Clergy Discipline and Confidentiality: Gadd v Peers

(2024) Bishop’s Disciplinary Tribunal, Diocese of Oxford

This case would be of small legal interest but for an ironic twist that occurred during the Tribunal hearing.

Reverend Peers was accused of breach of confidentiality concerning his then ecclesiastical superior, who was himself subject to disciplinary proceedings at the time.  He was ably represented by Mr Justin Gau, barrister, chancellor and vicar-general, whose name has been mentioned elsewhere in this blog.

The complaint against Peers was initially dismissed by the Bishop at the preliminary stage (para 7).  This suggests that the allegations, even if factually true, could not amount to misconduct under the Clergy Discipline Measure 2003.  (See blogpost ‘A Bishop’s Disciplinary Tribunal’, filed below).

However, the 2003 Measure confers jurisdiction on the President of Tribunals to set aside the Bishop’s dismissal of a complaint, if satisfied that the Bishop’s decision was ‘plainly wrong’ (s.11(4)).  The Deputy President exercised this jurisdiction to reinstate the complaint, and thereby allow it to proceed to a Tribunal hearing.

As noted in our earlier blogpost, the complainant in a tribunal case is usually a Church official, not the clergyman’s original accuser.  The Clergy Discipline Code of Practice states that ‘where the archdeacon is satisfied that there is a case of misconduct [i.e a case to answer], they should bring the case, and not leave it to the private individual concerned’ (para 52).

In this case, however, no archdeacon or other Church official was found to bring the complaint.  They evidently shared the Bishop’s opinion that Peers did not have a case to answer.  So, unusually, it was left to ‘the private individual concerned’, Mrs Gadd, Peers’ accuser, to bring the complaint herself.

The Tribunal dismissed Mrs Gadd’s complaint categorically and convincingly, and cleared Peers of any blameworthy conduct.  Its decision strongly suggests that it was the Deputy President, and not the Bishop, who was ‘plainly wrong’ about the case.  The complaint should never have been allowed to proceed as far as a Tribunal hearing.

The remarkable feature of the case is the Tribunal’s judgment on the complainant, rather than on the complaint itself.  Having accused Reverend Peers of breach of confidentiality, Mrs Gadd found herself accused, in the Tribunal, of exactly the same thing!  Perhaps Mr Gau believes that attack is the best form of defence.

The published decision relates that Mrs Gadd ‘was recalled briefly twice, to give evidence dealing with a breach [by her] of the confidentiality required under the CDM [Clergy Discipline Measure] process – she had provided confidential papers in this matter to 3rd parties, namely her husband and a person she turned to for informal advice’ (para 50).

Then the full extent of Mrs Gadd’s offence was revealed

‘it quickly became apparent that she had received significant input and advice from the earliest stages and throughout from 3rd parties unconnected with the CDM, and that she had extensively shared confidential information with them, through discussion of the issues or through actual provision of full sets of confidential papers …’.

In other words, Mrs Gadd, like countless other parties to legal proceedings, obtained advice and assistance of the kind that a solicitor might provide to a client, but from a friend or acquaintance instead.

Why should Mrs Gadd not do this?  As mentioned, she had no Church official to help her with her complaint.  The Tribunal quoted her as saying ‘I didn’t even know what a CDM was’.  It even acknowledged that she faced ‘ several potentially challenging procedural hurdles that arose along the way’.

Nevertheless, the Tribunal suggested that Mrs Gadd’s conduct necessitated ‘immediate steps … to preserve the integrity of the hearing’ (para 59), but did not explain how her conduct had compromised that integrity in the first place.

The published decision contained no explicit threat of contempt proceedings, but warned darkly that ‘the matter [of breach of confidentiality] remains under review’.

One of Mrs Gadd’s confidants, evidently a man of spirit, ‘has not confirmed destruction of the documents in his possession, and disputes the basis for challenging his entitlement to hold the papers’.

The legal basis of the Tribunal’s position is indeed worth examining.  The Tribunal asserted that ‘Clergy Discipline proceedings are, by default, private and confidential … The rules as to confidentiality are set out clearly in the Clergy Discipline Code of Practice and elsewhere (including the statutory guidance)’.  It pronounced Mrs Gadd and her confidants to be ‘in breach of the Clergy Discipline Rules and the Statutory Guidance’ (para 56).

However, the Tribunal declined to give chapter and verse.  Its animadversions of Mrs Gadd’s supposed breach have a character of bluster.  They do not specify which rule, or rules, or which guidance she had contravened.

The Code of Practice devotes just 4 paragraphs to confidentiality (paras 306-309).  Para 307 affirms that ‘Allegations of misconduct under the CDM are private and confidential … [confidentiality] extends to complainants, respondents and witnesses’.  It adds that ‘written documents and material … save for legal representatives, should not be shared with 3rd parties’.

So Mrs Gadd would have been in the clear had she merely consulted a solicitor.  But she consulted a lay adviser (or advisers), not a solicitor.  Perhaps the Tribunal was correct to find her in breach.

However, the confidentiality of clergy discipline proceedings is further addressed by statutory guidance issued in 2021.  It goes like this

Q: ‘Can I share documents with others, e.g witnesses that I may wish to call?

A: ‘Yes, documents such as the allegation of misconduct or answer can be shared with those who have a legitimate reason for seeing them.  E.g legal professionals, witnesses, healthcare professionals or others providing support during the disciplinary processes’ (emphasis supplied).

The Code of Practice itself makes the obvious point that ‘complainants, especially where they are private individuals, may need help to make a written allegation and to prepare written evidence’ (para 60).  As mentioned, even the Tribunal seemed to accept that Mrs Gadd was in need of such help.

It is therefore argued that Mrs Gadd was not in breach of the clergy discipline regime merely by seeking and obtaining needed support.  Para 307 may seem to support the Tribunal’s position, if read in isolation.  But para 307 should not be read in isolation.  The Code of Practice and the Statutory Guidance, when read together, are clear that a complainant can seek advice and assistance from someone other than a solicitor, and can share documents with them.

Mrs Gadd could only have been in breach of the clergy discipline regime if her disclosure to 3rd parties had prejudiced the proceedings against Peers.  For all its bluster, the Tribunal failed to identify any actual prejudice to its proceedings.

The Tribunal’s condemnation of Mrs Gadd raises a fundamental constitutional issue:  why should she be bound by the clergy discipline regime at all?

It is, of course, perfectly reasonable for the Church of England to issue rules and guidance to its own officials and staff – bishops, archdeacons, registrars, the tribunal members themselves – and expect them to observe these.  But Mrs Gadd was a private individual, not a Church official.  This is the 21st century, not the 17th century.  Archbishop Laud no longer lives in Lambeth Palace.  Yet the Tribunal seemed to think that rules made by the Church are binding upon all the world.  Who do these people think they are?

It is true that the Clergy Discipline Measure, like all Church Measures, has ‘the force and effect of an Act of Parliament’: Church of England Assembly (Powers) Act 1919, s.4.  It is primary legislation.  However, Church Measures are still supposed to respect ‘the constitutional rights of all His Majesty’s subjects’, including Mrs Gadd (cf 1919 Act, s.3(3)).

The 2003 Measure empowers the Church ‘to issue codes of practice and general policy guidance [i.e the ‘statutory guidance] to persons exercising functions in connection with clergy discipline’ (s.3(3)(b)).

Is a person like Mrs Gadd, who comes forward with an accusation against a clergyman, ‘exercising a function’ in connection with clergy discipline?  It is argued that she is not.  Codes of practice and guidance properly apply only to the Church officials who administer clergy discipline, not to the general public.  The whole purpose of the clergy discipline regime, as of secular professional discipline (of doctors, lawyers etc) is to protect the public.  Not to protect the clergy.

The Tribunal’s exaggeration of the rule of confidentiality seems to have had a chilling effect online.  The Law and Religion blog reported Gadd v Peers, but added cautiously that ‘comments on this post [i.e on this case] are closed’.  The informative Thinking Anglicans website, whose readers are normally so generous in sharing their knowledge and wisdom, records ‘0 comments’ under its own report of the case.

The Worshipful Chancellor Gau is evidently a formidable defender, not only of Reverend Peers, but of a High Church, neo-Laudian idea of ecclesiastical jurisdiction.  His successful efforts to dissuade a national newspaper from informing its readers of the identity, both of his client and the allegations made against the client – by threatening a prosecution for contempt – are fearlessly reported in our blogpost ‘Clergy Discipline and Contempt Proceedings’, filed below.

(All websites accessed today.)

The Parish and the Privy Council

‘Miss Spencer – Their Lordships have listened with attention to what you have had to say in opposition to the [pastoral] Scheme, and assure you that they respect the sincerity of your views.  You have taken a great deal of trouble over this matter, over a long period.  Their Lordships have read the Answer which has been made, and the affidavits of Mr Morton, Canon Marlow and of the Bishop, and all the papers which have been filed with them.

The Scheme which has been put forward must, in the opinion of Their Lordships, be allowed to go forward.’

Spencer v Church Commissioners (1970), Privy Council 33.  The complete Judgment.

Not all judgments on pastoral appeals are as succinct as this one, but they are usually to the same effect.  The large majority of such appeals have failed in the past.  A few have succeeded, however.

In Westoe and South Shields, St Hilda (1939) Appeal Cases 269, the impugned scheme provided for the amalgamation of 2 neighbouring benefices, and the closure of 1 of the parish churches.  This would provide funds with which to endow a new church elsewhere in the diocese.  The Commissioners candidly admitted that ‘no benefit of any kind would accrue to the 2 parishes [affected]’ (p.275).

Church attendance in the 2 parishes was steady.  1 parish was High Church, the other Low Church.  There were no other churches at a convenient distance.

Emmanuel Church and All Saints, Clifton (1959) 17 and (1961) 14 likewise concerned the amalgamation of 2 benefices.  As in the previous case, 1 parish was High Church and the other Low Church.  Both parishes ‘maintain[ed] themselves without outside financial aid’.  The parish church of 1 benefice had been destroyed in a wartime air-raid, so ‘a large sum is expected to be obtained from the War Damage Commission in respect thereof’, i.e to build a new parish church.

The Church Commissioners had other ideas, however: ‘this sum should not be used for rebuilding [the church] on its original site, or elsewhere in the parish, but in building a church or churches in other parts of the diocese [which] require the provision of new churches’.

The injustice of both these schemes is obvious.  Perfectly viable parishes would be asset-stripped, and their worship gravely disrupted, all for the sake of diocesan policies and plans which would bring them no benefit.  The schemes effectively ignored the interests of the parishes.  They were quashed.

In Hummerston (1973) 23, a scheme to amalgamate 2 parishes provided that 1 of the parish churches should be demoted to a mere chapel of ease.  The amalgamation itself was accepted, but the demotion of the parish church was refused.  There was no reason for it – a single parish can have more than 1 parish church – and it had not been part of the original reorganisation proposal.

In Pim  (1975) 10, the scheme provided for the division of a single parish, because of the proposed construction of a huge 6-lane motorway (though described as a ‘quasi-motorway’) that would run right through the middle of the parish, and make it difficult for parishioners on the far side of the motorway to attend church.  That part of the parish would therefore be transferred to another parish on the same side of the motorway.

A reasonable provision, perhaps – except that the motorway proposal had been abandoned the previous year.  The Commissioners persisted with the scheme, even though the reason for it had fallen away.

The Privy Council suggested that the Commissioners had a bad attitude problem: ‘the impression [is] that they were determined to put the scheme through’, and merely went through the motions of consultation.  They ‘rest[ed] too easily upon a presumption in favour of the validity of schemes’.

Rogers (1980) 3 concerned the redundancy of a chapel of ease.  The chapel was ‘undoubtedly required’ by the parishioners.  But alas, it was sorely in need of repair, and had no money to pay for this.

Another apparently reasonable scheme.  However, the Privy Council found that ‘both the urgency and the cost of repairs had … been exaggerated’.  Moreover, the chapel ‘will not lack the funds necessary for existing’.  The Privy Council concluded that ‘Their Lordships do not believe that the dilemma posed by the [Church Commissioners] in reality exists’.

In Cheesman (1999) 12, it was alleged that the scheme had been made with the ulterior motive of marginalising an unpopular incumbent – the Reverend Mr Cheesman – whom the Church had failed to get rid of by other means.

Cheesman’s conviction for indecency in a public lavatory had been quashed on a legal technicality (the indecency had only been witnessed by the police, not the public).  He had been prosecuted under the Ecclesiastical Jurisdiction Measure 1963, and also made the subject of a pastoral inquiry under the Vacation of Benefices Measure 1977.  However, both ecclesiastical proceedings were subsequently abandoned, leaving him in continued possession of his benefice.  Then diocesan discussions began about significantly reducing the area of the benefice, transferring most of it to other parishes and clergy, and leaving Cheesman with a cure of just 354 souls.

