ecclesiasticallaw

Ecclesiastical law

Alsager v Blagdon: Binding and Guiding

Christ Church, Alsager (1998) 3 Weekly Law Reports 1394

Blagdon Cemetery (2002) 4 All England Reports 482

Both the cases cited above concerned requests for exhumation of deceased persons by their relatives.  In Alsager, the Chancery Court (which is the provincial court of York) observed that

‘applications for exhumation are common … [but] there is no reported relevant case in either this Court or the Court of Arches’ (p.1399).

It therefore took the opportunity to issue guidance to consistory courts on how to decide exhumation cases in future.

A few years later, in Blagdon, the Court of the Arches (the provincial court of Canterbury) issued its own guidance on private exhumation, because it found the Alsager guidance unsatisfactory.

The Worshipful Chancellor Bursell QC was one of 3 judges of the Chancery Court which decided Alsager.  Despite the passage of time, he has evidently not forgiven the Court of the Arches for rejecting the guidance of which he was a co-author.  He took his revenge in the case of Sam Tai Chan (2016), in which he officiated as Chancellor of Durham (which is in York Province, of course).

Citing supposed ‘rules of precedent … within the 2 Provinces’ (para 9), Bursell concluded that ‘in so far as the Northern Province (sic) the Alsager test still prevails’ (para 22).  Northern ecclesiastical courts remain ‘bound’ by the Alsager guidance, whatever the southern provincial court might say.

(This confusion of binding precedent and mere judicial guidance is discussed in a separate post ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed below.)

Yet Bursell would have avoided his confusion in Sam Tai Chan if he had re-read his own judgment in Alsager.  The Chancery Court said of its guidance that ‘We hope and believe that this judgment will assist all chancellors, both in this [northern province] and in the southern province’ (p.1398).

This makes clear that guidance from the provincial court is

(1) not ‘binding’ in the way that precedent is and

(2) meant to assist all ecclesiastical courts, not just the courts in its own province.

Perhaps Bursell has now re-read Alsager.  In a recent article ‘Aspects of Exhumation and Burial’ (Ecclesiastical Law Journal, May 2017) he extolled the quality of the Alsager guidance, but did not repeat his flawed thesis on precedent.

However, the damage is done.  The Worshipful but muddled Lady Chancellor of Sheffield was clearly misled by Bursell’s thesis, and even added a further confusion of her own.  She concluded that ‘I can exercise my discretion … bound by the Alsager test and guided by the Blagdon test’: David Bell deceased 2016, para 3.  (Rather difficult to be guided by one person while being bound by another person at the same time!)

The 2 tests are briefly stated.  The Blagdon guidance commended

‘the straightforward principle that a faculty for exhumation will only be exceptionally granted’ (p.489).

The earlier guidance in Alsager had suggested that

‘the critical question … is ‘Is there a good and proper reason for the exhumation … ?’ (p.1401).

If the Alsager guidance had stopped there, the Blagdon guidance might not have been needed.  That exhumation requires a ‘good and proper reason’ is an eminently reasonable suggestion, indeed rather obvious.  Perhaps it sets the bar too low.  Any proposal to exhume a departed loved one is likely to have a good reason, or at least an understandable one.  The Blagdon guidance is stricter, requiring an exceptional reason.

But the real difficulty with Alsager is that it does not stop with its requirement of a good and proper reason for exhumation.  The full guidance reads

‘Is there a good and proper reason for the exhumation, that reason being likely to be regarded as acceptable by right thinking members of the Church at large?’

This reference to right thinking Church members seems otiose.  If there is good and proper reason for exhumation, then right thinking Church members will surely regard it as acceptable.

The Court of the Arches’ criticism was that ‘the reference to right thinking members of the Church at large is an extremely difficult test to apply in practice’ (p.488).  Chancellor Bursell did not accept this criticism in his recent article.  He grumbled that ‘civil courts have had no difficulty in applying the approach of … the man on the Clapham omnibus or of right-thinking members of society, the officious bystander, the reasonable landlord and the fair-minded and informed observer, and it is unclear why ecclesiastical courts should have greater difficulties’ (p.189).

He also cited a dictum of the Supreme Court that ‘These legal fictions [officious bystander etc] ‘belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to [Roman law]’ (n98).

But that is precisely the difficulty with the Alsager guidance.  The Chancery Court did not make clear that its ‘right thinking members of the Church’ are fictional members only, and not real members.  As the Court of the Arches noted in Blagdon ‘The Chancellor may consider that evidence ought to be taken on the matter [of what right thinking Church members would regard as acceptable]’.  How should he go about doing that?

The lay petitioner, legally unqualified and unaware of legal fictions, will be even more confused than the court: ‘For the petitioner the [Alsager] test may give the impression that mustering support … is the way to persuade the court’.  Consider a bereaved family undergoing the distress and humiliation of knocking on doors and soliciting signatures from strangers for the exhumation of their departed relative, in the mistaken belief that this will persuade the Church court to grant them a faculty.  A frankly sickening prospect.

