ecclesiasticallaw

Ecclesiastical law

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.

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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, 2nd 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 record 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 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.)

A Decade of Blogging

On how to write: ‘Make notes, make notes – until your notes are shot through with boundless hope!‘ (Jean Guitton, Journals)

And the effects of ageing upon scholarship: ‘a growing distaste for accuracy, a wider and wider canvas, a life of conferences and pious platitudes‘ (Angus Wilson, Anglo-Saxon Attitudes)

This blog was created towards the end of March 2012, 10 years ago now. It seeks to explain English ecclesiastical law by

(1) succinct narratives of the law on particular subjects (e.g baptism, preaching, the marriage contract, Sunday worship, the diocesan board of finance)

(2) clarifying particular points of law (e.g the lay rector’s obligation to repair the chancel, the legal effects of consecration, the Monarch’s ecclesiastical title, jurisdiction to decide the boundaries of Church property, the difference between binding precedent and mere guidance)

(3) discussing the legal implications of a particular case or event (e.g a vicar’s refusal to baptise the child of unmarried parents, a mixed marriage, the suspension of a bishop)

(4) assessing a particular piece of work, such as a judgment, report, book or article.

The blog has never attempted systematic topicality, i.e tracking new legislation, judicial decisions and legal commentaries. The author lacks both the time and, to be honest, the inclination for such work. Instead the blog depends on thought and inspiration, being moved by the spirit to write about a particular issue, regardless of whether it dates from Biblical times or just yesterday.

The blog Law and Religion UK, which started about the same time as this blog, is truly formidable in its systematic and almost daily coverage, not only of ecclesiastical law, but, as its title implies, all kinds of interaction between law and religion. This blog has for years been indebted to the Law and Religion blog both for information and ideas.

However, the narrow scope of this blog was not chosen out of laziness. On the contrary, it seeks to counter a lazy treatment of the subject. Discussion of ecclesiastical law is bedevilled (perhaps literally!) by 2 opposite errors. Since the 19th century, ecclesiastical law has been widely misunderstood as a branch of ‘canon law’. This reflects the influence of romantic mediaevalism. In the present 21st century, it is increasingly treated as a branch of human rights law, a reflection of secularist and agnostic influence.

Ecclesiastical law is a branch of English law, not of canon law. Like secular law, it comprises legislation, i.e written statutory law, and unwritten common law. The only source of authority for both written and unwritten ecclesiastical law, no less than for secular law, is the Crown. The House of Lords made clear the distinction between ‘the King’s [now the Queen’s] ecclesiastical law’ and ‘The canon law of Europe [which] does not, and never did, as a body of law, form part of the laws of England’ (R v Millis (1844) 8 English Reports 641 at p.688).

Ecclesiastical law and canon law may profitably be studied together (and are studied together in this blog) for comparative and contextual purposes. However, the student who fails to understand the difference between the 2 subjects will never really understand either.

The function of ecclesiastical law is the administration of the Christian religion by the state. It is the counterpart of secular constitutional and administrative law. As such it requires a freedom or independence analogous to judicial independence, i.e freedom from interference by other state agencies. It may also require the support of other state agencies.

Neither judicial independence nor ecclesiastical independence is absolute. Both are subject to Parliament. And the ecclesiastical function is limited by ‘the constitutional rights of all [Her] Majesty’s subjects’, i.e by their human rights (cf Church of England (Assembly) Powers Act 1919, s.3(3)). So there is a common frontier between ecclesiastical law and human rights law, and again, some joint study may help avoid demarcation disputes. But they are still different subjects.

Being able to self-publish, at the click of a mouse, without having to wait for anybody else, has been a wonderful emancipation. However, any regular readers of this blog will be aware that its output has fallen sharply in recent years. Whereas posts were formerly published at a rate of 1 or more every month, they now barely average 1 in every 2 months. Just 1 post was published in the whole of 2020.

Ecclesiastical law offers limited blogging material. It does not change very often. Much of the legislation is rather dull and obscure, lawyers’ law, providing little food for thought. The most important piece of legislation in the last decade was, of course, the Bishops and Priests (Consecration and Ordination of Women) Measure 2014. Nothing dull or obscure about that. Yet the Measure is scarcely mentioned in this blog, because, whatever its political and religious significance, its few lines do not seem to raise any major legal or constitutional issue (at least, none apparent to the present author).

