend.  Yet it must be defended as it seems to be the incontrovertible consequence of Jeremy’s appeal succeeding and thus what he – and those who support him in pursuing his case – must desire or at least be willing to accept as an outcome.   What is astonishing is that it seems many Christians who present themselves as “liberal” and “inclusive” and “post-Christendom” or “anti-Christendom” are either blind to or unconcerned about these implications of their pursuit of “justice” by the means Jeremy is pursuing it.

Two paths to this end

There are two possible and significantly distinct routes to this outcome.  First, that the judges rule that the church has no doctrine of marriage and/or that it does in Article 32 have a doctrine that clergy “can marry who they want to marry” which trumps any doctrine of marriage that restricts it to opposite-sex unions.  Here the court determines that the bishops have mis-stated doctrine (in their defence of a doctrine of marriage) and/or violated it (in penalising Jeremy Pemberton for his decision to marry his same-sex partner).  This would presumably be a judgment that the claims critiqued above are not flawed but represent the foundation of the church’s teaching about marriage.

The theological defence for seeking this ruling would be that the bishops need to be called to account by a secular court for these errors in interpreting and applying church doctrine as they have harmed Jeremy.  The seeking of redress before a secular court still needs theological justification, especially given the two serious consequences noted above and the failure to seek redress within the church, but this effectively takes the form of appealing outside the church on the basis that the church itself has failed to follow its own rules and teaching.

At times, though, the rhetoric has been that of the injustice of the church’s current teaching and the need for it to be corrected by the law and the courts.  This represents a much more serious state intrusion into the church’s life and one which thankfully is unlikely to succeed.  The state seems still to accept that the church (and other religious bodies) should not be told what their doctrine must be or have their reading of the Scriptures judged by the state.  Nor does the state seek to tell church leaders they must, in the ordering of the church, be forced to follow state decisions against the teaching of the church.

The reality is that the state – both in the legislature (through the clear exemptions granted the church in this area) and the judiciary – realises that interfering in the definition of doctrine or preventing a church from following its doctrine would be to take actions normally associated in modern times with totalitarian regimes.  The judgment therefore is clear that “if there is a doctrine that precludes same sex marriage, then unless and until it is changed by the constitutional processes of the Church, it remains the doctrine” (para 169) and the court is not the place to determine what the teaching of Christ is in the face of disagreements over this within the church:

we are not theologians, and without wishing to dismiss these clearly deeply felt and well reasoned arguments, they do not engage before us if there is a doctrine.  This is because of course (and reminding ourselves of the Amicus judgment) it is not then the function of this tribunal to seek to reconstruct the doctrines.  So, the be all and the end all of the issue at this stage is whether or not there is one (para 170).

There are, of course, possible theological defences for seeking such state control over and against church authorities.  After all, the English Reformation occurred over who had the right to define marriage and the legitimacy of a marriage – the Pope or the King.  I suspect though that few advocates of Jeremy Pemberton’s position (despite their occasional rhetoric) are likely to support such a reversion to high Erastianism which would be unprecedented in the recent history of the church and overturn the gradual recognition of the need for greater church freedom from state control.


The question then is what exactly Jeremy Pemberton is seeking and how it can be justified.  If the argument is that the church’s doctrine is in error or that the bishops are in error in their statements and applications of that doctrine then there are means within the church to rectify those errors.  To seek for the state to correct the church’s alleged errors—by judging that the bishops are mis-stating its own doctrine or that the substance of that doctrine must be abandoned—is a step which needs to be defended.  Yet I have seen no serious defence of this approach.  The decision of Canon Pemberton and his supporters to continue to press their case through the courts means they must address this issue of their chosen means to secure their desired end and clarify what they are wanting the court to decide in terms of directing the church in relation to its doctrine and requirements of ministers.

Can we not just “agree to differ”?

Finally, looking ahead as we draw near the end of the Shared Conversations, this case highlights the difficulty of implementing what some call for under the title of “good disagreement”.  If the case is lost then it has been established that the church has a doctrine of marriage which bishops are right to uphold by refusing to issue a licence to someone in a same-sex marriage.  The judgment is clear that canonical obedience is “a core part of the qualifying of a priest for ministry within the Church” (para 120) and that Canon Pemberton is obliged to undertake to pay true and Canonical Obedience to the Lord Bishop but that (given its conclusion as to church doctrine), “Self-evidently he is not going to be able to fulfil that obligation or has not done so….and therefore objectively he cannot be issued with his licence” (para 121).  Any bishop who therefore issued a licence to someone in a same-sex marriage would therefore be open to legal challenge.  Any attempt to allow clergy to enter same-sex marriages would, it appears, need first to redefine the church’s doctrine of marriage.  If, however, Jeremy wins his case then, as noted above, no bishop could refuse a licence on the grounds of the priest being in a same-sex marriage.

