A Defence of the Public Worship Regulation Act 1874

Although the 1874 Act singularly failed to live up to its title, it did introduce one reform that has endured to the present day.  By s.7, it combined the 3 most senior judicial offices of the Church of England in a single officeholder

(1) the Dean of the Arches, the Archbishop of Canterbury’s provincial judge

(2) the Auditor, the Northern equivalent of the Dean and

(3) the Master of the Faculties, the official who exercises the Archbishop of Canterbury’s special faculty jurisdiction over both English Provinces, to grant licences to marry and to practice as a notary public.

As a result of the Act these 3 offices, like the Trinity, are 3 in 1 and 1 in 3.  The Dean of the Arches and Auditor (and Master of the Faculties) is in effect the Lord Chief Justice of the Church of England.  Ms Morag Ellis KC is the current holder of the 3 combined offices.

The Public Worship Regulation Act was a response to illegal ritualism, i.e illegal liturgical practices.  Such practices involved 

(1) ornaments of worship – whether of the fabric of the church (or churchyard), the movable furniture therein, or the vestments worn by officiating ministers.  In 1874, these were governed by the famous Ornaments Rubric of the Book of Common Prayer.

(2) rites and ceremonies.  Rites are the words used in public worship.  Ceremonies are liturgical acts or gestures.  These were likewise governed by the rubrics and other directions contained in the Prayer Book.

The purpose of the Act was therefore to uphold the rules of public worship laid down by the Book of Common Prayer (cf.s.8). 

Before the 1874 Act, ritualist clergy were prosecuted under the Church Discipline Act 1840.  However, such prosecutions were very expensive and could last several years.  The primary object of the 1874 Act was therefore to reduce expense and delay.  (This was the reason for combining the senior judicial offices in a single judge.)  However, the Act was also intended to conciliate the offending ritualists.

The 1874 Act did not repeal the 1840 Act.  It merely provided an alternative procedure (cf. s.5). An incumbent whose case was decided under the 1874 Act could not be proceeded against under the 1840 Act (or vice versa) (1874 Act, s.18).

The great difference between the Church Discipline Act and the Public Worship Regulation Act is that, while the former was criminal and penal in character, the latter provided a civil procedure.

The Public Worship Regulation Act sought to decriminalise ritualism, and treat it as a civil wrong instead.  Its purpose was not to punish past offences but to secure future compliance. 

It is, of course, particularly ironic that a law intended to decriminalise ritualism resulted in ritualist clergy being sent to prison.

Thus the 1874 Act provided that ‘Proceedings taken under this Act shall not be deemed to be such proceedings as are mentioned in the [Church Discipline] Act, s.23’, i.e that such proceedings are not a ‘criminal suit or proceeding’. The Act deliberately eschewed the language of criminal law and clergy discipline.  Hence the use of the word ‘regulation’, rather than ‘discipline’.  The long title of the Act refers only to ‘the better administration of the laws respecting the regulation of public worship’. 

Proceedings under the 1874 Act were commenced by a representation, not a charge (s.8).

The 1874 Act discouraged Low Church legal activism against ritualists by limiting the class of potential complainants.  Only the incumbent’s local archdeacon, his churchwarden(s) or any 3 male parishioners could make a ‘representation’ against him (s.8).  Complaints against cathedral clergy could be made by any 3 male inhabitants of the diocese (the cathedral being the parish church of the diocese).  Bishops were not subject to proceedings under the 1874 Act.

The Act also excluded old grievances.  No representation was allowed in respect of an illegal adjustment of the church fabric, if this had been completed more than 5 years previously.  Alleged illegal practices had to have occurred no more than 12 months previously.

The bishop could veto proceedings on a representation ‘after considering the whole circumstances of the case’ (s.9).  This meant that he could stop proceedings on grounds of mere expediency, even if the incumbent clearly had acted illegally.

The Act also provided a form of arbitration.  If he did not veto the proceedings, the bishop was required to invite both the incumbent and the complainant(s) ‘to submit to the directions of the bishop touching the said representation, without appeal’.  Thus the bishop could settle the dispute on a consensual basis.  The bishop’s decision, like an arbitration award, bound only the parties to the dispute.  It was not a binding judicial precedent.

The bishop’s arbitration function under the 1874 Act echoed his function in the Book of Common Prayer

‘to appease all such diversity … and for the resolution of all doubts, concerning the manner how to understand, do, and execute, the things contained in this Book: the parties that so doubt, or diversely take any thing, shall alway resort to the Bishop … who by his discretion shall take order for the quiet and appeasing of the same …’ (Preface).

The Act also permitted the parties to agree a special case, i.e an agreed statement of facts, for judicial determination of the correct law, thereby avoiding the need for a contested trial.

Only if these options were declined by the parties did the case go to a full trial, with pleadings, evidence and legal submissions. The Dean of the Arches and Auditor, who is described simply as ‘the judge’ in the 1874 Act, ‘shall pronounce judgment on the matter of the representation’ (s.9).  There was a right of appeal to the Privy Council.

The only remedies that could be awarded if a ‘representation’ was upheld were

(1) a monition or warning to the incumbent to desist from unlawful ritualism in future and / or

(2) a faculty to remove an unlawful ornament (cf.s.14).

If a warning (1) went unheeded the incumbent could be inhibited, i.e suspended from office.  Thus inhibition / suspension was not a remedy per se.  Its purpose under the 1874 Act was to enforce a monition. 

A suspension would be lifted upon the incumbent giving a written undertaking ‘to pay due obedience to [the] monition or order’ (s.13).  A suspended incumbent was allowed up to 3 years to submit.  Only then could he finally be removed from office altogether.

The Public Worship Regulation Act probably has the worst reputation of any modern ecclesiastical legislation.  It is argued that this is undeserved.  Probably very few people have actually read the Act.  Its provisions seem perfectly fair and reasonable, with nothing that is obviously objectionable.  The text of the Act gives no clue as to the controversy that it inspired.  Its moderation is in dignified contrast to the crass intransigence of the ritualists.

The fatal flaw in the Act was its naïve assumption that clergymen – of all people – would obey the law.  They did not.

That is why they had to be sent to prison.  There is no reference to imprisonment in the 1874 Act itself.  As mentioned, the Act provides no sanctions more severe than warning and suspension from office.  But the ritualists ignored these, and persisted with their illegal practices.  The court observed in the case of Serjeant v Dale that ‘Mr Dale [the ritualist] from first to last took no notice of the proceedings’ (1877) 2 Queen’s Bench Division 558 at p.561).

Mr Dale was therefore imprisoned for contempt of court, not for illegal ritualism per se.  However, this important distinction may not have been widely appreciated.

Nor was the contempt of court entirely passive.  The Reverend Mr Tooth was only incarcerated after he and a gang of supporters had physically obstructed the clergyman sent by the bishop to officiate in his place.  Once the obstruction was overcome, and the replacement clergyman safely installed, Mr Tooth was released: ‘let the order for his discharge be drawn up at once’ (Hudson v Tooth (1877) 2 Probate Division 125 at p.140).

Owen Chadwick relates that a grand total of 5 clergy were imprisoned for contempt:  The Victorian Church, vol 2 (1970) p.348.  The Reverend Mr Green’s imprisonment lasted over 18 months (‘They did not know how to get Green out’).  The others were released after a few weeks.  The aforementioned Mr Dale and Mr Tooth later had their committals quashed on technical grounds.

Why did the ritualists ignore the proceedings against them, even at the cost of imprisonment?  Chadwick suggests that ‘in their eyes a non-Anglican Parliament had no more right than the Emperor of Japan to determine [their conduct of public worship]’.  The ritualists were martyrs for the Church against the infidel secular state.

No doubt they convinced themselves of that.  However, the case for the ritualists’ martyrdom is not compelling.  Secular authority was not imposing some newfangled regime of public worship on the Church of England.  On the contrary, it sought to uphold the Book of Common Prayer, the very essence of Anglican tradition.  The 1874 procedure was indeed an Act of Parliament.  But Parliament passed the Act at the request of the bishops.  The then Archbishop of Canterbury, Archibald Campbell Tait, even drafted the original Bill himself (Oxford Dictionary of the Christian Church).  As mentioned, the Act encouraged ritualists to submit to the judgment of their bishop, an ecclesiastical authority.

Lord Selborne observed that the ritualists ‘claimed all the privileges of Establishment, while at the same time they repudiated all its conditions’ (Parliamentary Debates, Series 3, vol 219, col 949).  Their rejection of episcopal authority as well as parliamentary authority was inconsistent with a  Catholic belief in the Apostolic Succession of bishops.

(The response to the Public Worship Regulation Act reinforces the conclusion that so-called ‘Anglo-Catholic’ ritualism is neither Anglican nor Catholic, inasmuch as it repudiates both Anglican tradition and Catholic teaching.  Ritualism is just that – an exaggerated love of ritual.)

The ritualists were a small and eccentric minority.  However, their ‘martyrdom’ under the Public Worship Regulation Act was a characteristically exaggerated response to a real issue.  In the 19th century, the Anglican theocracy created at the Reformation was gradually replaced by the modern secular state.  This meant that the Church of England was governed by legislators and judges (i.e the Privy Council) who were not even nominally members of the Church.

The radical solution to this issue was Disestablishment, i.e complete severance of the link between Church and state.  Conservatives sought autonomy, a measure of ecclesiastical self-government, but maintaining the link between Church and state (with its concomitant privileges, of course).

It might be argued that the Church of England already enjoyed a measure of self-government, through the system of ecclesiastical courts.  However, even the Church courts were affected by 19th century secularisation.  Doctors’ Commons, the ecclesiastical inn of court since the 16th century, was closed in the late 1850s-early 1860s.  Sir Robert Phillimore DCL, original author of the famous commentary on ecclesiastical law, was the last inhabitant of Doctors’ Commons to officiate as Dean of the Arches.  (He was himself the son of another Doctor, Joseph Phillimore.)

When the 1874 Act was passed, Sir Robert and the then Auditor both retired, in order to facilitate the combination of their respective offices.  The first holder of both offices, the first Dean of the Arches and Auditor, was Lord Penzance. 

Lord Penzance was a retired secular judge and barrister, with no connection to Doctors’ Commons.  The Dictionary of National Biography suggests that he was a man of liberal sympathies, ‘concerned with issues of social change.  In his maiden speech [in the House of Lords] he justified the Disestablishment of the Church of Ireland …’.  This may not have endeared him to High Churchmen.  It is ironic that a supporter of Disestablishment became instrumental in sending people to prison for rejecting ecclesiastical authority.  (The way of the liberal is extremely hard!)

Apologists for the Public Worship Regulation Act correctly pointed out that Lord Penzance had the same function as his predecessors, and presided over the same courts.  However, the Church courts underwent a profound cultural change in the mid-19^th century, and the 1874 Act drew attention to this.  Ecclesiastical law ceased to be a discrete profession with its own particular body of learning and custom.  Ecclesiastical judges, like Lord Penzance, were now mere secular lawyers who happened to go to church.  And the failure of the 1874 Act did nothing to improve the reputation of ecclesiastical law and the Church courts.

The convocations were therefore the only credible vehicle for ecclesiastical self-government.  Suppressed in the early 18^th century, they were revived about the same time that Doctors’ Commons was closed down.  Chadwick relates that the practice began of proposed ecclesiastical legislation being debated by the convocations before being presented to Parliament (p.361).  Thus the failure of the Public Worship Regulation Act produced the embryo of the modern legislative procedure codified by the Church of England (Assembly) Powers Act 1919.

Phillimore suggests that the Public Worship Regulation Act was already a dead letter by the end of the 19^th century (Ecclesiastical Law, 2^nd edition 1895, p.1036).  A royal commission report of 1906 recommended repeal.  However, the Act was not repealed until as late as 1963, by the Ecclesiastical Jurisdiction Measure, s.87.

It was easier to criticise the Public Worship Regulation Act than to replace it.  A revised Book of Common Prayer was controversially rejected by Parliament in the 1920s.  The law that currently regulates public worship, the Worship and Doctrine Measure, was only passed as recently as 1974, a whole 100 years after its unfortunate predecessor.

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Canon B5 and the Prayers of Love and Faith

Legal Office Note, GS Misc 1339, January 2023

The Note discusses certain liturgical Prayers, described as ‘Prayers of Love and Faith’, which have been commended by the House of Bishops for use with same-sex couples.

Canon B5 regulates ‘the discretion of ministers in conduct of public prayer’.  It provides that ‘all forms of service [i.e liturgical prayers] used … shall be

[1] neither contrary to,

[2] nor indicative of any departure from,

the doctrine of the Church of England …’ (canon B5(3)).

The Church of England’s doctrine opposes same-sex relationships in 2 respects. It asserts that

(1) ‘Marriage is in its nature a union … of 1 man with 1 woman’ (canon B30(1)).  This is ‘the teaching of our Lord, affirmed by the Church of England … in the Book of Common Prayer’ (B30(2)) and

(2) the baptismal duty of every Christian is ‘to keep my body in chastity’ (Book of Common Prayer, Catechism).