Thinking and writing become harder with age. There are ever-present temptations to

(1) rehash, and / or

(2) become a ‘keyboard warrior’, descending into the slightly sordid arena of ecclesiastical controversy or churchy politics.

But the present intention is to follow the wise advice quoted above – continue to make notes, and hope for inspiration for future blogposts, even if only on an occasional basis.

Grateful thanks are due to the aforementioned Law and Religion blog. Also to 2 highly informative blogs from rather different Anglican traditions, Thinking Anglicans and Ancient Briton, whose occasional references to this blog have considerably increased its modest readership. And, last but not least, to all readers of this blog.

To Make Provision: The Gentle Art of Synodical Government

The General Synod was formerly known as the National Assembly of the Church of England, or ‘Church Assembly’ for short. The Church Assembly first received statutory recognition under the Church of England Assembly (Powers) Act 1919, the so-called ‘Enabling Act’.

It got its present name from the Synodical Government Measure 1969, s.2. Its constitution is found at schedule 2 of that Measure. The 1969 Measure also constituted diocesan synods (formerly diocesan conferences) and deanery synods (formerly ruridecanal conferences).

What does the General Synod do?

Schedule 2 contains extensive, detailed regulation of the membership and procedure of the General Synod. By contrast, there is very little regulation of its function, what it actually does.

The 1919 Act suggested that the Church Assembly / General Synod has 2 functions, to

(1) ‘discuss any proposal concerning the Church of England, and to make provision in respect thereof, and … where such provision requires Parliamentary sanction, the authority of Parliament shall be sought …’

(2) ‘debate and formulate its judgment … upon any matter concerning the Church of England, or otherwise of religious or public interest’ (Appendix 14).

The phrase ‘make provision’ in function (1) is exceedingly vague. It could refer merely to advice or exhortation, or supporting activities of a missionary or charitable nature. Function (1) does refer to a legislative function (preparing Measures for Parliament), but the wording ‘where such provision requires …’ may suggest that this function is intended to be exceptional, to be resorted to only where a particular ‘provision’ cannot otherwise be achieved.

The 1969 Measure reiterates the twofold function. The phrase ‘make provision’ is retained, indicating that the vagueness is intentional. However, the 1969 Measure suggests that legislation is normal, rather than exceptional, to function (1).

Thus the General Synod is

‘to consider matters concerning the Church of England and to make provision in respect thereof’ by

(1) Measure, under the 1919 Act

(2) canon

(3) order, regulation or other subordinate instrument authorised by a ‘parent’ Measure or canon

(4) Act of Synod, regulation, or other instrument or proceeding, where Measure or canon is not required’ (sch 2.6).

The purely deliberative function (2) is now worded ‘to consider and express … opinion on any other matters of religious or public interest’. This function is as broad as the ‘make provision’ function is vague. (Perhaps the idea was that wide-ranging discussion would ensure a better quality of ‘provision’.)

Legislation or regulation by canon is an ancient legislative function inherited from the convocations (cf 1969 Measure, s.1(1)). The revised canons do contain a reasonably coherent code of law concerning worship and doctrine (which are, after all, the raison d’etre of the Church). They also contain useful summaries of the common law concerning ecclesiastical jurisdiction and ministry. But most ecclesiastical legislation now takes the form of Measures, and secondary rules and regulations made under the authority of Measures.

The diocesan and deanery synods both share the General Synod’s twofold function ‘to make provision’ and ‘to consider and express their opinion etc’ (ss.4(2) and 5(3)), though their constitutions do not confer any legislative power. Instead of legislating, the diocesan synod is ‘to advise the bishop on any matters on which he may consult the synod’ (s.4(3)(b)).

However, the diocesan synod does possess a number of specific regulatory powers conferred by various Measures. For example, the constitution and procedure of the diocesan parsonages board is prescribed by a scheme made by the diocesan synod (Repair of Benefice Buildings Measure 1972, s.1). The synod also has power to give directions to the finance board (Diocesan Boards of Finance Measure 1925, s.3(1)), and to most other diocesan committees.

The Church of England’s Parliament?

This glib description of the General Synod is familiar, but comparisons with Parliament can be misleading. Its legislative and deliberative functions resemble those of Parliament. However, there is nothing in either the 1919 Act or the 1969 Measure to support a constitutional doctrine of the General Synod’s supremacy over the Church, analogous to Parliament’s supremacy over the state.