Andrew Goddard
Andrew Goddard

In other words, if the church keeps it current doctrine of marriage then it will be very difficult to justify licensing clergy in same-sex marriages but if it changes it or somehow declares it has no fixed doctrine of marriage then it will be very difficult to justify refusing a licence to clergy in same-sex marriages given equality legislation.  So, even if it were considered desirable, it is therefore hard to see how, given the law, the church could “agree to differ” on this subject in a way that both enabled same-sex married clergy to be licensed and also protected those unable in good conscience to license clergy in same-sex marriages.

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55 thoughts on “Jeremy Pemberton appeals the tribunal case”

  1. I’m more concerned about the Church’s control of the State than the State’s control of the Church. Surely we have reached a point in the 21st Century when superstition and cant should have no place in the governance of and bythe people.

  2. To be honest, my main difficulty with this article is that I do not have the full context due to the fact that I work during the day and therefore never see the Victoria Derbyshire show. It seems to have something to do with Gay Rights, but precisely what is the bit that I do not have.

    • Thanks for commenting Laurence. I used ‘partner’ as a generic term; the dictionary definition of ‘partner’ includes ‘either member of a married couple’.

      I am very happy to be known as my wife’s partner.

      Thanks for letting me know about the appeal too.

      • All the same, Ian, now Lawrence and Jeremy have made their preference clear, surely it’s common courtesy to use the term they prefer? Doing so doesn’t endorse same-sex marriage, merely recognizes it as a legal reality. As the law stands, Lawrence is Jeremy’s husband.

        • Do you always refer to people by the terms they prefer? Do you never refuse, or are you never reluctant, to use terms that merely recognise legal reality?

          Aside from the current issue, I can think of a range of terms that people prefer for themselves which others refuse: the pro-choice people who refuse pro-lifers the label “pro-life”; the republicans who refuse to call people queen, lord, baron, etc (and the others who refuse to use certain honorifics); those who put the “Islamic” in ISIS in quotations; the Harvard students who refused to call their house master master. From the top of my head I can only think of one recent case of people refusing to use a term that “merely” recognises “legal reality”: those who refuse to call Osborne’s new minimum wage “the living wage”. There are doubtless more, though.

          I don’t even know if Ian *refuses* to call Laurence Jeremy’s “husband”, or if he just prefers “partner” or what. But it’s clear that he’s already being very gracious, and that he means no offence by not calling Laurence Jeremy’s husband when he (probably, I don’t know his views *that* well) doesn’t think men can have husbands. Given that the definition of marriage — and, consequently, things like whether or not men can have husbands — is the central issue at stake here, and given that it’s not at all unheard of for opponents on an issue to differ on the propriety of terms, it feels really, really silly for you guys to accuse Ian of being impolite and to (pretend to?) take offence at him using the word “partner” instead of “husband”.

          • Yes, I do, generally, refer to people by the terms they prefer, whether it’s referring to those who’re pro- and anti-abortion as pro-choice and pro-life, or referring to evangelical presbyters as ministers, not priests.

            I may make exceptions if the requested terms are inaccurate or absurd (sorry, but I’m not referring to you as 10th Earl of New York, however much you ask 😉 ), but given that English marriage law’s now gender neutral, that’s not the case here. Accepting that Jeremy and Lawrence are legally married in civil law doesn’t cause anyone to deny their theological convictions.

  3. This decision to appeal leaves me with no great sympathy for Jeremy. While I feel Jeremy is wrong to have pursued the course of action he did in regards the tribunal, I could also empathize with why he did it. I disagreed with him of course, but at the very least I respected him at least for being honest and open enough to engage in debate around the subject himself, and not through Lawyers and others who would have loved the platform he created.

    The trouble now is, I simply don’t see how he can think he’ll win, or what he stands to gain from this. I’m not going to question his integrity, but I will question his common sense.

    As an aside, in the comments following your post on the tribunal outcome it was revealed (at least implicitly) that the church covered the costs of the original process, on both sides (and rightly so). There were many comments however to the effect of “If he appeals, he can pay his costs himself”. I was wondering if we knew anything about this yet and what your opinion on the matter is Ian?

    • I did ask Jeremy about this (and he reads this blog so he can comment himself if he wishes). My understanding was that the legal team that supported him are a practice that are committed to gay rights so they took the case on mostly at their own cost.

      • This is completely incorrect. The case was funded by Direct Line through our own household insurance. The legal team come from different chambers and solicitors.

  4. “it was revealed (at least implicitly) that the church covered the costs of the original process, on both sides”

    This is incorrect. The Church of England paid its own costs but had no responsibility for Jeremy’s. Jeremy’s cost were covered by a combination of a very substantial payment by Direct Line Insurance and by some of the work being done by his team on a pro bono basis.

