The title of the blog is a quote from W.E. Gladstone, who referred to three acts of parliament as 'actual misdeeds of the legislature': the Ecclesiastical Titles Act, 1851, the Matrimonial Causes Act, 1857 and the Public Worship Regulation Act, 1874, under which 5 clergy served prison terms for deviations from the rites of the Church of England

Friday, 23 March 2012

Lawmaking for the Church: The Church of England and Marriage

In an interview on the Andrew Marr Show on 11 March, the Archbishop of York, John Sentamu, got into a muddle. First, in response to a question about the government's consultation on same-sex marriage, he argued that the government couldn't permit civil marriage between same-sex couples, because the definition of marriage was in the 1662 Book of Common Prayer of the Church of England ('BCP') and in 'Article 30 of the Church of England'; second, he argued that both were Acts of Parliament but that only the General Synod of the church could change them. He then said that the government should not press ahead with its promise to introduce civil marriage for same-sex partners. The confusion here needs to be untangled, because the Church of England will undoubtedly be trying out as many arguments as it can devise to oppose same-sex marriage (SSM). It will be important to respond to each one carefully in turn.

First, the definition of marriage is not in the Book of Common Prayer, nor is it in Canon B 30 of the canons of the Church of England, which the archbishop mistakenly referred to as Article 30. The BCP contains a definition of marriage in the preamble to the marriage service:
[A]n honourable estate, instituted of God in the time of man's innocency, signifying unto us the mystical union n that is betwixt Christ and his Church: which holy estate Christ adorned and beautified with his presence, and first miracle that he wrought, in Cana of Galilee; and is commended of Saint Paul to be honourable among all men: and therefore is not by any to be enterprized, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men’s carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the causes for which Matrimony was ordained. 
First, it was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.
Secondly, it was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ's body.
Thirdly, it was ordained for the mutual  society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity.
While beautiful, this is not a legal definition of marriage; it is the church's definition of marriage (and that of a rather outdated theology, at that). The legal definition of marriage for England and Wales, which tells people (whether Christian or not) when a marriage has taken place, is contained in the Marriage Act 1949. There, marriage is celebrated (i) according to the rites of the Church of England, by banns, a common license or a superintendent registrar's certificate or (ii) under a superintendent registrar's certificate, either in a registered building (a non-Church of England Church, recently expanded to include registered secular premises such as hotels) or in a registry office for civil marriages. Any definition that the Church of England may have for marriage applies only to the first of these.

What is more, the words 'man' and 'woman' occur only in the description of prohibited degrees of relationship in the 1949 statute; nowhere does the statute define marriage as being between 'one man' and 'one woman'. Interestingly, this passage from the BCP also does not contain a reference to 'one man' or 'one woman'; and much of it can easily be interpreted to apply to same sex couples, who are just as capable of entering into relationships advisedly, avoiding sin, offering mutual support, and bringing up children 'in the fear and nurture of the Lord and to praise his holy Name' as any others.

Canon B 30 (promulgated in 1969) is much shorter:
[M]arriage is in its nature a union permanent and lifelong, for better or for worse, till death do them part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.
The canon echoes the purposes from the marriage service (procreation, monogamy and mutual support), but it goes further, too. It includes a limitation to one man and one woman, which had not been in the BCP definition, and it includes the criteria 'permanent and lifelong, for better or for worse, till death do them part'. Inclusion of the second set of requirements was a late-nineteen-sixties pot-shot at divorce. However, the liberalization of divorce laws has since forced the church to temporize. In 2002 the church's general synod passed a resolution, which acknowledged that 'regrettably' some marriages fail and that in 'exceptional circumstances' a divorced person may be married in church during the life of a former spouse. So now clergy may marry divorced persons (but don't have to, just as they don't have to marry post-operative transsexuals or men who wish to marry their deceased wife's sister). The canon is certainly susceptible to the same reinterpretation where same-sex marriages are concerned.

What force do these two provisions have? Are they binding on the government?

Parliament can make or unmake any law whatever, and no institution in Britain has the power to override its policies. Unlike the United States, which has a supreme court that exercises strong judicial oversight, the UK lacks a formal, set of checks and balances. At bottom, the archbishop is claiming status for the Church of England as a check on Parliament. It is not. Since 1919 it has been customary (in British terms, a 'constitutional convention') that matters dealing with the church be initiated by the church and not in the civil legislature. That custom is not a fundamental, core principle of British democracy: it can be changed, like any other act of parliament.

The pre-eminent expert on ecclesiastical law in this country, Mark Hill, writes, '[T]he inextricable link between Church and State permits the State to legislate for the Church and its religious affairs, either directly or by implication. Examples of this in more recent times include the Marriage Act 1949...' So according to the leading lawyer for the Church of England, Parliament has the power to legislate on marriage and has done so. Hill goes on to quote, in a different context, from Morritt, LJ in Williamson v. Archbishops of Canterbury and York, a judicial challenge to the ordination of women: '[T]he Church of England is and at all material times has been the established church. As such its doctrines and government were and are susceptible to change by the due processes of law'. (emphasis mine)

So it seems that the archbishop has gotten it exactly backwards. Even if its doctrine were opposed to, say, same-sex marriage, parliament's authority to legislate in that area is not restricted by the church's different view of these matters. Until the UK adopts a different system of government, parliament can do whatever a majority of its members think is best. The Church of England has, since 1919, been allowed a great deal of autonomy to legislate concerning its own, internal affairs. But that autonomy is not a right, as rights are not entrenched in the British constitution; instead, it is a matter of grace. Moreover, while much will undoubtedly be said in the coming months about religious freedom, that freedom must at least be limited for an established church that has a privileged role in the state. Anyone for a codified constitution, with a bill of rights that protects freedom of religion and prohibits establishment? I didn't think so.