The vagueness of the General Synod’s ‘make provision’ function hardly supports a claim of its supremacy. The fact that the function is shared with diocesan synods, and even with the lowly deanery synods, also undermines such a claim.

The 1919 Act positively denied the Church Assembly’s supremacy. It provided that ‘Nothing in this Constitution shall … diminish or derogate from any of the powers belonging to the convocations … nor shall the Assembly exercise any power or perform any function distinctively belonging to the bishops in right of their episcopal office’ (Appendix, para 15).

The 1969 constitution of the General Synod suggests that its function is not supreme authority but rather its opposite – balance. This is the reason why there is so much regulation of its membership and procedure, and so little of its function.

Thus the Synodical Government Measure seeks to maintain a balance of claims and interests between

(1) bishops and other clergy

(2) clergy and laity, and

(3) the 2 Provinces of Canterbury and York.

The 1919 Act is concerned with the balance between Church and state, hence the legislative procedure provided by the Act.

Other legislation extends the balancing exercise to the various national and diocesan committees (also variously described as boards, commissions, councils) constituted since 1919, and to the Church Commissioners. The membership of these bodies, like that of the synods, is subject to quotas of episcopal, clerical and lay representatives.

This gentle system of government, based on deference, deliberation and balance, suffered an unpleasant economic jolt in the early 1990s. Ecclesiastical investments sustained heavy losses in the intense property recession of that unhappy time. Clergy stipends were painfully cut across the board. In consequence, discussion of synodical government moved away from high-minded theological reflection on the laity, and started to focus instead on more mundane considerations of administrative efficiency and accountability.

The National Institutions Measure 1998 addressed the economic concerns by constituting a new national body, the Archbishops’ Council, ‘whose objects shall be to co-ordinate, promote, aid and further the work and mission of the Church of England’ (s.1(1)). The Council is the last major addition to the structure of synodical government. The 1998 Measure also made changes to the constitution and functions of the Church Commissioners.

The Synodical Government (Amendment) Measure 2003 reduced the membership of the General Synod, in an apparent attempt to make it function more effectively (though nothing was done to limit the excessively broad scope of the Synod’s deliberative function (2), and so encourage members to concentrate on governance matters).

Cabinet Government?

Economic difficulties connected to the recent coronavirus pandemic have encouraged renewed interest in efficiency and accountability in synodical government.

The recent report of a ‘Governance Review Group’ (GS2239, 2021) lamented that

’20 years on from [the National Institutions Measure] the Church of England still does not have a unified national governance structure, or a single focus of decision-making and strategic planning‘ (para 75) and

‘there remains a multitude of bodies all seeking to do the Church’s work but with a diverse set of accountabilities, structures and methods’ (para 78).

The solution to this problem is a vigorous policy of centralisation. Noting that the House of Bishops of the General Synod already has a standing committee of 15 members, ‘a suitable size to be a governance body’ (para 111), the report recommends a national ‘board of bishops’ (para 113), and the establishment of a new ‘Church of England National Services Governance Body’, known as CENS for short (para 133).

This may be a good idea (though it is unclear why a new national governance body has to be created, rather than making use of the existing one – the Archbishops’ Council). However, it is argued that any policy concerning national administration should address 2 questions

(1) Should the Church have a national administrative function at all?

(2) If yes, what should be the relationship between the national administration and the diocesan administration?

The report correctly observes that synodical government is a system of ‘widely dispersed authority’ (para 79). Its function is expressed in the vaguest terms. However, it is clear that synodical government is constructed around the institutions of pre-synodical government – Parliament, the convocations, the dioceses and the Commissioners. In particular, the General Synod is constructed around the convocations, the diocesan synod around the diocesan bishop.

The convocations had a legislative function, which now vests in the General Synod, but they had no administrative / executive function. The General Synod’s constitution likewise makes clear that the General Synod has a legislative function (Measures etc), but makes no specific allusion to an administrative / executive function. This is consistent with pre-synodical government.

In pre-synodical times, the diocese, not the nation or the province, was the ordinary unit of ecclesiastical administration. Indeed the diocesan bishop is described as ‘the ordinary‘ (canon C18(2)). The archdeacons, who assist the bishop, are likewise described as ordinaries (canon C22(8)). Thus legislative power in the Church was national and provincial. Administrative / executive power was diocesan.