    “The trouble now is, I simply don’t see how he can think he’ll win,”

    You will appreciate that I cannot reveal what the grounds of appeal are. It is sufficient to say that the judge allocated to the case by the Employment Appeal Tribunal found those grounds to be of sufficient merit to order that the case go to a full hearing, and without the need for a preliminary hearing.

    • Thank you for clarifying this Laurence. I have gone back through the comments I was referring to and it seems you made this point there already and simply missed it. I happily stand corrected and if I was capable of editing my former post, I would.

      As for my other point, I am not expecting or asking either yourself or Jeremy to state to us the grounds for the appeal, though I imagine these will be revealed in due time.

      I would however question the use of the word “merit”. Perhaps someone more knowledgeable than me can shed more light on this, but using this term implies (at least to me) some support from the judge (of those reasons for the appeal), when I imagine that this is not the case. It is not that the judge disagrees of course, but rather that they cannot have an opinion either way beyond that already stated in the initial tribunal outcome.

      Most simply, it is one thing for a judge to say “there is no reason this person cannot make an appeal” but quite another for a judge to say “this has enough merit to be heard at appeal”. Do you see what I’m saying? Can you be more specific?

  5. Fascinating.

    I agree with Andrew Goddard that the Article does not spend any time discussing who you can marry. It assumes that clergy can marry certain persons legally and defends the priest’s right so to marry without interference. That is the point of the article: a defence of the conscientious right of clergy to marry. It is inconvenient of the civil law to have changed in a way that Andrew and Ian and the bishops don’t like.

    What is fascinating about the rest of his article is that it bears hardly any relation to the claim that I pleaded. It reflects his interests and concerns, and may or may not have merit, but is only tangentially related to my case.

    Applying for an appeal hearing can’t be done simply because you don’t like the answer you got the first time round. The Employment Appeal Tribunal can do three things with Grounds of Appeal submitted to them. They can dismiss them (something that I think Ian might have thought was likely so definitive did he think was the ET judgment). They can ask for a preliminary hearing – often a telephone conference – to establish whether or not they think there are real grounds for the appeal to be heard. Or they can simply agree that the Grounds do indicate that there are real points of law that need to be tested.

    The appeal is not a rehearing of the case. No new evidence is heard. It is lawyers arguing points of law.

    I always thought that it was polite to refer to people in the way in which they preferred to be addressed. Ian may be happy to be a partner to his wife, but Laurence and I prefer the old-fashioned word husband.

    • Let me ask a clarifying question then. Your team submitted an appeal which included the grounds for the appeal. Did the judge in accepting the appeal make any comment on the merit of these grounds or did he simply notify you that the appeal was granted to be heard?

      BTW, my particular bugbear when discussing gay marriage is conservatives who use the words “husband” or “wife” in speech marks when referring to same-sex spouses, trying to imply they are fake in some way. It’s pretty clear in the eyes of the law that Jeremy is Laurence’s husband (and vice versa) and there’s no need to mock that in any way.

      • The Judge is a woman in this case. She replied “All grounds are arguable for the reasons given in the Notice of Appeal.” I imagine this is a standard form of words.

        Thank you for your second paragraph.

        • Interesting Laurence,

          I still think this fits into my theory – the matter is an important issue of defining the relationship between the Established Church, it’s office holders and their interaction with non Established Church bodies. On that ground alone the issues should be heard, unless they had no merit whatsoever.

          • Of course, I am not an office holder in the Church of England. So it is about rather more than you surmise, Peter.

          • Well you want to hold it’s licence within the Diocese of Southwell and Nottingham (technically you wanted to hold a licence from the Bishop of S&N or his delegated representative, or representative of the Office of the Bishop). The case is about on what reasonable grounds the Bishop can refuse to grant a licence and rests upon a number of issues, not least of which is your entering into a legal state that the Bishops said was incompatible with holding such a licence. Does the Bishop (or his representative etc) have the legal right to refuse a licence on these grounds (you disobeyed a clear instruction not to undertake an otherwise perfectly legal right).

            That has HUGE implications for the relationship between Church and State. Of course the EAT will hear an appeal on any reasonable grounds. This is a case that is important enough to need to be settled.

          • Your theory may or may not be correct, but the Judge’s comment refers to all the points raised by my lawyers in our Grounds of Appeal. What she is saying is that all of those are arguable, and therefore be examined. What they all are is something about which we can make no comment at the moment.

            Which makes wonder how this can be made to fit your theory except as speculation?

      • On the other hand, Peter, although the current law now allows for a marriage to have 2 husbands there is no reason that citizens must agree with that law; laws don’t define reality they merely express the majority opinion of a few legislators at one point in time. And without the freedom to express your dissent democracies become elective dictatorships.