Although the Blagdon test for exhumation is stricter than the Alsager test, the Court of the Arches’ decision on the case was actually more generous than that of the Chancery Court.  In Alsager, the petitioner wished to rebury his father’s ashes in the same grave as his (uncremated) mother, who had died many years later.  Father and mother were both interred in the same churchyard, 30 feet apart.  The mother had died in the Catholic Church, which still officially disapproves of cremation (Code of Canon Law 1983, canon 1176(3)).

Reuniting one’s parents in these circumstances is surely as good and proper reason as any for exhumation.  Yet the Chancery Court refused a faculty.  ‘Right thinking members of the Church at large’ might well consider this distinctly harsh.

In Blagdon, by contrast, the Court of the Arches sympathetically allowed parents to exhume the body of their dead son and rebury him in unconsecrated ground a long way away, but nearer to where they now lived.

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The Burial Act 1857: A Grave Offence

‘Except … where a [dead] body is removed from 1 consecrated place of burial to another by faculty … it shall not be lawful to remove any body … which may have been interred in any place of burial, without licence [from the Secretary of State] …

‘any person who shall remove any such body or remains, contrary to this enactment … shall, on summary conviction before [the magistrates], forfeit and pay [a fine]’.  S.25 of the Burial Act 1857, the original version.

The case of Fairmile Cemetery (Oxford Consistory Court 2017) concerned a petition for a faculty to exhume a body which had mistakenly been buried in a plot that had been reserved for someone else.  (The case is discussed in a separate post, filed below.)

The judgment relates that some burial authorities correct mistakes of this kind informally, by a practice known as sliding (para 35).  Sliding  involves ‘excavating the ground so as to move the coffin sideways … but without lifting it out of the ground’ (para 34).  This is done without troubling either the ecclesiastical court or the Secretary of State for a licence.  The burial authority, literally, covering up its mistake.

The burial authority involved in the Fairmile case had initially proposed to resolve it by sliding, though an official piously assured the court that this was ‘not a practice she herself would ever resort to’ (para 35).  However, the Chancellor was clearly appalled that sliding had even been considered.  He warned sternly that ‘Should cases of this happening become known to the court, I shall instruct the Registrar to report the matter … to the Police with a view to their investigating whether a criminal offence has been committed’.

Referring to s.25 of the Burial Act 1857, the Chancellor correctly observed that ‘If [sliding] amounts to the remains being ‘removed’ it is … a criminal offence’.  But does sliding amount to removal within the meaning of s.25?

S.25 makes it an offence to remove a dead body, not to disturb one.  It could be argued that not every disturbance of a dead body amounts to removal.  The ecclesiastical exception in s.25 refers to removal ‘from 1 consecrated place of burial to another’.  A ‘consecrated place’ refers to a consecrated burial ground, not to a particular plot within the burial ground.  This may suggest that the s.25 offence applies only to the removal of a body from a burial ground altogether, not to the relocation of the body within the same burial ground.

It is also unlikely that s.25 was originally addressed to incompetent burial authorities.  It was directed rather at grave robbers, known ironically as ‘resurrection men’, one of the grimmer manifestations of the 19th century ‘Age of Science’.

In Gilbert v Buzzard (1820) 161 English Reports 1342, another burial case, the Chancellor, Sir William Scott, shuddered at the ‘ravages … to be dreaded … of the persons engaged in the employment of furnishing bodies for dissection, an employment which, whatever be its necessity, is certainly not conducted without lamentable violation of natural feelings, and occasionally of public decency itself’ (p.1347)

Grave robbers unscrupulously took advantage of the common law rule that there is no property in a dead body.  If a dead body does not belong to anyone then it cannot be stolen.  Grave robbers could therefore dig up a body and sell it on to the medical school with impunity.  S.25 was intended to prevent this.

As the Chancellor observed in Fairmile, s.25 of the 1857 Act has recently been rewritten.  The Miscellaneous Provisions Measure 2014 substituted a new version (at s.2).  The 19th century wording has been tightened up.  S.25(2) now provides that ‘It is an offence for a body or … remains which have been interred in a place of burial to be removed’ without licence or faculty.  There is no longer a reference to a body being removed from 1 place of burial to another.  Perhaps this means that ‘removed’ now refers to disturbance of the original interment, and not merely removal from the cemetery, or consecrated part of the cemetery.  The Chancellor seemed to think so.

The concern expressed in Fairmile is understandable, of course.  Decent and respectful treatment of the dead demands a high degree of formality.  Incompetent cemetery management undoubtedly risks disrespect for the dead, and distress to relatives.  However, the magistrates court may not be the best forum for remedying this.  Political and administrative means, such as scrutiny by councillors, staff disciplinary procedures and references to an ombudsman, may be more appropriate.