There was virtually no supra-diocesan ecclesiastical administrative function before the 19th century. The Archbishops have a common law metropolitical jurisdiction ‘to correct and supply the defects of other bishops’ (canon C17(2)), but this has long been limited in practice to ad hoc intervention in response to a serious problem. Only when an intervention has been made does the Archbishop exercise ‘jurisdiction as ordinary’.

Apart from that, the Archbishops confirm the election of new bishops, and ordain (consecrate) them if they are not already in episcopal orders. Provincial courts hear appeals from the dioceses, but this is a judicial function rather than an administrative one. The Archbishop of Canterbury grants special marriage licences where banns and common licences will not suffice.

This account indicates another difference between the General Synod and Parliament. Parliament is supposed to hold the government (i.e the executive branch of government) to account. In England (though not in other parts of the United Kingdom), Parliament still functions in a unitary state with a central cabinet government. By contrast, there is no cabinet government in the Church. The Archbishops preside over the General Synod, as they presided over the convocations, and the bishops may be ‘frontbenchers’ in the Synod, but that is not the same thing. The bishops have no collective executive responsibility, only an individual responsibility for their own dioceses.

The Ecclesiastical Commissioners (now the Church Commissioners) were first constituted in the early 19th century, and given the national administrative function of effecting pastoral reorganisation, including the redistribution of ecclesiastical property. However, the Commissioners were constituted because the diocesan authorities had no ability to effect this reorganisation and redistribution themselves.

That National Institutions Measure and the Archbishops’ Council may have been an attempt to construct something like a system of ecclesiastical cabinet government. The recent governance report seems to propose something similar. (Imitation is the sincerest form of flattery.)

However, national administration cannot be considered in isolation from diocesan administration. Any expansion of national administration without a corresponding reduction in diocesan administration obviously risks duplication and increased expense.

If dioceses are permitted to make joint administrative arrangements inter se, agreeing on policies and pooling resources, this should reduce, not increase, the need for a strong central administration.

It is argued that, while centralisation of the national administrative function may be desirable, ecclesiastical administration as a whole should conform to the contours of both synodical government and pre-synodical government, with the diocese as the ordinary unit of administration. This means that administration at the national and provincial levels should be limited to

(1) functions which cannot be exercised at diocesan level (diocesan reorganisation is an obvious example – altering diocesan boundaries, merging dioceses or creating new dioceses)

(2) reviewing, or hearing appeals from, diocesan decisions (a quasi-judicial function) and

(3) intervention, to remedy a serious administrative failure within a particular diocese.

(This blogpost presupposes some knowledge of the history, constitution and procedures of synodical government. These subjects are discussed in other posts filed under this category. See also posts filed under the category ‘Parliament and the Church’.)

A Metropolitical Visitation of Monmouth

Church in Wales Report, The Monmouth Enquiry and Review (2021)

The Report relates that various ‘disclosures’ and ‘concerns’ were raised a few years ago about the then Bishop of Monmouth. It is not altogether clear what the Bishop was supposed to have done amiss, as the report is heavily redacted. His alleged conduct was much discussed and investigated, but no disciplinary proceedings were taken against him. He later retired on health grounds, to the regret of many in his diocese.

For some 800 years, the Church in Wales was part of the Province of Canterbury in the Church of England. Then in 1920, following a highly controversial Disestablishment, it was reconstituted as an independent, self-governing province of the Anglican Communion, with its own Archbishop.

The conservative, High Church character of the Constitution of the Church in Wales has been discussed elsewhere in this blog. The Constitution provides that

‘The ecclesiastical law as existing in England on 30th March 1920, with the exception of [certain 19th century statutes], shall be binding on the members … of the Church in Wales, and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the Constitution …’ (1(5)).

It also affirms ‘the powers and functions inherent in the office of Metropolitan [i.e Archbishop] … [and] in the Episcopal Office’ (2(37)).

The notion that Archbishops and bishops possess ‘inherent’ powers may owe more to Tractarian theology and romantic mediaevalism than to ecclesiastical law. However, it is argued that such powers are correctly understood as common law powers, or powers inherited from English law at Disestablishment. This interpretation is consistent with the Constitution’s earlier reference to ecclesiastical law.

