This report was not approved formally by the Committee prior to the suspension of the Assembly on 14 October 2002, but is published by order of the Speaker.
Finance and Personnel
Tuesday 10 September 2002
MINUTES OF EVIDENCE
Members present:Mr Molloy (Chairperson)
Mr Beggs (Deputy Chairperson)
Mr B Bell
Mr R Hutchinson
Rt Rev Dr Russell Birney )
Very Rev Dr Samuel Hutchinson )
Mr J W Russell ) Presbyterian
Rev Dr Donald Watts ) Church in Ireland
The Chairperson: You are very welcome. The meeting may be interrupted due to a vote in the Chamber. If you hear bells ringing, do not panic.
Rt Rev Dr Russell Birney: Thank you for facilitating us today. The Very Rev Dr Sam Hutchinson is the clerk of the general assembly, Rev Dr Donald Watts is the deputy clerk, and our legal representative is Mr James Russell.
Very Rev Dr Samuel Hutchinson: We support the general aims of the Bill. Rather than repeat our written submission, I will concentrate on our greatest concern and the improvement that we suggest should be made. A sentence in paragraph (19) of appendix C, which was annex B to the Law Reform Advisory Committee (LRAC) report, states:"We further recommend that, before any new legislation comes into force, there should be in place regulations listing the religious bodies having the status of religious bodies whose clergy are automatically entitled to conduct marriages."
Although we did not write that sentence, it sums up our main concern.
The original recommendation of the LRAC is better than the proposal in clauses 8 and 9 of the Bill. Clause 8(1) states:"A religious body may apply to the Registrar General for a member named in the application…to be registered under section 9 as empowered to solemnise marriages in Northern Ireland",
and clause 9(1) states:"The Registrar General shall keep a register of persons registered under this section as empowered to solemnise marriages in Northern Ireland".
We ask the Committee to revert to the original proposal, which should be easy to draft.
Appendix A contains an extract from the Marriage (Scotland) Act 1977. Section 8(1) states:"A marriage may be solemnised by and only by (a) a person who is…[sub-section (ii)]...a minister, clergyman, pastor or priest of a religious body prescribed by regulations made by the Secretary of State."
The Bill contains no such provision for the prescribing of religious bodies by Regulations. Section 8(1)(a)(i) of the Scottish Act mentions"a minister of the Church of Scotland",
which would have no parallel here, as we do not have a national or established Church. Subsection (iv), which addresses temporary authorisation, is provided for in the Bill, and, therefore, only subsection (ii) and probably subsection (iii) would be paralleled here.
If the primary legislation provided for the prescribing of religious bodies, the ensuing Regulations could be short and simple. I refer to appendix B, the Scottish Regulations, where approximately a dozen bodies are listed in the schedule. Even if 20 religious bodies were listed, it would still be simpler than registering hundreds of individual clergymen, priests, pastors and ministers — 600 for the Presbyterian Church alone — and keeping that list punctually and accurately up to date. Has anyone considered the administrative burden, if not nightmare, that that would place on all concerned, in both Church and state? Where else in these islands does such a system operate?
We fully support the call for equality, but even the existing law, for all its faults, acknowledges the existence of some smaller bodies such as the Non-Subscribing Presbyterian Church, the Quakers and the Jews. The anomaly may be not so much with the "smaller" religious bodies as with "newer" denominations and fellowships that have sprung up in recent times and whose existence the law has not yet recognised. We have no objection to any properly organised denomination or religious body of any faith being added to the list, now or later, and being given full equality of treatment. The Law Reform Advisory Committee’s report No. 6 laid down some guiding principles for the reform of marriage law, including equality of treatment, minimal interference with existing freedoms — which I stress — certainty, simplicity, transparency, ease of application and cost effectiveness. The original recommendation, which we now request, meets those criteria better than the Bill’s wording at present.
We are the largest Protestant denomination in Northern Ireland, with a correspondingly large number of weddings. We speak not as politicians, lawyers or academics but as practitioners who will have to operate the new system. So we ask for your favourable consideration on at least this one point, which is of major concern to us. Please do not impose this on us against our will.
Mr Weir: Thank you for your submission. I want to clarify your concerns. Would essentially all ordained ministers of the Presbyterian Church come under your definition?
Very Rev Dr Samuel Hutchinson: Yes.
Mr Weir: How would the Presbyterian Church deal with potential maverick ministers, someone whom you wished to remove from the list? How would you deal with a dispute, for example, about whether someone was an ordained clergyman if the Church is not supplying a list of those?
Very Rev Dr Samuel Hutchinson: We have a published list, and within two minutes I could tell you whether an individual was on it. Most of our ministers are members of presbytery. A few are still in good standing but for the moment without charge.