A Rogue Bishop

It is reported that a Church of England curate has been illegally ordained, or consecrated, as a ‘bishop’ by the Presiding Bishop of a breakaway Anglican Church based in South Africa.

Reacting to the distressing news, the Church authorities were not slow to refer to the Overseas and Other Clergy Measure 1967.  The Presiding Bishop could only perform episcopal functions in an English diocese ‘at the request and by the commission of … the [diocesan] bishop … and with the consent and licence … of the Archbishop’ (s.4(1)).  Yet he had acted without any such authority.

S.4(2) of the 1967 Measure stresses the authority of the diocesan bishop: ‘any person ordained priest or deacon by a [visiting] bishop acting on such request and by such commission as aforesaid shall be deemed to have been ordained by the [diocesan] bishop … and not by the [visiting] bishop’.  Of course, this provision refers only to the ordination of lesser clergy, not bishops.

The ordination of priests and deacons requires the authority of the diocesan bishop.  The consecration of a bishop requires the authority of the Monarch.

Thus the 1662 Ordinal provides that, before a new bishop is consecrated, ‘the Archbishop [shall] demand the Queen’s Mandate for the consecration, and cause it to be read [i.e read aloud]’ (rubric).  The consecration of a new bishop is performed by archbishops and bishops, but their authority to consecrate comes from the Monarch.  The choice of bishops is a jealously guarded royal prerogative.

Thus even if the local bishop and the Archbishop had given their full agreement to the consecration in accordance with the 1967 Measure, this would still have been ineffective without the Royal Mandate.

The 1967 Measure (which is only 50 years old, after all) may therefore not be the correct starting point for this case.  The Measure probably does not contemplate the illegal ordination of bishops, only of priests and deacons.  The true starting point is the Reformation statutes concerning the Monarch’s rights over the Church and its bishops: the Appointment of Bishops Act 1533, the Suffragan Bishops Act 1534.  And the Submission of the Clergy Act 1533, which provides that no ecclesiastical proceeding ‘shall be contrary or repugnant to the King’s prerogative royal …’ (s.3).

S.4(2) of the 1967 Measure provides that ‘If any overseas bishop performs any episcopal functions … otherwise than in accordance with this section [i.e without the authority of the local bishop and the Archbishop] he shall be guilty of an [ecclesiastical] offence’.

Yet if the offending bishop does not belong to the Church of England, disciplinary proceedings against him are unlikely to be effective in practice.  Moreover s.6(1) provides that an ‘overseas bishop’ means a bishop ‘in communion with the Church of England‘.  The breakaway South African Church is not in communion with the Church of England, apparently.  So the Presiding Bishop could not be subject to ecclesiastical discipline.

However, the English curate who was purportedly ‘consecrated’ by the Presiding Bishop certainly is subject to ecclesiastical discipline.  The Clergy Discipline Measure 2003 provides that ‘doing any act in contravention of the laws ecclesiastical’ constitutes misconduct for which disciplinary proceedings may be taken (s.8(1)).

The case of Bishop of St. Albans v Fillingham (1906) Probate 163 may be instructive here.  The Rev Mr Fillingham was an incumbent of Low Church persuasion.  He objected to the ritualism practised by another incumbent in the same diocese.  He was also disgruntled by the neglect or inability of the Bishop to take action against the ritualist.

He therefore decided to take direct action himself, by purporting to ‘ordain’ a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  His idea was that the non-conformist would undertake an alternative mission in the ritualist’s parish.

Mr Fillingham was duly prosecuted and convicted of an ecclesiastical offence.  The Court of the Arches held that his purported ‘ordination’ constituted ‘an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  His defence of necessity was rejected: ‘he cannot justify his acts … by shewing that they were intended to counteract the wrongful acts of someone else’ (p.176)

The Court found that Mr Fillingham’s offence was unprecedented (p.183).  His case may therefore be the only legally reported case of schism in the Church of England.

The judgment makes clear that a dispute over doctrine or moral values is not a schism.  Schism concerns the power of governance in the Church.  It requires a deliberate act of rejection by the schismatic of an authority to which he is subject.  Yet schism is more than mere disobedience.  It requires an express or implied claim of some other authority, in place of the authority that is rejected.

A century later, in Coekin v Bishop of Southwark (2006), unreported, the Rev Mr Coekin was involved in the ordination of two deacons by another breakaway Anglican bishop.  Mr Coekin did not directly participate in the act of ordination itself, but he associated himself with it and, in particular, he was responsible for ‘the making of necessary administrative arrangements’ in connection with the ordination (para 20).  The report on his case concluded that ‘by the part he played in arranging the [ordination] service [Mr Coekin] bore some degree of responsibility for the resultant breach of canon law’ (para 34).