In the case of Bishop of St. David’s (1699) 91 English Reports 126 – another Welsh case – English law affirmed that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops are over the other clergy (p.127) … The Archbishop hath a provincial power over all bishops of his province …’ (p.711).

These authorities make clear that concerns about a diocesan bishop are a matter for the Archbishop, not any other ecclesiastical institution or officeholder, whether inside or outside the bishop’s diocese. Disciplinary proceedings against a bishop are now determined by a Disciplinary Tribunal, not by the Archbishop (9(9)). However, as mentioned, no such proceedings were commenced in this case, so the Tribunal and the Church courts were not involved.

The Archbishop’s metropolitical jurisdiction, like other ecclesiastical institutions, is exercised by a procedure known as visitation. Those subject to jurisdiction are said to be ‘visitable’. In the old days, a visitation resembled a judicial circuit. Modern communications now make it possible to exercise jurisdiction without going on a special trip. A visitation is essentially an inquiry.

The Constitution, conservative as always, provides that ‘Archiepiscopal visitations shall be held as heretofore, and the law and practice thereto shall be that prevailing on 30th March 1920’ (9(43)).

A metropolitical visitation / inquiry is exceptional. Visitations are normally carried out by archdeacons, not Archbishops. The Constitution provides that ‘Archdeacons shall conduct regular visitations of all parishes in their archdeaconries’ (9(43)). The bishop may decide to hold a visitation of his own. But archdeacons have no jurisdiction to visit the bishop, who is their superior. And of course the bishop cannot visit himself.

Hence the need of a metropolitical visitation. The revised canons of the Church of England suggest that the purpose of the Archbishop’s jurisdiction is ‘to correct and supply the defects of other bishops’ (C22(5)), i.e to intervene only when things are going badly wrong.

Although the jurisdiction is his alone, the Archbishop is free to consult others about its exercise. He may also delegate the jurisdiction to others. Persons exercising delegated ecclesiastical authority are traditionally known as ‘commissaries’ or ‘surrogates’.

Canon 128 of 1603 makes provision for ‘The Quality of Surrogates’, but this does not apply to those appointed by Archbishops and bishops, only to inferior delegated authority. The revised canons contain no equivalent of canon 128. So the Archbishop would seem to have an unfettered discretion in his choice of commissaries / surrogates, just as he is unfettered in his choice of consultees.

The Church in Wales report asks whether the Archbishop has a ‘free-standing’ power to suspend a bishop (pp.73-74). It noted that the Constitution empowers a bishop to suspend an officeholder in his diocese (9(39)), but confers no equivalent power on the Archbishop to suspend a bishop (though no power of suspension was actually required in this case, as the Bishop of Monmouth voluntarily recused himself from all official duties).

One of the Bishop’s supportive colleagues argued that the Archbishop did indeed have power to suspend him, under the ‘inherent powers’ provision cited above. Professor Norman Doe was more cautious: ‘it would require a very thorough search of the pre-1920 English ecclesiastical law … to determine whether an archbishop / metropolitan has any power … to suspend a diocesan bishop’.

However, modern ecclesiastical lawyers are fortunate that the late Sir Robert Phillimore did most of the searching for them. Phillimore relates that ‘In the bishop’s [visitation], as also in regal and metropolitical visitations, all inferior jurisdictions … are inhibited from exercising such jurisdiction, during such visitation’ (Ecclesiastical Law, 2nd edition 1895, p.1050).

This suggests that there is no discrete or ‘free-standing’ power to suspend a bishop, because none is needed. On the contrary, the very institution of the Archbishop’s visitation / inquiry automatically suspends the bishop’s exercise of his official functions. Visitation per se effects suspension.

Phillimore’s dictum refers to inhibition rather than suspension, but it is hard to see any material distinction between the two. They have the same practical effect, separation from official function. Indeed the revised canons do not seem to recognise any distinction, providing that ‘During the time of … visitation the jurisdiction of all inferior ordinaries shall be suspended …’ (G5(2)).

There is the apparent difficulty that automatic inhibition is not limited to the bishop, but applies equally to the archdeacons (because they exercise ‘inferior’ jurisdictions) and possibly to other diocesan officeholders as well, even though the visitation / inquiry is concerned only with the Bishop’s conduct.

