Death of the Cowley Road Passion Play, a Drama in Two Acts | Susan Hall · IP/ICT Lawyer

Death of the Cowley Road Passion Play, a Drama in Two Acts


To recap: as described in my last post ‘Send three-and-fourpence, we’re going to a dance’, this year’s Cowley Road Passion Play did not take place. The press, especially the Daily Mail, was keen to dish out blame. The villains of the piece were portrayed as secular, smutty-minded Oxford City Council jobsworths, too dim to know the difference between a Passion Play and a live sex show.

Something, though, smelt off. The “sex show” business may have arisen with a joke in questionable taste. However, Rev. Councillor Wolff, the man who made that comment, was also quoted at length in one of the Oxford Mail articles on the topic. What he says there betrays a more fundamental misconception:

“All the people in the city council were trying to be helpful, but a fatal disconnect came down and people were talking at cross purposes. This is a lesson for Christians that if they are going to talk about Passion Plays, please bear in mind the possibility that fifty per cent of people making decisions on it might not know what the Christians are talking about.”

“It’s certainly strange, though, that the organisers might be committing a public offence when in reality they were simply re-enacting a crucifixion.”

To explain why this sets alarm bells ringing requires a quick trip through the history of theatre.

Until 26 September 1968 there was direct censorship of the British stage. The Lord Chamberlain was required to license plays before they could be publicly performed. This led to a great many anomalous and, frankly, bonkers decisions. For example, despite having been performed without trouble for over twenty years, Gilbert and Sullivan’s Mikado had its licence temporarily withdrawn in 1907 for fear of offending the Japanese during a tense period of diplomacy.

One of the areas which led to the Lord Chamberlain’s blue pencil coming out was any material which “violated religious reverence” and, indeed, the Archbishop of Canterbury for many years acted as an unofficial advisor to the Lord Chamberlain1.

In particular, the Archbishop was keen to prevent any “impersonations” of the Christian God by actors. It is no coincidence that Jesus Christ Superstar and Godspell appeared in 1970/71; such plays would have been unthinkable a mere three years earlier. Likewise, And All the World Should Be Taxed by David Pownall, “a political rendering of the Nativity story”, which was denounced by Lancaster’s Catholic bishop on its first performance in 1971, would also have fallen foul of this ruling.

The upsurge in plays dealing with religious themes in a sceptical (or, at least, not orthodox CofE) manner from the early 1970s onwards allows one to draw inferences about the chilling effects of the Archbishop’s direct line to the censor for playwrights during the first two thirds of the twentieth century.

So, the Rev Dick Wolff was certainly displaying a woeful lack of theatrical (and legal) history in expressing incredulity that “simply” re-enacting a crucifixion might have legal consequences.

However, the Lord Chamberlain’s responsibilities extended as much to the physical safety of audiences as they did to their moral welfare. Once his responsibilities for theatre ended with the Theatres Act 1968 that responsibility had to go somewhere, and it went to the local authorities:

1. Abolition of censorship of the theatre.

1: The Theatres Act 1843 is hereby repealed; and none of the powers which were exercisable thereunder by the Lord Chamberlain of Her Majesty’s Household shall be exercisable by or on behalf of Her Majesty by virtue of Her royal prerogative.

2: In granting, renewing or transferring any licence under this Act for the use of any premises for the public performance of plays or in varying any of the terms, conditions or restrictions on or subject to which any such licence is held, the licensing authority shall not have power to impose any term, condition or restriction as to the nature of the plays which may be performed under the licence or as to the manner of performing plays thereunder:
Provided that nothing in this subsection shall prevent a licensing authority from imposing any term, condition or restriction which they consider necessary in the interests of physical safety or health or any condition regulating or prohibiting the giving of an exhibition, demonstration or performance of hypnotism within the meaning of the Hypnotism Act 1952.

— Section 1, Theatres Act 1968

So, unlike the Lord Chamberlain of old, the Oxford City Council could not have banned or restricted the Cowley Road Passion Play on the basis that it included an impersonation of Christ. But the Council not merely had a power but a duty to consider whether the play needed a licence and, if so, what conditions should be imposed in that licence to protect performers and public:

12. Licensing of premises for public performance of plays.

1: Subject to the following provisions of this Act, no premises, whether or not licensed for the sale of intoxicating or exciseable liquor, shall be used for the public performance of any play except under and in accordance with the terms of a licence granted under this Act by the licensing authority.

2: A licence shall not be required for any premises under any enactment other than this Act by reason only of the public performance at those premises of a play.

3: For the purposes of subsection (2) above any music played at any premises by way of introduction to, in any interval between parts of, or by way of conclusion of a performance of a play or in the interval between two such performances shall be treated as forming part of the performance or performances, as the case may be, if the total time taken by music so played on any day amounts to less than one quarter of the time taken by the performance or performances of the play or plays given at the premises on that day.

4: Schedule 1 to this Act shall have effect with respect to licences under this Act.

— Section 12 Theatres Act 1968

There is a statutory appeals procedure in s. 14 of the Act against the refusal of any licence or the imposition of wrongful conditions on that licence.

Oxford City Council have now supplied, under the Freedom of Information Act, a copy of the event application form in question and its attachments, only redacted to obscure personal data relating to individuals. The applicant is said to be “the Cowley Road Passion Play c/o St Stephen’s House”. St Stephen’s House is a Permanent Private Hall in the University of Oxford, a reasonably substantial academic institution with access to competent legal advice, including from its own Law Faculty and alumni.