The facts of these 3 cases are not identical.  Mr Fillingham purported to ordain a priest, Mr Coekin merely facilitated the purported ordination of deacons.  The curate in this case purported to be ordained a bishop.  However, all 3 cases involved active participation in an unlawful ordination.

Mr Fillingham and Mr Coekin were both dealt with leniently.  The Court of the Arches suggested in Fillingham that ‘offences of this nature differ from very grave moral offences in this, that they are not so irretrievable in their results on the reputation of the guilty person’ (p.186).  Mr Fillingham was suspended for two years, but was not deprived of his benefice after undertaking not to repeat his offence.  Likewise, Mr Coekin was allowed to keep his licence after giving suitable undertakings (para 39).

The offence in the present case is arguably graver than the first two, and not just because a bishop is more senior than a priest or a deacon.  It is, of course, part of a bishop’s function to perpetuate the ordained ministry by ordaining new clergy.  The 1662 Ordinal provides that a new bishop must promise to ‘be faithful in ordaining, sending or laying hands upon others‘.

The ordinations in which Mr Fillingham and Mr Coekin were involved were one-offs.  There was no proven intention to participate in future schismatic acts.  By contrast, receiving unlawful ordination as bishop arguably demonstrates an intention to administer unlawful ordinations in the future, and hence to establish a schismatic ordained ministry.  The late Archbishop Lefebvre was, of course, excommunicated for ordaining bishops without the permission of the Pope, as were the bishops he ordained (though the latter excommunications have since been lifted).

The validity of unlawful ordinations is discussed in the blogpost ‘Holy Orders: Validity and Legality’, which is filed below.

The Case of Fairmile Cemetery: A Distinguished Judgment

Oxford Consistory Court 2017, published on the internet website of the Ecclesiastical Law Association (accessed 5th May 2017).

This case offers much food for thought (albeit rather hard to digest) on the faculty jurisdiction over exhumation.

The late Mr Miller was buried in Plot 172 of the consecrated municipal cemetery.  Unfortunately Plot 172 had already been reserved by Mr Leventis, who was still alive.  Mr Leventis had reserved Plot 172 because he wanted to be buried adjacently to other members of his family.

The burial of Mr Miller in Plot 172 therefore infringed Mr Leventis’s legal right.  This was entirely the fault of the local authority.  They had mistakenly advertised Plot 172 as Plot 171.  So Mr Miller’s family thought they were burying him in an unreserved space.

Mr Leventis sought a faculty to have Mr Miller exhumed from Plot 172, but the Chancellor refused to grant one.

The facts stated in the judgment suggest that this was probably the right decision.  Although Mr Leventis could not be buried exactly as he had intended, his wish for a close family burial ‘can be approximately satisfied by the acquisition … of alternative plots … in a different configuration’ (para 80).  The contrite local authority ‘have said they will make such vacant plots as there are available to the Leventis family in any configuration they wish’ (para 85).  (They also paid all the legal expenses of the case (para 87)).  If Mr Leventis was still dissatisfied, he could complain to an ombudsman or sue for damages in the secular court. (para 84).  The slight interference with his burial plans did not justify the disturbance of Mr Miller’s remains and the ‘serious distress’ that this would cause to his family, who were entirely innocent of the mistake (para 80).

The Chancellor also rightly held that, though a mistake over burial and infringement of a right of burial are indeed grounds on which the court may grant an exhumation faculty, the court is never obliged to do this.  A faculty is always a matter for the court’s discretion, which depends on the facts of the particular case.  (He might have added that, though the faculty jurisdiction is subject to legal rights, it is not obliged to vindicate legal rights that others have infringed.)

So far, so reasonable.  But the Chancellor was clearly aware that, though exhumation faculties are not inevitable in cases of mistake and infringement of third party rights, they generally are granted in such cases.  Moreover, he himself had recently granted an exhumation faculty in just such a case:  Twyford Cemetery (2015).

This awareness seems to have made the Chancellor excessively anxious to distinguish this case from other cases where exhumation faculties have been granted.  The decision itself is reasonable, but these attempts to distinguish it from other decisions in similar cases are not.  Two false distinctions are made, concerning

(1) the nature of mistake and

(2) opposed and unopposed cases.

(1) The leading case on private exhumation is Blagdon Cemetery (2002) 4 All England Reports 482, in which the Court of the Arches held that ‘a mistake as to the location of a grave can be a ground upon which a faculty for exhumation may be granted … for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else …’ (quoted in para 42)

The Chancellor correctly observed that this dictum ‘does not amount to a rule, or even a presumption, that exhumation will be permitted where a mistake as to the location of a grave has been made’ (para 48).  The language is discretionary (‘can’, ‘may’).  But he went much further: the dictum did not apply to the case at all.

A baffling suggestion.  Surely this is exactly the sort of case to which the dictum applies?  Mr Miller had been buried in the wrong burial plot, which was also reserved for someone else.  There could not be a clearer case of mistake.