        The speech marks which you don’t like are a perfectly legal way of not participating in an attack on the most basic human arrangement (which Christians believe has been defined by God himself). Some, though not all, would say that using the speech marks is a necessary reminder of a fundamental irrationality; and it is the law which is being ‘mocked’, not any individuals who are affected. At what stage does acquiescence to a law become agreement with the thinking upon which it is based?

        • I think it’s perfectly possible to disagree with the idea that a man should have a husband whilst at the same time having the courtesy to recognise that I live in a State where a man may have a husband, that some avail themselves of this freedom and that I should grant the basic level of decency of recognising that legal arrangement.

          • Peter,

            You’re right. It would be like rendering Jesus’ challenge to the woman at the well: ‘Go and call your “husband”

            Nevertheless, John the Baptist, as a prophet of God, had no trouble in telling Herod that his marriage to Herodias contravened the laws of those (the Jews) over whom they claimed to have rightful divinely authorised rule, despite it being fully authorised by the State (Rome)

            His emphatic denunciation was insistent enough to result in imprisonment and martyrdom.

            Christ’s affirmation of John to be ‘a burning and a shining light’ probably suggests that we shouldn’t err too far on the side of diplomacy.

        • Can I just query your use of the word attack, Don? Prior to the introduction of same-sex marriage one of the reports of the Church of England claimed that permitting SSM would make “acquiring the disciplines of marriage” more difficult for heterosexual couples. That is a slightly less fierce way of saying the same kind of thing that you are saying.

          If SSM is an attack, what evidence is there of its impact on heterosexual couples? We have been endlessly told it would “spoil” marriage” – can you tell me of any heterosexual marriages that can be shown to have been so “spoiled” by the existence of same-sex couples? If acquiring the disciplines of marriage is now more difficult, I am sure that by now – nearly two years after its introduction – clergy on the ground should have anecdotal evidence of heterosexual couples struggling, all because they got married after the introduction of SSM. They will have told their clergy or their GPs perhaps of how their own marriage is not working because of the gays.

          Conversely, you choose the attack word, but what evidence is there that I, or any other gay person who has contracted a SSM, ever intended in so doing to attack the marriages of heterosexual people? I certainly didn’t intend to do that – and attacks are things that don’t happen by accident. They are intentional marshalling of forces to do harm to other people, so I can’t be accused of doing this unwittingly. I am not aware, from my position in the “gay community” (which of course doesn’t exist, just like that), of any concerted effort to have a go at heterosexual marriage. As you and I know well, heterosexual marriage is in enough difficulty without the help of the gays. The whole point of SSM is that it permitted access to this very important institution and the social status it carries to people who really want it. It would be odd if those of us who believe in marriage at the same time deliberately want to harm it.

          So I am asking you to think about the reasonableness of some of your language. If you are right, there is enough time that has elapsed for some real evidence to be adduced. Where is it?

          On my part, I quite understand that you don’t like or agree with SSM, and you have every right to your view. But in talking to persons, I think courtesy is always better – and I am married, not “married”, however much you may think the latter is the more correct formulation.

          • Jeremy, what I said regarding the use of speech marks was a general point querying Peter Ould’s suggestion that it was ‘mocking’ what others hold to be legally true for themselves. But the very repetition, spoken and written, of the idea of a marriage consisting of 2 husbands or 2 wives serves to make that idea progressively more neutral (normal) and thereby accepted as true. So there is every reason (from our point of view) for pointing out that this is far from a universally accepted truth.

            The word ‘attack’ can be used in more ways than the ‘intentional marshalling of forces to do harm to other people’ which you use. For example acid rain is known to ‘attack’ the limestone on cathedrals; it is neither premeditated nor organised – it just happens, slowly and steadily over time. Likewise SSM can hardly fail to effect changes to how people perceive what marriage is and how it fits exactly with the complementary nature and role of men and women as couples. I think your view of marriage that: ‘The whole point of SSM is that it permitted access to this very important institution and the social status it carries to people who really want it.’ does reveal that it is recognition which confers status that gay people really seek. But the effect of this is that the word marriage is downgraded to mean the licensing of romantic attachment rather than the recognising and supporting of stable creative pair bonding. This changes attitudes and attitudes eventually change behaviour.

            It is far too early to say there is no evidence of an adverse effect on heterosexual marriage. Sociological effects work themselves out gradually over generations. However, my concern regarding heterosexual marriage is that everything which it is or ceases to be has effects far beyond individual couples, especially for children. The legal institution of fatherless or motherless children is one example which is happening right now; it is a serious human rights abuse.

            I am with you on courtesy but sometimes it has to include both how we express ourselves and how we react to a perceived insensitivity. Remember that those of us who dare to oppose SSM publicly are rarely well received and that may sometimes serve to sharpen our tone rather alarmingly!