The Privy Council agreed that ‘if the sole purpose of … the scheme was the vacation of a benefice because of objections to the incumbent, the scheme could not be upheld’.  And Cheesman succeeded in persuading 1 of the judges that ‘the original purpose of the scheme was to separate [Cheesman] from those of his parishioners who opposed him’.

The majority of judges disagreed, however, and accepted the Commissioners’ stated reason for the scheme, which was the geographical and sociological condition of the benefice.  They also held that, though the reorganisation procedure should not be used as a substitute for more appropriate proceedings, Reverend Cheesman’s unhappy position was still a relevant factor:

‘To exclude all consideration of the contribution to the successful cure of souls … that the incumbent … could make would be to adopt an artificiality which finds no support in the [Pastoral Measure], and would obstruct its purpose.’ 

Thus it was not wrong to consider the parishioners’ opposition to Cheesman when preparing the scheme.  Cheesman’s appeal was therefore dismissed by a majority.

Lord Scarman asserted in Hargreaves (1983) 3 All England Reports 17 that the Privy Council’s function is ‘a genuine appeal process … not to be compared with judicial review … notwithstanding certain superficial similarities’ (p.20).  However, our narrative suggests that, contrary to this view, a pastoral appeal is indeed, in substance, a judicial review. 

The schemes discussed above were impugned for

(1) illegality – non-compliance with the statutory requirement to ‘have regard to … the traditions, needs and characteristics of particular parishes’ (Westoe and Clifton): cf Mission and Pastoral Measure 2011, s.3(2) – the precise wording has varied in previous Measures.

(2) irrationality – no reason at all (Hummerston), a false reason (Rogers), or a reason that had ceased to apply (Pim).

(3) impropriety – ulterior motive, abuse of the procedure (the minority view in Cheesman).

The Privy Council is, of course, a secular tribunal, whose intervention in ecclesiastical matters was much resented in the past.  It is therefore not remotely qualified to ‘make or assist in making better provision for the cure of souls’, which is the whole object of pastoral reorganisation (cf 2011 Measure, s.3(3)(a)).  It will be unfamiliar with the diocese and parishes affected by a scheme.  For these reasons it will inevitably defer to the Church authorities.

Lord Diplock acknowledged that ‘The [diocesan authorities] and the Church Commissioners are all in a much better position than [the Privy Council] to know the particular circumstances of the parish and of the diocese as a whole’ (Elphick (1974) Appeal Cases 562 at p.566).  In Little Leigh (1960) 1 Weekly Law Reports 567-8, the Privy Council held that it should be ‘slow to dissent, save for the most cogent reasons, from recommendations embodied in a scheme regularly brought into existence’.

Lord Scarman himself admitted that ‘If there is room for 2 reasonable opinions, the fact that the Church authorities have adopted 1 will almost always be decisive against the other’ (Hargreaves, p.21).  (He also dismissed Captain Hargreaves’ appeal against the scheme.)

It is therefore argued that the true pastoral function of the Privy Council is to protect parishioners and clergy from misuse of the reorganisation procedure by the Church authorities.

The pastoral appeal seems to have originated in the Union of Benefices Act 1860.  This applied only to London.  S.16 provided that ‘Any person interested who may have shown cause to the … Commissioners against the proposed union … may appeal to Her Majesty in Council … and Her Majesty in Council may order and direct that such objections shall be considered by the Judicial Committee of the Privy Council …’.

Until recently, all pastoral schemes had to be confirmed by Order-in-Council, i.e by an order of the Privy Council.  It may therefore have made sense that the same body should hear objections to a scheme before confirming it.

However, the requirement of a confirmatory Order-in-Council was abolished by the Dioceses, Pastoral and Mission Measure 2007, s.30.  Pastoral schemes are now authorised only by the Church Commissioners, when they make the scheme (2011 Measure, s.11).  Yet the appeal to the Privy Council has survived.  It is now regulated by s.12 and Schedule 2 of the 2011 Measure.

Ironically, schemes of diocesan reorganisation (for the creation or merger of dioceses etc) still do require an Order-in-Council, but there is no appeal against such schemes to the Privy Council (2007 Measure, s.8).

Appeals now require the prior permission, or leave, of the Privy Council (2011 Measure, s.12(1)).  This is a standard requirement for both appeals and judicial review.  It means that hopeless cases – like that of poor Miss Spencer – can no longer proceed to a full hearing.

The Privy Council may only hear appeals against pastoral schemes made by the Commissioners.  Minor reorganisation can be effected by a pastoral order, which is made by the bishop (2011 Measure, s.11(7) and s.51).  No appeal lies against a pastoral order.

Cheesman, which was decided in 1999, seems to have been the last decided pastoral appeal (whether successful or unsuccessful) for a quarter of a century.  This may be a tribute to the quality of the reorganisation procedure.  However, the Privy Council is presently (in 2024) considering an appeal concerning the parish of All Saints, Spring Park, in the diocese of Southwark.

A Bishop’s Disciplinary Tribunal

A narrative of the law on this subject should be set in context.  Very few clergy discipline cases get as far as a tribunal.  According to the Church of England’s website there were only 5 tribunals each in 2021 and 2022, 2 in 2018, and just 1 each in 2014 and 2015.

There are unlikely to be significant factual disputes in most cases.  Minor grievances, however genuine, are dismissed in short order.  Criminal matters are turned over to the secular authorities.  Most clergy who misconduct themselves will admit their error and accept the bishop’s correction.  Conciliation is a favoured option.  A bishop’s disciplinary tribunal is a last resort, when the case, though not criminal, is too serious or too difficult to be resolved by other means.

Even at tribunal, there may be no dispute about the facts, merely about the appropriate penalty.  Sometimes accused clergy decline to appear, so the tribunal decides the case in their absence.

Disciplinary tribunals are currently regulated by the Clergy Discipline Measure 2003, and by Rules and a Code of Practice made under the authority thereof (s.45(1) and s.39).

It is likely that the 2003 Measure will be replaced in the next few years by a new Clergy Conduct Measure, which is currently being considered by the General Synod.  However, at the time of writing, the proposed new regime will retain tribunals to decide cases of serious misconduct.

Bringing a Complaint to Tribunal

A tribunal hearing is in effect the 3^rd investigation of a complaint of misconduct by a clergyman

(1)  The diocesan registrar makes a ‘preliminary scrutiny’ of the original complaint, and reports thereon to the bishop (s.11)

(2) The Designated Officer (‘the DO’) makes, or organises, a formal investigation of the complaint, and makes a report to the President of Tribunals (s.17).

(3) If the President of Tribunals decides that the clergyman has a case to answer, she refers the case to a tribunal for adjudication (s.17).

The bishop takes the decision to refer the complaint for formal investigation ((2) above).  This has the effect of removing the complaint from his jurisdiction, and from the diocese.

The DO and the President of Tribunals are national officials, whose offices were created by the 2003 Measure (s.43(1) and s.4).  The DO works for the Legal Office in Westminster, and may be contacted there (rule 101).  He is in effect the Church of England’s Public Prosecutor.  The President’s function is judicial (or quasi-judicial).  The current President of Tribunals is Dame Sarah Asplin, a justice of the Court of Appeal.

The President’s decision that there is a case to answer founds the tribunal’s jurisdiction.  Moreover, the complaint to the tribunal is as formulated by the President.  The President’s formulation may differ from the original complaint that was made to the bishop.  She may refer some allegations to the tribunal while rejecting others: ‘The President’s … decision will specify which allegations … are to be dealt with at the disciplinary hearing’ (code, para 231).

If the President of Tribunals decides that there is no case to answer, that is the end of the matter (s.17(4)).  No ecclesiastical authority is capable of overruling her decision.  A disappointed complainant’s only recourse is to apply to the High Court for judicial review of the decision.

However, a decision that there is a case to answer does not bring the President’s jurisdiction over the complaint to an end.  She can, in effect, change her mind later on, and direct that a complaint be withdrawn.  She can also stay the tribunal proceedings in favour of conciliation (s.18).

This continuing jurisdiction is consistent with the President’s oversight of the entire regime of clergy discipline.  It also makes sense that her jurisdiction should continue until the tribunal meets (which may be a long time after her decision that there is a case to answer), otherwise the complaint will be in limbo.  However, the President can intervene even after the tribunal hearing is underway.

No Right of Silence

The complaint starts or ‘institutes’ disciplinary proceedings (s.10).  However, the accused clergyman is not involved in the diocesan registrar’s investigation (investigation (1) above): ‘no formal response or detailed evidence is required from the Respondent at this preliminary stage’ (rule 10(1)(c)).

The purpose of the registrar’s investigation is to identify or clarify the complaint, i.e to establish what it is about, not whether it is true or false.  In effect, the registrar must presume that the allegations are true (cf code, para 104).

The clergyman only becomes involved in the proceedings after the registrar’s investigation has been completed.  If the complaint is not dismissed, the bishop must request the clergyman to submit a written Answer thereto.  This document must state ‘which … matters are admitted and which are contested’, and must be ‘accompanied by any written evidence … upon which the [clergyman] wishes to rely’.  It must include a statement of truth (rule 17).

The Answer is the accused clergyman’s notice of appearance in the disciplinary proceedings.

The requirement to submit an Answer indicates that an accused clergyman has no right of  silence.  He cannot reserve his position pending a tribunal hearing.  The Clergy Discipline Rules impose a ‘Duty to Cooperate … All parties [including the accused clergyman] shall cooperate with any person, tribunal or court exercising any function under the Measure’.  Failure to cooperate ‘may result in adverse inferences being made’, i.e that the clergyman has something to hide (rule 2).

This duty to cooperate indicates a difference between professional discipline (which the 2003 Measure sought to introduce for clergy) and criminal justice (on which the pre-2003 regime was based).  It was observed in the (secular) case of Salsbury v Law Society (2009) 2 All England Reports 487 that ‘the fundamental object of disciplinary proceedings is to maintain the reputation of the profession as a whole’, not the reputation of the accused.  The Court of the Arches made the same point in King (2009), a case which arose under the 2003 Measure.

The Court of Appeal observed in Kulkari v Milton Keynes NHS Trust (2010) Industrial Cases Reports 101 that ‘disciplinary proceedings … may well entail a mixture of adversarial and inquisitorial practice’ (p.115).

An accused clergyman is not required to file a specific statement in response to a formal investigation by the DO (investigation (2) above).  However, he is required to ‘cooperate with the DO … in particular by responding in writing … to any questions asked by the DO for the purpose of clarification’ (rule 28(3)).

On the positive side, the clergyman may quite properly seek to influence the DO’s investigation in his favour, by requesting him to ‘consider particular lines of inquiry, including the obtaining of evidence’ (Code, para 223).

It may be necessary to obtain documents held by a third party.  If the third party proves uncooperative, the President of Tribunals can issue a sub poena, to compel production of the documents, if they are ‘relevant and necessary for dealing fairly’ (rule 28A).

Legal Representation

The diocesan registrar may not give legal advice to the parties to a disciplinary case, because it may conflict with his duty to advise the bishop (code, para 105).  However, an accused clergyman is expressly permitted to seek legal advice from the registrar of a different diocese (para 113).  Indeed the clergyman may well end up being represented by a solicitor who is also a diocesan registrar.  (Ecclesiastical law is a very small world!)

The formal Answer which the clergyman is required to submit must include his contact address (rule 17(2)(a)).  If he wishes a solicitor to represent him, he can simply give the solicitor’s details as his contact address.  The solicitor is thereby put on the record of the disciplinary proceedings.  This follows the practice of the High Court.

Complainant and Respondent

The accused clergyman is the respondent to disciplinary proceedings.  The identity of the complainant may require clarification.  Although the 2003 Measure may suggest otherwise, the complainant will usually (though not always) be a Church official, and not the clergyman’s original accuser, i.e the person who came forward with the allegations in the first place. 

The code of practice states that ‘where the archdeacon is satisfied that there is a case of misconduct, they should bring the case, and not leave it to the private individual concerned’ (para 52).  The diocesan safeguarding adviser may bring an appropriate case (para 54).  The accuser will be a witness, rather than complainant.  The official complainant may resemble a ‘litigation friend’ to the accuser.

The 2003 Measure makes clear that the DO, or a person authorised by him, conducts the case for the complainant (s.18(1)).  The complainant / accuser has no choice in the matter.  This means that, while there is nothing to stop a complainant/accuser from consulting solicitors, they have no right to be separately represented in disciplinary proceedings. 