The Legal Office ‘has carefully examined’ the commended Prayers.  Its Note addresses both the doctrinal difficulties:

(1) The Prayers ‘recognise that the couple’s relationship has been marked by their entering into a particular civil status … regarded by the State as ‘marriage’ (para 8).  However, recognising the status is not the same as blessing it. The Prayers ‘do not bless civil marriages (or civil partnerships)’ (para 4).

(2) ‘A sexual relationship is not inherent in a same-sex marriage, any more than it is in a civil partnership.  The draft Prayers contain no implication that what is being celebrated or blessed is a sexual relationship … they are simply silent on that point’ (para 9). Silence is not approval.

For these reasons, the Legal Office concludes (most fortunately) that the proposed Prayers do not depart from the Church’s doctrine, and are therefore lawful under canon B5(3)).

Thus the Legal Office’s view is that the Prayers are not offered either for

(1) the contractual relationship between the same-sex couple – whether this takes the form of a ‘marriage’ contract, a civil partnership agreement or a ‘covenanted friendship’ (cf para 4) or

(2) any sexual relationship between the couple.

This raises the question – what is the point of the Prayers at all?  What are they offered for, if not for the contractual and sexual relationship between the couple?

The Note concentrates much more on what the Prayers do not bless, than on what they do bless.  It suggests, rather tersely, that ‘any blessing is of the couple and the good in their relationship’ (para 4).  It does not expand on what this ‘good’ is.  Presumably it refers to ‘the mutual society, help and comfort’ (to use the language of the Prayer Book) that is possible in a same-sex relationship.

So the Note identifies 3 aspects of a same-sex relationship

(1) contract

(2) sexual activity (if any) and

(3) ‘the good in [the] relationship’.

The proposed Prayers are offered only for (3), not (1) or (2).

This, of course, implies that the 3 possible aspects of the same-sex relationship are discrete and separable.  It is possible to bless (3) without blessing (1) or (2).

It may be instructive to compare the Legal Office’s Note with a similar Roman Catholic document issued by the Congregation for the Doctrine of the Faith, or ‘CDF’ for short.  (Perhaps the Legal Office is the nearest Anglican equivalent of the CDF!)  The CDF Note was published in February 2021, almost exactly 2 years ago now, with the express approval of the Pope.

Unsurprisingly, the CDF reached the opposite conclusion from the Legal Office.  It held that the Church does not have the right to bless same-sex relationships.

The CDF agrees with the Legal Office about the possible good in a same-sex relationship.  It acknowledges ‘the presence in such relationships of positive elements, which are in themselves to be valued and appreciated’.

However, the CDF disagrees with the Legal Office about the separability of the good in a same-sex relationship, i.e aspect (3) above, from aspects (1) and (2).  On the CDF’s view it is not possible to bless (3) without also blessing (1) and (2).  A liturgical blessing of a same-sex relationship must either bless the totality of the relationship (including its contractual and sexual aspects) or none of it.

Thus a liturgical blessing of a same-sex relationship ‘would constitute a certain imitation or analogue of the nuptial blessing’, even if this is not intended.  The Note quotes from a document issued by the present Pope which states unequivocally that ‘there are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family’ (Amoris Laetitia, para 251).

Acknowledging the good in a same-sex relationship does not mean ignoring the sexual aspect of such a relationship: ‘it is not licit to impart a blessing on relationships … even stable, that involve sexual activity outside of marriage’.  Monogamy is preferable to promiscuity. But it is not the same as chastity.

Thus the CDF implicitly rejects the contention that a sexual relationship is ‘not inherent’ in a same-sex contract, i.e is not characteristic of such contract, as the Legal Office suggests.  Of course it is possible to have a same-sex contract with no sexual activity, just as it is possible to have an unconsummated marriage.  But it is going too far to suggest that sexual activity is not characteristic of a same-sex contract. 

The CDF Note also draws attention to the difference between the Church’s liturgical function and its pastoral function.

The Legal Office refers to ‘blessing … the couple and the good in their relationship’ (para 4).  This effectively identifies the couple with their relationship.  The CDF, by contrast, asserts ‘the fundamental and decisive distinction between persons and the [same-sex] union’. 

The liturgical function cannot separate out the good aspect of a same-sex relationship from its other aspects, and bless that in isolation.  However, the pastoral function is more subtle and flexible than the liturgical function.  The pastoral function can, and should, acknowledge and encourage the good in such relationship.

Thus the CDF Note observes that ‘pastors are called to welcome with respect and sensitivity [homosexual] persons … and … find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel …’.

Liturgy is, by definition, public.  (The very word ‘liturgy’ originally meant ‘public function’.)  As its title makes clear, canon B5 is concerned with the ‘conduct of public prayer’.  Ecclesiastical law does not, and realistically cannot, regulate private prayer.  The whole point of these ‘Prayers of Love and Faith’ is that they are, or will be, public, used in public, as part of the Church’s liturgy.

If the public character of liturgy is understood, the true meaning of canon B5(3), as quoted above, becomes clear.  Canon B5(3) imposes a 2-stage test of the liturgy that it authorises

(1) doctrinal soundness and

(2) public perception.

Hence the requirement of canon B5(3), in [2] above, that prayers must not be ‘indicative of any departure from … doctrine’.  It is not sufficient that they are merely not contrary to doctrine.  Prayers may still confuse or mislead the public about the Church’s doctrine, even without actually contradicting that doctrine.  Canon B5(3) is worded to prevent this.  Like justice, sound doctrine must not only be done, it must be seen to be done – by Anglican lay worshippers, and by persons of any religion and none.  Not just by the Legal Office.

It is argued that the Legal Office Note fails to understand and apply the 2-stage test imposed by canon B5(3).  It effectively treats the 2 stages as one and the same.  The Note asserts more than once that the commended Prayers are ‘not indicative’ of any departure from doctrine.  But not indicative to whom?  The Note neither asks nor answers this question.  It fails to consider the public perception of the commended Prayers.

This failure to apply B5(3) correctly means that the Legal Office’s conclusion on the commended Prayers is flawed.  Even if it was possible to accept that the Prayers do not actually contradict Church doctrine, it is still necessary to consider how they will affect the public perception of that doctrine.  

Clergy Discipline and Contempt Proceedings

‘Concerns raised over Church’s appointment of Senior Cleric’ Western Mail, 20th January 2023

By its own account (cited above), the Western Mail, ‘national newspaper of Wales’, is in a difficulty with the Church of England.

The case concerns disciplinary proceedings against an English clergyman who was appointed to a senior position in the Church in Wales last year, 2022. (By a remarkable coincidence, our last blogpost of 2022, entitled ‘The Double Meaning in LGBT ideology’, was prompted by just such an appointment.)

The Western Mail reports that ‘we are not able to name the cleric concerned, nor to report details of the [disciplinary] proceedings, nor the allegations he faces, nor the post to which he has been appointed’.

Why ever not? ‘The reason … is the threat of contempt proceedings, from a senior Church lawyer’, Mr Justin Gau, barrister, chancellor and vicar-general, who is representing the mystery clergyman. ‘In making his threat Mr Gau referred us to the Clergy’s Code of Practice’.

It is remarkable, and somewhat chilling, that in the 21st century the Church of England is apparently still able to muzzle a newspaper, and a Welsh newspaper to boot.

The Church of England is, of course, established by law and has certain law-making powers, though these require the approval of Parliament. The Ecclesiastical Committee of Parliament is required to scrutinise Church Measures ‘especially with relation to the constitutional rights of all His Majesty’s subjects’ (Church of England (Assembly) Powers Act 1919, s.3(3)). Press freedom is, of course, a very important constitutional right.

Perhaps the Ecclesiastical Committee has failed in its function? However, it is hard to see how the relevant clergy discipline legislation supports the reported ‘threat’.

There are 3 pieces of legislation

(1) the Clergy Discipline Measure 2003

(2) the Clergy Discipline Rules 2005, which were originally made under the authority of the 2003 Measure, at s.45, now under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.83(1), and

(3) the Code of Practice, authorised by s.39 of the Measure.

The Code of Practice (3) is not strictly legislation at all. It is guidance, of a sort often described as ‘quasi-legislation’ or ‘soft law’.

The Church in Wales is no longer part of the Church of England. It was disestablished in 1920, more than 100 years ago now. Since that time almost all ecclesiastical law has been confined to England. The Clergy Discipline Measure is no exception. It contains the usual provision that the ‘extent’ of the Measure is limited to ‘the Provinces of Canterbury and York’, though allowing for the possibility of its being applied to the Channel Islands and the Isle of Man (s.48(3)). But certainly not to Wales.

The 2005 Rules echo this provision, being headed ‘Ecclesiastical Law, England’.

The special status of the Established Church means that its courts and tribunals are courts of the land and public authorities, not mere domestic tribunals. It is therefore possible for a newspaper to be in contempt of such court or tribunal.

The Ecclesiastical Jurisdiction Measure 1963 asserts the right of Church courts to the same protection from contempt as their secular counterparts (s.81(2)). Any contempt proceedings must be brought in the High Court (3). Thus the Church authorities themselves cannot punish contempt. Only the High Court can do this. (See also the more recent Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.25.)

The High Court’s jurisdiction, unlike the ecclesiastical court’s, extends to Wales as well as England.

Neither the 2 Ecclesiastical Jurisdiction Measures nor the Clergy Discipline Measure itself make provision for contempt of disciplinary tribunals. However, the Clergy Discipline Rules provide that ‘If any person does or omits to do anything which is a contempt in connection with

[1] proceedings before or …

[2] an order made by

the [disciplinary] tribunal, the chair[man] may certify … a contempt, and refer the matter to the High Court …’ (rule 105).

So a contempt may relate to the disciplinary proceedings generally, or to a specific order.

The Rules go on to provide that disobedience to an order [2] ‘shall not be deemed to be a contempt’ unless the order contains an explicit warning that anyone who disobeys it risks punishment, i.e a penal notice.

A disciplinary tribunal has power to order ‘that the name and any other identifying details of any person involved or referred to in the proceedings must not be published or otherwise made public’ (Rule 49).

Such order can be made if it is

‘(a) desirable to protect the private life of any person …

(b) in the interests of any child … or

(c) otherwise in the interests of the administration of justice’.

The Western Mail might therefore be in contempt if it identified the clergyman and his alleged misconduct in defiance of an order not to do so, and the order was endorsed with the required penal notice. However, the Western Mail report (which is all we have to go on) does not refer to the existence of such an order, merely to a ‘threat’ by the clergyman’s lawyer.

As noted above, contempt of the proceedings is possible, even without disobedience to a specific order. In the case of R v Daily Herald ex parte the Bishop of Norwich (1932) 2 King’s Bench 402, which also concerned clergy discipline, the Daily Herald newspapers was fined for ‘gross contempt’, after it published statements ‘calculated to prejudice the fair hearing of the complaint’.

So the deliberately prejudicial reporting of a case may amount to contempt. But that does not mean that any reporting is contempt.

As the Western Mail report notes, the general rule is that disciplinary hearings are held in private (Clergy Discipline Measure, s.18(3)(c)). (Before 2003 they used to be held in public.) So infringement of the tribunal’s privacy, by reporting what is said and done at the hearing, may amount to contempt. However, ‘private’ is not the same as ‘secret’. It is not a contempt to report that a disciplinary hearing is taking place, or that it may take place in the future.

It is perfectly normal for newspapers to report complaints against clergy, and ongoing disciplinary proceedings. And it is normal practice for the Church authorities to acknowledge the existence of such proceedings, identifying both the clergyman and the complaint. There must be countless instances of this practice.

The Code of Practice ((3) above) provides no support for a threat of contempt proceedings. As mentioned, the Code is not law in the proper sense. It is addressed only to ‘persons exercising functions in connection with clergy discipline’ (2003 Measure, s.3(3)(b)), not to the press and public.

The Code addresses the subject of ‘Publicity and Media Relations’ in relation to disciplinary proceedings (in its last 3 paragraphs, 264-266). It observes that ‘media coverage in advance of any determination of a complaint can be speculative and misinformed, which can damage [those involved]’. However, it makes no reference to contempt proceedings. (The word ‘contempt’ does not even appear in the Code.) It merely suggests that ‘it is advisable for anyone involved in a complaint who is approached by the media to refer the enquirer straightaway to the appropriate [Church] communications officer’.

(Pressreader website accessed today.)

Sede Vacante: The Administration of a Vacant Bishopric

Last year we were sadly reminded that 1 ecclesiastical office is never made vacant, even by death – that of the Supreme Head (or Supreme Governor) of the Church.   It is said that ‘the Monarch never dies’. 

The new King therefore acquired a complete and perfect title to the Crown – and thereby the Church – from the moment of our late Queen’s death.  The Accession ceremonies and proclamations, and the forthcoming Coronation, add nothing to that title.  (This is discussed further in ‘The Coronation Oath: Right and Rite’, filed under category ‘Royal Supremacy’.)

This is a constitutional difference between the Monarchy and the Holy See (the Papacy), which regularly falls vacant.