The Court of the Arches had gone on to suggest in Blagdon that exhumation faculties in mistake cases ‘amount to correction of an error in administration’, but that the presumption of permanent burial ‘is predicated upon disposal of remains in the intended not in an unintended plot …’.

The Chancellor seized on this last phrase: ‘Mr Miller’s body was buried where his family intended him to be buried … The misdescription of the vacant plot … is not material to that intention’ (para 49).  From this he concluded that ‘This is not … the sort of case identified by the Court of the Arches as being one where faculties can readily be granted’ (para 50).

What does this mean?  That Blagdon only applies where the person seeking the exhumation is the one responsible for the mistake?  Or that it only applies where the mistake concerns the physical location of the burial?

Mr Miller’s family were, of course, not responsible for the mistake.  And the family did intend to bury Mr Miller where they did.  But this intention was vitiated by their ignorance of Mr Leventis’s legal right.  They did not intend to bury Mr Miller in Mr Leventis’s reserved space.  If Mr Levantis’s legal right had been known at the time, Mr Miller would not have been buried where he was.  He was therefore buried in Plot 172 by mistake.  The judgment on this point makes a false distinction, based on an over-analysis of the Blagdon guidance that is strained to the point of perversity.

(2) The exhumation of Mr Miller’s remains was, understandably, opposed by his family.  Most private faculties (like most faculties in general) are unopposed, and they usually concern only the deceased person’s relatives, not third parties.

The Chancellor saw this opposition as a further distinction from Blagdon.  He asserted that ‘Blagdon does not provide any guidance as to how petitions where exhumation is opposed should be dealt with’ (para 48).  He continued: ‘where the Court of Arches addresses cases of mistake [in the Blagdon guidance] it is concerned with cases where exhumation is carried out … with the support of the family of the deceased’ (para 51).

He therefore turned to the Victorian case of Dixon (1892) Probate 386, where the court held that exhumation may be permitted

‘[1] on the application of members of the family, for reasons approved of by the court, or

[2] upon the application of other parties upon the ground of necessity or proved public convenience …’ (quoted para 51).

On the basis of this supposed authority the Chancellor held that, because ‘it is ‘other parties’ [i.e Mr Leventis] who apply for the faculty the test would seem to be a higher one than that which applies where the application is made by … the [Miller] family’.  Mr Leventis would have to show necessity or public convenience, not a mere private right.

It is true that Blagdon was unopposed.  But so was Dixon.  In that case the deceased’s widow was evidently an enthusiast for the then novel practice of cremation.  She wished to exhume her late husband (who had died 18 years earlier) in order to cremate him, so that his ashes could be mingled with hers when the time came.  A faculty was refused.

It should be fairly obvious from this context that the dictum about ‘other parties’ did not refer to a disputed private exhumation.  It referred to public exhumation, i.e cases where exhumation is sought in order to facilitate some development (e.g enlargement of the church, road-widening, reordering of the churchyard).  It was not addressed to the dispute in this case.

In Blagdon, the case which the Court had to decide was unopposed.  However, the guidance that it gave along with its decision was addressed to opposed and unopposed private exhumations alike.

In the published report, the Blagdon guidance is entitled ‘Exhumation: General Principles’ (above para 18).  This hardly suggests that it is limited to unopposed cases.  On the contrary, it is general guidance.  Moreover, the guidance does contain at least one explicit reference to opposed exhumation:

‘we do not regard it as persuasive that there is particular support for an unopposed petition any more than support for a contested petition of this nature would affect the decision on the merits of the petition’ (para 36).

An opposed case will require a more onerous procedure, and is likely in practice to receive closer scrutiny than an unopposed case.  However, there is no reason of principle why opposition to a private exhumation should per se affect the substantive final decision on the case.  Why should two dead bodies be treated differently just because one is the subject of a dispute and the other is not?

As well as the 2 false distinctions, the judgment contains exaggerations introduced to justify the decision.  The Chancellor was understandably influenced by the fact that Mr Miller had been buried with Anglican rites and that his family were practising Christians (para 62), and less impressed by Mr Leventis’s clannish desire to be buried with his family (paras 64-68).  He emphasised the finality of Christian burial (paras 58-61).  However, he went too far in holding that ‘To exhume and relocate [Mr Miller’s] body now would be contrary to the Christian belief of the family’ (para 62).  There is no such Christian belief.  The fact that ecclesiastical courts regularly permit exhumation demonstrates this.

The Chancellor also found Mr Leventis guilty of ‘undue delay’ in applying for Mr Miller’s exhumation.  ‘Approximately a year’ passed between his awareness that his reserved plot had been taken by Mr Miller and the lodging of the faculty petition (para 69).  This may be rather harsh, as secular courts allow as long as 12 years for claimants to assert their proprietary rights.