        • Quite right, Don. The speech marks are important, in that they serve to distinguish between natural marriage (which still exists) and legal ‘sex-neutral’ marriage (which can never exist, precisely because it contradicts natural marriage). It comes down to the relationship between the word Husband, Wife and Marriage. The people come first; the name of their relationship comes second. Parenthood is the name of the relationship between a father and a mother; Marriage is the name of the relationship between a husband and a wife.

          • It does seem to me that the basis of Jeremy Pemberton case is that since the secular law recognises SSM then the church must follow the secular law by default. But as the law stands, the CoE does not have to recognise SSM within its own theological and ministerial practices and cannot be forced to do so by the state.While the law may recognize he has a ‘husband’ the church does not have to do so.

            He would be far better off directing his efforts attempting to change the churches doctrinal basis of marriage rather than justifying his actions by appeal to secular law.

    • The NHS Chaplaincy Guidelines 2015 state: ‘In order to provide safe and effective spiritual care, those commissioning and managing chaplaincy services should take into consideration the following guidance: Chaplains must abide by the requirements of their sponsoring faith or belief community, their contracting organisation, the Code of Conduct and all relevant NHS/NICE standards

      Therefore, the delivery of safe and effective spiritual care to hospitals is the explicit purpose of the NHS mandating that chaplains abide by the requirements of sponsoring faith community.

      For the NHS, the spiritual care rendered by chaplains is very different to that of clergy towards their congregations. It is defined as:

      ‘Spiritual care is care provided in the context of illness which addresses the expressed spiritual needs of patients, staff and service users. These needs are likely to include one or more of the following: existential concerns; religious convictions and practices; relationships of significance; and the exploration of faith or belief.

      The requirement for faith group sponsorship indicates that the NHS relies upon the faith community to endorse/recommend the prospective chaplain for a particular role.

      So, the real question to be explored is the nature of religious sponsorship for the express purpose of delivering safe and effective spiritual care, as defined above.

      In exploring this, I questioned whether a clergyman’s same-sex marriage should prevent his bishop from endorsing him for the safe and effective delivery of care that, in a secular context, addresses patients’ existential concerns; their religious convictions and practices; their relationships of significance; and their exploration of faith or belief.

      I must admit that I wrestled with the notion that the CofE could only endorse those in ‘good standing’ for delivering this type of care-giving in a secular context.

      However, as explained in the guidance note for the Caring for the Spirit implementation plan, we need to distinguish service models (which explain the work of the chaplaincy to the public, to the employer and promote the departmental definition) from practice models (which concern the specific work engaged with by staff and volunteers).

      Helen Orchard’s study in 2000 suggested modelling practice for 15 different polarised service parameters in sponsor-defined and in employer-defined areas.

      The very code to which chaplains subscribe states: individual chaplains may be held accountable by their faith group or community in relation to the permissions or authority they are granted. An employing health body may also choose to make the employment of a chaplain conditional upon the clear and explicit authorisation of a faith group or community, for instance the bishop’s licence for an Anglican chaplain.

      These sponsor-defined service parameters are the basis upon which all Anglican chaplains, including Pemberton, must be held accountable. Of course, they must be objectively defined, but they certainly should not be dictated by the State.

    • ‘Applying for an appeal hearing can’t be done simply because you don’t like the answer you got the first time round’.

      Agreed. But the fact that the Kings Chambers legal team have openly sought the support of the Equalities and Human Rights Commission gives a big clue.

      This is the same EHRC, which, on legal advice, warned the government that, in respect of conducting same-sex weddings, Clause 2 would not prevent ‘opt-in’ religious organisations from exercising their Article 9 rights in compelling their office-holders to perform same-sex weddings.

      However, the role of chaplaincy is significantly different to that of parochial office-holders. I would note paragraph 27 of the EHRC’s legal advice

      ‘The role of the law is to respect difference between peoples, whilst striking a balance between the beliefs of an employee and the reasonable needs of an employer. In some positions, a person’s religious beliefs may be of the first importance to the job. In others the job is of such importance that the workplace rules are wholly indifferent to major aspects of religious practice. There is of course a range of circumstances in between and it is the role of new statutory provisions, which seek to regulate this territory, to do so in an appropriate and proportionate way.’

      My own view is that your appeal should lead to a complete review of the sponsor-defined criteria for chaplaincy appointments and clear and consistent disciplinary procedures for chaplains, whose employment rights differ from those in Common Tenure.

      Given the repercussions for your career, that a Bishop’s licence will, in future, only be withdrawn after consistently applied due process is probably not a bad thing.

      After all, this is the CofE which did not prevent the reinstatement of thrice-married Rev. Kit Chalcraft

  6. “The reality is that the state – both in the legislature (through the clear exemptions granted the church in this area) and the judiciary – realises that interfering in the definition of doctrine or preventing a church from following its doctrine would be to take actions normally associated in modern times with totalitarian regimes.”