Constituting the Tribunal: Independence and Impartiality

Having decided that there is a case to answer, the President of Tribunals must constitute a tribunal to adjudicate upon it.  Every tribunal has 5 members (larger than most secular tribunals), consisting of a legally qualified chairman, and 2 clergy and 2 lay members (s.2 and s.22(1)).

The President may take the chair herself (s.22(1) – perhaps if the case is particularly important), but otherwise she appoints the 5 members from a provincial panel (1 each for Canterbury and York) of ‘persons available for appointment’ (s.21).  All panel members must be communicant Anglicans (s.21(4)).

The clergy discipline regime seeks to ensure that the tribunal will be independent (another indication of the smallness of the ecclesiastical world).  Panel members from the accused clergyman’s own diocese may not be appointed to his tribunal (s.21(1)).  The President must be satisfied of the impartiality of tribunal members. 

The accused clergyman cannot veto an appointment to a tribunal.  However, he does have the right to know the identity of the proposed tribunal members in advance, and ‘to make representations as to [their] suitability’ (s.22(2) – a wider criterion than ‘impartiality’).

For their part, the appointed tribunal members must be given details of the parties and their witnesses, and invited to disclose any personal acquaintance (code, para 236).  They are sternly instructed not to make ‘private enquiries’ about the case or discuss it with others (para 237).

The rules do not require tribunal members to take an oath concerning their responsibilities.

The description ‘bishop’s disciplinary tribunal’ is a complete misnomer.  The tribunal is appointed by a national official on a provincial basis.  The bishop has no say in the appointment of a tribunal, nor can he even refer a case to the tribunal. 

Preparing for the Hearing

While the President appoints the tribunal members, the preparations for the hearing are primarily entrusted to the Registrar of Tribunals (s.5).  Unlike the President and the DO, which are national offices, the Registrar of Tribunals is a provincial office (1 each for Canterbury and York).  He (or she) will usually be a solicitor in private practice, who may be contacted at his firm’s address.  He must not, of course, be confused with the diocesan registrar.

The Registrar of Tribunals is responsible for the ‘just disposal of the proceedings’ (rule 30).  This means he must ensure that the parties’ evidence – witness statements and documents – is disclosed to each other, and to the tribunal, in good time.  There must be no surprises at the hearing.  Each party files a brief statement of case (practice direction 2021).  The Registrar may refer matters of ‘difficulty or dispute’ to the tribunal chairman (rule 30(2)).

One document may not be disclosed in evidence (even to the tribunal).  The DO’s report of his investigation (i.e investigation (2) above) is for the President’s eyes only (code, para 229).  This suggests that, for the purpose of the investigation, the DO’s relationship to the President may be analogous to that of a solicitor and his client.

Sufficient time must be allowed for the hearing, and the Registrar may require time-estimates from the parties (rule 38), subject to the Chairman’s decision.  The Registrar arranges the time and place of the hearing (a tribunal can meet anywhere), having ‘due regard’ to the convenience of those involved.  The tribunal will require appropriate clerical support, especially as oral evidence to the tribunal must be recorded (rule 45).

The Hearing: Proof, Privacy, Publicity and Penalty

The tribunal starts off by settling a timetable or agenda for the hearing (rule 39).  Subject to the tribunal’s time management, both sides may call their own witnesses, cross-examine each other’s, and make submissions (rule 44).  Evidence is given on oath (or affirmation) (rule 45).

The tribunal may not wish to rely solely on witnesses and documents.  The author recalls a pre-2003 case where the ecclesiastical court found it necessary to inspect the principal bedroom of a cathedral deanery, following an allegation that the Dean had committed adultery therein.  (The Dean was acquitted.)

The DO is required to prove his case to the civil standard, i.e on a balance of probabilities (s.18(3)(a)).

An accused clergyman has the right to require the tribunal to hear his case in public.  The wording of s.18(3)(c) of the 2003 Measure, ‘if … the respondent so requests’, makes this clear.  A tribunal may also direct a public hearing of its own motion, ‘in the interests of justice’.

So hearings do not have to be held in private.  But the normal rule is that they are.  The clergyman and his accuser will therefore require the tribunal’s permission to be accompanied by a friend (cf rule 47).

However, while evidence and submissions are taken in private, ‘the determination of any matter before the tribunal … shall be pronounced in public together with its reasons therefor’ (s.18(3)(b)).  (Before 2003, the ecclesiastical court, like a jury, merely announced its verdict – guilty or not guilty.)  Disciplinary decisions taken by the bishop and by the President of Tribunals, though they must give reasons, and must be disclosed to the parties, do not have to be published.

‘Any matter’ means that all tribunal decisions must be given in public, not just the decision as to the clergyman’s guilt or innocence.  The tribunal may anonymise parties and witnesses in appropriate cases, but this again requires a public reasoned decision (rule 49). 

The tribunal’s decision is taken by majority vote.  If a decision is not unanimous, the dissenting minority’s reasons must be published along with those of the majority (code, para 249).

Although the tribunal must hear and decide the case collectively, its decision (or decisions) may be announced by the chairman sitting alone (rule 50).  This may be necessary in practice if the tribunal reserves a decision.

If the tribunal decides that the clergyman has misconducted himself, this will require a further decision on penalty.  Consideration of penalty will almost certainly require an adjournment of the hearing.  The clergyman and the DO are both entitled to make submissions on penalty (practice direction of 2008).  The tribunal may (not must) invite written representations from the clergyman’s bishop, unless the bishop has already given evidence in the case (s.19(2)). 

If the condemned clergyman is a cathedral dean or other dignitary appointed by the Crown, a penalty of removal from office must be confirmed by Order in Council (s.24(2)).

Leave to Appeal

The 2003 Measure originally gave an accused clergyman a right of appeal to the Provincial Court from any adverse finding or penalty (s.20(1)).  He now requires permission, or ‘leave’, to appeal.

An application for leave to appeal can be made to the tribunal itself during the hearing, when the decision or penalty has been pronounced (Clergy Discipline Appeal Rules 2005, rule 4A).  The tribunal has an apparently unfettered discretion to grant or refuse leave.

If the tribunal refuses leave, or is not asked for it, a written application must be made to the Provincial Court.  That Court must be satisfied that the appeal would have a real prospect of success, or that there is some other ‘compelling reason’ to hear it (rule 4D(3)).

A penalty cannot be implemented while appeal proceedings are pending.

The DO may also seek leave to appeal, but only on a question of law (s.20(1)).

After the Hearing: Records and Registers

A copy of the tribunal’s decision (or decisions) must be sent inter alia to the diocesan and provincial registrars (rule 50(5)), implying that these officials should file it in their respective registries.  However, there is no statutory register of tribunal decisions.  A tribunal is not a Court of Record.

The rules are silent about the fate of the record of oral evidence.  Is it destroyed when the case is concluded, in accordance with the general rule that a tribunal hearing is private?  If not destroyed, where is it kept?  Will its contents always remain private, or will posterity be able to read it one day?

However, there is detailed regulation of the notification and recording of penalties.  The penalty must be notified to the bishop, who will be primarily responsible for enforcing it, and to the provincial registrar. (The offices of provincial registrar and Registrar of Tribunals may well be held by the same person.) It must be filed in both the diocesan and provincial registries (s.35(1), Ecclesiastical Jurisdiction Measure 1963, s.78).

The provincial registrar, who is the Archbishop’s legal adviser, should see to it that the condemned clergyman’s name is entered on the Archbishops’ List (s.38(1)), formerly known as the ‘caution list’.  The List is not open to public inspection, but it is circulated to all diocesan bishops and registrars (rule 74), so that they are aware of which clergy are ‘under discipline’.

The tribunal can decide not to impose a penalty in a case of misconduct, on condition that the clergyman behaves himself in future (s.25).  Such a decision will be entered on a separate record of conditional discharges kept by the provincial registrar, which is also circulated to bishops and registrars (rule 53(1)). 

Paying for a tribunal

The tribunal chairman and the Registrar of Tribunals are entitled to fixed fees, paid by the Archbishops’ Council (Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2023, para 10).  The President of Tribunals seems to be unpaid, unless she officiates as tribunal chairman.  The DO is a salaried official.

The Archbishops’ Council should also be responsible for the reasonable expenses of tribunal members, staff and witnesses (s.35(1), Ecclesiastical Jurisdiction Measure 1963, s.62(1)).

A respondent clergyman becomes eligible for assistance with legal expenses when a formal complaint is laid against him, i.e when disciplinary proceedings are instituted (code, para 299).  His solicitor must apply to the Church of England’s Legal Aid Commission in Westminster (and do this before incurring any costs, because legal aid is not retrospective).

Legal aid is always discretionary.  The Legal Aid Commission must consider ‘the financial resources of the [clergyman] (including the financial resources of [his] spouse or civil partner …’.  Any legal aid granted will be subject to assessment of the solicitor’s bill. (Legal Aid Measure 1994.)

In practice, this is likely to mean that the entire cost of a tribunal is met by the Church Commissioners, since the Commissioners fund both the Archbishops’ Council and the Legal Aid Commission.

Vicarious Liability for Vicars: The Case of Holcombe Rogus

JXH v The Vicar, Parochial Church Council and Churchwardens of the Parish Church of Holcombe Rogus (2023) High Court 3221

This case provides welcome food for thought about the interaction of ecclesiastical law with the secular law of tort (i.e liability for civil wrongs).

The anonymous claimant had been sexually assaulted by the then vicar in 1979-1981. Four decades later he brought a claim for compensation, not against that vicar personally, but against the Church. He claimed that the Church was vicariously liable for the assaults.

Personal liability in tort arises from the tortfeasor’s wrongful act, or his wrongful failure to act. In vicarious liability, by contrast, the tortfeasor is innocent of personal wrongdoing. He is liable only for the wrongdoing of a third party, because of a pre-existing close relationship between them.

Thus it has long been established that an employer can be liable for the wrongful act of an employee, if committed during the course of the employment. It is also established that a vicar – i.e the incumbent of a benefice – does not have an employer. However, the Church can be vicariously liable if it has an employer-like relationship to the vicar, i.e a relationship analogous to that between an employer and an employee.

In this case the claim of vicarious liability failed. The essential reason was that the context of the sexual assaults was too remote from the vicar’s official duties.

On his own initiative, the vicar had set up a small quasi-monastic community in a cottage he owned in the parish, of which he appointed himself ‘superior’. This ‘monastery’ attracted impressionable young men, including the claimant, and gave the vicar his opportunity for sexual predacity.

The court held that it was no part of the vicar’s duty to set up or lead such a community. It was a piece of private enterprise on his part (‘a frolic of his own’, to quote a well-known dictum), so the Church could not be held liable for what went on there.

The learned judge was not wrong when he observed that ‘The peculiar nature of the Church of England and its structure causes [me] difficulties in the legal analysis of the case’ (para 128).  The difficulties are painfully apparent from his judgment. He disclosed that he was himself a former churchwarden and parochial church councillor (para 18). Unfortunately this ecclesiastical background did not save the legal analysis from significant confusion.

Vicarious liability for a vicar raises 2 questions

(1) what are the vicar’s official duties? and

(2) who or what is the correct defendant to the claim?  What ecclesiastical entity is the vicar’s quasi-employer, or nearest equivalent of an employer?

(1) The vicar’s duties are prescribed by canon C24, in precise and specific terms: to pray and preach in his church; administer Holy Communion and the other sacraments therein; to teach the faith, especially to children; confirmation classes; ‘visiting his parishioners, particularly those who are sick and infirm’; and ‘provid[ing] opportunities whereby any of his parishioners may resort unto him for spiritual counsel and advice’.

It is surprising, to say the least, that the judgment does not even mention canon C24.  The canon actually tends to support the judgment. There is certainly nothing in its provisions to authorise or justify the vicar’s ‘monastery’.

That is not the end of the matter, however. S.2(2) of the Parochial Church Councils (Powers) Measure 1956 describes the incumbent’s function in much broader terms than canon C24. S.2(2) suggests that the incumbent should ‘promot[e] in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical’.

Mission is a very broad term indeed. Almost anything in the Church can be justified as missionary. Mission is therefore capable of covering a multitude of sins by erring missionaries, with the consequent potential to attract civil liability.

The vicar’s ‘monastery’ was well outside the scope of canon C24, but well within the scope of s.2(2). 

The judgment does discuss s.2(2).   It admitted that the ‘monastery’ was ‘part of the general range [of] the work of the Church of England … promoting the Christian gospel, faith and mission generally’ (para 182). However, it also pointed out (correctly) that the ‘monastery’ had no legal existence in the Church of England, and had no ecclesiastical authority.  It therefore concluded that the balance of the argument was against liability.