However, Phillimore makes clear that the automatic inhibition is flexible. It can be appropriately limited or tailored to the scope of the visitation. Thus the visiting Archbishop may grant ‘relaxations … pending the visitation … an unlimited leave or commission to exercise jurisdiction … notwithstanding the visitation’. So the archdeacons could still get on with their work, and diocesan administration continue, with the bishop alone being inhibited. The Archbishop could even limit the inhibition of the bishop himself, by permitting him to continue with some of his functions but not others, or by attaching conditions to his performance of official functions.

Aga Saga: The Case of Llandaff Cathedral

It has been reported in the Western Mail (‘national newspaper of Wales’) that the Dean of Llandaff appeared before the Disciplinary Tribunal of the Church in Wales (or a committee thereof), to answer a complaint of financial misconduct made by his own Cathedral Chapter.

The Disciplinary Tribunal cleared the Dean of any wrongdoing. Indeed it found that he had no case to answer.

The Western Mail also noted that the Cathedral’s auditors had had no concerns, happily signing off the annual accounts year after year.

But the Chapter, like Wellington’s soldiers, did not know when it was beaten. It appointed a QC (not an accountant) to investigate the Cathedral’s finances.

The QC reported that, between 2016 and 2020, the Dean ‘apparently’ authorised expenditure of over £35,000 (‘at least’) from Cathedral funds without the Chapter’s approval, ‘as required in law’.

Most of the alleged expenditure benefited the Dean personally. Nearly two-thirds (£22,000-odd) went on work done to the deanery (his official residence), including the installation of an aga (‘a type of large cooking stove or range’, according to the dictionary) and wood-burning stove. Further sums were disbursed on furniture and artwork, travel and entertainment. And on a payment of £3,264 to a favoured member of the Cathedral staff, over and above his salary.

The Chapter published these embarrassing allegations on the Cathedral’s website (though it has not as yet published the report on which they were based). It is now seeking ‘restitution’, i.e repayment, of the money.

The Dean has denied his brethren’s claim against him, denouncing it as ‘unfounded’, ‘malicious’ (because of the apparent refusal to accept the Disciplinary Tribunal’s decision) and ‘defamatory’ (because of the publication).

This blog expresses no opinion on the substance of the allegations. However, if the QC’s report is correct, this carries the dramatic implication that both the Disciplinary Tribunal and the Cathedral auditors either

(1) failed to detect the unauthorised expenditure, or

(2) failed to appreciate the impropriety of it.

The Chapter’s claim is based on secular charities law, a large and complex subject that is quite outwith the scope of this blog. Instead we discuss how the Church in Wales’s own rules may apply to this case.

Llandaff Cathedral, like the other cathedrals of England and Wales, is governed by its own constitution. That constitution is itself part of the Constitution of the Church in Wales.

The present Cathedral constitution firmly states that ‘The responsibilities of the [Chapter] … shall include … control of all the Cathedral finances …’ (4(a)). However, that constitution was only approved in 2019. The alleged unauthorised expenditure began in 2016, 3 years earlier. The only published version of the Cathedral constitution at that time dates from 2001.

This 2001 version makes no direct reference to Cathedral finances at all. It describes the Dean as ‘the principal member of the Chapter … first in the number thereof’ (4(1)). The Dean chairs the Chapter, and has a casting vote if the Chapter is deadlocked (4(4)). He may ‘instruct, advise or admonish’ colleagues and staff, but ‘shall not take further proceedings [against them] without the consent of the Chapter’ (4(5)).

However, the constitution makes clear that the Cathedral ‘shall be governed, as heretofore, by the Cathedral Chapter‘, not by the Dean alone (2(1)). The Dean is primus inter pares, first among equals, but no more. The Chapter is ‘a college or society, the decision of the majority … shall be accepted as being the decision of the whole and shall bind all’ (6(7)). A Chapter meeting does not require the attendance of every member, but a meeting attended by only a minority of members ‘shall not conclude any business for which the consent of the majority is required’ (6(3)).

These provisions may suggest that the Dean could not authorise expenditure from Cathedral funds without the knowledge and consent of a majority of the Chapter. However, the constitutional position is not as simple as that. The Cathedral is not governed by its constitution alone. The published constitution is the principal instrument of governance, but it is very far from being the only one.