    Unless, of course, it’s a state church. When Denmark modified its marriage laws, the Folketing also modified the Folkekirke’s doctrine (alongside introducing conscience protections for its priests). Is Andrew suggesting that Denmark — the country that regularly tops all those freedom, democracy and transparency indexes — is a totalitarian regime? If not, this is good rhetoric, but inaccurate.

    • James, if you were Islamic and owned a shop your religion would be respected and you wouldn’t have to sell alcohol. Nobody would use the law to force you to sell alcohol even though alcohol is completely legal. Equally James, if you were Jewish an owned a Butcher’s shop your religion would be respected and nobody would force you to sell pork products.

      So the reality is that there are plenty of examples where something is legal AND religious views are respected without the totalitarian, fascist attitude of using the law to fine people, send them to prison and enforce non-religious views. So actually, the answer is “yes” the enforcement by Denmark of non-religious views is actually totalitarian and fascist when they haven’t actually done the same for anything else.

      • Clive, in what way are the Folketing’s actions “totalitarian and fascist”?

        It’s long accepted that it runs the Folkekirken, just as the Westminster parliament ultimately runs the Church of England. It legitimately decides rules and doctrine. Its changes didn’t affect any other Lutheran or Christian church in Denmark.

        Sounds like you’re calling for disestablishment: are you? If so, that’s a separate issue.

        • James

          The very idea that politicians should:
          a) Force their uneducated view of theology on the Church, when many of them are not even Christians themselves, is a disgrace and
          b) the idea that the state should force a priest to conduct a marriage against his religious views is totalitarian.
          c) The action of the Danish government is in direct violation of the United Nations Declaration of Human Rights.

          All of this makes a mockery of Jesus Christ because Danish politicians believe they know better than Jesus himself.

          If the Danish State seriously believes that the State Church belongs to the government and not to Jesus Christ then it is very clearly not a church at all.

          • The Folkekirke’s been governed by the Danish state since the 16th century: before 2012, did you ever have cause to object to that? If so, and you object in principle to state churches, you must want the Church of England to be disestablished.

            Even if the Folketing played no role in the governance of the Folkekirken, its bishops (elected by its congregations) unanimously approved equal marriage, so the result would almost certainly have been the same. (And to correct an error, no Danish priest is forced to marry a same-sex couple.)

            Which part of the UDHR d’you believe has been violated?

          • James

            There is no error there whatsoever because there is case precedent in Denmark of a priest being forced by the Court to marry a same-sex couple in his Church. It is you who needs to look at the facts.

          • Well we would need to see if that really was the case Clive, and somehow it’s doubtful. And of course if people really don’t want to do what their church asks them to do then they can always resign……please show us where….

  7. If only the CofE had a fair process to establish whether misconduct had occurred, with a chance for the accused to defend themselves. Or a process for establishing fairly whether someone has gone beyond the bounds of doctrine… …oh wait…

  8. The second paragraph. …

    Peter this is Newspeak.

    We describe how things are according to the Bible not the State.

    How would you refer to Jews in the 1930s.

    The way the state described them,?

  9. Here’s a question for low church evangelical clergy: how many of us say Morning Prayer every day (the set form, not just “prayers in the morning”)? We’ve all promised our Bishops, under oath, that we will. How many of us wear the correct vestments and use ‘use only the forms of service which are authorized or allowed by Canon’ (Declaration of Assent, Common Worship, page xi)? Yes, there is considerable freedom under Canon B 5 and a “Service of the Word” covers a multitude of exigencies, expediencies, eventualities and equivocations but you get my point. Some ultra-low conservative churches (re-)bapitse — by full-immersion, of course — people who were Christened as infants and some (so I’ve heard) even allow lay presidency at the eucharist. Speaking of which, how many parishes have a communion every Sunday? How many alter their buildings without due process and permission? And some of us don’t even wear a clerical dog collar when leading or preaching.

    My point is that many — maybe most — low church evangelical clergy ignore much of Canon law much of the time. It is “more honoured in the breach than the observance”. It wasn’t that long that certain churches in Southwark Diocese flew-in Bishops from Africa to ordain their own candidates.

    Yet for all this some — not all — of these same people are the first to insist on canonical obedience and episcopal authority etc etc when the liberals and gays and Catholics break the rules or even just question the status quo and seek change.

    When you keep all of Canon Law you may throw the first stone.

  10. The reality is that the Church of England presently has a shocking legal license to discriminate against it’s own gay clergy. How anyone can think this is a good thing is beyond me and any appeal, even if it only serves to highlight this discrimination, has my full support.