The declaration on the event application form, immediately above the signature, states,

I confirm, that I have read the Events Guidance and the Terms and Conditions.

The form is dated 8 April; the signatory notes beside the date, in typescript,

“We apologise for the late submission of this document. We were only notified by the police of the necessity of this on 8 April 2014. As the event does not require emergency services and is relatively uncomplicated we hope that we will be able to proceed with an event which is eagerly anticipated. Thank you for your time.

Once one reads the terms and conditions, it becomes clear just how late this submission was. Good Friday, the day of the play itself (the “Event” for the purposes of the application) was less than ten days away. The terms and conditions, however, required all “application forms, remittences and cancellations” to be received by the Council by the “Due Date”, which in turn is defined as “28 days prior to the Event.”

Furthermore, the terms and conditions also require the applicant to

ensure that any licence, permit or other consent which may be required is obtained, whether from the Council or otherwise, before the event takes place…

— paragraph 1.14.1, Section B, Terms and Conditions for use of Parks and Open Spaces, Oxford City Council

The applicant has also signed the terms and conditions, separately, as well as declaring that they have read them.

But could the Cowley Road Passion Play be expected to know that putting on a play — albeit a play which was also a religion re-enactment — required a local authority licence under the Theatres Act 1968?

On this we have the Oxford City Council’s comprehensive website, which gives examples of entertainment which require Council licences and gives plays as an example.

But, most damningly, we also have the applicant’s own statement at paragraph 3.2 of the Events Application Form, in answer to the question, “Will there be regulated entertainment?” “Yes. Live music/provision for making music. Performance of a play.” Further up the form, at paragraph 2.7 (Description of Event Activity) we also see “A Dramatic Representation of the last hours of the life of Jesus Christ, offered in various locations around Cowley Road, Oxford, in six separate scenes, in costume.”

Or, in other words, a public performance of a play, the unlicensed performance of which would be a criminal offence under s.13 of the Theatres Act 1968.

The Oxford Mail article claimed that the 2012 performance of the Passion Play — for which a licence was neither sought nor granted, although the police were aware of it — “wasn’t illegal then”. In fact, they were wrong about that. The Cowley Road Passion Play organisers had been committing a criminal offence in 2012; they’d just got away with it. And they’d have got away with it this time too, if it hadn’t been for some pesky policeman who happened to know the law and thought that churches shouldn’t behave as though they were above it. Or, as some chap somewhere once said, that they ought to “render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.”

The Cowley Road Passion Play organisers rendered their Events Application Form unto Oxford City Council at least eighteen days late and they knew it. They were intending to put on regulated entertainment, and they knew that, too. They needed a licence for it under the Theatres Act, and whether or not they knew that, they signed a form which said they did and they could certainly have got legal advice on the point without difficulty.

And, finally, the Oxford City Council staff were — despite the lateness of the application and the imminence of the Bank Holiday weekend — doing their best to ensure that the Passion Play should go ahead, in conformity with the Theatres Act, at the moment when the organisers of the play decided unilaterally to pull the plug.

How on earth a story about a bureaucratic muddle about a church event — a storyline Trollope would have found familiar — turned into an attack on secular values and a wholly unjustified slur on the City Council’s morals and reading skills is anyone’s guess.

However, perhaps the story behind the Theatres Act, and especially the loss of the powers of the Archbishop of Canterbury with regard to theatrical censorship, has something to do with the line taken by the Press.

Recent history has not been short of attempts by various religious groups launching attacks on theatrical performances they consider blasphemous, disrespectful or which “violate religious reverence”. Though the press has tended to concentrate more on threats of violence made by non-Christian groups, it is worth recalling that the organisation Christian Voice managed to deter at least nine theatres from showing Jerry Springer: The Opera in 2005-7 and severely disrupted those performances which did go ahead. The author of its libretto, Stewart Lee, observed about the experience,

“If you have been on the verge of becoming a millionaire and that has not happened because of far-right pressure groups…and your work has been banned and taken apart, and you’ve been threatened with prosecution, and the police have advised people involved with your production to go into hiding, and bed and breakfasts won’t have the cast to stay because they’re blasphemers, and you have to cross a BNP picket line to go to work in Plymouth, you do start to think, well, what can be worse that that?”

Observer interview, 2009

The Theatres Act 1968 was an act which abolished theatrical censorship and put licensing of public performances on an entirely secular, safety-based footing. Given the history of direct interference by the Church of England’s most senior cleric in what was allowed to be performed in the theatre in the past, this seems to be a reasonable and fair result in a modern, multi-cultural society.

However, levelling a playing field which was previously slanted in favour of a particular group is always going to need some adjustment by the group who previously benefitted.

Nevertheless, biased attacks based on inaccurate facts and untrue assertions on authorities tasked with carrying out the licensing duties under the Theatres Act do no good to anyone. They are especially unhelpful in a climate where there are plenty of groups who are genuinely trying to prevent plays being performed on pure religious grounds.

The Cowley Road Passion Play could do worse than admit it made a cock-up and apologise. After all, what’s worse for the world to believe; that a church committee got in a muddle about its paperwork in the stress of organising a complicated event or that it let a lie stand about a group of people who were only trying to do their job in accordance with the law applying to them?

The main image used for this article is from: Decalogue & was used under the terms detailed at the above link on the date this article was first published.