Sunday, 25 July 2010

Zac Goldsmith, the Election Finance Laws and Gaming

Channel 4 News has run an expose on campaign spending by MPs in May's general election. Zac Goldsmith (Con, Richmond Park) did not acquit himself well during an interview with Jon Snow, and now the Electoral Commission has announced that it will investigate his expenses. Channel 4's expose seems like an effort to replicate the Telegraph's exposure of MPs improper expense claims. And there are similarities between the two: unrealistic caps on payment (in MPs' salaries and for election advertising) led MPs and candidates to game the system by finding ways around the caps. Both were a fertile ground for legalistic interpretations of rules. And once legalistic interpretations had become commonplace, as they seem to have done, it became easy to use them to explain increasing deviations from the 'spirit' of the law--as difficult as such a spirit is to define in any meaningful sense.

The problem with the election funding scandal is that it's nearly impossible to articulate administrable rules about election spending that can be both predictable and fair. Less experienced candidates (with fewer advisers willing to help them find loopholes) will inevitably suffer, and more experienced candidates (with resources to spend on coming up with creative interpretations of the rules) will benefit. The real winners are election lawyers.

One solution is the one followed by the United States, where election spending cannot be limited because of principles of Free Speech in the First Amendment but where elections are very expensive. That leads to its own problems in terms of rent seeking by candidates' donors, who ask for political favours (or at least face time) in exchange for their contributions of money (as well as time and influence). Some political scientists speculate that the entire political economy of the United States may be broken because of this problem. But there are other ways of dealing with these issues.

Bruce Ackerman and Ian Ayres have made two really neat proposals. The first, as a response to the US Supreme Court's decision in Citizens United v. FEC, would prohibit all companies with federal contracts from making any donations to political campaigns. Since most large corporations have some contracts with the federal government, it would force all of them to make a decision about whether to eliminate the appearance of impropriety by either foregoing the donations of the profits from such contract. The second (even neater) proposal would allocate $50 in patriot dollars to each voter, which would be contributed to a campaign anonymously through an ATM. Voters could also contribute their own money in addition to the amount allocated, but they would have to contribute that money anonymously as well. Thus, there would be no way for a candidate to know who had contributed to his/her campaign, and the adverse influence of campaign contributions on the political process would be limited, if not eliminated entirely. Corporate and other large contributions would be diluted with (substantial) federal funding, and it would be impossible for a legislator to grant any political favours to large contributors, as no contributors could prove that they had contributed.

The application to the British problem is not entirely clear, but there is one. First, the system in the United States emphasizes the provision of information (including advertising); the system in the United Kingdom emphasizes the need for candidates to have an equal opportunity to gain office. But that equality seems illusory when wealthy people, with access to legal advice and the ability to spend a great deal of money on durable goods (like Goldsmith's famous tricycles and coats) can find ways around necessarily brittle rules on expenditures. One important question, which should be asked, is whether there is more demand for information during campaigns, or whether the market for information is currently saturated. That, of course, depends on the quality of the information being provided and on other largely indeterminate factors. But it seems like there ought to be a place for more debate, unconstrained by artificial campaign finance limits. Government funding is one way around the problem, which is frequently adopted in European countries; a market system (financed by the government) is another one, and that might be more administrable than any of the alternatives.

Thursday, 13 May 2010

The New Fixed Terms

A.V. Dicey wrote, 'Parliament... has... the right to make or unmake any law whatever . . . Parliament is not bound by its predecessor.' The outline of the coalition agreement between the Conservatives and the Liberal Democrats provides,

The parties agree to the establishment of five year fixed-term parliaments. A Conservative-Liberal Democrat coalition government will put a binding motion before the House of Commons in the first days following this agreement stating that the next general election will be held on the first Thursday of May 2015. Following this motion, legislation will be brought forward to make provision for fixed term parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.
 A 'Parliament' as the term is used here, exists between general elections. It can, but need not, be dissolved on a vote of no confidence in the government. Parliament cannot bind its successors, but it can bind itself for its own duration, even under Dicey's rule. Assume also that the 55% rule applies to the current Parliament (which it may not!).

In the current Parliament, this means that David Cameron cannot go to her majesty and request a dissolution until May, 2015. That ties his hands. It also withdraws the royal prerogative to grant such a request for at least five years. However, if there is a vote of no confidence, that does not mean that there will be a general election. The Liberal Democrats will preserve their position as the pivot in the House of Commons for the full five years until May 2015. Assume that the 55% requirement will apply in the current parliament as well as in future ones. The Conservatives lack the ability by themselves to dissolve Parliament (55% = approximately 358 votes, depending on how one counts). Thus, if the Liberal Democrats leave the coalition and the Conservatives cannot pass supply or other important legislation, her majesty will call on the next largest party to form a government. That will be Labour. This strengthens the Lib Dems' hand when they are negotiating with the Conservatives. It, too, preserves their position as a pivot in the House of Commons. This takes power from (a) the queen; (b) the executive; (c) a party in the House of Commons that has less than 55%. It gives power to everyone else. If you're trying to force people to get along, that's a good thing. If you want an elected dictatorship, it's a bad thing.

No matter what, it's another stake in Dicey's heart if the legislation is passed, presumably with a supermajority requirement on its repeal, which limits every future government's ability to dissolve but also narrows the royal prerogative. At the same time, it's all in the details. Will there be a super-quorum requirement? How will the 55% be counted? Will the speaker and deputy speaker and Sinn Fein be part of the requirement?

This historical background just in: Constitution Unit Briefing Paper on 55% dissolution requirement.