It is arguable that this analysis fails to get the measure of s.2(2). The broad scope of S.2(2), ‘the whole mission of the Church’, is intentional.  It is based on a pious and idealistic wish to be open to ‘the wind and fire of the Spirit’. Thus s.2(2)

(1) encourages clergy to engage in diverse missionary projects but

(2) does not require that such projects be specially authorised (e.g by a licence or faculty), or be subject to specific oversight (e.g by a visitor).

If the Church positively encourages missionary projects by clergy, carte blanche, it should arguably not be able to evade liability by pleading that such projects are not a strict official duty. A fortiori the Church should not be able to evade liability by choosing to impose a lax regime of authority for such projects – or indeed no regime at all.  On the contrary, the Church must accept the legal consequences of such naïve trustingness.

(2) The correct Defendant.  As its title implies, the claim of vicarious liability was made, not against 1 ecclesiastical entity, but 3 – the (present) vicar, the churchwardens and the parochial church council (‘the PCC’). 

The 3 entities are, of course, closely linked.  They belong to the same parish.  The vicar is ex officio part of the PCC, as are the churchwardens (so long as they are communicant Anglicans, which they almost always are).

The judgment suggested that ‘there is a misnomer in the pleaded identity of the defendant’ (para 128), and that ‘there was obviously no intention to sue the present vicar or churchwardens’ (para 126).  However, in the case of Wilson v M’math (1819) 161 English Reports 1260, Sir John Nicholl, then Dean of the Arches, observed that ‘the minister, churchwardens and parishioners … is the legal description of a parish in all formal processes’ (p.1263).  (At that time, the parishioners were represented by the parish vestry – PCCs had not yet been established.)

Be that as it may, the PCC in this case, though it denied vicarious liability, apparently accepted that it was the correct defendant to the claim (para 126).  The learned judge was therefore not required to make a ruling to this effect.  But he seems to have had no difficulty accepting that the PCC was indeed the vicar’s ‘quasi-employer’ (cf paras 175 and 189).

It is argued that, notwithstanding the apparent consensus between judge and parties, this view was mistaken.   The PCC was not the correct defendant to the claim of vicarious liability.

There is nothing in ecclesiastical law to suggest that a PCC’s relationship to its vicar is analogous to that of an employer to an employee.  The parish is, of course, the object of the vicar’s employment (or quasi-employment).  But that does not mean that it is his employer. 

The PCC does not appoint the vicar.  Nor does it propose or ‘present’ a candidate for a vacant benefice – the benefice patron does that.  The PCC does appoint 2 representatives, whose consent is required for the appointment to proceed (Patronage (Benefices) Measure 1986, s.11).  As representatives, not delegates, of the PCC, these 2 make their own decision on a proposed candidate.  Thus the PCC’s influence on the appointment of its vicar is at most indirect.

Just as the PCC does not appoint the vicar, neither can it remove him.  The most that it can do is lay a complaint against him (Clergy Discipline Measure 2003, s.10(1)(a)).

Nor does the PCC exercise any control or oversight of the vicar.  The judgment made much of the fact that the PCC had not ‘authorised’ the vicar’s ‘monastery’ (para 169).  However, the legal point is that the PCC has no power to authorise the vicar’s missionary projects.  S.2(1) of the 1956 Measure requires the vicar and the PCC ‘to consult together’.  This suggests that the PCC’s only right was to be consulted about the ‘monastery’ (which, apparently, it was not).  The aforementioned s.2(2) suggests that the PCC’s function is ‘cooperation with the incumbent’.  A duty to co-operate is rather the opposite of a power to authorise.

The only possible control that the PCC can have of its vicar’s missionary projects is financial (cf 1956 Measure, s.4(1)(i) and s.7(1).  It can refuse the use of parish funds and facilities, or impose conditions on their use.  However, in this case, the vicar did not request or receive financial assistance from the PCC.

(And even if the PCC had provided finance, it is hard to see how its trusteeship of parish funds could be translated into liability for the vicar’s sexual misconduct.)

In St Peter, Roydon (1969) 2 All England Reports 1233, the vicar tactlessly and inaccurately asserted that ‘My view is that the [PCC] … is part of my staff’ (p.1235).  The judgment in Holcombe Rogus falls into the opposite error.  It suggests that the vicar is part of the PCC’s staff.  It stands the vicar-PCC relationship on its head.

It is argued that the obvious defendant to a claim of vicarious liability for the vicar – indeed the only possible defendant – is the bishop, not the PCC. 

The bishop appoints the vicar, by giving institution (which he can also refuse to give for good reason).  The vicar makes a declaration of obedience to the bishop (which he certainly does not do to the PCC!) (canon C14(3)).

Canon C18(1) makes clear that the bishop is ‘chief pastor of all that are within his diocese … and their father in God’.  (The latter expression survives in the online version, accessed today.)  This implies a pastoral duty towards victims of sexual abuse by his clergy.

The well-known words of institution ‘accipe curam tuam et meam’ indicate that pastoral care, the cure of souls, is shared between the bishop and the vicar.  Their relationship is comparable to the partnership of a senior and junior partner.  The PCC, by contrast, does not share the vicar’s pastoral care.

As chief pastor, the bishop has oversight of the diocesan clergy, or ‘jurisdiction as Ordinary’ (canon C18(2)).  He is required to ‘get some good knowledge of the state, sufficiency and ability of the clergy …’ (canon C18(4)).  The Clergy Discipline Measure 2003 restates the common law position that ‘the bishop … by virtue of his office and consecration, is required to administer [clergy] discipline’ (s.1).

The churchwardens are the bishop’s officers in the parish.  Although it was not an issue in the case, Holcombe Rogus may prompt reflection on the bishop’s civil liability (if any) for churchwardens who are complicit in sexual abuse, or who turn a blind eye to abuse by the vicar.

The office of churchwarden is probably the most complex in ecclesiastical law.  The Churchwardens Measure 2001 makes clear that the bishop appoints the churchwardens, as he does clergy, by formally admitting them to office (s.6(1)).  However, unlike clergy, the bishop has no control over the choice of candidates.  Churchwardens, though admitted to office by the bishop, are elected thereto by the parishioners (s.5(1)).  Those elected are unlikely to be known to the bishop personally.  And the bishop has no discretion to refuse to admit a validly elected churchwarden.  Vicarious liability for a churchwarden may therefore be difficult to establish.

The Law and Religion blog has just published a useful account of the Holcombe Rogus case.

Religious Freedom: Between Theocracy and Secularism

‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ (Constitution of the United States, First Amendment, 1791)

John Witte, Junior, ‘Reclaiming the Blessings of Religious Liberty: Religion and the American Constitutional Experiment’ (Ecclesiastical Law Journal, September 2023)

The article cited above reminds us that the modern idea of religious freedom comes from the United States of America, that ‘new nation, conceived in liberty’ in the late 18^th century.

American religious freedom repudiated the then prevailing European theocracy, the control and enforcement of religious belief and practice by the state.  State ‘establishments of religion’ were of a theocratic character at that time.  The concept of religious freedom must therefore be understood in its historical context of theocracy. 

But what does that mean today?  Perhaps the American doctrine has become a victim of its own success.  Perhaps it has outlasted its usefulness.  Nobody believes in the Divine Right of Kings any more.  Notions of Western ‘Christendom’ have been irrevocably consigned to the history books.  Perhaps a doctrine of religious freedom is only relevant to those non-Western countries where theocracy is still fashionable.

It is unclear how religious freedom fits into the modern scheme of human rights.  It is often said that religious freedom is not merely a right, but is fundamental to human rights.  However, it is not clear why and how religious freedom is fundamental.

What does it mean to say that religious freedom is a human right, fundamental or not?  There seem to be only 2 possible meanings, that

(1) religious people have special rights that other, less fortunate people do not have.  An obviously unpersuasive suggestion.  Or

(2) religious people have the same rights as everybody else, no more and no less.  But if this is true, what scope is there for a discrete, free-standing right to religious freedom?

It is an evil thing to kill, torture or imprison a man because of his religion.  But it is surely no less evil to treat a man thus because of his politics.  A man has the right to manifest his religion.  But he has an equal right to manifest his politics.  So how can there be a specifically religious freedom?  What does religious freedom add to other human rights?

We argue that the answer to this question requires a closer study of the relationship between religious freedom and the theocracy that it repudiated.  It may seem obvious that religious freedom is the antithesis of theocracy.  But perhaps they have more in common than first appears.

Theocracy has its basis in religious belief.  It is argued that religious freedom, correctly understood, is likewise a matter of religious belief.  Religious freedom is a religious doctrine just as much as theocracy.  Like theocracy, it is based on the supernatural origin and destiny of Man.  Its objective is likewise a God-fearing, religious society.

Thus we argue that theocracy and religious freedom share the same premiss, and are directed to the same end.  They disagree only about the means to that end.  Individual freedom will produce better religion than state control.

This idea of religious freedom resembles the doctrine of economic freedom, which also originated in the 18^th century.  Classical economics holds that wealth is created by the free interactions of individuals, led by an ‘Invisible Hand’, rather than by command of the state.

Religious freedom is therefore much more than an individual’s right to manifest a religious belief.  It asserts rather a universal right to religion, analogous to a right to education.  Man has a right to religion because he has a need of religion. Religious freedom demands the positive advancement of religion, not mere tolerance of religious belief.

Religious freedom may be far from satisfactory qua religious doctrine. It is exceedingly vague and nebulous. It must raise a vast multitude of unanswered questions. It is Deist rather than Christian. And American deism, like English theocracy, now seems to be purely ceremonial.

Nevertheless religious freedom can only make sense if it is understood as a religious doctrine. As a political doctrine it is meaningless. Religious freedom is therefore meaningless unless it is linked to the advancement of religion.

The reference to an ‘establishment of religion’ in the First Amendment was no doubt an allusion to the relationship between Church and state in England, which was then constituted on a theocratic basis.  However, the history and law of England since the 18^th century demonstrates that a state establishment of religion need not be theocratic, and therefore not incompatible with religious freedom.  The state can offer religion to its subjects without compulsion (rather as it can offer healthcare). A mixed economy of state intervention and private enterprise is not only possible, but may even be profitable to the advancement of religion.

In an important speech at Lambeth Palace in 2012, our late Queen suggested that ‘the Church of England[‘s] … role is not to defend Anglicanism to the exclusion of other religions.  Instead the Church has a duty to protect the free practice of all religious faiths in this country’.  Her son, now Supreme Head of the Church, once suggested that the Monarch’s function should be ‘Defender of Faith’, rather than ‘Defender of the Faith’.

On our analysis religious freedom is not compatible with secularism, any more than with theocracy.  The 2 doctrines may agree about individual freedom.  However, secularism both denies the premiss of religious freedom – the supernatural origin and destiny of Man – and opposes its object – a God-fearing, religious society.

In his erudite book The Law of Organised Religions (2010), Professor Julian Rivers reminds us that, while religious freedom comes from America, secularism comes from France (p.329).  The book’s subtitle is Between Establishment and Secularism, but it might have been better worded ‘Between Theocracy and Secularism’ (hence the title of this blogpost).

The recent case of R v Kent County Council ex parte Bowen (2023) Administrative Court 1261 demonstrates painfully that modern human rights law owes more to French-inspired secularism than to Anglo-American religious freedom.

Few things are more necessary to the advancement of religion than religious education (‘RE’).  The Education Acts therefore require ‘provision for religious education for all … pupils’ (2002 Act, s.79(4)).  RE must comply with a syllabus which ‘reflect[s] the fact that the religious traditions in Great Britain are in the main Christian, while taking account of the teaching and practice of the other principal religions …’ (1996 Act, s.375(2)).

This syllabus must be agreed by representatives of

(1) the Church of England and

(2) ‘such Christian denominations and other religions … as … will appropriately reflect the principal religious traditions in the area’ (s.390(4)).

Mr Bowen was involved with certain humanist organisations, the adherents of which were ‘either atheists or agnostics’ (paras 1 and 23).  He nevertheless demanded to be appointed as one of the ‘religious’ representatives to the agreed RE syllabus.  When the Council refused this request, he claimed a violation of his human rights.

The statutory provisions cited above might suggest that Mr Bowen had not the proverbial leg to stand on.  His human rights would be satisfied by permitting him to withdraw his own children (if he has any) from RE lessons, if he has a conscientious objection to the syllabus.