There is a system of Church courts, and we can exercise quite strong discipline. On rare occasions, a minister could be formally struck off if he or she were to deviate too far. It is rare, but it does happen. It happened once in the last 10 years or so. In two or three other cases ministers have quietly resigned before the situation reached that stage. In less serious matters they are disciplined in some way. For example, my own home minister of many years ago was confined to his own pulpit. He had been agitating a little, so he was told that he would preach in his own church but nowhere else.
Mr Weir: From the point of view of certainty, particularly that of the registrar, if the Church supplies a list of its ministers, as is envisaged under this scheme, presumably it would not be difficult to amend it.
Very Rev Dr Samuel Hutchinson: It is published once a year.
Mr Weir: In practical terms, does it include the number of ministers ordained in a year?
Very Rev Dr Samuel Hutchinson: If one was to take into account ordinations, deaths and moves from North to South or elsewhere, I should be writing every week to say that someone had moved from Cork to Derry or whatever.
Mr Weir: On a practical level, if we remove from the equation any North/South moves or shifts between congregations in Northern Ireland, if all your ministers were registered and you dealt only with the number ordained in a year and the number of deaths or removals from the list, surely that would not involve too many people?
Very Rev Dr Samuel Hutchinson: That does not work in practice. For example, two or three weeks ago in a marriage by special licence there was a flaw in the paperwork — not a serious matter, but something had to be corrected — and the Registrar General became confused between the Rev Robert Brown and the Rev Robin Brown. He wrote to inform the Rev Robert Brown that he had erred. Rev Robert Brown knew nothing about the wedding and called me in to sort out who had, in fact, conducted it. Therefore, there would not just be a responsibility for providing names. I do not know how many Thompsons we have, or how many Joseph or J Thompsons. Moreover, any change of address could be relevant.
Mr Weir: I am loath to use the expression "devil’s advocate" in these circumstances. However, purely by definition, in one sense the registrar probably does not need to be informed immediately of the death of any member of the clergy, because someone who is dead clearly will not perform the wedding ceremony. Unless a definitive list including changes were supplied to the registrar, how could he determine whether someone conducting a marriage ceremony was ordained, in accordance with legislation, in the case of a dispute?
Very Rev Dr Samuel Hutchinson: It is not as simple as that. As things stand today, if someone is ordained in our Church, implicit in that is the right to officiate at a wedding without further formality. Now an extra tier has been put in, and the person must be registered with the registrar. If the registrar deems that he or she is not a fit and proper person, there could be a problem. I do not want to rake up Irish history, but we are the Church of R v Millis, if you are aware of the case of 1843. That someone should intervene between the ordination and the right to officiate at marriages would make us, as a Church, very uncomfortable.
Mr Weir: I appreciate the history, but under the legislation as it is drafted it is up to the religious body to determine the right to officiate — the registrar cannot interfere with that. However, there is a complication in that there could be a dispute if, for example, somebody was ordained but the Church questioned their rights. Surely if the Church supplied a list of registered ministers, that would create a level of certainty that a general provision could not give?
Very Rev Dr Samuel Hutchinson: I produce an annual directory, and that is difficult enough. However, if someone is ordained today and a couple want him to officiate at a wedding on Saturday his name must be included in the list. One of our problems is keeping information up to date.
I can easily send our annual directory to anyone who wants it. However, it is already one or two months out of date before it is published. It is compiled around the end of June, and, allowing for holidays, it is already about two months out of date by the time it is printed in book form. Keeping records up to date from day to day is different.
Mr Weir: Would there be at least one change a week?
Very Rev Dr Samuel Hutchinson: Yes.
Mr Weir: From a practical point of view, would it be difficult for someone to be responsible for making, and notifying the registrar of, one change a week? What sort of administrative burden would that create in this age of e-mail and letters?
Very Rev Dr Samuel Hutchinson: I could get the assembly to issue a directive that clerks of presbytery must, within three days, notify the registrar of ordinations, removals, deaths, et cetera. However, human beings vary in their efficiency.
Mr Weir: There must be some form of definition of "religious body" in the legislation or in subsequent Regulations. You suggested that there could be a prescribed list of religious bodies that could be added to. Alternatively, the list does not have to consist only of religious bodies. Does the Presbyterian Church have any thoughts on how "religious body" should be defined in legislation or Regulations?
Very Rev Dr Samuel Hutchinson: Clause 39 of the Bill defines "religious body" as"an organised group of people meeting regularly for common religious worship".
I stress the word "organised".
Mr Weir: Are you happy with that definition?
Very Rev Dr Samuel Hutchinson: I would seek legal advice on that.
Mr Russell: Yes. It is satisfactory. It is a very wide definition, which allows for small new groups of people, such as those that the clerk of assembly referred to. It gives them the opportunity to ask to be included.
Mr Weir: Whether we use this system or the one that you have suggested, are you happy that bodies, particularly new ones, will be registered? I presume that whoever is in charge of the whole registry would decide whether or not a group constituted a religious body under that definition.