In the Roman Catholic Church there is a type of suffragan bishop, known as a coadjutor, who not only assists the diocesan bishop, but has the right to succeed him (1983 Code, canon 403(3).  (The office apparently has ancient origins.)  Thus, if a diocese has a coadjutor, there will be no vacancy in the see when the incumbent diocesan bishop leaves office.  The Bishops Resignation Act 1869 made similar provision for the Church of England, but that Act was repealed in 1951.

(Coadjutors in the Latin Church are appointed by the Pope.  The Pope is himself a diocesan bishop, of course.  Last year there was some media speculation that the present Pope might appoint a coadjutor with right of succession to himself, and thereby override the cardinals’ right to elect his successor.)

Declaring the Vacancy

The resignation or other departure of an officeholder, including a bishop, must be distinguished from a notice or declaration that the office is now vacant.

When a benefice becomes vacant, or is shortly to become vacant, the bishop gives notice to the ‘designated officer’ of the diocese, who then administers the process of appointing a new incumbent (Patronage (Benefices) Measure 1986, s.7).  When a bishop resigns, or retires at 70, the Archbishop declares the vacancy: Bishops (Retirement) Measure 1986, s.1.  When the Archbishop himself departs, the Monarch declares the vacancy by Order-in-Council.  An Order-in-Council is also required to declare a vacancy when a bishop is removed for misconduct: Clergy Discipline Measure 2003, s.24(2)).

Death in office is now very rare. Resignation and retirement are the norm, but it was not always thus.   An old edition of Halsbury’s Laws observed that ‘Avoidance [of a bishopric] in ordinary cases takes place either by death or translation [i.e moving the bishop to another diocese].  An ordinary vacancy ought to be certified to the Crown … by the dean and chapter’ (3^rd edition, 1957, p.75n).  It seems unnecessary for the dean and chapter to certify a vacancy to the Crown where the bishop is translated, because translation is by authority of the Crown, so the Crown will already be aware of the vacancy.

(Canon C23(1) provides that a vacant benefice or other vacant cure in the diocese should be notified to the bishop by the rural (area) dean.)

Temporalities

The office of bishop (and Archbishop) comprises

(1) temporalities, the proprietary rights that attach to the office.  In former times these were very considerable: ‘castles, manors, lands, tenements, parsonages, tithes … [and] rights of presentation [to benefices]’ (Halsbury’s Laws, 1^st edition, vol 11, para 781).

(2) spiritualities are the duties attached to the office.  They include ‘all manner of jurisdictions of courts ecclesiastical, such as granting licences to marry … admissions and institutions [to benefices]’ (para 782), consecrating new churches and ordaining new clergy.

When the see is vacant, temporalities and spiritualities are subject to different regimes.  There has never been any doubt that the Monarch is sole guardian of the temporalities ‘by his prerogative as founder [i.e donor] of all Archbishoprics and bishoprics, to whom during the vacancy they revert’.  The temporalities of a vacant see were formerly a lucrative source of income for the Crown.

However, the most recent edition of Halsbury’s Laws observes that ‘the temporalities of all Archbishoprics and bishoprics, except rights of patronage, are now vested in the Church Commissioners, so that it is now only rights of patronage

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that are administered by the Crown during a vacancy’ (5th edition 2011, para 209).  Such rights have no economic value.

A recent statute, cumbersomely entitled the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010, confirms the common law rule that the diocesan bishop’s rights of patronage, being temporalities, revert to the Crown during a vacancy (s.2).  However, the 2010 Measure goes on to provide that such rights are prima facie exercisable by a suffragan bishop.  Thus the right of presentation still belongs to the Crown, but it is exercised by the suffragan on behalf of the Crown, as the Crown’s representative.

The Crown may always choose to exercise the right directly: ‘Her Majesty may give notice … to the [suffragan] … that she wishes to exercise her right of presentation …’, in which case the suffragan may not do so (s.2(3)).

It may not be quite accurate to say that rights of presentation are the only temporalities remaining to a bishop.  A recent article in the Ecclesiastical Law Journal suggests that a bishop may be the legal freeholder of certain cemetery chapels (D and P McClean, ‘Shared Burial Grounds’, September 2022, pp295-308) . Although he is not its legal owner, the bishop’s private chapel may not be entered on the official list of places of worship when the see is vacant (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.41(7)).

Spiritualities

Regulation of the spiritualities during a vacancy is more complex.  Not being a source of profit, the spiritualities were of no interest to the Crown and so were left to the Church.  Historically, guardianship was claimed both by

(1) the Archbishop of the Province and

(2) the cathedral chapter of the vacant see.

It is hard to see any modern justification for the chapter’s claim to the spiritualities.  The chapter was originally the bishop’s council or senate, assisting him to the govern the diocese.  This is presumably the basis of its claim.  However, the chapter’s diocesan responsibility ceased many centuries ago.  Since the middle ages (well before the Reformation) the chapter’s constitutional responsibility has been limited to governing the cathedral, and the cathedral itself has been constitutionally independent of the rest of the diocese.  (See various posts filed under category ‘Cathedrals’.)  Today the bishop’s council is a quite different body from the cathedral chapter (Church Representation Rules, rule 44(2)(h)).

The Archbishop’s claim to guardianship of the spiritualities is overwhelmingly stronger than the chapter’s claim.  It is inherent in his common law metropolitical jurisdiction over the Province ‘as superintendent of all ecclesiastical matters therein’ (canon C17(2)).  The chapter’s claim denies that jurisdiction.  It may amount to a contrary custom, by denying the Archbishop’s common law right.

It is therefore unsurprising that the chapter’s claim enjoys little support from commentators.  Halsbury’s Laws suggests that ‘In … most dioceses it seems that the guardianship has by long usage been exercised by the Archbishop’ (5th ed, para 210).  Moore’s Introduction to English Canon Law suggests that the dean and chapter exercise the guardianship in the diocese of Durham (4th edition 2013).  However, Mark Hill’s Ecclesiastical Law states categorically that ‘The guardianship of the spiritualities during a vacancy no longer vests in the dean and chapter’ (4th edition, p.127).

Yet canon C19, ‘Of Guardians [plural] of the Spiritualities’, though recently amended, refuses to abandon the chapter’s claim, providing that

‘Wherever a bishopric be vacant the guardianship of the spiritualities … shall be exercisable by the Chapter … unless by prescription or composition or by virtue of an enactment or other legal instrument it belongs to the Archbishop … (C19(2)).

(The recently amended version of canon C19 refers to the Crown’s rights of presentation on a vacancy, indicating a failure to appreciate that presentation is a temporality, not a spirituality.)

The Spiritual Jurisdiction of the Monarch

Admittedly the constitutional position is different when the Archbishopric itself is vacant.  An Archbishop has no episcopal superior.  The Archbishop of Canterbury is not the Archbishop of York’s superior, nor vice versa.

However, the Monarch is undoubtedly the constitutional superior of both Archbishops, ‘the highest power under God in this Kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil’ (canon A7). 

Yet Halsbury’s Laws specifically denies the Monarch’s guardianship of spiritualities when an Archbishopric (either Canterbury or York) is vacant (para 151).  Furthermore, it avers that

‘During a vacancy of the See of Canterbury, the dean and chapter, as guardian of the spiritualities, are empowered … to grant all such licences and dispensations throughout both provinces as may be granted by the Archbishop under the Ecclesiastical Licences Act 1533’, mostly special marriage licences.

It is true that the 1533 Act confers this power on ‘the guardian of the spiritualities’, at s.10.  But it does not identify the dean and chapter of Canterbury as guardian.  It makes no explicit reference to them at all, only to ‘the guardian of the spiritualities’.  Thus it confer power on the guardian, but does not confer guardianship on the dean and chapter, or even confirm them as guardian. A reference to ‘the guardian’ is like a reference to ‘the ordinary’ – it is capable of referring to more than 1 authority.

It is argued, contrary to Halsbury, that the Monarch does have an inherent guardianship of the spiritualities of a vacant Archbishopric, as part of the supreme authority acknowledged by canon A7.  Any guardianship exercised by the chapter is therefore subject to the Monarch’s overriding jurisdiction.

Moore’s Introduction reminds us that there is a precedent for the Monarch’s spiritual jurisdiction (3rd ed, 1993, p.22).  The late Thomas Cromwell was appointed Vicegerent in Spirituals, or royal Vicar-General, shortly after the 1533 Act was passed.  It is true that this office has never been revived since Cromwell, but, as Moore points out, it could be revived in the future.  Phillimore’s Ecclesiastical Law (2^nd edition 1895) also discusses the possibility of a royal visitation of the Church (p.1062).

It is therefore argued that, if dissatisfied with the Metropolitical chapter’s guardianship of the spiritualities, the Monarch could appoint the other Archbishop, or a third party, to exercise this function instead.

And even if s.10 of the 1533 Act does confer some right on the dean and chapter of Canterbury per se, that right would be limited to the matters referred to therein.  It would not extend to all guardianship functions.

The Modern Law

The chapter’s claim to guardianship of the spiritualities would be just and reasonable if the Chapter was still the bishop’s council, assisting the bishop to govern the diocese.  Apart from the anachronism of canon C19, and though coadjutors are no longer appointed, modern ecclesiastical law is based on a sensible policy of giving responsibility to those who now assist the bishop (rather than to those who ceased to do so many centuries ago), subject to appropriate interventions by the Archbishop, thereby ensuring a smooth transition to the new bishop.

This means that, even if the chapter’s claim to the spiritualities is admitted, the modern law effectively prevents it from being exercised in practice.

Thus the jurisdiction of other diocesan authorities continues, notwithstanding a vacancy in see.  Their jurisdiction is not ‘inhibited’ by the vacancy.  Canon C22(2) confirms that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’, i.e the archdeacon’s jurisdiction is not merely delegated by the bishop.

The Care of Churches and Ecclesiastical Jurisdiction Measure 2018 makes clear that ecclesiastical courts, whether diocesan or provincial, continue to exercise jurisdiction (s.22).  The work of the disciplinary tribunals likewise continues (Ecclesiastical Jurisdiction Measure 1963, s.12(1) – see also s.99(3) of the 2018 Measure for the Vicar-General’s Court).

A vacancy in see does not affect the function of the Vicar General, or his surrogates (2018 Measure, s.99(4)).  These are the officials responsible for marriage licences.

The Acting Bishop – or Bishops

The diocesan bishop’s own jurisdiction is regulated by the Dioceses Pastoral and Mission Measure 2007.  S.12 imposes a duty on the bishop to ‘keep under review the provision of episcopal ministry and oversight’.  It is argued that this duty includes the provision of arrangements if the bishop has to vacate his office, or becomes incapable of exercising it. 

Pursuant to his s.12 duty, s.13 authorises the bishop to delegate his official functions.  A delegation must be approved by the diocesan synod, or at least by the bishop’s council.  The only function that may not be delegated concerns the procedure for ordaining divorced and remarried persons.  Such procedure will have to await the appointment of a new bishop.

S.13 further provides that a delegation ‘may provide for it to continue to have effect … after … the bishop … ceases to hold that office’ (6).  Such a delegation ‘shall … continue … until … 6 months [after] another person becomes bishop’ (9).  The ability to exercise the Crown’s right of presentation during a vacancy in see, as discussed above, will depend on such delegation.

If appropriate delegation is lacking when a bishopric falls vacant, the Archbishop may delegate instead, under s.14.  If the Archbishopric itself is vacant, the next most senior bishop of the Province exercises this power.

Hill’s Ecclesiastical Law explains that ‘The role of acting bishop … may be exercised during a vacancy by 2 or more persons [bishops], with the functions divided between them territorially or otherwise’ (p.127).

Canon B16(2) suggests that an acting bishop cannot authorise the exclusion of a ‘notorious offender’ from Holy Communion.  Only the Archbishop can do this in a vacancy.  Likewise the power to licence a clergyman for secular occupation is reserved to the Archbishop in a vacancy under canon C28(4)).  However, it may well be argued that the 2007 Measure, which has ‘the force and effect of an Act of Parliament’, prevails over the canons, which lack such authority (Church of England (Assembly) Powers Act 1919, s.4).

The Cathedrals Measure 2021 follows earlier Measures by providing that the bishop is ex officio the Visitor of his cathedral (s.10).  Nevertheless the office of Visitor is separate and distinct from the office of bishop.  The 2021 Measure obliquely makes this point – s.9 is entitled ‘The bishop’, s.10 is entitled ‘The Visitor’.

It is therefore unlikely that the 2007 Measure empowers either the diocesan bishop or the Archbishop to delegate the Visitor’s function during the vacancy of the see.  S.14 of the Cathedrals Measure supports this view, by providing that a requirement to consult the Visitor ‘is to be ignored’ when the bishopric is vacant.

During a vacancy, the bishop’s functions under the Church Representation Rules, including those as president of the diocesan synod, are exercisable by ‘such person in episcopal orders as the Archbishop … may appoint’ (79).  This acting bishop may not delegate his functions to anyone else. 

An acting bishop may attend and speak, but not vote, at a meeting of the Upper House of Convocation, i.e the House of Bishops (canon H3).  If there is more than 1 acting bishop of the diocese, the Archbishop nominates the attendee.