Even Mr Bowen accepted that ‘on any normal use of language, humanism is not ‘religion’ or a ‘denomination of a religion’ (para 3).  And the judgment on his claim made a careful study, not only of the texts of the Education Acts, but of the background Parliamentary record as well (debates, reports etc).  Having done this, it admitted that the intention of Parliament ‘is quite clear’.  That intention ‘was that RE was to be confined to teaching Christianity and other principal faiths’ (para 84).

But then the judgment turned to human rights jurisprudence.  On the basis of this, it held that ‘it is plain from [case law, i.e a previous judgment] that an RE curriculum must, in order to be compliant with the Human Rights Act 1998, cover more than religious faith teaching.  The content of RE teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism)’ (para 68).

It therefore concluded that ‘It is … clearly discriminatory to exclude someone from [giving advice on RE] solely by reference to the fact that their belief … is a non-religious, rather than a religious, belief’ (para 70).  So Mr Bowen won his case.

The judgment tendentiously described humanism as ‘non-religious’, never acknowledging the possibility that it may be anti-religious.  The effect of the judgment is that an anti-religious (sorry, non-religious) representative has the same right to be consulted about the RE syllabus as a religious representative.  The RE syllabus itself ceases to be genuinely religious, and is reduced to a mere branch of sociology.  A child’s right to religion is effectively crippled.  The Education Acts are rewritten to mean the exact opposite of what they actually say.  The intention of Parliament is ignored.

The justification offered for this flagrant judicial activism is the imperative of ‘tolerance and pluralism’ (para 46).  These words may sound plausible and pleasant.  However, tolerance is not the same thing as freedom.  The Bowen judgment upheld, not the humanist’s human rights, but his hopeless creed, that ‘this is the only life we have … a non-religious [i.e anti-religious] worldview’ (para 1).

Religious freedom, for all its vagueness, implies the opposite – a religious worldview.  This is not the only life we have.  However, the Bowen judgment suggests that the 18^th century experiment has failed.  Religious freedom has gone the same way as the theocracy it repudiated.  Religion is reduced to the level of politics.  Secularism has become the new theocracy.

Conditional Baptism and Canon Law

Nearly 11 years ago a certain blogger asked to be received into the Catholic Church.  The priest requested sight of a certificate of baptism.  This document was produced after a quick search of the family scrapbook.  It was dated in 1967, when the candidate was still a baby, and signed by a vicar now long dead.  The priest studied it briefly, made a note and handed it back.  That was all.  The certificate of a dead Anglican minister, unsupported by any other evidence, was accepted as proof that the candidate had received a valid Catholic baptism.

The fundamental importance of baptism to the Catholic Church can hardly be overstated.  The Code of Canon Law 1983 asserts that baptism is the ‘gateway’ (ianua), not only to the other sacraments, but to Heaven itself.  ‘Baptism … is necessary for salvation, either by actual reception or at least by desire’ (canon 849).  If salvation itself is at stake, how can the certificate of a non-Catholic minister be sufficient proof that a baptism is valid? 

Baptism, like the other sacraments, was ‘instituted by Christ the Lord and entrusted to the [Catholic] Church’ (canon 840).  As the Divinely appointed trustee of the sacraments, ‘only the supreme authority in the Church [i.e the Pope, with or without the College of Bishops] can approve or define what is needed for their validity’ (canon 841).

As baptism is necessary for salvation it may have to be administered in extremis, when the candidate is in imminent danger of death – or indeed, where the minister is in danger of death, e.g in a war zone.  Canon 871 provides that ‘if aborted foetuses are alive, they are to be baptised, if this is possible’.  This in turn demands that, in a case of necessity, any person may administer the sacrament, not just an ordained or licensed minister (canon 861(2)).  Even an unbaptised person, let alone a non-Catholic minister, can validly baptise.

Baptism cannot be repeated (canon 845(1) and canon 849).  However, canon 845(2) provides that ‘If after diligent enquiry a prudent doubt remains as to whether [baptisms] have been conferred at all, or conferred validly, they are to be conferred conditionally’.

This wording makes clear that, notwithstanding the fundamental importance of baptism, clergy may not conditionally baptise pro maiori cautela i.e from an abundance of caution or ‘just in case’.  There must be an investigation and a reasonable doubt.

Canon 845(2) does not mention the obvious possibility that investigation may reveal, not a reasonable doubt, but rather a certainty that what happened was not a valid baptism.  In such a case, of course, the candidate must be baptised absolutely, not conditionally.

The either / or wording of canon 845(2), ‘conferred at all, or conferred validly’, is potentially confusing.  A commentary suggests that ‘2 types of doubt may arise, about

[1] the fact of baptism and

[2] [its] validity’

(A New Commentary on the Code of Canon Law, eds Beal, Coriden and Green (2000), p.1057).

Does this mean that a purely theological doubt [2] may remain even if all relevant facts [1] are known with certainty?  If yes, then canon 845(2) is hard to reconcile with canon 841 (quoted above), which asserts the Church’s God-given jurisdiction to ‘approve or define what is needed for … validity’.  The Church cannot turn a doubtful fact into a certainty.  (Infallibility is not omniscience!)  However, if all the facts are known, it is argued that there is no room for doubt, and therefore no scope for conditional baptism.  There is either a valid baptism or there is not.  The Church is not merely entitled but bound to decide the question.  Otherwise, it is arguably failing in its God-given function. (A judge cannot refuse to decide a case that is within his jurisdiction.)

The canon law of conditional baptism was settled long before audio-visual records were possible.  Even in 1983 audio-visual records of baptism would have been very unusual.  Audio-visual records are capable of supplying a higher degree of factual certainty than written records and imperfect memories.  Therefore they reduce the scope for conditional baptism.

The 1983 Code contains safeguards of the validity of baptism.  Canon 846(1) provides that ‘the liturgical books … are to be faithfully followed in the celebration of the sacraments … no one may on a personal initiative add to or omit or alter anything in those books’.  Baptism must normally be administered in church, not elsewhere (canon 857(1) and canons 859 and 860).  Emergencies must be properly prepared for: ‘pastors … are to be diligent in ensuring that [lay] faithful are taught the correct way to baptise’ (canon 861(2)).

Baptism in non-Catholic Churches presents 3 difficulties

(1) the aforementioned canonical safeguards cannot apply to such baptisms.  As canon 11 points out ‘merely ecclesiastical laws bind [only] those who were baptised in the Catholic Church or received into it’.

(2) non-Catholic Churches do not accept the Pope’s authority to define valid baptism and

(3) the Reformed Churches do not hold the Catholic belief in the necessity of baptism (even though they may permit individual clergy and lay members to do so).

Martin Luther preached justification sole fide, i.e by faith alone.  If carried to its logical extreme, this doctrine would render baptism superfluous, or at least deny the validity of infant baptism, requiring that baptism should only be administered when the candidate is old enough to make a personal act of faith.

The English law of baptism is a compromise between the Lutheran and Catholic teachings.  Article 11 makes a respectful bow to the Father of the Reformation: ‘that we are justified by faith only is a most wholesome doctrine, and very full of comfort …’.  Thus clergy are at liberty to believe, and publicly preach, the Lutheran doctrine.

However, in practice, Anglican clergy are required to apply Catholic teaching on baptism, whatever their individual beliefs.  Article 27 accepts that ‘the baptism of young children is … to be retained … as most agreeable with the institution of Christ’.  (From 1549 to 1662 there was no adult baptism rite in England.)  Canon B22 imposes a duty to baptise babies, as did canons 68 and 69 of 1603.  The Book of Common Prayer and the modern canons both provide for emergency baptism (‘when need shall compel’), and for conditional baptism in doubtful cases.

Baptism outside the Catholic Church has been subject of various papal pronouncements over the centuries, but the original Code of Canon Law, promulgated in 1917, made no specific reference to it.  The subject was revisited by the Second Vatican Council in its decree Unitatis Redintegratio (‘the restoration of unity’) (1964).  This resulted in a new canon of the 1983 Code, canon 869(2), which provides that

‘Those baptised in a non-Catholic ecclesial community are not to be baptised conditionally unless there is a serious reason for doubting the validity of their baptism, on the ground of

[1] matter [i.e the application of water]

[2] the form of the words used .. or of

[3] the intention of the adult being baptised [not babies, obviously], or that of the baptising minister’.

‘Ecclesial community’, i.e Churchlike community, is a reference to the western Reformed Churches. They are so described because, despite the resemblance, they are regarded as ‘not Churches in the proper sense’ (Dominus Iesus, Congregation for the Doctrine of the Faith (2000), para 17).  The Eastern Orthodox Churches, by contrast, are accepted as proper Churches. Thus there is no equivalent of canon 869(2) in the 1990 Code of Canons of the Eastern Churches.

It could be argued that canon 869(2) is unnecessary, since it adds nothing of substance to canon 845(2) on conditional baptism.  It certainly does not introduce a presumption of validity in favour of non-Catholic baptism.  It merely repudiates a presumption of doubt.  Before Unitatis Redintegratio there was apparently a widespread practice of conditionally baptising Protestant converts without investigation, pro maiori cautela (cf New Commentary, p.1058). Canon 869(2) in effect reinforces canon 845(2).

However, Unitatis Redintegratio is careful to state that ‘[those] who believe in Christ and have been truly baptised [as distinct from falsely baptised] are in communion with the Catholic Church, even though this communion is imperfect’ (para 3).  Also that ‘whenever the sacrament of baptism is duly administered as Our Lord instituted it … a man becomes truly incorporated into … Christ’ (para 22). Protestant baptisms must still satisfy the Catholic conditions for validity.

The practical approach to non-Catholic baptism is now governed by the Directory for the Application of Principles and Norms on Ecumenism 1993 (‘the Ecumenical Directory’), issued by the Pontifical Council for Promoting Christian Unity. 

Local Churches should engage in dialogue with ‘ecumenical partners’ concerning ‘both the [doctrinal] significance and valid [liturgical] celebration of baptism’, and attempt to reach agreement concerning these matters (paras 93 and 94).  Ecumenical agreement will eliminate, or at least reduce, uncertainty about baptism. Local Churches should also develop procedures for deciding doubtful cases.

Investigation of non-Catholic baptism will obviously begin with the official baptism rite of the particular ecclesial community (para 95).  If the rite is sufficient to confer Catholic baptism, 2 presumptions will arise in favour of baptism in that community,

(1) that the baptising minister correctly followed the official rite and

(2) had the requisite intention to baptise: ‘insufficient faith concerning baptism never of itself makes baptism invalid’.  Even an unbaptised atheist can still intend to baptise. Intention depends on what the minister says and does, not on what he believes.

This is why the certificate referred to earlier was accepted as proof of baptism.  The baptism rite in the Book of Common Prayer satisfies the conditions for validity, and it can be safely presumed that vicars in the 1960s would have followed it scrupulously.

All presumptions are rebuttable, however.  Non-Catholic ministers who conscientiously observe the discipline of their own Church can validly baptise without accepting Catholic doctrine on baptism. But, the risk cannot be excluded that they will fail to observe discipline, either from sloppiness or from ideological motives.

The principal ideological threat to common baptism in the West now seems to come from so-called ‘inclusiveness’.  In 2008, the Congregation for the Doctrine of the Faith (‘the CDF’) held that a baptism in which the Trinity were invoked by the names ‘Creator, Redeemer and Sustainer’ (to avoid male references) was invalid. 

In 2014, the Ecclesiastical Law Journal reported a practice of ‘open communion’ in the American Episcopal Church: ‘priests in ever-increasing numbers are inviting all to the table’ (i.e the altar), in defiance of the rule that only baptised persons may be admitted to holy communion (James D Prendergast, pp32-46).  Baptism is no longer the gateway to the other sacraments, let alone to Heaven, but merely to a Church school or a Church job.

Clergy who admit unbaptised persons to holy communion demonstrate that they place a low value on baptism.  And if they break the rules of their own Church concerning holy communion, they cannot be trusted to keep its rules concerning baptism. 

The Catholic Archdiocese of Philadelphia now instructs its clergy that ‘baptised non-Catholics who are to be received into the full communion of the Catholic Church, even those who provide you with a certificate of baptism, are to be conditionally baptised …’ (website accessed today).  The indiscipline of the Reformed Churches forces the Catholic Church to return to its pre-Vatican II practice of presuming that non-Catholic baptism is doubtful.

However, what the CDF calls ‘the ancient temptation to substitute for the [baptism] formula handed down by Tradition other texts judged more suitable’ is regrettably not confined to the Reformed Churches.  In 2020, the CDF considered a case where a Catholic minister, again motivated by a desire to be ‘inclusive’, baptised an infant with the words ‘We baptise you …’.  The ‘We’ referred to the assembled family, godparents and friends.  (The error was only discovered because an audio-visual record was made of the ceremony.)