However, as we noted earlier, the faculty jurisdiction is not concerned with the vindication of legal rights.  The Chancellor cited Watson v Howard, aka St. Luke, Holbeach (1991) 1 Weekly Law Reports 16 (para 55).  The decision to permit exhumation in that case seems to have been taken according to equitable criteria.  Mrs Watson had acted promptly in asserting her right to the burial plot, and had not acted unreasonably in declining alternative arrangements for her burial.

The Easter Offering: Duty and Charity

[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

Electing the Bishop of Llandaff: Propriety and Privacy

The informative Thinking Anglicans website has drawn attention to a potential legal dispute concerning the election of the new Bishop of Llandaff, in the Church in Wales.

Legal objections to the election of bishops are raised from time to time, of course (though they invariably fail).  But the novelty of the Llandaff case is that an objection has been made even though no bishop has been elected.  The objection concerns the conduct of the Electoral College that failed to elect one.

The Constitution of the Church in Wales provides that

‘If, at the close of the [Electoral College], which shall not extend beyond 3 consecutive days, no person shall have received two-thirds of the votes of those present and voting, the right to fill the vacancy shall pass to the Bench of Bishops, unless and until the Governing Body shall have otherwise determined’ (Chapter 5, Reg 23).

It is not disputed that the Llandaff Electoral College met for 3 days, nor that it failed to elect a candidate by a two-thirds majority.  However, the objectors claim that the proceedings of the College during those 3 days were conducted so improperly as to render them invalid.

The invalidating impropriety consisted of ‘the raising … of the matter of sexuality or civil partnership status, in direct contravention of the Church in Wales’s own policy that sexuality or civil partnership status is not a bar to appointment as a Bishop’.  (It is thought that raising this matter at the Electoral College meeting deterred some electors from voting for an openly gay candidate, and thereby caused him to fall short of the required two-thirds majority.)

There are difficulties with this objection.  If accepted, it would render decisions of the Electoral College very vulnerable to external challenge in the future.  It might take only 1 elector to raise an ‘inappropriate and prejudicial’ matter to invalidate the entire proceeding.

The assertion of the Church’s ‘policy’ is also questionable.  Chapter 5 of the Constitution regulates ‘The Archbishop and the Diocesan Bishops’, and the Electoral College procedure.  There is nothing in Chapter 5 to the effect that sexuality and civil partnership are not a bar to election as a bishop.  A policy made only by means of a collective statement from the Bishops is not part of the Constitution, and therefore cannot bind the Electoral College.

(And even if sexuality etc is not a ‘bar’ to election as a bishop, that does not mean that it is irrelevant, or that any discussion is forbidden.)

Allegations of procedural irregularity will be difficult, even impossible, to prove satisfactorily, because the Constitution provides that any meeting of the Electoral College ‘shall be private‘ (Reg 21.1).  This is mandatory legal language: ‘shall be private’ means ‘must be private’.  There is no discretion to waive privacy.

However, let us assume (for the sake of argument) that the electoral procedure was indeed tainted with grave impropriety.  Who has power to declare it invalid?

Perhaps it does not matter in this case.  Suppose the Electoral College had elected a new Bishop by some improper procedure.  If the election was invalid, this would mean that the Bishop-Elect had not really been elected at all.

The Constitution provides that an election is confirmed when the Bishop-Elect is notified to the Bench of Bishops and ‘if they or a majority of them … are satisfied of his fitness‘ (Reg 26.1).  But if, unfortunately, they ‘are not so satisfied, another election shall be held in similar manner …’ (Reg 26.2).

The word ‘fitness’ seems to refer to the candidate’s personal qualities rather than his election.  It suggests that the Bishops could reject a candidate for some personal fault or limitation, but not for any flaw in the procedure by which he was elected.

But of course it is unnecessary to decide the point here, because no candidate was elected or notified to the Bishops.  Thus the constitutional provisions as to ‘fitness’ are not engaged.

Hence any impropriety by the Electoral College is arguably irrelevant, because

(1) it did not purport to elect a candidate, and

(2) it has now lost the right to elect.

Its procedure may have been invalid, but this did not result in an invalid election.  The procedural impropriety may have caused the loss of the right to elect, because it caused the Electoral College to fail to elect a candidate by a two-thirds majority within 3 days.  But that is the Electoral College’s own fault for acting improperly.  The loss of the Electoral College’s constitutional right is therefore self-inflicted.

(Of course, the gay candidate may well be disappointed, but he has not been deprived of any constitutional right, only of a personal ambition.  Indeed the constitutional rule of privacy suggests that a candidate has no right even to know that he is a candidate, unless and until the Electoral College elects him by the required majority.)

