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Published online by Cambridge University Press: 03 January 2022
When asked by an expert in the law, ‘And who is my neighbour?’, Jesus answered with the parable of the good Samaritan (Luke 10:25–37). This was a radically inclusive answer: your neighbour could be anyone. By contrast, a priest who asks an ecclesiastical lawyer ‘and who is my parishioner?’ may be given a far less clear or satisfying answer.
This comment is based on the moot problem set for the inaugural Inner Temple Ecclesiastical Law Moot in which the author participated in spring 2021. The author would like to thank the Inner Temple Mooting Society for organising the competition, all the participants and Morag Ellis QC, Araba Taylor and Caroline Harris, who presided over the final. Special thanks are given to Mark Hill QC for advising on an early draft of this article. More information about the moot can be found in Newsletter of the Ecclesiastical Law Society, no 3 (2021), pp 3–4, <https://ecclawsoc.org.uk/wp-content/uploads/2021/06/ELS-newsletter-May-2021-v-FINAL.pdf>, accessed 18 August 2021.
2 Church of England Research and Statistics, ‘Statistics for mission 2019’, October 2020, <https://www.churchofengland.org/sites/default/files/2020-10/2019StatisticsForMission.pdf>, accessed 31 July 2021.
3 Re St Thomas à Becket and St Thomas the Apostle, Heptonstall [2021] ECC Lee 2 at para 4.
4 See, for example, the wording used in the Synodical Government Measure 1969, sch 3 (‘Church Representation Rules’), r 1(3)(b).
5 The common law right to be married in one's parish church has declined in importance since the Church of England Marriage Measure 2008, s 1, created several new statutory rights to have a marriage solemnised in a parish church. Applicants need only prove that they meet one of five ‘qualifying connections’, including, for example, that they at any time had their usual place of residence in the parish for at least six months.
6 Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s 88(1).
7 Ibid, s 88(4).
8 Ibid, s 88(5).
9 Re West Pennard Churchyard [1992] WLR 32 at 33C–H.
10 St Thomas à Becket at para 7.
11 Church Representation Rules, r 4(6)(c).
12 Church Representation Rules, r 1(3).
13 Legal Advisory Commission of the General Synod, ‘Legal opinions concerning the Church of England’, ninth edition, 2020, <https://www.churchofengland.org/about/leadership-and-governance/legal-services/legal-opinions-and-other-guidance/legal-opinions>, accessed 27 July 2021.
14 Ibid.
15 Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s 88(1). The commission's definition is also similar to guidance issued by the House of Bishops on the meaning of ‘residence’ within the Church of England Marriage Measure 2008, ss 1(3)(b) and (d). The guidance defines a ‘usual place of residence’ as the person's ‘home base … even if he or she has been temporarily absent for part of the time e.g. on holiday or for work’: ‘Church of England Marriage Measure 2008: guidance from the House of Bishops’, para 49, available at <https://churchsupporthub.org/house-of-bishops-guidance-on-the-marriage-measure.php>, accessed 27 July 2021.
16 See, for example, Holliday and Anr v Musa and Ors [2010] EWCA Civ 335, [2010] FLR 702, a case about whether the deceased was domiciled in England and Wales at the date of his death for the purpose of the Inheritance (Provision for Family and Dependants) Act 1975, s 2.
17 Re St Giles Exhall [2021] EACC 1.
18 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] UKHL 37, [2004] 1 AC 546.
19 Ibid at paras 7–8.
20 Ibid at para 11; HRA 1998, s 6(3)(b).
21 Aston Cantlow at para 13.
22 Ibid at para 130.
23 St Thomas à Becket at para 4.
24 Re St Mary's Woodkirk [2020] ECC Lee 3 at para 11.
25 When performing public functions, incumbents may also have duties under the Equality Act 2010, eg those in ss 29 and 149(2), as the definition of ‘public functions’ is the same: ss 31(4) and 150(5). Exceptions exist for doing anything required by a Measure of General Synod (sch 22, para 1) and for religious organisations seeking to discriminate on religious grounds in certain circumstances (sch 23, para 2).