The CDF held, with papal approval, that the alteration of this single word rendered the baptism invalid, even though the erring minister had expressed an intention to baptise, and had invoked the Trinity by their correct Names.

Canon 849 provides that baptism ‘is validly conferred only by a washing of true water with the proper form of words’.  The minister had not used the proper form of words.  He was clearly in breach of his duty under canon 846(1). The CDF concluded that, by the using the word ‘We’, he intended to baptise qua representative of the Church community, not qua minister of Christ.  This intention was defective, and therefore fatal to validity.

Judith Hahn, a Catholic theologian, related that the CDF’s decision met with a ‘critical reception’ from her colleagues (‘Invalid Baptismal Formulas’, Ecclesiastical Law Journal (2021)).  She suggested that the formula ‘I baptise you’ may not be as ‘Traditional’ as the CDF thought, having only been introduced in the middle ages.  She also pointed out that the Eastern Orthodox Church uses a different formula from the Latin Church, ‘Be baptised’, and yet this has always been accepted as valid.

Moreover, the Eastern equivalent of canon 849 is differently worded. It does not require ‘the proper form of words’, but rather ‘the invocation of the Name of God the Father, Son and Holy Spirit …’ (canon 675(1) of the 1990 Code), which the minister in this case had done. (Does this mean that the impugned baptism would have been valid if performed in an Eastern Church rather than in the Latin Church?)

If baptism is a matter of necessity and the basis of all Christian communion, and requires the agency of uninstructed lay ministers and of non-Catholic ministers, the conditions for its valid administration should arguably be kept to an absolute minimum (which is not to excuse indiscipline).

This narrative indicates that common baptism is fragile.  It cannot be taken for granted.  Like freedom, the price of common baptism is eternal vigilance.  The function of canon law is to safeguard the validity of baptism, both inside the Catholic Church and, as far as possible, outside it as well.

Cathedral Cities: England and Wales

It is generally understood that there is a connection between cities and cathedrals. Possession of a cathedral church is said to confer city status on a municipality.

Despite having a population of approximately 800,000, the local government of Leeds is directed from a mere town hall. Leeds does not have a city hall because it does not have a cathedral. (Actually it does have a cathedral – very near the town hall – but only a Catholic one, which does not count, of course.)

Phillimore’s Ecclesiastical Law (2nd edition 1895) holds that

‘every town which has a see of a bishop placed in it is thereby entitled to the honour of a city … Lord Coke defines a city … [as] a borough incorporate which hath, or hath had, a bishop‘ (p.126).

Thus it is the bishop that confers city status, rather than the cathedral. However, the distinction is generally immaterial. An episcopal see is simply a seat (sedes). The cathedral is ‘the seat of the bishop’, the place where his cathedra or chair of office is kept, hence its name (cf Cathedrals Measure 2021, s.1(a)). Where the cathedral is, there is the bishopric.

The distinction may be relevant to Leeds. In 2014 a new diocese of Leeds was created. So Leeds now has its own diocesan bishop. But it still lacks an Anglican cathedral. So the Bishop of Leeds apparently has no seat in Leeds.

Only a diocesan bishopric confers city status. A mere suffragan see will not suffice. The Suffragan Bishops Act 1534 provides that ‘the towns of Thetford, Ipswich, Colchester, Dover [etc] … shall be taken and accepted for sees of bishops suffragan’ (s.1 – see also Suffragans Nomination Act 1888, s.2). Phillimore adds that ‘the suffragans have their sees in towns; and not in cities’ (p.78).

Phillimore also states that the common law rule of city status ‘extends not to the cathedral churches in Wales, divers of which are established in small villages’ (p.126). Possession of a bishopric or a cathedral does not, per se, turn a Welsh village or town into a city.

Our late Queen conferred city status on St. David’s in Wales, by letters patent, when she visited the cathedral in 1995. St David’s is said to be the smallest city in Britain.

This gracious royal gesture proves Phillimore’s dictum. Her Majesty could not have conferred city status on St. David’s if St. David’s was already a city at common law by virtue of having a cathedral.

Although it has been a suburb of Cardiff for more than 100 years, Llandaff is sometimes described as a ‘city’, because of the cathedral. A signpost sponsored by the Llandaff Society proudly welcomes visitors to ‘a city within a city’ (a bit like the Vatican and Rome, perhaps!). The local primary school, which always used to be referred to simply as ‘the village school’ now rejoices in the title Llandaff City School.

These assertions can only be correct if Llandaff possesses a royal charter or letters patent similar to those granted to St. David’s (or perhaps an Act of Parliament). The author of this blog (who is himself a ‘citizen’ of Llandaff) has consulted 3 local historians, as well as ‘Professor Google’. Evidently none of them is aware of the existence of such a document. If no such document exists, then Llandaff cannot be a city.

Safeguarding and the Rule of Law

‘Safeguarding is a very important matter, but it does not trump Church law’ (Lord Sentamu).

‘No Church law excuses the responsibility of individuals not to act on matters of a safeguarding nature’(J Humphreys, Independent Learning Lessons Review, 11^th May 2023, para 16.3.16).

Baron Sentamu of Lindisfarne and Masooli was Archbishop of York and Primate of England from 2005 to 2020.  Before entering holy orders he had a distinguished legal career in the High Court of Uganda – a dangerous occupation under the despotic regime of Idi Amin.  The future Archbishop was imprisoned and tortured.  It was not the last time that he would suffer for bearing witness to the rule of law.

One must keep a sense of perspective, of course.  As the late Thomas Cromwell might have said, this is not Uganda, this is England!  Archbishop Sentamu was granted the customary life peerage on his retirement.  He still holds this at the time of writing.  He was also granted the customary permission to officiate (‘PTO’) from his local bishop.  The PTO enables retired clergy to pray and preach in church without holding a specific ecclesiastical office.

Lord Sentamu’s PTO has now been revoked by his local bishop.  This means that the erstwhile Primate of England can no longer perform even the humblest ecclesiastical duty in his own diocese of residence.

The reason given for this degradation was a ‘safeguarding matter’ that arose in another diocese within the Province of York when Lord Sentamu was Archbishop, and which was the subject of the review cited above.  Archbishop Sentamu had declined to intervene in the safeguarding matter.  He later rejected the reviewer’s criticism of his non-intervention and declined to apologise.

The common law jurisdiction of an Archbishop is stated by canon C17(2)

‘The Archbishop has throughout his Province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation,  jurisdiction as ordinary …’.

This makes clear that common law metropolitical jurisdiction is not the same thing as ordinary authority.  The Archbishop’s jurisdiction over the Province is not analogous to the authority of the bishop (and archdeacons) within the diocese.  The Archbishop is primate, i.e  the first bishop of the Province, primus inter pares, first among equals, but no more.

Thus the Archbishop may not intervene in another diocese on a routine or discretionary basis.  To do so would be to exceed his jurisdiction.  Metropolitical jurisdiction is limited.  ‘To correct and supply the defects of other bishops’ means that the Archbishop should intervene only when the diocesan bishop cannot cope, or cannot be trusted.  It is a jurisdiction of last resort.

Canon C17(2) is a civil jurisdiction.  A bishop’s alleged ‘defects’ may form the basis of a disciplinary complaint, a quasi-criminal and penal matter.

The Archbishop’s disciplinary jurisdiction over other bishops is now conferred by the Clergy Discipline Measure 2003.  This statutory jurisdiction, it is true, much more nearly resembles that of a diocesan bishop over his clergy.  S.10(3) provides that ‘references in … this Measure to the bishop … shall, in the case of proceedings against a bishop … be construed as a reference to the Archbishop …’.

If a complaint is made against a bishop by a person ‘who has a proper interest in making the complaint’, that complaint must be ‘laid before’ the Archbishop.

The Archbishop then decides what is to be done with the complaint.  There are a number of possible courses open to him.  He can dismiss the complaint, or take no action on it, or attempt to conciliate the complainant and the bishop.  If the matter is sufficiently serious, the Archbishop will ‘direct that the complaint is to be formally investigated’ (s.12), which may result in a court case and a penalty for the accused bishop.

Lord Sentamu correctly pointed out that the Archbishop’s jurisdiction, both under canon C17(2) and under the 2003 Measure, is ‘quasi-judicial’.  This demands impartiality, ‘ensur[ing] that an Archbishop is not simultaneously actively involved in handling a matter which subsequently becomes a basis for complaint’ (personal statement).  To intermeddle in such a matter would both exceed the Archbishop’s common law civil jurisdiction and compromise his statutory disciplinary function (by giving an appearance of prejudice).

The treatment meted out to Lord Sentamu follows the melancholy cases of the late Bishop George Bell, and of the former Bishop of Lincoln.  Bishop Bell was the subject of an uncorroborated complaint of sexual abuse made more than half a century after his death, which was initially upheld by a Church inquiry.  The Bishop of Lincoln suffered 20 months’ suspension from office following a suggestion that he ‘would present a significant risk of harm by not adequately safeguarding children’.

The present Archbishop of Canterbury was closely involved in both cases, as they arose in the Southern Province.  (Nobody could accuse him of not intervening.)  Yet in both cases, he ended up belatedly apologising for his conduct thereof (statements 17/11/2021 and 01/02/2021).  Thus one Archbishop is required to apologise for his interventions in diocesan cases, while another Archbishop is sanctioned when he refuses to apologise for not intervening!

The reviewer’s attitude to the law, as quoted above, was rightly described by Lord Sentamu as ‘disturbing’.  It may indicate a risk of the safeguarding industry becoming a law unto itself.  Against safeguarding, like necessity, there is no law.  But if the law is ignored, safeguarding inquiries may degenerate into kangaroo courts, unjustly destroying careers and reputations.

(All websites accessed today. There is an account of the former Bishop of Lincoln’s case in blogpost ‘Safeguarding and Suspension’, filed below under category ‘Clergy Discipline: Particular Cases’).

The Parish on Paper: Parochial Records

‘records … [are] materials in written or other form, setting out facts or events or otherwise recording information …’ Parochial Registers and Records Measure 1978, s.25(1).

This blogpost is a narrative of the ecclesiastical law concerning parish records.  It does not attempt to discuss the secular law – conveyancing, trusts, charities, data protection – that also applies to this subject.

The expression ‘parochial records’ is often applied only to documents in parochial custody (or documents that were in parochial custody before being archived). However, our analysis suggests that parochial documents fall into 2 broad categories:

(1) constitutional, concerned with the establishment of the parish itself, its church and churchyard and other property, its ministry, the rights of parishioners and

(2) administrative, concerned with the parish function, especially

(i) liturgy and

(ii) the care of parish property.

The constitutional documents of a parish (1) are made on diocesan authority, or above, not by the parish.  (A parish cannot constitute itself.)  Administrative documents (2) are made and maintained by the parish, but subject to diocesan oversight.

Pastoral Schemes and Orders

The principal constitutional documents of a parish are statutory schemes and orders, known as pastoral schemes / orders.  They are presently regulated by the Mission and Pastoral Measure 2011. Schemes are made by the Church Commissioners, orders by the bishop.  Schemes, though not orders, were formerly required to be confirmed by order-in-council (cf Pastoral Measure 1983, ss.9 and 10)

A scheme is required for the creation of a new parish or benefice (including the patronage thereof), or merger of existing parishes and benefices.  Also for the creation of a benefice team ministry.  A church buildings scheme is required for the permanent closure of a parish church or chapel (2011 Measure, s.42).

Less significant constitutional changes, such as alteration of parish boundaries, the holding benefices in plurality by a single incumbent, or a benefice group ministry, may be effected either by scheme or by order (cf.s.51).

A map or plan of the parish may be annexed to a scheme or order (s.52(2)).

Any scheme or order may, of course, be amended or revoked by a subsequent scheme or order.

The 2011 Measure does not distinguish between an original scheme / order document, and copies thereof.  It provides that copies of a scheme / order must be sent to the incumbent and the parochial church council (‘the PCC’) (s.13, s.27).  Another copy must be sent to the diocesan registrar, ‘who shall file it in the diocesan registry’.  Orders-in-council were likewise filed in the diocesan registry.   This suggests that the registrar, not the incumbent or PCC, is the legal custodian of the scheme or order document.

Although the 2011 Measure rightly makes extensive provision for the publication and advertisement of draft schemes and orders, in order to allow representations and objections, it makes no provision for publication of, or access to, schemes and orders after they have been made.  Orders-in-council must be published in the London Gazette.  Schemes and orders are sometimes published on diocesan websites.