However, the objectors would presumably not have bothered to object in the first place if they had taken this view.  They may argue that the procedural impropriety was such that the Electoral College never really met at all.  This means that the College has not lost the right to elect, since it has not yet had the opportunity of exercising that right, and the right has not passed to the Bishops.  The Electoral College must therefore meet and deliberate again, and properly this time.  (And hopefully the preferred candidate will at last achieve the majority that has hitherto eluded him.)

Chapter 5, Reg 23 (quoted above) suggests that only the Governing Body of the Church in Wales has power to reconvene the Electoral College after it has failed to make an election.  As it says, the lapse of the right of election to the Bishops is not unconditional after the Electoral College’s failure to elect, but only if ‘the Governing Body shall [not] have otherwise determined’ (see also Reg 24).

The Thinking Anglicans website relates that the objection ‘has now been referred to the Legal Sub-Committee, which is a body in the Church in Wales assembled to consider legal and governance matters’.

However, it is difficult to see what this Sub-Committee can achieve, however legally learned its members.  Absent proper authority from the Governing Body, it has no power under the Constitution to investigate the deliberations of the Electoral College.  And to be effective in practice, any investigation of the objection is bound to contravene the constitutional rule of privacy concerning the Electoral College meeting.  One procedural impropriety is remedied by committing another.

Ecclesiastical Preferment: Canon 33 and Martyn v Hind

Canon 33 of 1603, The Titles of such as are to be made Ministers, provided that

‘no person shall be admitted into sacred orders, except he shall …

[1] exhibit to the Bishop … a presentation of himself to some ecclesiastical preferment then void in that diocese; or shall

[2] bring to the said Bishop a … certificate that either he is provided of some church within the … diocese … or of some minister’s place vacant …’.

It goes on to warn that

‘if any Bishop shall [ordain] any person … that hath none of these titles … then he [the Bishop] shall keep and maintain him … till he do prefer him to some ecclesiastical living.  And if the said Bishop shall refuse to do so, he shall be suspended … from giving of Orders by the space of a year’.

Canon 33 was discussed in the case of Martyn v Hind (1776) 98 English Reports 1174.  The case sheds an interesting sidelight on the status of Church of England ministers.

Mr Martyn was a newly ordained curate.  He sued his rector (or former rector), Dr Hind, after the latter dismissed him.

When appointing Mr Martyn, the rector had stated that ‘I … promise to allow him a yearly sum of 50 guineas for his maintenance … until he shall be otherwise provided of some ecclesiastical preferment …’.  Mr Martyn was referred to in the third person because the statement was addressed to the Bishop, not to him.

Some time after his appointment as curate, Mr Martyn took on the office of ‘parish reader’, an appointment in the gift of the vestry that had nothing to do with the Bishop.  (Presumably he needed the extra money.)  The rector took the view that Mr Martyn was now ‘otherwise provided of some ecclesiastical preferment’, and that this in turn had the effect of releasing the rector from his promise of payment and entitling him to dismiss Mr Martyn.

When sued for the 50 guineas, the rector tried to argue that he had no liability to Mr Martyn, because the promise had been made only to the Bishop, to satisfy the requirements of Canon 33.

However, the court held that the rector’s statement ‘[was] not a contract with the Bishop to indemnify him: but a certificate and assurance to the Bishop of a matter of fact’, viz that Mr Martyn had a suitable job to go to (p.1177).  The instrument was ‘merely a matter of information to the Bishop: the contract [was] with the curate’ (p.1178).  As well as complying with the requirements of Canon 33 and the Bishop, the rector’s act of appointment also created a contract between himself and Mr Martyn.

The court held that Canon 33 ‘shows that … it is not barely necessary that [an ordination candidate] should have a maintenance [i.e an income]: but that he should likewise have … some church where he may exercise his ministerial function: for that is the ground upon which the Bishop is entitled to ordain’ (p.1177).

This suggests that the Bishop’s right to ordain a candidate is conditional on the candidate’s possession of a title, an ecclesiastical office.  If the candidate lacks a title, that will not invalidate the ordination, but Canon 33 effectively obliges the Bishop to obtain a title for the candidate himself.  (An ordained minister could not undertake secular employment.)

The same point also disposed of the rector’s next argument.  He claimed that Mr Martyn had never really been his curate at all, because, though ordained, he had not been licensed by the Bishop.

However, the court held that the ordination itself constituted a licence to officiate as curate.  Mr Martyn had not been ordained simpliciter.  On the contrary, the Bishop had ordained him to the particular curacy.  The office of curate was ‘the very foundation and title of the ordination: therefore he [Martyn] is licensed to all intents and purposes’ (p.1178).

Canon 33 was replaced by Canon C5 of the revised Canons.  Canon C5 does not repeat the threat of financial liability on a bishop who ordains without title.  However, it still requires that an ordination candidate ‘shall first exhibit to the bishop … a certificate that he is provided of some ecclesiastical office  … which the bishop shall judge sufficient’.