Very Rev Dr Samuel Hutchinson: I am happy. I am not the person who has to make that decision. However, if I were that person, I would look at the degree of organisation among other factors. For example, does it have a theological college to train its clergy? It might be in England, or elsewhere, but are the clergy trained? Is the group sufficiently structured to discipline someone who gets out of order, or is it just a loose fellowship of about 50 people, all of whom profess to be equal? That sort of body might not be sufficiently organised. However, I would be happy with any organised body.
Mr R Hutchinson: Theologically, that might be right, but someone else might say otherwise. Those people may believe in a priesthood of all believers having equal rights. That does not mean that they should not be allowed the same rights that the Presbyterian, Methodist, Anglican or other Churches enjoy.
Very Rev Dr Samuel Hutchinson: I would have no objection to the Registrar General — or the Secretary of State or whoever —deciding that all 50 members of a fellowship are entitled to celebrate. I am concerned about my own Church.
Mr Weir: I appreciate that. Should the definition of marriage be further explained in the Regulations, which will deal with the administration of the Bill, or should registrars be given discretion to define such terminology?
Mr Russell: My immediate reaction is that I would trust the Registrar General to interpret the terminology. It is very difficult to cover all the possibilities and still keep the matter general.
Mr Weir: I appreciate that.
Mr Russell: It would be more satisfactory to rely on the Registrar General or the Secretary of State.
Mr Close: As this is a Bill about marriage, would it be helpful if marriage were defined on the face of the Bill?
Very Rev Dr Samuel Hutchinson: My impression of the Law Reform Advisory Committee’s earlier documents was that it was not concerned with the theology of marriage.
Mr Close: That is certainly its view, but would it be helpful if marriage were defined on the face of the Bill?
Very Rev Dr Samuel Hutchinson: The definition that is given in LRAC No. 6, p iii, was the union of one man and one woman, or something similar. I would be happy to see that written in on the face of the Bill unless it delayed the process for two years.
Mr Russell: Clause 4(6) lists the conditions under which there is a legal impediment to a marriage, for example, if both parties are of the same sex. To a certain extent that provision negatively defines marriage.
Mr Morrow: I apologise for my absence earlier. Is it worth battling for the inclusion of a definition of marriage in the legislation?
Very Rev Dr Samuel Hutchinson: It is a question of proportionality. I would hesitate to propose the inclusion of a definition if that would result in a two-year consultation period, but if it can be written in without too much trouble I would be happy to see it included.
Mr Morrow: Is the definition worth battling for? It is important to define marriage. I suspect that you do not entirely disagree with what I am saying, but the important question is at what stage it should be defined.
It is important to do so in the Bill. I accept the point that the Bill does not include the minutiae and theology of marriage. However, I am concerned that some people, whether in your profession or not, may feel that there has been a sleight of hand in the consultation process if the Bill does not clearly define marriage. I agree that marriage is between one man and one woman, but does the fact that marriage is not defined weaken the Marriage Bill?
Very Rev Dr Samuel Hutchinson: I understood that the Bill was merely designed to deal with procedures.
Mr Morrow: You are right; however, is it not essential to move from an agreed premise to deal with procedures?
Very Rev Dr Samuel Hutchinson: I would be very happy to see a proper definition written in.
Mr Close: I shall follow up on Mr Russell’s example of the negative conditions in clause 6 that refer to same- sex marriages. There is now a move among European legislators to redefine sex and gender. Some members are concerned that, unless marriage is clearly defined, even a negative interpretation might be construed in a particular way — I am referring specifally to transsexuals. Would it not be better to deal with the issue now by including a clear definition on the face of the Bill?
Very Rev Dr Samuel Hutchinson: Yes, that is my opinion.
Mr Beggs: I understand that you have concerns about the proposals. For example, what would happen if a minister fell ill? How would the proposals work in practice? Have you any suggestions about how to get round that?
Very Rev Dr Samuel Hutchinson: At the moment, a wedding licence is made out to me or other officiating Presbyterian ministers. If I take ill the night before, or am stormbound in Stranraer, I simply ring one of my colleagues and ask them to take over. That is provided for in the terms of the licence. I understand that under the provisions in the Bill only the officiant named in the schedule may perform the marriage. Therefore, if I, or any minister, is unable to attend, I must contact the registrar — perhaps on a Saturday night or in the early hours of the morning — and ask him to approve my choice of substitute minister. I know that such provision is contained in Scottish legislation because of the Gretna Green problem. In what circumstances would the registrar refuse me the right to arrange a replacement minister when I am sick or otherwise unavoidably detained? Would it not be better to have the marriage schedule made out to a named officiant and another person who would be authorised by the Regulations to act as a replacement? I am not an expert in this field, but perhaps the Regulations could also provide for a replacement minister or priest of the same denomination as the officiant to be included in the marriage schedule.
The Chairperson: Thank you for the presentation. I apologise for the disruption. The evidence collected today will be forwarded to the Department, and we shall await its response.10 September 2002 (i) / Menu / 10 September 2002 (iii)