26 Re Blidworth Churchyard [2021] ECC S&N 2 at para 58.
27 Ibid at para 68.
28 The ecclesiastical courts have consistently recognised that they are public authorities: eg St Giles Exhall at para 9.2; Re Crawley Green Road Cemetery, Luton [2001] Fam 308 at para 6; Re Durrington Cemetery [2001] Fam 33 at 37A.
29 Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s88(1).
30 Church Representation Rules, rr 1(2)(a)–(b), 1(3)(a), 1(4)(a) and 1(5)(b). Note, however, that clerks in holy orders cannot be enrolled.
31 Ibid, r 1(3).
32 Ibid, r 4(6).
33 Church Representation and Ministers Measure 2019, sch 1; The Church Representation and Ministers Measure 2019 (Commencement) Order 2019, SI 2019/1460. Church Representation Rules, rr 3(1) and 4(10).
34 Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s88(1).
35 Church Representation Rules, r M1(1).
36 St Giles Exhall at para 7.3.
37 R (Countryside Alliance and others) v Attorney General and another [2007] UKHL 52, [2008] 1 AC 719 at para 116, cited in St Giles Exhall at para 10.5.
38 St Giles Exhall at para 10.15.
39 Elli Poluhas Dödsbo v Sweden App no 61564/00 (ECtHR, 17 January 2006) at para 25.
40 St Giles Exhall at para 7.2; HRA 1998, sch 1, pt 1, art 14.
41 St Giles Exhall at para 9.3.
42 Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916, [2018] QB 804 at para 48.
43 St Giles Exhall at para 9.8. For a discussion of the meaning of ‘ambit’ within the context of religious liberty cases (Article 14 read with Article 9), see The Church of Jesus Christ of Latter-Day Saints v United Kingdom App no 7552/09 (ECtHR, 4 March 2014), esp para 25.
44 Drašković v Montenegro App no 40597/17 (ECtHR, 9 June 2020) at para 47.
45 R (Ghai) v Newcastle City Council [2009] EWHC 978 (Admin), [2011] QB 591 at para 141.
46 St Giles Exhall at para 9.5.
47 Carson and others v United Kingdom App no 42184/05 (ECtHR, 16 March 2010) at para 61.
48 M Hill, Ecclesiastical Law (fourth edition, Oxford, 2018), para 3.03.
49 This is not to say that alternative criteria for membership of the Church of England would be practical or desirable. Basing membership on a particular course of behaviour, such as regular attendance at public worship, would be inconsistent with the Church's affirmation that justification is by faith alone: see Article XI of the Thirty-Nine Articles of Religion. The new Christian is then welcomed into membership of Christ's Church through the sacrament of baptism: Archbishops’ Council, Common Worship: services and prayers for the Church of England (London, 2000), p 345.
50 Previously the Church of England (Miscellaneous Provisions) Measure 1976, s 6.
51 ‘Church Representation Rules online – introduction’, <https://www.churchofengland.org/about/leadership-and-governance/legal-services/church-representation-rules/introduction>, accessed 25 August 2021.
52 Carson at para 61. On the legitimacy of the aim, see, for example, Darby v Sweden App no 11581/85 (ECtHR, 23 October 1990) at para 33, where the ECtHR held that a discrepancy in treatment could not be justified by the aim of preventing the administration of tax law from becoming ‘more complicated’.
53 Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700 at para 74.
54 While this re-evaluation may pose some practical challenges, had the person concerned not died, the electoral roll officer would have had to re-evaluate their eligibility anyway during the annual revision of the roll. This is because names on the roll ‘must be removed’ during the revision if they are no longer entitled to be there: Church Representation Rules, r 4(1)(b). Revising one entry on the roll is far simpler and quicker than requiring electoral roll officers to keep the entire roll continually up to date.
55 Church Representation Rules, rr 3(1) and 4(10). Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s 88(1). The solution would also be pastorally insensitive, leaving families, funeral directors and clergy uncertain about where the deceased will be buried until the electoral roll officer has conducted the re-evaluation.
56 A public authority does not act unlawfully if it could not have acted differently because of provisions of primary legislation: HRA 1998, s 6(2). ‘Primary legislation’ includes Measures of General Synod: ibid, s 21(1).
57 Ibid, s 6(3)(a).
58 Their actions may also be contrary to the Equality Act 2010 (see note 25 above).