The Archbishop – and the Other Archbishop

The bishop’s duty under s.12 of the 2007 Measure applies to the Archbishop qua diocesan bishop, though not qua Archbishop.  The Interpretation Measure 1925 confirms that ‘The expression ‘bishop’ in relation to the diocese of an Archbishop means the Archbishop’ (s.3).  It therefore follows that, when the Archiepiscopal see is vacant, the next most senior bishop of the Province will have the same power to delegate functions in the Archbishop’s diocese as he has over other vacant dioceses in the Province.

Although the 2 Archbishops are not each other’s superior, Hill’s commentary notes that ‘Where the Archbishopric becomes vacant … many of the functions of the Archbishop are exercised by the [other] Archbishop’.  The Archbishop’s functions under the Church Representation Rules are exercised by the other Archbishop during a vacancy (rule 79(3)). The Archbishop’s disciplinary functions over clergy and licensed lay ministers are likewise exercised by the other Archbishop: Clergy Discipline Measure 2003, s.30(6) and s.31(6), canons E6 and E8.  The Archbishops’ joint power to review an award of compensation for loss of office may be exercised by 1 Archbishop only during a vacancy (Mission and Pastoral Measure 2011, schedule 6, 6(11)).

The Double Meaning in LGBT Ideology

‘in the womb of the Blessed Virgin, of her substance … 2 whole and perfect Natures, that is to say, the Godhead and Manhood, were joined together in 1 Person, never to be divided, whereof is one Christ …’ (Article 2, ‘Of the Word or Son of God, which was made very Man’)

Is the Church of England at last about to surrender to LGBT ideology? The Church Times has reported that ‘the bishops acknowledge that simply to restate the existing ban on same-sex blessings or marriage in church is not an option’. Accordingly ‘formal proposals will be presented to the General Synod in February 2023’, not long now (reported 2nd November 2022). Several bishops are already flying white flags.

The surrender has already been given on the other side of the Severn. Last year the Church in Wales amended its Constitution to authorise the liturgical blessing of same-sex relationships. Now the present author’s beloved parish church – almost a second home since childhood, and a constant place of refreshment, light and peace – is awaiting the imminent arrival of a new incumbent who, according to the official announcement, ‘lives with his partner Jim’, and proudly advertises this arrangement by wearing a wedding ring. (Website accessed today.)

It is no use being nostalgic, of course. Political activism is not an option. Nor does ecclesiastical law help much. The purpose of this blogpost is merely to

(1) examine the seemingly unstoppable phenomenon of LGBT ideology and

(2) ask what, if any, intellectual response to it is now possible.

The Failure of Pan-Anglicanism

The only significant attempt to halt the advance of LGBT ideology in the present century was a policy that may conveniently be labelled ‘Pan-Anglicanism’, which sought a closer integration of the member Churches of the Anglican Communion. The idea was to oppose, or at least balance, Western LGBT ideology with the cultural values of non-Western Churches which were strongly resistant to it.

The Lambeth Conference of 1998 passed a robust resolution ‘rejecting homosexual practice as incompatible with Scripture … the legitimising or blessing of same sex unions [and] ordaining those involved in same gender unions’. However, such resolutions have no authority other than the personal opinion of the bishops who vote for them.

The then Archbishop of Canterbury therefore appointed a high-powered commission, which was tasked with seeking ‘the highest degree of communion that may be possible’ within the Anglican Communion (mandate). One of the members of the commission was Professor Norman Doe, the leading commentator on ecclesiastical law.

The commission proposed a pan-Anglican Covenant, to be ratified by the member Churches, in order to ‘make explicit and forceful the loyalty and bonds of affection’ (118) (i.e an application of tough love!). The Covenant was to be the means of strengthening the Anglican inheritance on the dubious basis that the member Churches enjoyed only a limited autonomy, rather than absolute independence of each other.

Professor Doe was rewarded for his services with a Lambeth doctorate in civil law (DCL). However, the Anglican Communion Covenant itself got nowhere. The LGBT lobby, of course, saw the threat that it represented to them, and resisted it articulately and successfully. There was also a general reluctance among member Churches to compromise their independence.

Pan-Anglican opposition to LGBT ideology forced the postponement of the Lambeth Conference that was due to take place in 2018. The coronavirus situation necessitated a further postponement. The Conference finally met this year, 2022. However, Professor Doe, the erstwhile Apostle of Pan-Anglicanism, failed to persuade even his fellow legal advisers to agree on a definition of marriage. The latest edition of Principles of Canon Law Common to the Churches of the Anglican Communion (2022) lamely admits that ‘it has not been possible to discern a common principle of canon law on who may marry whom’ (p.97)

The last vestige of Pan-Anglican policy now seems to consist of trying to persuade non-Western Churches that, in English law, a civil partnership agreement is something completely different from a marriage contract. Just 3 weeks ago, the present Successor of St. Augustine authorised a response to criticisms of his new Cathedral Dean, which referred to ‘international confusion about the nature of … civil partnerships … civil partnerships are not recognised as marriage’ (Anglican Communion News Service, 21st October 2022). Wedding rings notwithstanding.

This is disingenuous, to say the least. There is no substantive difference between civil partnership and marriage. The only difference concerns the terminology and formalities involved. It is argued that the intention of Parliament in passing the Civil Partnership Act was to create a same-sex marriage contract, but not to call it marriage, because of a political calculation that public opinion was not yet ready (this was nearly 20 years ago now) to accept same-sex marriage in terms.

Jacqueline Humphries provides a most helpful analysis of this issue in ‘The Civil Partnership Act, Same-Sex Marriage and the Church of England’ (Ecclesiastical Law Journal, January 2006). As she says ‘It is clear that, culturally, civil partnerships are being seen as gay marriage’. Indeed they are. Public perception accords with parliamentary intention. Pace the Archbishop, there is no ‘international confusion’ on this point.

The Trojan Horse of Traditionalism

Anglican tradition should not be difficult to identify. It is found in the 3 historic formularies of the Church of England – the Book of Common Prayer, the Ordinal and the 39 Articles of Religion. These date from the 16th and 17th centuries, the early modern period.

Anglo-Catholic ritualism, by contrast, originated centuries later, in Victorian times. It is romantic and aesthetic, driven by devotional practices and devotional materials that are pleasing to the heart, with elaborate ceremonial, ornate decoration and rich colours to please the eye, fine music to delight the ear, fragrant incense to pleasure the nose.

There is nothing inherently wrong with any of these things, of course. The heart and the senses do have their rightful place in religion and in worship. Anglo-Catholic ritualism has probably done much to improve the quality of Anglican worship.

However, there is an ever-present danger of exaggeration. The heart and the senses must not become divorced from authority and reason. Religion that ignores authority and reason, and that exists only in the romantic imagination and the senses is, frankly, bad religion (if it can be called religion at all).

Ritualism has never had an easy relationship with authority. Its refusal to comply with the 1662 regime of public worship has, of course, provided a rich source of material for the study of ecclesiastical law.

Another, hidden, source of tension with authority was the undeniable presence within ritualism of a homosexual culture (or sub-culture). Resistance to the liturgical regime of the historic formularies was accompanied by a latent resistance to the moral regime that they imposed.

It is ironic, therefore, that Anglo-Catholic ritualism came to be seen as ‘traditionalist’. There are 2 reasons for this

(1) its (unsuccessful, and now largely abandoned) resistance to female ordination and

(2) its (apparently successful) resistance to liberal Biblical exegesis. Academic theologians might deny the Virgin Birth, but pilgrimages to Walsingham kept increasing.

A commentator once lightly characterised ritualism as ‘hairsplitting and hypocrisy’. However, in the present century the hypocrisy has been absolved and redeemed by ideology. The gay culture in ritualism is no longer half-hidden behind clouds of incense. Its latent resistance to traditional morality has become overt. It now asserts a contrary, LGBT morality.

Ritualism has therefore been something of a Trojan Horse to tradition. Anglican tradition repudiates Catholic teaching on the eucharist, but affirms Catholic teaching on marriage. (The Prayer Book marriage service is the most Catholic part of the formularies, being taken almost verbatim from the mediaeval Sarum rite.) Anglo-Catholic ritualism affects devout adherence to Catholic teaching on the Eucharist, while repudiating Catholic teaching on marriage. It thereby repudiates both Anglican tradition and Catholic teaching. Under the influence of LGBT ideology, the divorce of romantic ritualism from authority (and from reason) has become absolute.

Traditionalists who oppose LGBT ideology – perhaps of a certain age now – face the uncomfortable reality that the momentum for the ideology has come largely from their own side. (Certainly more than from heterosexual liberal exegetes!) There have been individual secessions to the Roman Catholic Church, and to breakaway Anglican Churches. Otherwise the only course for traditionalists is to follow the Archbishop of Canterbury in pretending that civil partnership is substantively different from same-sex ‘marriage’.

Scripture, Tradition and Reason

Biblical literalism seems to offer the only intellectual resistance to LGBT ideology at present. It may have enthusiastic and articulate adherents. But it is a blunt instrument, and also a rather weak one. It is, frankly, simple-minded. When read in isolation, the Bible is notoriously capable of meaning almost anything. One passage of Scripture can always be opposed by another. It can be plausibly explained away. A harsh-sounding Scriptural reference can be attractively countered by a pleasant-sounding abstraction.

Tradition can offer no resistance, and not only because of the treachery of its false friend, ritualism. Its thought and language come from a different age, of course. The sublime English prose of the Prayer Book is still widely appreciated, but modern Anglicanism is very ignorant of its own tradition. There seems to be almost no systematic study of the historic formularies (perhaps even less than of ecclesiastical law). The historic formularies are treated as just that – of historical interest only.

As mentioned, Anglican tradition is, in part, inherited from the Catholic Church, with which the Church of England shares the Sacrament of Baptism and the historic episcopate. Can ecumenical dialogue do anything to save the situation?

The record here is not encouraging. In the 20th century, several explicit papal warnings against female ordination were ignored. In 2009 the then Pope established Anglican Ordinariates (in this country and overseas) as a bridge across the Tiber, but to little effect. Ecumenists (and their superiors) now seem positively to avoid controversial subjects. The late Father Edward Yarnold SJ, a shrewd observer of Anglican-Roman Catholic interactions, noted that they suffer from ‘the danger inherent in bilateral dialogues, that the ecumenical left hand may not know, or may ignore, what the right is doing’ (Anglican Orders (1996), p.70).

So reason alone is left. It has its own limitations, of course. But it can penetrate further than Biblical literalism and traditionalism. The latter can only address the effects or symptoms of the LGBT ideology (e.g same-sex marriage or transgenderism). Reason can address the ideology itself. It can explain

(1) what the ideology is and

(2) why it is not compatible with the Christian religion.

What is LGBT Ideology?

It is important to begin an analysis of LGBT ideology by admitting that IT IS PARTLY TRUE. (It is another weakness of Biblical literalism that it can appear to deny that there is any truth in the ideology.)

But if LGBT ideology is partly true, reason dictates that it is partly false.

LGBT ideology consists essentially of the assertion of rights – LGBT rights, gay rights. What does this mean, exactly? It is argued that the assertion of ‘LGBT rights’ or ‘gay rights’ is ambiguous. It carries a double meaning, as follows:

(1) it could mean simply that persons of particular sexual orientation, or gender orientation, have exactly the same rights as all other persons have. Equal rights with everybody else. Equal rights of reputation, privacy, freedom of association and freedom of expression.

If that was the only meaning of ‘LGBT / gay rights’ there would be no difficulty. It is, of course, true.

The problem is that this is not the only meaning of LGBT / gay rights. There is a second, quite different meaning

(2) that a sexual orientation or gender orientation is itself a source of rights, that it is productive of rights. That a sexual orientation or gender orientation, of itself, confers rights on the person who experiences it.

The rights purportedly conferred by sexual or gender orientation include the right to ‘marry’ a person of the same sex, the right to engage in genital activity with such person, and the right to choose or change one’s gender.

This second meaning of LGBT / gay rights (2) is certainly not true. The false rights asserted by (2) must therefore be distinguished from the genuine rights asserted by (1).

Thus LGBT ideology does indeed contain an element of truth (1). But, unfortunately, behind the element of truth, there is a lie (2). It is this lie that separates the ideology from the Christian religion.

It is possible to identify a certain structure to LGBT ideology. The element of truth in it (1) is used to protect and conceal the falsehood (2). The lie at the heart of the ideology is concealed by a protective veneer of truth. This means, of course, that it is difficult to oppose (2) without appearing to oppose (1).

It is also possible to see a resemblance between LGBT ideology and romantic ritualism. The LGBT assertion of sexual or gender orientation as a source of rights is in harmony with the tendency of ritualism to assert the sovereignty of the heart and the senses.

Why is LGBT ideology not compatible with the Christian religion?

Biblical and traditionalist approaches to the phenomenon of LGBT, by addressing only its symptoms or effects, are largely concerned to explain only what is wrong with it. This inevitably fixes them with an unattractively negative, judgmental character.