Other Constitutional Documents

Churches and ecclesiastical burial grounds are supposed to be consecrated.  The act of consecration is governed by common law, not statute.  It was held in the case of Wood v Burial Board of Headingley (1892) 1 Queen’s Bench 713 that ‘Consecration is effected by the decree of a competent ecclesiastical court … signed by the bishop’ (p.725).  Thus consecration is a written record, not a liturgical act.  As the act of a diocesan court, it should also be filed in the diocesan registry.

There is unlikely to be an extant record of consecration of an ancient church.  However, consecration is presumed ‘from constant performance of divine service from a very early period’ (cf Rugg v Kingsmill (1867) 1 Admiralty and Ecclesiastical Reports 343, at p.350).

A consecrated building may be subject to a bishop’s order removing the legal effects of consecration therefrom (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.92(10)).

A temporary place of public worship is not consecrated, but constituted as such by the bishop’s licence (Mission and Pastoral Measure 2011, s.43).

An addition of land to the parish burial ground is recorded by an instrument signed by the bishop, which is effectively the same as a deed of consecration.  The instrument must include a plan of the ground.  It too is filed in the diocesan registry (Ecclesiastical Jurisdiction and Care of Churches Measure, s.89).

If the diocesan board of finance acquires land for a shared burial ground, the respective rights or portions of ground of the sharing parishes may (not must) be declared in the transfer document, or in a separate deed (Church Property Measure 2018, s.35).

If the acquired burial land is not within the territory of the parish, the finance board may make a declaration (in the transfer or by deed) that the land, once consecrated, is part of the parish for ecclesiastical purposes (s.35(8)).

A parish may be subject to certain orders of the bishop concerning the faculty jurisdiction.  There may be an order that a licensed place of worship (as distinct from a church or chapel) is, or is not, to be subject to the faculty jurisdiction, or that an important article is to be subject to the jurisdiction (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, ss.58-59).  Such orders are filed in the diocesan registry. 

The bishop must certify a newly acquired parsonage as such, also where a parsonage house is divided into 2 or more units, with only 1 part remaining as the parsonage (Church Property Measure 2018, s.11).  There is no provision for filing this certificate per se, but the transfer document must be filed in the diocesan registry (s.12(2)).  So presumably the bishop’s certificate is endorsed on the transfer document.

Ecumenical Agreements

A parish church or other parish building may be subject to a sharing agreement between the Church of England and another Christian denomination.  The incumbent and PCC must be parties thereto, hence the agreement is subject to parochial consent.  Unusually, the agreement must be filed in the provincial registry, as well as in the diocesan registry (Sharing of Church Buildings Act 1969, s.1).  A sharing agreement may be incorporated in a pastoral scheme (s.31(6)).

An ecumenical agreement under canon B43 must be filed in the diocesan registry, though not the provincial registry (Code of Practice 2019, p.35).  (Such agreements were formerly described as ecumenical projects or partnerships.)

Special Representation Rules and Schemes

These are regulated by the Church Representation Rules (Synodical Government Measure 1969, schedule 3, as amended by the Church Representation and Ministers Measure 2019, schedule 1).

Unlike pastoral schemes and orders, these representation rules and schemes are made by the parish or parishes themselves, through the statutory parochial meetings.

Thus a parish may have special representation rules, different from the model (M) rules (rule 12(1)).  There may also be a scheme for a joint council of 2 or more parishes which are linked by a united benefice or plurality of benefices, or by a group ministry (rule M37). 

However, special rules and joint schemes must be approved by the bishop’s council (not just the bishop).

A parish with more than 1 place of worship may have a scheme to divide the parish into discrete church congregations or districts, each with its own district church council (M34(1)).  A district scheme does not apparently require diocesan approval.  (The reason for this may be that the authority conferred by a district scheme is never more than delegated authority.)

All special representation rules and schemes, including district schemes, must be copied to the registrar and filed in the diocesan registry.  So the registrar is legal custodian of these documents, as he is of pastoral schemes and orders.

The Electoral Roll

The parish electorate is constituted by the church electoral roll.  The roll is open for 6 years, after which a new roll has to be prepared, starting from 2025 (rule 6).

During the 6 years, the roll will obviously be liable to alteration, as new electors are added, while those who have departed (in 1 sense or another) must be removed.  To keep abreast of alterations, the roll must be revised annually (rule 3(1)).

The PCC is responsible for the custody and revision of the roll.  It may appoint a roll officer, but the roll officer is always subject to the PCC’s direction (rule 1(8)).

The electoral roll must be available to public inspection (rule 1(13)), and must be produced at the annual parochial church meeting (rule M5(2)).  The published roll contains only electors’ names.  No other personal data may be disclosed (rule 1(13)).

Both a new roll and an annual revision must be publicly displayed in the parish for at least 2 weeks (rules 5(1) and 8(1)).

The roll is the only constitutional record of the parish that is authorised by the parish itself.  It is not confirmed by any diocesan authority. The PCC must report the number of parish electors to the diocesan secretary (in order to work out lay representation on the synods), but that is all (rule 10).  However, the PCC’s authority over the roll is not absolute.  If there is a dispute about whether a particular name should or should not be entered on the roll, the Church Representation Rules provide an appeal procedure (at Part 6).

Ministerial Documents

The patron, or patrons, of the parish benefice are identified on a diocesan register, compiled and maintained by the registrar (Patronage (Benefices) Measure 1986, s.1(1)).

The registrar has power to rectify a mistaken entry on the register, subject to an appeal to the chancellor (s.4).

The register of patrons is open to public inspection ‘at all reasonable times’ (schedule 1, 9).

The bishop’s notice suspending the patron’s right of presentation must be filed in the diocesan registry, and a copy sent to the churchwardens, though not to the PCC (Mission and Pastoral Measure 2011, s.85(7)).

The incumbent’s title to officiate in the parish comes from a Deed of Institution from the bishop (described as collation if the bishop is also the patron of the benefice).  Other parish clergy and lay ministers receive a licence from the bishop.

Canon 137 of 1603 provided that ‘every parson, vicar, curate … or other person licensed … do at the [new] bishop’s first visitation … show and exhibit unto him his letters of orders, institution and induction, and all other … licences …’.  This is no longer required.

 Commenting on canon 137, Phillimore observed that ‘None but the bishop … has the right … to require these exhibits of the clergy …’ (Ecclesiastical Law, 2^nd edition 1895, p.1054).  So parishioners have no right to inspect the title documents of their clergy.  However, the modern canon C10(5) requires the bishop to ‘use his best endeavours to give [institution] in the parish church’, where the parishioners can witness it.

(Canon 50 of 1603 gave churchwardens the right to inspect the licence of a visiting preacher, but this right has not survived in the modern canons.)

Lay PCC members and churchwardens have no document entitling them to officiate as such.  Their elections are declared orally at the annual meetings, and will therefore be recorded in the minutes of the meetings.  However, the churchwardens’ title derives, not from their election, but from their admission which occurs ‘at a time and a place to be appointed by the bishop … [to] appear before the bishop or his substitute …’ (Churchwardens Measure 2001, s.6(1)). 

There seems to be no explicit requirement for a record to be kept of a churchwarden’s admission.  However, a churchwarden-elect, before being admitted, must subscribe a declaration ‘that he will faithfully and diligently perform the duties of his office’, and that he is not disqualified therefrom, which may serve as evidence of admission.

Liturgical Records

Canons F11 and F12 require 6 liturgical records, described as ‘register books’, of

(1) church services generally

(2) baptisms

(3) confirmations

(4) banns of marriage

(5) solemnisations of marriage

(6) burials

The register of services is the liturgical logbook of the parish.  It records ‘every service of public worship, together with the name of the officiating minister and of the preacher … the number of communicants … the amount of any … collections, and, if desired, notes of significant events’.

Canon F12(3) allows that the register of services may be in electronic or ‘virtual’ form, rather than in physical form. 

The registers of baptisms and burials ((2) and (6)) are regulated by the Public Registers and Records Measure 1978.  The marriage registers (banns and solemnisations – (4) and (5)), are regulated by the Marriage Act 1949.  In contrast to canon F12(3), these statutes emphasise the physical quality of the registers which they regulate.  The latter must be ‘of durable material’ (cf 1978 Measure, s.1(3), 1949 Act, s.7(3)).

With the exception of the marriage register (5), the registers are provided by, and belong to, the PCC (1978 Measure, s.1(1), 1949 Act, s.7(3)).

Entries in the registers are generally made by the officiating minister (who may not be the incumbent), or by the incumbent on the certificate of the officiating minister (s.2) (s.3).  Corrections may be made, if appropriate, attested by witnesses of the liturgical event or by the churchwardens (s.4).

Entries in the confirmations register are made by the presenting minister, i.e the minister who presents the candidate to the bishop (canon B39(2)).

A burials book is only required if the parish has an ecclesiastical burial ground.  (Some do not.)  If a parish has more than 1 ecclesiastical burial ground, each burial ground has its own register (s.1(1)).  The register applies to burials ‘according to the rites of the Church of England’ (s.3(1)).  Thus non-Anglican burials are not registered in the burials book.  ‘Burial’ includes the interment of cremated remains (s.25(1)).

Similarly, a banns book must be provided for every church or chapel in the parish in which marriages may be solemnised, if there is more than 1 such place in the parish.  The 1949 Act provides that ‘all banns shall be published from the said register book of banns by the officiating clergyman, and not from loose papers’ (s.7(3)).

The Marriage Act 1949 formerly provided that the (secular) registrar-general of marriages should supply duplicate marriage registers to the parish – 1 for the parish’s own record, the other to enable registration of the marriage by the secular authority.  Both registers had to be signed and witnessed after the ceremony.

Canon F11(1) still requires a marriage register (website accessed today).  However, the 1949 Act has recently been amended.  It no longer requires an ecclesiastical marriage register (though it still requires a banns book).  Instead, a one-off ‘marriage document’ must be completed after each wedding and transmitted to the secular registrar (cf s.53B and D).

Canon 70 of 1603 provided that the incumbent and churchwardens should have joint custody of the parish register (there was only 1 then) ‘in 1 sure coffer, with 3 locks and keys; whereof the 1 to remain with the minister, and the other 2 with the churchwardens, severally: so that neither the minister without the churchwardens, nor the churchwardens without the minister, shall at any time take that book out of the said coffer’.

However, custody of the registers is now entrusted to the incumbent alone (s.6).  The churchwardens only have custody during a vacancy. 

In the case of Love v Bentley (1707) 88 English Reports 947, Chief Justice Holt held that parishioners have the right to ‘view’ the parish books.  This right was affirmed in Dormer v Ekyns (1749) 164 English Reports 231, but the court clarified that the incumbent has no common law duty to make copies of the registers, or issue certificates.

Statutory authority, however, now obliges the incumbent, or other custodian, to issue certified copies of the baptisms and burials registers, on payment of a prescribed fee (1978 Measure, s.20(1)).

S.63 of the 1949 Act now provides that ‘Every incumbent … by whom a marriage register is kept may allow searches to be made in any marriage register book in his keeping …’ (though it could be argued that this wording does not remove the parishioners’ common law right referred to above).

Property Records

Although the care of churches and churchyards is now the responsibility of the parochial church council (‘the PCC’), the maintenance of records concerning such care is the responsibility of the churchwardens, in consultation with the incumbent.

There are 3 permanent, ongoing records

(1) the terrier, a record of land appertaining to the church

(2) the inventory of church contents and chattels and

(3) the logbook, which is a record of

(i) dealings affecting the church, its land and their contents and

(ii) the location of all documents concerning such dealings, such as faculties (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.49).

The churchwardens must produce these records, as annually updated, to the PCC in the New Year, with a signed statement of their accuracy (s.50).  They must also copy the inventory to the bishop’s nominee (s.49(5)).

As well the permanent records, the churchwardens must commission, or themselves prepare, an annual fabric report on the church and its contents.  The report must describe all actions taken, or even proposed, concerning church and contents during the previous year.

The fabric report, unlike the 3 permanent records, is ultimately a PCC document.  The churchwardens deliver the report to the PCC.  The PCC may amend the report.  The churchwardens then deliver the report, as amended, ‘and on behalf of the PCC’, to the Annual Parochial Church Meeting (s.50(2)).

The 5-yearly report on the parish church is made by diocesan authority, but copies must be sent to the incumbent and PCC (s.45(2)).

There is no statutory requirement for a churchyard plan, identifying grave spaces, reservations of grave spaces, and burial locations.  However, diocesan churchyard regulations will almost certainly require such a plan, and probably require it to be kept with the burials register.  Churchyard regulations are made by, or with the authority of, the Chancellor (cf s.77(1), also common law jurisdiction).