    In reality no-one is trying to dictate a theology of marriage to the Church of England. It can continue to believe what it believes about heterosexual marriage. It should not be allowed, in law, to determine anything about same-sex marriage for people, and employees, for whom it is relevant.

    As ever, if you don’t like same-sex marriage then you don’t have to marry someone of the same sex, and if you are a priest, or a church, you should not be forced, against your conscience, to conduct such a marriage. Nor should you be able to deny such a marriage for others.

    • This is the common sense approach Drew_Mac. Let’s hope it prevails.
      The Gospel was not made to help organizations run smoothly. The full Gospel actually creates necessary dilemmas for the soul much more than resolving the organizational problems of institutions.

    • Drew_MAC, you said it yourself: “if you are a priest, *or a church*, you should not be forced, against your conscience, to conduct such a marriage.”

      That’s why the Church of England cannot be forced to conduct such marriages, or forced to employ as it’s representatives priests who conduct such marriages, or forced to employ as it’s representatives priests who enter such a marriage.

      The usual route for people who dont hold to a particular religion’s beliefs is to find one they do fit into, not to try to get the Government to force that religion to change its beliefs!

      • David, that’s true to an extent only. The Church of England holds together many different theologies, ethics, beliefs and practices. One can be a Just Warrior or a Pacifist (or indeed many other things we differ about – of far greater significance than differences over marriage) and still manage to rub along without too much antipathy to Anglicans of an opposite persuasion.

        Now I agree that if you have changed your religion, or become an atheist, then you should not make too much fuss if your church can’t accomodate your beliefs (although actually I come across quite a few atheist/agnostic anglicans). However, simply believing that two people of the same sex may enter into a committed, loving, life-long and life-giving relationship doesn’t mean that one has changed religion or denomination.

        No-one should be forced to enter into or conduct a same-sex marriage. On the other hand no-one should be forced to forgo same-sex marriage or be unable to conduct or bless one in church where that is appropriate. I can’t see any other honourable way of keeping us together over this issue than respectfully allowing diversity of opinion and practice.

        • Drew_Mac,

          You wrote:

          ‘It should not be allowed, in law, to determine anything about same-sex marriage for people, and employees, for whom it is relevant.’

          In stating what should/shouldn’t be allowed in law, it’s worth reflecting on how the SSM Act was drafted to provide religious officials.with statutory protection from compulsion to perform same-sex marriages.

          Of course, the legal duty of clergy to solemnise marriages is a smaller part of the wider question of whether the State should be able to force a religious organisation to reinstate those whose personal choices contravene its teachings.

          Should a judge be able to order to reinstatement of a rabbi who loses his job over teaching that all food is kosher? Or the reinstatement of an imam be shunned by Islamic authorities for sharing his personal opinion that Ali was a pretender to the caliphate?

          Both are examples of religious organisations exercising a lawful right to discipline their membership. Central to this question is whether religious organisations have a duty to defer to those appointed as its representatives who contravene its doctrines, while abandoning its settled due process for changing them.

          In examining clause 2 of the SSM Bill before enactment, John Wadham appeared on behalf of the Equalities and Human Rights Commission before the Public Bill Committee on 14th February, 2013 and explained a part of the response which he authored: ‘However, our legal opinion suggests the bill in its present form could amount to the state acting unlawfully by interfering with the freedom of religious organisations…to enforce their religious doctrines within their particular organisation.’

          In response to question 343, in which conscientious objection by members of a church or religion to solemnising same-sex marriage was likened to the Ladele v. Islington case, he stated, ‘I do not think that those are parallel circumstances. A registrar’s responsibility, as a public official, is to deliver a service to the wider public. As for a member of a Church or a religion, the responsibility of that person is to follow the doctrine of the Church or religious organisation. Those are two different things. We are saying that it is for the religious organisation to be allowed to police those circumstances. That is not on a parallel with the Ladele point.’

          Professor Ian Leigh of Durham University was aligned with this position when he wrote in Balancing Religious Autonomy and Other Human Rights under the European Convention – Oxford Journal of Law and Religion: ‘It might be thought that domestic courts are free to grant additional constitutional protection against non-governmental bodies where Strasbourg would not do so but even this raises potential difficulties. Religious organizations have Convention rights of their own and to tip the balance too far in favour of the individual at the domestic level could leave the state open to challenge by the organization at the Strasbourg level.’

          So disallowing the church from disciplining the same-sex married is simply State interference with the Article 9 rights of religious organisations in favour of those of individuals.

          I’d be very surprised if you find any European or UK jurisprudence which supports this State interference, enforcing individual religious rights on religious organisations.

    • I think you’re absolutely right Drew-Mac – to say a religious organisation has certain duties towards its employees is not to deny the right of that organisation to formulate its own doctrines, per se.