What is right or wrong is ultimately determined by what is true or false. By addressing the LGBT ideology itself, not just its effects, reason can explain what is true and false, not merely what is right or wrong.

Morality is undeniably concerned with (right and wrong) behaviour, but it is much more than that. Christian morality is the doctrine of Man himself. Just as Christianity has a particular belief about God, so it has a particular belief about Man.

Our analysis has indicated 2 objectionable characteristics of LGBT ideology

(1) it contains a lie and

(2) it misuses truth by using it to conceal or protect the lie.

Any lie must be incompatible with true religion. Christian witness is like witness in court – to the truth, the whole truth and nothing but the truth. It is not about half-truth, nor about negotiating some kind of bargain between truth and falsehood.

Does the lie in LGBT ideology matter much? It engages the God-given constitution of Man himself. It denies the constitution of the human person as male and female. It denies the constitution of marriage as a bodily union or ‘one flesh’ (see blogpost ‘The Constitution of Marriage: Consensus-Copula’). It denies the God-given nature of both gender and marriage. If gender and marriage are determined only by individual orientation, they cease to be God-given and become man-made instead.

By engaging the God-given constitution of Man, LGBT ideology also engages Man’s relationship with God. God not only created Man in His own image, He Himself became Man.

This is powerfully and beautifully expressed by Article 2, quoted above. Jesus was, and is, both God and Man. To follow Jesus is therefore to accept the truth about both, not just about the one or the other. God and Man cannot be divorced from each other. They stand or fall together. It is no good asserting the truth of the Virgin Birth while denying the truth about marriage.

It follows from this that an individual who patterns his lifestyle on LGBT ideology, or who appears to do so, is not an appropriate person to teach the Christian religion, or lead a Christian community. And a vicar who does not tell the truth about Man cannot tell the truth about God.

Does a Bishop need to be Enthroned? Spiritualities and Temporalities

‘As there are 4 things required to complete a parson, presentation, admission, institution and induction: so there are 4 things analogically requisite in a making of a bishop: election … confirmation … consecration … and installation or [enthronement]’ (Bishop of St. David’s case (1699) 91 English Reports 126, p.128).

The author of this blog has long been attracted by the neatness and symmetry of this dictum.  However, when writing the preceding blogpost (‘An Apostolic Succession’), a doubt formed.  Is the dictum correct?  Consecration is certainly requisite for a bishop, as are election and confirmation, unless the bishop is appointed by royal letters patent.  But what is the purpose of installation / enthronement?

(The older ecclesiastical law held that only an Archbishop is enthroned.  Inferior bishops are merely installed.  However, the canons of the Church of England now apply the word ‘enthronement’ to the installation of a bishop as well as an Archbishop, cf. canon C15.2.)

There is an obvious analogy between the offices of benefice incumbent and diocesan bishop.  The incumbent has the cure of souls of the parish, the bishop of the entire diocese.  The bishop is in effect the incumbent of the diocese.  The cathedral is the parish church of the diocese.  However, the bishop does not have the freehold of the cathedral, as the incumbent has of the parish church.

As well as incumbent and bishop, the dictum implies an analogy between the benefice patron, who presents the incumbent, and the Monarch, who nominates the bishop.

However, there is 1 important difference between the benefice patron and the Monarch.  The patron has no title to, or control of, the proprietary rights of the benefice, the ‘temporalities’ as they are called.

Both appointment processes, for incumbents and bishops, make a distinction between

(1) the spiritual functions or ‘spiritualities’ of the office and

(2) the temporalities.

The confirmation of a new bishop’s election ‘commits to the bishop elected the care, government and administration of the spiritualities’ (Phillimore Ecclesiastical Law, 2^nd ed 1895, p.40).  Likewise, ‘the clerk [i.e the new incumbent] by institution … has the cure of souls committed to him’ (p.357). Thus there is a close analogy between confirmation and institution. They have the same effect, i.e conferring the spiritual function of the office.

Temporalities are a very different matter. An incumbent is a corporation sole at common law, and is also the freeholder of the benefice property. This means that benefice property has no legal owner during a vacancy, because there can be no corporation if there is no incumbent.

However, benefice property remains in the possession and control of the Church during a vacancy. The bishop appoints sequestrators to manage the property. The sequestrators are the bishop’s officers. The benefice patron has no involvement with the sequestration.

Thus institution confers title ad officium on the new incumbent, induction ad beneficium (cf Phillimore p.354). Induction ‘vest[s] the incumbent with full possession of all the profits belonging to the Church’ (p.359) … it instates the incumbent in full possession of the temporalities, as these are opposed to [i.e different from] the spiritual office or function [which is conferred by institution]’ (p.361).

The bishop, like the incumbent, is a corporation sole. However, unlike benefice property, the temporalities of a bishopric are not owner-less during a vacancy. Nor are they in the possession and control of the Church. On the contrary, they revert to the Crown.

At common law, all bishoprics, including all proprietary rights attached to them, are donative of the Crown, i.e held of the Crown. This means that a new bishop receives his temporalities from the Crown, not the Church.

Thus the installation / enthronement of a bishop is not analogous to the induction of an incumbent. If the bishop-elect receives his spiritualities at the confirmation of his election, and his temporalities from the Crown, it is hard to see how enthronement adds anything to his title or possession of office. (As mentioned earlier, he has no property in the cathedral, where the enthronement takes place.) Enthronement may assert or demonstrate the new bishop’s title and possession, but it does not confer this. Therefore, contrary to the dictum in the St. David’s case, enthronement is not ‘requisite in a making of a bishop’.

S.5 of the Appointment of Bishops Act 1533 provides that

‘persons being hereafter chosen elected nomynate presented invested and consecrate to the dignitie or office of any Archebishop or Byshope … and suing theire temporalties out of the Kynges handes … and makyng a corporall othe [oath] to the Kynges Hyghnes … shall and may from hensforth be trononysed [enthroned] or installed as the case shall require, and shall have and take their only restitucion out of the Kynges handes of all the possessions and profetts … belongyng to the seid Archebishoperiche or Bishoppriche …’.

Halsbury’s Laws (5th edition, 2011) paraphrases s.5 thus

‘On installation [enthronement] the bishop is entitled to restitution out of the Queen’s hands of all the possessions and profits … belonging to the bishopric …’ (vol 34).

This paraphrase may suggest that enthronement is a precondition of the temporalities, because in s.5 enthronement is mentioned before restitution of the temporalities. It is argued that this is a mistaken reading of s.5. The only precondition of receiving the temporalities is the oath to the Monarch. Once the oath has been taken, the bishop is entitled both to enthronement and temporalities. Even if, in practice, enthronement occurs before temporalities are reinstated, enthronement is still not a legal precondition of temporalities.

Phillimore explains that ‘When a new bishop is made, he may not de jure before his consecration claim the temporalities of his bishopric, although ex gratia the King by his letters patent may grant them unto him after his confirmation, and before his consecration …’ (p.65). This indicates that the bishop’s claim to the temporalities is founded on his confirmation and consecration, not on his enthronement.

The dictum in the St. David’s case may be an accurate statement of the mediaeval canon law. Canon law is unlikely to have recognised the Crown’s title to episcopal temporalities. So perhaps enthronement was indeed necessary to complete a mediaeval bishop’s title. But, as we have pointed out before, the Church of England is governed by English law, not by canon law.

An Apostolic Succession

‘By Divine Institution, Bishops succeed the Apostles through the Holy Spirit, Who has been given to them’ (Code of Canon Law 1983, canon 375(1)).

Some good local news in these gloomy times, concerning a priest of the Roman obedience.  Nearly 40 years of distinguished and selfless dedication to duty (including the unenviable task of instructing a certain blogger in the Catholic faith, and hearing his first confession) have now been recognised by elevation to the episcopate.

The first intimation to the priest was a terse telephone message summoning him to the nunciature immediately (a journey of about 150 miles), regardless of engagements.  There he was informed that the Pope wished to appoint him Bishop of an English diocese.  Mindful of every priest’s ‘special obligation to show reverence and obedience to the Supreme Pontiff’ (canon 373), he accepted.

This happy event provides a useful case study of the Roman Catholic law, and the equivalent English law, concerning the appointment of bishops.

Such appointment requires 2 processes

(1) the processus informativus – i.e the search for a suitable candidate, and

(2) the process of conferring title on the chosen candidate.

Processus Informativus

This seeks to answer the 2 questions What? and Whom?, which arise when an ecclesiastical office is to be filled.

The meeting at the nunciature, and the priest’s acceptance of the appointment marked the conclusion of this process. If the priest had declined the appointment, the process would have had to continue.

The process has only recently been codified, perhaps since the 1970s. It was not regulated by the original 1917 Code of Canon Law. The equivalent process of the Church of England likewise dates from the 1970s, and is regulated only by the General Synod, not by Parliament. It therefore lacks the force of law, though it may have the force of a constitutional convention (i.e that the Church nominates bishops to the Crown).

There are 3 arbiters of the Roman Catholic process, who officiate in an ascending hierarchy of authority

(1) The Nuncio or legate, the papal representative to the local Church, has the primary responsibility.  Canon 377(3) requires the nuncio to compile a ternus, or list of eligible candidates, after canvassing the local bishops and senior clergy of the vacant diocese.  He may also consult other clergy, and ‘lay persons of outstanding wisdom’.  However, as this case indicates, there are no job applications or interviews.

The ternus is sent to Rome, along with the suggestions canvassed by the Nuncio, and his own recommendation.  As well as canon 377(3), the Nuncio’s function is regulated by special norms (canon 364(4)).

(2) The Congregation or ‘Dicastery’ for Bishops, a department of the Roman curia, issues the aforesaid norms (cf canon 360).  It reviews the Nuncio’s findings, and may overrule him, or refer the case back to him to make further enquiries.  Like the rest of the curia, the Congregation is regulated by the Apostolic Constitution Praedicate Evangelium (2022), see article 205.

The Congregation does not depend on the Nuncio alone.  Local bishops are collectively required to submit a list of eligible priests to the Congregation at least every 3 years (whether or not there is a vacancy).  Individual bishops may also submit names (canon 377(2)).  So the Congregation can compare the Nuncio’s report with the communications received earlier from the local bishops.

The late Cardinal Cormac Murphy O’Connor, who was a member of the Congregation, gave an account of how it works in practice in his memoirs An English Spring (2015) at pp204-205.

(3) The Pope is, of course, the ultimate arbiter of the process.  The Congregation for Bishops reports to him.  The Cardinal related that ‘9 times out of 10, he accepted the name we had recommended’ (p.205), but another outcome is always possible. 

The Pope’s decision is communicated to the Congregation, which in turn communicates it to the Nuncio.  Hence the priest’s summons to the nunciature.

Conferring Title

There is a dictum of English law that ‘there are 4 things … requisite in a making of a bishop:

[1] election

[2] confirmation

[3] consecration and

[4] installation or [enthronement]’

(Bishop of St. David’s case (1699) 91 English Reports 126, at p.128). This probably reflects the mediaeval canon law.

However, in the present (Roman Catholic) case, title requires only 3 things

(1) the Apostolic Letter, i.e the Pope’s letter of appointment

(2) consecration and

(3) canonical possession.

(1) The Apostolic Letter

Canon 377(1) provides that the Pope

[1] freely appoints (nominat) bishops or

[2] confirms those lawfully elected (electos)’.

This makes the point that the Pope does not appoint all the bishops of the Latin Church.  There are still some elective bishoprics, although there are none in this country.  Church of England bishoprics are still elective, of course, albeit the election has always been the merest formality.

Free appointment (or nomination) by the Pope [1] is effected by the Apostolic Letter. There can be no confirmation of such appointment, because confirmation is the act of a superior and the Pope has none.  (When the cardinals elect a new Pope, the successful candidate confirms his own election by accepting it: canon 332(1).)

In England, the Crown also has power to appoint a diocesan bishop directly, by letters patent, but only if the cathedral canons fail to elect the Crown’s candidate, which never happens in practice (Appointment of Bishops Act 1533, s.3).  All Irish bishops were appointed by letters patent, not elected, until the Church of Ireland was disestablished in 1869 (R v Archbishop of Canterbury (1902) 2 King’s Bench 503, at p.547). Suffragan (assistant) bishops are appointed by letters patent (Suffragan Bishops Act 1534).

Even the Apostolic Letter cannot turn the priest into a bishop.  It cannot confer the Holy Spirit or the Apostolic Succession. The priest must be ordained, or ‘consecrated’ bishop.  (Again, in a papal election, the senior cardinal must consecrate the successful candidate, if the latter is not already a bishop (canon 355(1)).

The Apostolic Letter therefore constitutes the bishop-elect’s title to consecration and possession.

(2) Consecration

Canon 1013 provides that ‘No bishop is permitted to consecrate anyone as bishop, unless … a pontifical mandate has been issued’.  (The late Archbishop Lefebvre incurred excommunication for consecrating bishops without such mandate, cf canon 1382).  The Apostolic Letter constitutes the required mandate.

Consecration requires a principal consecrating bishop, and, absent a dispensation, at least 2 other co-consecrating bishops (canon 1014).  The principal consecrator need not be an Archbishop.