The contents of any parochial library, and any donations thereto, are recorded in a special book, which is the incumbent’s responsibility (s.54(7)).  A ‘parochial library’ is a library ‘founded … by way of charitable contribution, in order to assist clergy … with their studies’ (s.95(4)).  The description of the library as ‘parochial’ may therefore be somewhat misleading. A library for the benefit of parishioners rather than clergy will not be a parochial library in the statutory sense.

Although ecclesiastical law is mostly concerned with the physical property of the parish, it also regulates intangible property.  Thus the PCC must produce annual financial statements, in the prescribed form, and scrutinised by an auditor or examiner (Parochial Church Councils (Powers) Measure 1956, s.8).  The statements must be made available for public inspection, and must be copied to the secretary of the diocesan board of finance.

Administrative Records

The PCC’s decisions will be recorded in the minutes of its meetings.  The secretary appointed by the PCC must keep the minutes and record all resolutions passed.  The secretary is custodian of ‘all documents relating to the current business of the PCC, other than the [electoral] roll’ (rule M20).

The secretary must also take the minutes of the annual parochial meeting, and of any special meeting, unless the meeting appoints someone else to do so (rules M7(3) and M13(2)).  The joint meeting of church electors and local residents that elects the churchwardens must appoint a ‘clerk’ to record the minutes thereof (Churchwardens Measure 2001, s.5(8)).

Parishioners have a general right to inspect minutes dating back to 1995 (nearly 30 years ago now), though the PCC can exclude minutes that it deems confidential.  However, the auditor / examiner, the bishop and the archdeacon, and their respective commissaries, have unrestricted access (rule M28(5)).

Although parishioners have a right of access, PCCs are not obliged to publish their minutes.

The PCC must make an annual report to the parishioners on its proceedings, and on the activities of the parish generally in the past year.  The report must follow a prescribed format.  It must include a statement of compliance with ‘safeguarding’ requirements (rule M5).

By common law, the incumbent and churchwardens (not the PCC) must make an annual return to the diocesan ordinary (usually the archdeacon), known as a presentment (or presentments).  This must be supported by a signed declaration of truth (canon G6).  The presentments are made in response to ‘articles of enquiry’ from the ordinary, which must be delivered in good time.  (As a return to the ordinary, presentments, like instruments of consecration, should be filed in the diocesan registry.)

Oversight

The Pastoral Registers and Records Measure 1978 obliges the bishop to give directions to parishes about ‘the safekeeping, care and preservation’ of registers and records (s.11).  This is potentially a very wide power.   

The 1978 Measure suggests that records and registers must be stored in the parish church itself ‘or other place of worship’.  The vestry is the traditional place of parochial administration (as the chapter house is of cathedral administration).  Records and registers must be stored in suitable containers.

The archdeacon must arrange an inspection and report on the parochial records at least every 5 years (s.9), similar to the 5 yearly inspection of the church building.  The inspector’s report must precisely list the particular records inspected, or at least certify a list from a previous inspection, giving details of subsequent additions.  The inspection must itself be recorded in the parish logbook, and a copy of the list or certificate attached to the inventory.

If a parish neglects to take proper care of its records, the bishop may order their removal to the diocesan record office (s.12).  However, liturgical registers in current use may not be removed.

The diocesan record office (‘the DRO’) is designated by the bishop (s.7(1)).  As a general rule, all records must be deposited in the DRO when they are more than 100 years old (s.10).  Liturgical registers must be closed when they are more than 150 years old, except open marriage registers dating from on or after 1^st July 1837 (s.9A).  More recent records can be deposited with parochial agreement.  The DRO will issue a receipt for deposited documents, which must be attached to the inventory (s.10(7)).

A pastoral scheme may provide for the transfer of parish registers and records from an old parish church to the new one (Mission and Pastoral Measure 2011, s.41(8)).  If a parish is dissolved with no special provision in the pastoral scheme ‘records in parochial custody … shall be dealt with in such manner as the bishop … may direct’ (s.19(1)).  The records of a closed church may be deposited in the DRO, though this is subject to the relevant pastoral scheme, and to the bishop’s direction (s.19(2)).

The 1978 Measure is concerned with records in parochial custody.  There seems to be no statutory regulation of diocesan registries.  Registrars are evidently trusted to manage these efficiently.  However, the registrar is subject to the authority of the bishop (and the chancellor).  It is therefore argued that the bishop has a common law power to give directions concerning the registry similar to his statutory power over parochial records.  In the last resort the bishop may dismiss the registrar, with the consent of the Archbishop (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.32).

Electing the Parochial Church Council: Smith v Bishop of Barchester

It is now 10 years since the case of Jones v Archbishop of Wales (2013, unreported) was decided (against Mr Jones).  There is an account of the case on this blog, filed under category ‘The Church in Wales: Governance’.

Wales is, of course, subject to a different ecclesiastical regime from England.  The constitutional rules of the Church in Wales are attractively brief and succinct.  Their English equivalents are often painfully long and detailed.

This blogpost considers how a similar case might be decided if it occurred in England.  We are not aware that such a case has actually occurred.  Hence this fictional case, which we have christened Smith v Bishop of Barchester.

A certain parish held its annual church meeting as usual, chaired by the Vicar.  There was a large number of candidates for election to the parochial church council (‘the PCC’).  The number of candidates significantly exceeded the available vacancies for lay representatives to the PCC.

This meant, of course, that an election should have been held, with votes cast and counted, to decide which of the candidates should be elected to the PCC.  However, the Vicar, for whatever reason, declined to hold an election.  Instead he simply declared all the candidates elected.

A clear and obvious irregularity.  But what to do about it?

The Bishop knew what to do about it.  The irregularity should not be allowed to pass.  She therefore convened a special meeting of the parish electors, and held an election this time.  The candidates with the most votes were then declared elected to the PCC, up to the number of available vacancies. 

This meant that the PCC members declared elected at the original meeting were removed from the PCC, if unsuccessful in the election held at the special meeting.

Mr Smith was a parish elector, though not a candidate.  He accepted that an irregularity had occurred at the original annual meeting (though it did not seem to him to be a very serious one).  However, he disliked the bishop’s interventionist approach, considering it disproportionate and draconian.  Did he have any legal grounds for objecting to the bishop’s action?

A close study of the facts of this case reveals that there was not just 1 irregularity at the annual meeting, but 2

(1)  the meeting returned too many lay representatives to the PCC and

(2)  an election was not held when it should have been.

The first irregularity (1) would still have been possible even if the second irregularity (2) had been avoided.  The Vicar could have held an election, as he was required to do.  But having held the election, he could then still have gone on to declare all the candidates, or too many of them, elected to the PCC.  Thus the PCC would still have ended up with too many lay representatives (per (1)), even though an election had been held.

The annual meeting and PCC elections are regulated by the Church Representation Rules.  The latest version of the Rules was authorised by the Church Representation and Ministers Measure 2019, s.1.

Rule M9 is clear about the procedure for electing the PCC

(3) ‘If the number of candidates does not exceed the number of seats to be filled, each candidate is declared elected’.  But

(4) ‘If the number of candidates exceeds the number of seats to be filled, an election must take place …’.

Thus Rule M9 makes a distinction between (1) an uncontested election and (2) a contested election. An ‘election’ under Rule M9 means a contested election, with votes cast and counted.  An uncontested election, with no votes being taken, is not an ‘election’ for the purpose of Rule M9.

So Mr Smith could not argue that an ‘election’ – albeit an irregular and uncontested election – had been held at the annual meeting.  The Vicar’s declaration did not count as an election at all.

This in turn meant that the election appeals procedure was not engaged.

The appeals procedure is regulated by Part 6 of the Church Representation Rules.  Part 6 was recently amended by the Church Representation Rules (Amendment) Resolution 2020 (406).  Rule 58A(1) now provides that

‘An appeal may be made against the result of a[n] … election on the grounds that a person … was not duly elected …’.

If Part 6 had been engaged in this case, the Bishop would not have been able to intervene directly as she had.  An appeal of this type is decided by an election judge, who may be 1 of the Provincial judges, or the diocesan chancellor (Rule 60A), but not by the Bishop. The Bishop would not even have the necessary standing to bring an appeal at all.  An appeal could only be brought by a candidate or elector, or by the lay chairman of the diocesan synod (58A(6)).

But of course none of these provisions of Part 6 assisted Mr Smith, because there had been no election within the meaning of the Rules.

The Bishop justified her intervention under Rule 78, which is entitled ‘Power of Bishop’, in particular Rule 78(3)

‘The bishop may appoint a person to do something in respect of which there has been neglect or default by the person required by these Rules to do it’.

Rule 78(5) further empowers the bishop to

– extend or alter the time for holding a meeting or an election, and

–  modify the procedure for a meeting or election,

‘so far as necessary for giving effect to the intention of a provision of these Rules’

The Bishop may also ‘give whatever directions she considers appropriate for removing [attendant] difficulties’ (Rule 78(7)).

The Vicar at the annual meeting had undeniably been guilty of neglect and default in failing to hold an election.  Rule 78 was therefore engaged.

Before leaving the matter Mr Smith noted Rule 80(1), which provides that

‘The proceedings of a body constituted under these Rules are not invalidated by … a defect in the … election, choice or appointment of any of its members’.

This means that any decisions taken by the PCC could not be impugned on the grounds that the PCC was irregularly constituted.  Such decisions would still be legally effective.

In England there has been a version of Rule 80(1) in force since modern synodical government began: see Church of England Assembly (Powers) Act 1919, Appendix 2.16.

(And Rule 58A(7) adds that ‘a person who was declared elected but whose election is or may be affected by [an] appeal is to be regarded for all purposes as elected pending the determination of the appeal’.)

Mr Smith had read the decision in Jones v Archbishop of Wales.  He was aware that there is no equivalent of Rule 80(1) in the constitution of the Church in Wales (despite the longevity of the Rule). The omission of such a Rule had clearly weighed heavily with the Church court in that case

‘The purported appointment … of the PCC … was unconstitutional and its effect was that there were no lay members of the PCC able to take part and vote in its decisions without being liable to challenge on the ground that the PCC was not a properly constituted body’ (para 18, emphasis supplied).

Thus the Welsh court evidently took the view that it was essential for the PCC to be properly constituted, and as soon as possible, or the PCC would be unable to function.  Any decision it took would be, at least arguably, invalid.

By contrast, Rule 80(1) makes clear that remedial action is not essential to the function of an English PCC that has been irregularly constituted.  Rule 80(1) protects such PCC’s deliberations and decisions from legal challenge.

Nevertheless Mr Smith reluctantly accepted that he had no legal grounds for objecting to the Bishop’s action.  There had clearly been neglect or default.  Rule 78(3) was engaged.  Moreover, the Bishop was the only authority capable of correcting the neglect or default.  The election judge was powerless to act, because no election had taken place.

It could be argued that the Bishop’s intervention was unnecessary, because of Rule 80(1).  The Vicar could merely be warned not to repeat the irregularity in future.  Capability proceedings and even disciplinary proceedings were possible if the warning went unheeded. 

However, once Rule 78(3) was engaged, the Bishop was sole judge of whether to act or not.  There was no ecclesiastical authority capable of overruling her.  The Bishop’s action in holding an election could not possibly be described as perverse.  An application to the High Court to restrain or quash the action would therefore be hopeless.

It would have been different if the Vicar had held an election (thus avoiding irregularity (2) above) but had then gone on to return too many lay representatives to the PCC (irregularity (1)).

In that event, the jurisdiction of the election judge would be engaged, because an election had been held and the result declared.

The Bishop, by contrast, would not have had jurisdiction to intervene.  Rule 78(3) does not empower the Bishop to correct any procedural irregularity.  The Bishop may only intervene where there has been ‘neglect or default’.  ‘Neglect or default’ refers to a complete failure to act.  It is not the same as common law negligence, i.e an incompetent performance of a duty.  As mentioned, the Bishop does not even have standing to bring an appeal.

The PCC has 2 functions

(1)  to represent the parish and

(2)  to manage Church property in the parish.

The irregularity, or irregularities, in this case affected (1).  Rule 80(1) makes clear that they could not affect (2).  The irregularities infringed, if only slightly, the parishioners’ right to elect a certain number of representatives to the PCC.  They thereby impaired the PCC’s representative function.  The Rules applying to this case are called Representation Rules.  The jurisdiction of both the Bishop and the election judge under these Rules serves the same purpose, protection of the parishioners’ right.

For further comment, see ‘The Dual Function of the Parochial Church Council: Representative and Trustee’, filed below.

(Church of England’s website accessed today.)