      All religious organisations, as it stands, have certain legal obligations towards people with whom they have a relationship as an employer, referee, validating body etc. Regardless, of their own doctrines as an organisation, they would not get away, for example, with allowing abuse towards them, breach of contact, libel or slander of them, breach of data protection laws which could harm them, trespass or harassment including undue intrusion into their personal space, harassment of their families, breach of their human rights, discrimination for which they did not have a legal exemption, arbitrary disciplining &c &c

      • At the same time, any organisation can reasonably expect those within it to behave according to its goals, purposes and methods and can reasonably discipline or exclude those who will not.

        For example, I work in IT. It would possibly be abuse for my employer to introduce a requirement that I participate in a 2km jog each day and to discipline me if I failed to do so. In contrast, it would be perfectly reasonable for a football club to suspend or sack a professional footballer who would not.

        It’s abuse to force a member to perform an activity or lobby for a position against their will. It is not abuse to expect them to resign when they refuse to do so, assuming the organisation can demonstrate that this activity or position is clearly consistent with their purpose.

        Note also that failure to enforce one requirement doesn’t set a precedent for failure to enforce another. If an organisation is weak on enforcing one rule it doesn’t follow that it may not enforce any rules (though it may create credibility issues for itself).

        This also creates issues for state involvement. Regardless of whether it’s good, It’s consistent for the state to censure certain positions, and legislate against the creation of organisations promoting those positions. It’s incoherent for the state to not censure certain positions but insist that organisations promoting those positions cannot make agreement with them a condition of membership.

        In this specific case, if it’s legitimate for the CoE to hold official doctrine against same-sex marriage, it must also be legitimate for it to enforce assent and conformity to that doctrine on its members. It’s incoherent to allow an organisation to support and practice a doctrine but not allow them to discriminate eligibility for membership on that basis. In fact, to do so suggests that the state wishes to ban the doctrine but doesn’t have the guts / public support to do it outright (i.e. it’s being actively deceptive).

        • I don’t think anyone’s questioning that an organisation can have a disciplinary process consonant with its ‘goals, purposes and methods.’ However, there are always limits to this; and no organisation has an unlimited mandate to break their duties of care, due process or equality to anyone, simply because of views the organisation holds. A group campaigning against maternity pay could not dismiss an employee who took maternity leave. A modelling agency could not threaten models with the loss of their positions unless they develop weight-loss plans which would be counted as eating disorders. A racist lobby-group still has to respect equality law when employing people. As would a religious group holding racist doctrines.

          When churches and other organisations are exempt from equality legislation, whether on religious grounds or the grounds of an occupational requirement, there is always a limit to how far they can reasonably discriminate within the law consanant with the belifs they hold and the requirements of their organisation. So asking a secular law-making body whether it is reasonable (to come to the case in hand) to refuse a license to a Church of England Clergyman in order to work in a multi-faith chaplaincy because they have made a perfectly legal arrangement in their private life – this has absolutely nothing to do with anyone imposing any kind of belief on the church.

          • But David ‘asking a secular law-making body whether it is reasonable (to come to the case in hand) to refuse a license to a Church of England Clergyman in order to work in a multi-faith chaplaincy’ is not the question at stake.

            The licence (sp!) is to perform any ministry within the diocese; there is no such thing as a ‘licence to work in a multi-faith chaplaincy.’ That is why the case has significance: if the appeal is upheld, a bishop can no longer exercise discretion over who ministers in his or her diocese in one very important regard—the Church’s defined doctrine of marriage. You might think that is a good or a bad thing, but it is not no thing.

          • I agree it isn’t no thing. It certainly is a thing. But the point is that nothing a secular court says can change a church’s doctrines.

            Whatever the grounds on which JP is appealing (though I don’t beleive you or I know what they are?) the result cannot be a secular court deciding doctrine for the church of England. What it can be is the court saying, your legal responsibilities do not allow you to discriminate on these grounds. That’s what’s significant.

          • David B,

            We need to distinguish religious care from spiritual care.

            In respect of religious care, NHS Chaplaincy Guidelines 2015state: ‘Patients and service users can expect to receive care from chaplains which is in accordance with nationally agreed competencies and capabilities and in a manner authentic to the practices and beliefs of the community the chaplain represents.’

            Here’s what The Code of Conduct for Healthcare Chaplains states: Spiritual and religious care: Religious care is given in the context of shared religious beliefs, values, liturgies and lifestyle of a faith community.Spiritual care is usually given in a one to one relationship, is completely person centred and makes no assumptions about personal conviction of life orientation. Spiritual Care is not necessarily religious. Religious care, at its best is always spiritual.

            I really can’t see how Jeremy Pemberton can expect the Employment Appeals Tribunal to be better placed than Bishop Inwood to determine whether his delivery of religious care remains in the context of shared religious beliefs, values, liturgies and lifestyle of the Anglican community!

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