Armed with the Apostolic Letter, the bishop-elect can apparently choose his own consecrators, just so long as they are bishops in the Roman Catholic sense, and in full communion with Rome.  In this case, the bishop-elect has tactfully chosen his predecessor, the retiring bishop, as his principal consecrator, with the present and former Archbishops of his old Province as co-consecrators – but not the Archbishop of his new Province. Nor, according to the 1983 Code, does the new bishop make a declaration of obedience to the Archbishop.

In the Church of England, by contrast, the Archbishop has both the right and the duty to consecrate a bishop-elect (1533 Act, s.4), though he can delegate this function to another bishop. An English bishop-elect also swears obedience to the Archbishop (canon C14(1) of the Canons of the Church of England).

(3) Canonical Possession

The Archbishop’s lack of function under the 1983 Code is in notable contrast to his position in English law.  In English law, the process of appointing a new bishop is largely managed by the Archbishop, acting as agent of the Crown.  He is responsible for the new bishop’s confirmation, consecration and – in the Province of Canterbury at least – enthronement. A new Roman Catholic bishop is evidently left to manage his own appointment, once he has received the Apostolic Letter.

This self-management requires observance of the time limits for acquiring title.  The processus informativus can take years.  However, once the Apostolic Letter has been received, the priest must normally get consecrated within 3 months, and take canonical possession of his diocese within 4.  An appointee who is already in bishop’s orders has only 2 months. (Canons 379 and 382(2)).

Consecration must take place before canonical possession (canons 379-380). This is common sense, because consecration confers the episcopal function. And the bishop-elect cannot exercise the episcopal function before he has taken canonical possession (canon 382(1)). 

Before taking office the bishop-elect is required to take the prescribed oath of fidelity to the Holy See, and to make the Profession of Faith (canon 380).  The oath is comparable to the oath of allegiance to the Monarch sworn by an English bishop-elect (1533 Act, s.4).

Canonical possession is effected when the bishop-elect shows (ostenderit – shows, not gives) the Apostolic Letter to the college of consultors (the senior clergy of the diocese), in the presence of the diocesan chancellor, who keeps a record of the event (canon 382(3)).

This must be done physically within the diocese, but not necessarily in the cathedral or in any other church.  The bishop-elect need not even be present in person.  He can appoint a proxy to act for him.  However, ‘it is strongly recommended that … canonical possession be performed with a liturgical act in the cathedral …’ (canon 382(4)).

There is no mention of installation or enthronement in the 1983 Code.  The position is different in the Eastern Churches.  There the diocesan (or ‘eparchal’) bishop ‘takes canonical possession of the eparchy by the enthronement itself’ (1990 canons, 189(1)).

Sede Vacante: How Ecclesiastical Offices are made Vacant

An ecclesiastical office can become vacant for the following reasons

(1) death

(2) resignation

(3) age

(4) if the office is for a fixed or temporary term, when that term comes to an end

(5) appointment to another ecclesiastical office

(6) removal

(1) is determined by natural law, of course. (2) to (6) are regulated by ecclesiastical law. (2) and (5) are voluntary, (3), (4) and (6) are compulsory.

Departure from office should be distinguished from redundancy, which occurs when the office itself ceases to exist, because it has been abolished or ‘dissolved’. No vacancy can therefore arise.

Different rules apply to different categories of officeholder

(1) Archbishops and bishops

(2) other clergy

(3) lay ministers

(4) ecclesiastical judges and legal officers

(5) parochial officers, i.e churchwardens and lay members of the parochial church council (‘the PCC’).

Among clergy (2), ecclesiastical law formerly made a sharp distinction between

(1) holding an office per se and

(2) a mere licence to officiate

A clergyman either held an office, or he held a licence. He resigned, or was removed from, office. Or he resigned his licence, or the licence was revoked.

The distinction has not disappeared. However, following the Clergy Discipline Measure 2003 and the Terms of Service Measure 2009, clerical office and licence are subject to a similar regime.

All lay ministers (3) are licensees. Categories (4) and (5) are officeholders per se.

Resignation

Most ecclesiastical officeholders resign to their bishop, because he is their constitutional (‘canonical’) superior. Phillimore relates that the validity of the mediaeval Pope Celestine V’s resignation was doubted, because the Pope has no earthly superior (Ecclesiastical Law, 2nd edition 1895, p.385). Modern Roman Catholic law has now resolved this doubt (Code of Canon Law 1983, canon 332(2)).

The Terms of Service Measure 2009 simplified the resignation procedure. A deed is not required. Nor does the resignation have to be formally accepted. Diocesan officeholders on common tenure resign by giving at least 3 months’ notice, in writing, to the bishop (s.3). So the resignation becomes effective when the notice period expires. The bishop may agree to waive notice. Notice of resignation can be in electronic form (Terms of Service Regulations 2009, 17(1)).

However, the older formalities still apply to Archbishops and bishops, notwithstanding their common tenure with less senior officeholders. Bishops, including suffragans, resign to the Archbishop. This requires ‘a written instrument in the prescribed form’, though not a deed. The resignation must be accepted by the Archbishop. The Archbishop signifies acceptance by endorsing the resignation instrument with a declaration of vacancy of the bishopric from a specified date (Bishops (Retirement) Measure 1986, s.1).

The Archbishop resigns to the Monarch. If the Monarch accepts the resignation, the vacancy is declared by Order-in-Council.

The diocesan chancellor resigns to the bishop, as does the registrar (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.3(2) and s.32). However, the deputy chancellor resigns to the chancellor, not to the bishop (s.4(8)).

The Dean of the Arches and Auditor resigns to both Archbishops (2018 Measure, s.11). (He is the senior judge of both Provinces, of course.) The registrar of disciplinary tribunals resigns to the Archbishop, with a notice period of at least 12 months, though the Archbishop may allow an earlier date (2003 Measure, s.5(4)).

Churchwardens, being officers of the ordinary, resign to the bishop ‘by post’ (Churchwardens Measure 2001, s.7), so presumably an email will not be effective. Resignation takes effect after 2 months, or on an earlier date determined by the bishop.

However, PCC members do not resign to the bishop (he is not their superior), but to the secretary of the PCC (Church Representation Rules, 67).

The same person may hold more than 1 ecclesiastical office. The general rule is that departure from 1 office means departure from them all. However, the bishop may permit the incumbent of a plurality to resign 1 benefice but not the other (or others) (Mission and Pastoral Measure 2011, s.32(4)).

Age

The Ecclesiastical Offices (Age Limit) Measure 1975 provides that a clerical officeholder ‘shall vacate … office on the day on which he attains the age of 70 years’ (s.1(3)). Thus the retiring officeholder does not resign, which is a matter of words, but vacates – i.e physically withdraws from the functions and facilities of the office.

At least 6 months before a bishop turns 70, the Archbishop must proactively declare the bishopric vacant with effect from the bishop’s birthday (Bishops (Retirement) Measure 1986, s.2).

However, the Archbishop himself is trusted to retire by the due date, with no proactive action by the Monarch. Thus the Archbishop submits his resignation to the Monarch at least 6 months in advance of his birthday.

Diocesan chancellors must normally retire at 70 (2018 Measure, s.3), though they do not finally depart until they have concluded all the cases then before them (s.3(4)). The Dean of the Arches may stay until 75 (s.11). The House of Bishops is empowered to impose a lower retirement age on registrars, i.e lower than 70 (s.32).

Compulsory retirement at 70 is not an absolute rule. The appropriate superior may authorise continuance in office for a fixed or limited period: Terms of Service Regulations 29A for offices held on common tenure, the 1975 Measure for other offices. (The former Dean of Canterbury recently retired at the age of 75.) The continuance of an incumbent or priest-in-charge will require the consent of the PCC. Subject to this, they can carry on even beyond 75.

If the bishop is to continue, this will be recorded in the declaration of vacancy, i.e the declaration will record the later date, rather than the bishop’s 70th (1986 Measure, s.2).

Likewise the bishop may extend the chancellor’s tenure by up to a year at a time, subject to an absolute retirement age of 75.

The age of retirement does not apply to the Royal Peculiars, the Dean of Christ Church, Oxford, or to a residentiary canonry that is annexed to a professorship.

Fixed Term or Temporary Office

Before common tenure was introduced, many clergy held office for a fixed term of years. Fixed term was the rule for team vicars, and was also possible for team rectors, and even cathedral canons (Pastoral Measure 1983, s.20, Cathedrals Measure 1999, s.9(1)(b)). A lay member of a team ministry who is not on common tenure may still be subject to a fixed term (canons E6(1A) and E8(2A)).

Under common tenure, however, an office is usually time-limited only if it is temporary in nature, e.g to supply for the absence of a permanent officeholder, a training or probationary post, or a post subject to sponsorship funding (regulation 29). A temporary or fixed term office must be clearly identified as such to the officeholder (cf regulation 3(5)(j)).

(Roman Catholic law provides that ‘Loss of office by reason of expiry of a predetermined time … has effect only from the moment that this is communicated in writing by the competent authority’ (1983 Code, canon 186). In other words, even a fixed term appointment must still be terminated on notice. There seems to be no equivalent provision in ecclesiastical law, but perhaps one is not necessary.)

A licensed office which is linked to the holder’s employment may be terminated if the employment contract is terminated (2009 Measure, s.3(5)).

The Cathedrals Measure 2021 suggests that non-executive lay canons (as distinct from residentiary clerical canons) may be subject to fixed-term tenure (s.5(1)), though this will be determined by the constitution of the particular cathedral. (Lay canons are not subject to common tenure.)

A deputy chancellor’s tenure is tied to that of the chancellor. If the chancellor leaves office, the deputy continues to officiate, but only for 3 months (2018 Measure, s.4). The new chancellor can then decide whether or not to reappoint him.

The Deputy Dean of the Arches is temporary, but an appointment may be renewed (s.12).

Parochial offices are held for fixed terms, of course – 1 year for churchwardens, usually 3 years for PCC members, though the annual parochial meeting can decide to limit it to 1 year (Church Representation Rules, M16(2)).

Parochial offices are not subject to an age of retirement, but time limits can be imposed to their tenure. A churchwarden cannot serve more than 6 successive terms in the same parish, but can be re-elected after a year’s furlough (2001 Measure, s.3). The annual parochial meeting can impose a maximum continuous period in office for PCC members (M16(2)).

If a churchwarden retires or is not re-elected his term of office ends either

(1) when his successor is admitted to the office or

(2) 31st July

whichever is earlier (2001 Measure, s.6(2)).

PCC members are not admitted to office, so a PCC member’s term (if not re-elected) will end at the conclusion of the annual meeting (Church Representation Rules, M16(1)).

As mentioned, there is a difference between the vacation of an office and its abolition or dissolution. The Terms of Service Measure provides that an officeholder may be made redundant ‘where the office ceases to exist in consequence of a [statutory] scheme or order’ (s.3(3)).

However, the Mission and Pastoral Measure 2011, which now regulates pastoral reorganisation within the diocese, apparently permits the removal of an incumbent even when the benefice does not cease to exist.

Thus s.39(2) provides that ‘If … the benefice concerned is not vacant [but] the existing incumbent is not to hold the benefice by virtue of a designation [of a new incumbent] by the scheme … the benefice shall be deemed to be vacated …’, i.e the undesignated incumbent will have to go.

However, s.39(3) then goes on to provide that ‘the effect of vacating a benefice … is not to come into operation until … at least 6 months after … the scheme is made …’.

This wording suggests that a statutory scheme may reduce an officeholder’s tenure from an indefinite period to a temporary one, notwithstanding the protection conferred by the 2009 Measure.

Appointment to another Office – the Rule against Pluralities

Statutory authority is generally required for a person to hold 2 or more ecclesiastical offices in plurality.

S.104 of the 2011 Measure provides that, absent statutory authority, an officeholder

‘on … admission to the [new office] be deemed to vacate the office or offices previously held by him’.

(Pluralism, the unscrupulous accumulation of offices merely to acquire the property and income therefrom, was a grave abuse in the Church for many centuries.)

Halsbury’s Laws offers some clarification of the word ‘admission’ in this context

‘Strictly speaking, admission is merely the bishop’s declaration that he approves the presentee as a fit person … [but] The word is more commonly used to signify generally the actual committal of the cure to the clerk …’ (vol 34, para 628, n1).

In other words, the previous office is not vacated until legal title to the new office is conferred, whether by institution or the grant of a licence. The office is not vacated when the candidate is merely nominated to the new office.

S.104 suggests that an officeholder who is promoted is not required to resign his current office, since vacation is automatic.

The Patronage (Benefices) Measure 1986 permits incumbents to exchange their benefices. Halsbury’s Laws suggests that ‘exchange only takes effect if and when both incumbents are instituted and inducted to the [new] benefices’ (para 725). If this does not happen, the exchange agreement is void and both incumbents continue in their original benefices. Either way, no vacancy is created.

The rule of automatic vacation does not apply to ecclesiastical judges, but the 2018 Measure empowers the House of Bishops to limit the number of judicial offices that may be held by 1 person at the same time (s.5(1)).