The 2001 preface makes clear that the Cathedral is governed by ‘statutes, ordinances and [unwritten] customs’, as well as by its published constitution. The only limitation is that the statutes etc may not be ‘contrary to, or inconsistent with’ the constitution.

The Bishop and the Chapter may jointly make or alter these secondary rules (3(8)). Not only that, but the Chapter may make ‘orders, regulations and byelaws’ (6(6) – tertiary rules?!) without reference to the Bishop.

Statutes, ordinances, customs, orders, regulations, byelaws … It is not impossible that, somewhere in this veritable jungle of unpublished self-regulation and unwritten custom, an authority may be found entitling the Dean, in a particular case, to expend Cathedral funds without the authority of the full Chapter, or even unilaterally.

Perhaps the Disciplinary Tribunal was alluding to this possibility when it reportedly referred to a ‘somewhat antiquated accounting system which oversaw a lack of a proper framework for the claim and payment of expenses’. (The full text of its decision, like the QC’s report, is yet unpublished.)

Whatever the truth of the Chapter’s allegations, this case illustrates the besetting weakness of all cathedral governance. Recent reforms promise to impose ever more rigorous ‘accountability’ on deans and chapters, but they complacently accept the fundamental obstacle to such accountability – the anachronistic mediaeval independence of cathedral authorities of the wider Church. Parishes are not allowed to make up their own little private rules and customs, only cathedrals.

As is well known, the cathedral is both

(1) the seat or cathedra of the bishop (hence its name) and

(2) the parish church, or ‘mother church’, of the diocese.

Yet it remains constitutionally independent of both the bishop and the diocese, like a little Vatican. (See other posts on this blog, filed under the category of ‘Cathedrals’.)

The Chapter governs the Cathedral but not the deanery. The deanery comes under the jurisdiction of the diocesan parsonage board. The Constitution of the Church in Wales provides that the parsonage board has ‘the general oversight and management of parsonages’ (4A, 26). Deaneries are expressly included in the definition of ‘parsonage’ (7, 1(d)).

The Dean would not need the board’s permission merely to introduce movable furniture and paintings into the deanery (though the Constitution provides that ‘sales by auction of furniture in a parsonage shall not be permitted’ (7, 23(7)).

However, he certainly would need the board’s permission for work of a structural nature. The Constitution provides that an incumbent (i.e the Dean) ‘shall not make any structural alteration or addition to the [deanery] or to the permanent fittings thereof, without the consent of the Board’ (7, 23(4)).

Moreover, the board’s function of oversight and management obliges it to ensure that ‘work duly authorised to be done to … parsonage [is] properly carried out’ (4A, 26). So the work would require the board’s supervision, not just its consent.

However, the board would be under no obligation to ask where the money was coming from, or report to the Chapter. (Thus the constitutional independence of the Cathedral works both ways – just as the Chapter is unaccountable to the diocese, so the diocesan authority is unaccountable to the Chapter.)

The Llandaff Cathedral case involves not only the Chapter’s claim against the Dean, but the Dean’s claim against the Chapter, whose publication cannot but cause grave reputational damage. Defamation, like restitution, is a matter for the secular courts. But does the Dean have any recourse to the Constitution?

The Constitution empowers the diocesan court ‘to hear and determine … any dispute between a member of the Church in Wales and the diocesan … board[s], deanery conference or chapter, vestry or parochial church council …’ (9, 22(d)). An appeal lies to the Provincial Court (9, 32(1)). This is presumably a sort of grievance procedure.

However, the diocesan court has no jurisdiction to determine a grievance against the Cathedral Chapter – because, of course, the Chapter is independent of the diocese. (A deanery chapter is not the same as a cathedral chapter.)

Any grievance against the Chapter therefore has to be addressed to the Bishop, who is ex officio the Visitor of the Cathedral. The present Llandaff constitution confirms that ‘the existing powers of the Bishop as Visitor … shall continue as in times past [i.e since the middle ages]’ (1(a)).

If the Bishop-Visitor is unable to resolve the grievance, or is perceived to lack impartiality, then the Archbishop of Wales might intervene, under ‘the powers and functions inherent in the office of Metropolitan’ (cf 2, 37). The Church of England offers a fairly recent precedent for this. In 1996 the Archbishop of Canterbury held a metropolitical visitation of Lincoln Cathedral which, like the present case, concerned a rancorous dispute over expenditure.