Removal

Different removal procedures apply to different categories of officeholder. It must be remembered that

(1) all clerical officeholders are subject to the Clergy Discipline Measure 2003, but

(2) not all clerical officeholders, as yet, have to be on common tenure

(3) no lay ministers are subject to the 2003 Measure and

(4) some lay ministers are on common tenure, while others are not.

Clergy All clerical officeholders, whether on common tenure or not, are liable to removal for

(1) misconduct or

(2) incapability

Misconduct

If the disciplinary tribunal makes a finding of misconduct under the 2003 Measure, it may, subject to appeal, remove the convicted clergyman from office (or revoke his licence) (s.19(1). The bishop does not have this power. Likewise, a convicted bishop or Archbishop may be removed by the Vicar General’s Court, though this must be confirmed by Order-in-Council (s.24(2)).

The bishop may remove a clergyman who is convicted of a serious criminal offence, or who is the subject of an unfavourable finding by a divorce court, or named on a ‘barred list’ (s.30). The disciplinary tribunal is not involved in this – it is based on the findings of secular authorities. The bishop’s penalty is subject to review (not appeal) by the Archbishop.

Removal in these circumstances is unusually formal. The about-to-be-removed officeholder ‘shall be entitled to be present when the penalty is imposed’ (though this may be difficult to arrange if he is in prison). The bishop ‘shall be attended by the registrar’. This formality makes the point that the bishop is acting in a quasi-judicial capacity.

The removal of a bishop or Archbishop following the finding of a secular authority requires consultation with the 2 most senior bishops of the Province (s.31). However, a confirmatory Order-in-Council is not required.

It remains theoretically possible for a bishop or other clerical officeholder to be removed (or ‘deprived’) by the Court of Ecclesiastical Causes Reserved for an offence against doctrine, ritual or ceremonial, under the Ecclesiastical Jurisdiction Measure 1962, s.45 and s.49, though none has been in nearly 60 years.

Incapability

If the capability procedure to which common tenure is subject culminates in a final determination that the officeholder be removed, then the bishop or Archbishop must – not may – give 3 months’ notice of removal, stating the reason (2009 Measure, s.3(6)).

If an incapable bishop is removed, the Archbishop must also declare the bishopric vacant (s.3(8)).

If the Archbishop himself is found incapable, the other Archbishop gives notice, not the Monarch. However, the other Archbishop must then petition for an Order-in-Council to declare the Archbishopric vacant (s.3(7)).

Any incumbents and cathedral dignitaries who are not on common tenure remain subject to the capability procedures provided by the Incumbents (Vacation of Benefices) Measure 1977 and the Church Dignitaries (Retirement) Measure 1949.

Lay Ministers If a lay minister is on common tenure, he can only be removed from office for the same reasons as clergy, i.e misconduct and incapability.

The capability procedure is the same as for clergy. However, a complaint of misconduct will be governed by the canons of the Church of England, not the 2003 Measure (or the 1963 Measure). The complaint is tried by the bishop, who also imposes the penalty, subject to an appeal to the Archbishop. The disciplinary tribunal is not involved.

Nor is it only the procedure which is different. Because lay ministers are subject to the canons, and not to the 2003 Measure, the definition of ‘misconduct’ in s.8 of the 2003 Measure does not automatically apply to them. (Thus there are important limits to the commonality of common tenure!) And the canons make clear that misconduct ‘includ[es] any act or omission relating to matters involving ritual, doctrine or ceremonial’.

If a lay minister is not on common tenure, the bishop can revoke the licence ‘for any cause which appears to him to be good‘, not just for misconduct or incapability, ‘after having given the [lay minister] sufficient opportunity of showing reason to the contrary’. Again, there is an appeal to the Archbishop (canons E6(3) and E8(5)).

The canons provide that a lay minister must have his licence revoked if his name appears on a barred list. The licence may also be revoked for a criminal offence against a child, but the bishop is empowered to waive such a conviction, giving reasons therefor.

Other criminal and matrimonial offences are not specifically referred to in the canons, but they may still constitute misconduct by a lay minister on common tenure, and ‘good cause’ to remove a lay minister who is not.

Judges and Legal Officers The bishop may remove the chancellor if the bishops of the Province collectively resolve that the chancellor is ‘incapable or unfit’ (2018 Measure, s.3(3)). The 2 Archbishops may likewise remove an incapable or unfit Dean of the Arches, upon resolutions by the bishops of both Provinces (s.11). The chancellor may remove his deputy, after consultation with the bishop (s.4).

The bishop may dismiss the registrar, with the consent of the Archbishop (or of the other Archbishop, in the case of a provincial registrar), even if the registrar is not considered incapable or unfit (s.32). The Archbishop may terminate the appointment of the registrar of tribunals, subject to consultation with the President of Tribunals (2003 Measure, s.5(5)).

Parochial Officers The bishop had a very limited power to disqualify churchwardens and PCC members under the Vacation of Benefices Measure 1977, if advised that they contributed to a ‘breakdown in pastoral relations’ (s.10(6)). However, this power was only very rarely used, and the 1977 Measure does not apply to incumbents on common tenure.

Churchwardens and lay PCC members cannot otherwise be removed from office by the bishop or Church court. Their mandate to officiate comes from the parishioners who elected them. (It is true that churchwardens are admitted to office by the ordinary, but this is a formality.) Their terms of office are of relatively brief duration. If found unworthy or incapable, the obvious sanction is to vote them out at the next election.

The basis of eligibility for parochial office is the electoral roll. A churchwarden or lay PCC member is automatically disqualified (therefore effectively removed from office) if his name is removed from the electoral roll, or fails to appear on a new roll (2001 Measure, s.8(1), Church Representation Rules, M15(11)).

Churchwardens and lay PCC members will also be disqualified if they are included in a barred list, or convicted of an offence against a child (rule 46). Again, the bishop has power to waive disqualification for such a conviction.

Because churchwardens and PCC members are ex officio charity trustees, they will be automatically disqualified from office if disqualified by secular authority from officiating as charity trustees (2001 Measure, s.2, cf rule M8(8)). However, disqualification is apparently not automatic for a cathedral officeholder who is ex officio a charity trustee. The bishop must disqualify such an officeholder (2009 Measure, s.3A).

A Decade of the Faculty Jurisdiction

One of the reasons for starting this blog 10 years ago was to address 2 confusions concerning the faculty jurisdiction:

(1) exaggerated reverence for the sanctity of ecclesiastical property and

(2) failure to appreciate that the faculty jurisdiction, though exercised by judges and courts, is actually an executive or administrative function, not a judicial one.

(1) originated in a misunderstanding of the legal effect of consecration upon land (see ‘Consecrated Land: Status and Use’, filed under category ‘Consecration’). It was encouraged by a fear of losing the precious exemption from secular listed building control. It resulted in the rule that changes to a listed church should be permitted only on grounds of necessity (see ‘The Necessity of the Ecclesiastical Exemption’, filed under ‘Faculties’). This test of ‘necessity’ was actually stricter than that required for secular listed building consent.

(2) arose from confusing the ecclesiastical offices of chancellor and vicar-general, which are generally held by the same person. Judicial functions (now virtually all abolished) are exercised by the chancellor. The vicar-general, as his title implies, exercises administrative functions, including the faculty jurisdiction, as the deputy or representative of the bishop (see ‘The Chancellor, the Official-Principal and the Vicar-General’, filed under ‘Ecclesiastical Jurisdiction’).

A few months after this blog started, in the case of St. Alkmund, Duffield (2012), the Court of the Arches abandoned the exaggerated test of ‘necessity’. Nothing to do with this blog, of course. It was all due to the persuasive powers of Mr Alexander McGregor, barrister and amicus curiae in the case, who, ‘unprompted by any member of this Court … invited the Court to … revisit [the necessity test]’ (para 82).

The Court briefly alluded to the powerful criticisms of the test made by 2 very senior judges of the Court of Ecclesiastical Causes Reserved in St. Stephen Wallbrook (1987) 2 All England Reports 578, but did not explain why it had waited a quarter of a century to address these.

As a result of Duffield, dealings with listed churches now require a balance to be struck between

(1) their impact on the building (pejoratively described as ‘harm’ to the building) and

(2) the benefit that will accrue therefrom

Thus ‘the more serious the harm, the greater will be the … benefit needed to justify a faculty’ (87).

This new, and more realistic, balancing exercise is similar to the original test formulated by Lord Penzance, Dean of the Arches, in Peek v Trower (1881) 7 Probate Division 21: ‘the burden is cast upon [the petitioner] to shew that [the proposed dealing] will make things better than they are’ (p.27), though laying greater emphasis on the claims of conservation.

Duffield was concerned with buildings, not movable chattels. St Lawrence Wootton (2014) concerned the sale, to a private buyer, of an armet, ‘a type of helmet, worn by knights and men-at-arms during the 15th and 16th centuries’ (1), (therefore not an item particular to a church).

The Court of the Arches refused a faculty. The only reason given for the sale was to raise money. That might be a good enough reason if there was a financial emergency, but the parish was actually quite prosperous. Absent emergency, fundraising alone was not a sufficient justification for the sale.

The Court made valid observations about the importance of conserving heritage, and the need to treat parochial pleas of poverty and expense with a degree of caution. However, the decision was hardly satisfactory. The armet had been removed from the church as long as 40 years ago, for security reasons, and deposited in a museum. There was no possibility of it ever returning to the church. It was not even on public display in the museum, but locked away in a storeroom (albeit ‘viewable by arrangement’ (2)).

If we apply the Duffield test to this case, it is hard to see how the sale of the armet could possibly have caused any harm, whether to the armet itself, to the church, or to national or local heritage. And sale would have yielded a benefit, in the form of a sum of money which could have been put to good ecclesiastical use. As the Court itself observed, refusing a faculty was effectively penalising the parish for ‘the commendable strength of their financial position’ (93).

The decision in St Lawrence Wootton has unfortunate echoes of St John’s, Chelsea (1962) 2 All England Reports 850, when a lucrative commercial development of land that had been vacant for 2 decades was refused, even though there was no hope of restoring it to ecclesiastical use, just because the land had once been consecrated.

The Duffield guidance has clarified the relationship between the faculty jurisdiction and property. What has been done over the last decade to clarify the difference between administrative and judicial function (confusion (2) above)?

Chancellor Bursell unfortunately succeeded in exacerbating confusion with a flawed thesis on ‘precedent’, which failed to appreciate the fundamental distinction between binding precedent and mere guidance. (See ‘Alsager v Blagdon: Binding and Guiding’, and ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed under ‘Faculties’). This caused an unnecessary addition to the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, at s.14A.

There are at least 3 practical differences between the judicial function and the faculty jurisdiction, which should inform the conduct of faculty proceedings:

(1) the judicial function is the determination, or vindication, of rights. A faculty, by contrast, is a permission to do something to which there is no right.

(2) judicial proceedings are almost always contested. Faculty proceedings are almost always unopposed.

(3) the judicial function (i.e trying a claim of injustice) is generally concerned with the past, which must be proved by evidence. The faculty jurisdiction is concerned with the future, ‘making things better than they are’ as Lord Penzance put it, but the future is incapable of proof. (See ‘St Mary’s Churchyard, White Waltham’, filed under ‘Faculties’.)

These differences arguably demand a different practical approach to faculties:

(1) a more pro-active, even inquisitorial, investigation by the decision-taker, as there will be no party opponent to draw attention to omitted evidence, or cross-examine witnesses. But also

(2) an emphasis on substance rather than form. Nobody is on trial, and nobody’s rights are at stake. All relevant facts must be found, and parishioners and other interested parties properly informed, and given opportunity to make representations. However, this should not require an elaborate procedure.

A lecture entitled ‘Do we still need the Faculty System?’ (Ecclesiastical Law Journal, September 2020), by the late Dean of the Arches and Auditor, Charles George QC, did much to clarify confusion (2). (Though, like the Duffield guidance, this has been a long time coming.) The deliberate choice of the word ‘system‘, rather than ‘jurisdiction’, acknowledges the administrative character of faculty proceedings. The lecture also drew attention to some interesting points:

(1) the latest edition of the faculty rules, which Dean George promoted, refers to ‘the chancellor’ rather than ‘the court’ (though ‘vicar-general’ would have been an even better reference, for the reasons stated earlier)

(2) ‘the members of the Court of Arches have never, during my term of office, worn robes or wigs (what is good enough for the Supreme Court is good enough for us)’ [!]. Wigs and gowns are, of course, outward and visible signs of the judicial function.

(3) the faculty jurisdiction / system over cathedrals is exercised by committees, not courts (see the preceding blogpost). Dean George suggested that the diocesan jurisdiction could be exercised likewise, by the diocesan advisory committee rather than the chancellor.

A powerful suggestion, to which we would have assented at the time it was originally made. But perhaps the experience of recent years should give us pause. The armet in St Lawrence Wootton would presumably now be denounced as ‘colonialist’ (if, of course, the denouncers were made aware of what an armet actually is). The conservatism and self-importance of ecclesiastical courts and judges – wigs and all – are easily mocked. But they may foster one very precious quality – independence: a refusal to be carried along by the fads and fashions of the present moment, or to be hustled by powerful and articulate interest groups. Diocesan and cathedral committees are less formal and pretentious, but may they also be less resistant to political pressure?

The faculty jurisdiction now faces a new and greater test of necessity – of the protection of ecclesiastical heritage from abuse, which is its constitutional function. The recent decision of an ecclesiastical judge in the well known case of Jesus College, Cambridge offers a small hope.

The Regulation of Cathedral Property: Economic and Environmental

Cathedral property is regulated by 2 regimes, which may be described as

(1) economic, concerning the use of the property, and

(2) environmental, concerning the care and conservation thereof.

The 2 regimes are provided by 2 Church of England Measures

(1) the Cathedrals Measure 2021, the latest in a series of Measures dating back to 1931 and

(2) the Care of Cathedrals Measure 2011, which is a consolidation of 2 earlier Measures passed in 1990 and 1994.

The 2021 Measure is concerned with both regulatory regimes (1) and (2). The 2011 Measure, as its title implies, is concerned only with (2).

(2) takes precedence over (1). A cathedral is not for profit, of course. The principal objects of cathedral administration are

(1) ‘to advance the Christian religion in accordance with the faith and practice of the Church of England’ and

(2) ‘to care for and conserve the fabric and structure of the cathedral church building’ (s.4(1)).

Thus the economic regulation of cathedral property is only a means to an end. The environmental regulation is an end in itself. All property must be applied to its constitutional objects or ‘other charitable purposes which are ancillary [there]to’.

Economic regulation extends to all species of cathedral property, real and personal, corporeal and incorporeal. Environmental regulation is concerned only with physical property, i.e land, buildings and chattels.

The Regulatory Structure

Within the cathedral administration, the primary responsibility for both the use and the care of cathedral property belongs to the chapter (cf 2021 Measure, s.11(1)(f)).

As well as the chapter, every cathedral has a

(1) finance committee and

(2) CFO.

A cathedral may have a discrete ‘audit and risk’ committee, as well as a finance committee (s.16).

For environmental matters there is a

(1) fabric advisory committee (‘FAC’) and

(2) architect, or ‘surveyor of the fabric’ (2011 Measure, s.4(1) and s.5(1)(e)).

A cathedral may also have an archaeologist, if one is required (s.23).

Cathedral property is subject to the oversight of 2 national Church authorities

(1) the Church Commissioners (‘the Commissioners’), for economic matters and

(2) the Cathedrals Fabric Commission (‘CFC’), for environmental matters.

As well as ecclesiastical jurisdiction, the chapter is subject to the jurisdiction of the High Court with respect to charities (s.8(5)), and to secular charity law. Like other places of worship, cathedrals enjoy the ecclesiastical exemption from listed building control. Apart from this exemption, however, cathedrals will be subject to secular environmental law.

Classifying Cathedral Property

Neither the 2021 Measure nor the 2011 Measure makes any reference to the consecration of land or buildings. Thus the regulation of cathedral property is unaffected by whether it is consecrated or not.

The 2021 Measure defines a cathedral church building as ‘the buildings [plural] within the ecclesiastical exemption for that cathedral’ (s.4(2), also s.45(1)).

The 2011 Measure requires the chapter to prepare a plan of ‘land surrounding the cathedral church of which the fee simple [i.e freehold] is vested in the [chapter] (s.25). The CFC then defines the cathedral precinct by appropriate marking of the plan. The precinct, as defined by the CFC, consists of so much of the freehold land as is necessary to preserve or protect the character and setting of the cathedral and any associated buildings and archaeological or human remains.

Thus the chapter prepares the plan of the surrounding land, on the basis of its freehold of that land. The CFC defines the precinct on the basis of the plan.

If there are changes to the freehold, the chapter must alter the plan. The CFC in turn must redefine the precinct. It may also redefine the precinct of its own motion, even if there have been no changes to the freehold.

The chapter must also keep an inventory of all important objects belonging to the cathedral. This includes objects ‘to whose possession or custody the chapter is entitled’, even if not physically present on cathedral premises (2011 Measure, s.4(1)). ‘Important’ is defined as ‘of architectural, archaeological, artistic or historic interest’. The FAC determines what objects are of sufficient importance to be included in the inventory, after consulting the CFC (2011 Measure, s.24(4)).

All objects in the inventory are important. However, the FAC must also identify those inventory objects that is considers to be of outstanding interest. Thus there are 2 classes of inventory object

(1) important objects and

(2) outstanding objects.

If an important but hitherto unknown object is discovered (buried treasure) the CFC must be notified and the object recorded in the inventory (2011 Measure, s.7).

Thus, for environmental purposes, cathedral property is classified as

(1) cathedral and precinct (land and buildings)

(2) inventory objects (whether outstanding or merely important) or

(3) all other physical property, whether real or personal.

The chapter may of course own land and buildings outwith the cathedral precinct, and may own intangible investment property. For economic purposes, cathedral property is classified as

(1) inalienable – the cathedral itself and outstanding inventory objects (i.e physical property)

(2) permanent – i.e part of the permanent endowment of the cathedral (real and personal property) or

(3) other property, both real and personal.

Inalienable property cannot be sold or mortgaged, or even valued (s.20).

The Commissioners have jurisdiction to decide (under seal) whether property already held by, or on behalf of, the chapter (not any other property, so not affecting third party rights) is part of the permanent endowment (s.23). They can only decide on the application of the chapter, not of any third party, nor (apparently) of their own motion.

Management

The chapter prepares an annual budget and accounts (s.11(1)). It must ensure ‘appropriate oversight of … internal and external audit’ (s.5(1)(j)). Accounts must be copied to the bishop and the Commissioners. The Commissioners may order the chapter to provide additional ‘financial information’ (s.30). The cathedral’s financial year end is determined by order of the Commissioners (s.30(1)).

The bishop’s power to intervene in economic matters is limited and discretionary. He may commission a review of particular aspects of cathedral governance, including its ‘financial affairs’ (s.9(6)). The chapter must co-operate with any review (8). However, they are required only to ‘have due regard to the conclusions … and any recommendations made in the review’ (9). The chapter is not bound by a review.

The FAC, as its title implies, is supposed to advise the chapter on care and conservation matters (2011 Measure, s.4(2)(a)). The CFC gives similar advice.

There must be a 5-yearly report on works required to be done (i.e in the future) to the cathedral and any ancillary buildings. The report is based on inspections, carried out ‘as the cathedral architect or surveyor considers necessary’ (s.26). A newly appointed architect / surveyor must make ‘a full and detailed inspection’ and report within 2 years of appointment. There must also be an annual report detailing work already done and work in progress, and any other matters relevant to the cathedral’s care and conservation.

Apart from the cathedral itself there must be a 5-yearly inspection, with report, of all other property which the chapter is liable to repair and maintain. (s.27(1)).

The chapter must report annually to the FAC about the state of the inventory (s.24(3)).

Dealings – Economic

If a cathedral is also a parish church (a few are), its statutes may provide that either the whole cathedral building, or only part thereof, is to be the parish church. The ‘parish church’ may also be moved from one part of the cathedral building to another. (s.7(1)). The Commissioners may make a scheme to provide that a cathedral, or part thereof, shall cease to be a parish church (s.41(1)).

As mentioned, the cathedral itself is inalienable. Endowment property, though permanent, is not inalienable. Dealings with endowment property, will generally require the consent of the Commissioners.

Land may not be acquired or disposed of without the Commissioners’ consent, though the Commissioners may by order except minor transactions from this requirement (s.21). (The requirements of secular charity law must still be observed (s.22(6)). Borrowing against endowment requires the Commissioners’ consent (s.24). Disposal proceeds of endowment property are likewise endowment property (s.25). Endowment property may be sold for less than its full market value (s.22(7)).

Endowed funds may be invested in land or other permitted investments, and may also be used ‘for the improvement or development of property vested in the chapter’ (s.24(1)), i.e to increase its value. However, endowed funds may not be used to pay for repairs to the cathedral itself, except in an emergency. (Repairs to the cathedral will not increase its economic value, because the cathedral is inalienable, and therefore has no economic value.) Emergency repairs require the consent of the Commissioners, and there must be a scheme to replace the money spent.

The chapter may accommodate cathedral officeholders and employees without the Commissioners’ consent (s.22(3)). The chapter is the statutory ‘housing provider’ for all stipendiary cathedral clergy, from the dean down, who are subject to common tenure, and therefore must provide them with accommodation (Terms of Service Measure 2009, s.4). The chapter’s rights and duties as housing provider are prescribed by Terms of Service Regulations 12-16.

If there are still any deans and canons who are not subject to common tenure, any sale of their official residences will require their consent, so will probably have to wait until they retire. If the dean or canon is appointed by the Crown, Her Majesty’s consent will also be required, even in a vacancy (s.22(2)).

Dealings with non-endowment property will not require the consent of the Commissioners.

Dealings – Environmental

The 2011 Measure regulates works done to the cathedral, the precinct and inventory objects. It also regulates other dealings with inventory objects (2011 Measure, s.2).

The FAC and the CFC exercise a jurisdiction over the cathedral comparable to the faculty jurisdiction of the ecclesiastical courts over parish churches and churchyards. Any significant works or dealings will require the approval of either

(1) the FAC or

(2) the CFC

according to their impact. Permanent alterations, demolitions, disturbance of human remains, and the disposal or loan of outstanding objects are all reserved to the CFC. Less significant matters are left to the FAC to decide. Applications for approval are governed by procedural rules.

The chapter may only carry out works without approval if these do not ‘materially affect … the architectural, archaeological, artistic or historic character’ of the property.

Thus, despite its title, the FAC’s function is not merely advisory. It is a decision-making authority independent of the chapter. By contrast, the 2021 Measure does not require the approval of the finance / audit committee(s) to particular economic dealings.

Discovered ‘treasure’ may be disposed of with the CFC’s approval, but the British Museum, or another museum nominated by it, must be given first refusal (2011 Measure, s.7(4)).

An application for approval to the FAC or the CFC must come from the chapter, not a third party. The FAC and CFC each have to decide whether its own approval is required, or the other’s (or perhaps neither’s). They may determine that works of a specific class or description do not require their approval.

The Chapter may appeal an unfavourable decision of the FAC to the CFC. An appeal (or rather, review) from a decision of the CFC lies to a special Commission of Review (s.11).

Although an original application for approval can only be made by the chapter, a disappointed tenant may appeal the FAC’s or CFC’s refusal to approve works to his property (s.14).

The FAC and CFC have power to give retrospective approval for illegal works and dealings falling within their jurisdiction, i.e a confirmatory faculty (2011 Measure, s.2(3)).

Not all precinct property is necessarily within the ecclesiastical exemption. If the chapter wishes to apply for listed building consent for a non-exempt precinct building, it must notify the CFC and invite representations, but the CFC’s approval of such application is not required. The FAC and the CFC have no jurisdiction over works to any cathedral-owned buildings that are outside the precinct.

The FAC’s jurisdiction to permit the sale (or other permanent disposal) of inventory objects, as well as works thereto, may overlap with the Commissioners’ jurisdiction over endowment property. If an inventory object is classified as endowment property, the consent of both FAC and Commissioners will be required to any sale.

There is apparent inconsistency between the 2021 Measure and the 2011 Measure on dealings with outstanding objects. The 2021 Measure is adamant that such objects ‘may not be alienated’ and ‘cannot be transferred from the chapter’, unless the chapter itself ceases to exist (a most unlikely event). Even then they can be transferred only to the diocesan board of finance, nowhere else (s.20). Yet the 2011 Measure suggests that the CFC may approve ‘the sale … or other disposal of … any [outstanding] object’ (s.6(1)(iv).

Enforcement

If the chapter illegally acquires or disposes of land without the Commissioners’ consent, the transaction is prima facie void. Third parties will be protected if the conveyance includes a sealed statement by the chapter that the Commissioners’ consent is not required (s.21(6) and s.22(9). The Commissioners’ written statement of consent to such conveyance will also protect an innocent third party, if the Commissioners later complain that their consent was obtained by misrepresentation or deceit (s.21(5) and s.22(8)). However, there is no specific protection for third parties to any other illegal dealings with endowment property.

Any dispute arising from an impugned transaction would be a matter for the High Court. Likewise if the chapter considered that the Commissioners had unreasonably refused consent to a transaction, they could apply for judicial review of the refusal.

It might be thought that enforcement of the cathedral’s environmental regime could likewise be entrusted to the High Court, if the chapter regrettably engaged in unapproved works, or threatened to do so. However, the 2011 Measure provides bespoke enforcement powers (ss.15 to 20), similar to those exercised by ecclesiastical courts under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

The FAC and the CFC are committees, not courts, so ill-equipped to enforce their own jurisdiction. Enforcement action is therefore taken by the bishop, who may hold a special visitation. If this proves insufficient, the Vicar-General’s court of the relevant province can issue injunctions and restoration orders. (This enforcement regime is discussed in more detail in a blogpost ‘Cathedrals and the Faculty Jurisdiction’, filed below.)