However, the new regime of ‘common tenure’ suggests that it is now the Bishop’s responsibility to certify the office, not the candidate’s.  The Terms of Service Regulations 2009 provide that an ecclesiastical office ‘may be designated as a training post if the office holder is required by the … bishop to undertake initial ministerial education’ (29(3)).  Like other officeholders one newly ordained is also entitled to a written statement of particulars of office (including remuneration) from a diocesan officer nominated by the Bishop (3(1)).  This may mean that an ordination candidate is ordained to the diocese more than to a particular office.

To return to Martyn v Hind.  The court doubted that Mr Martyn really was a parish reader: ‘The term reader has confounded us … [Mr Martyn] is not a reader in any sense of the law.  This is nothing more than a parish employing a clergyman … to read prayers, and they call him a reader’ (p.1178).

As the court observed, a reader (or lector) ‘is one of the 5 minor orders of the Roman Church, inferior to the deacon’.  It was therefore a lay office: ‘a reader known to the canon law is always put in opposition to a clergyman: they [readers] are always considered laymen’.  That was why the court doubted that Mr Martyn could be a reader, because he was an ordained clergyman.

The reader’s status was a matter of contemporary practice, as well as ‘foreign’ canon law.  The court noted that parishes would appoint lay readers where clergy were lacking.  For example, ‘in the Welch dioceses, where there is no endowment worth the while of a clergyman to accept … many persons officiate as readers ‘in opposition to clergymen”.

Whatever the precise nature of the parochial office bestowed on Mr Martin, it was not an ‘ecclesiastical preferment’.  This was because ‘the office [is] such as requires no licence or authority [from the Bishop].  Therefore … it is impossible to consider this as an ecclesiastical preferment’.  So the court awarded Mr Martyn his 50 guineas.

The court’s conclusion was therefore that the office of reader could not be an ecclesiastical office because

(1) it was an intrinsically lay office and

(2) it lacked episcopal authority.

Today a reader is still a lay officeholder (1).  The revised Canons are clear that only ‘a lay person’ can become a reader (cf Canon E4(1)).  An ordained minister is not eligible.  However, the office now requires episcopal authority just as much as that of an ordained minister (2).  It is no longer a parochial appointment but an episcopal one.

Thus a lay reader must be both (1) admitted to office and (2) licensed to officiate by the Bishop (Canons E5 and E6).  The Bishop may not licence a stipendiary reader unless satisfied that ‘adequate provision’ has been made for the reader’s maintenance (E6(4)).  A stipendiary reader also holds common tenure on the same terms as stipendiary clergy (Terms of Service Measure 2009, s.1(1)).

Continuing Anglicanism: Conscience and Communion

‘the exercise of conscience is an act strictly and indefeasibly individual.  A number of individuals may take the same stand of conscience; but individuals they remain nevertheless.  No commonality, no collective identity, is created, nor can those who follow their own consciences create a new legitimacy, a new source of authority or conformity’.

(Enoch Powell on the non-jurors, The Times 14 November 1988)

A small piece of ecclesiastical history is being made today with the consecration of the first woman bishop in the Church in Wales.  This year will also see the 40th anniversary of the Affirmation of St. Louis, Missouri in 1977, made by ‘traditionalist’ Anglicans who could not accept the ordination of women.

The Affirmation of St. Louis announced that the constitutional structures of the Anglican Church of Canada and the American Episcopal Church had dissolved as a result of ‘unlawful attempts to alter faith, order and morality’.  Thus the Affirmation did not purport to dissolve any structure.  It merely declared that the structures had dissolved already.

The constitutional structure of the North American Church had dissolved, but not the Church itself.  On the contrary, the Church continued to exist.  It was therefore in need of a new constitutional structure.

The Affirmation therefore made a distinction between (1) the Church and (2) its constitutional structure.  ‘The Church’ comprises bishops, clergy and laity.  Thus the Church consists of real people, its structure is an artificial institution (or institutions).

If the constitutional structure is dissolved, where is the authority to create a new structure?  The authority came from the Affirmees themselves, who ‘affirm, covenant and declare that we, lawful and faithful members of the [North American] Churches, shall now and hereafter continue and be the unified continuing Anglican Church in North America, in true and valid succession thereto’.

Authority and communion were therefore united in the Affirmation.  The Affirmation itself was to be the source of constitutional authority in the continuing American Church.  Full communion was found only in the Church declared by the Affirmation.

The reference to a covenant makes the point that the basis of future governance is the Affirming Church members’ covenant with each other.  And the Continuing Church proceeded to make constitutional rules and to govern itself on the basis of this 1977 covenant.

A covenant is capable of creating a consensual authority as between the parties thereto, but it cannot bind third parties.  Moreover the whole point of a consensual covenant is that it rests upon the consent of the individual parties, which may be withdrawn at any time.  The ‘unified’ Church proclaimed in 1977 did not last long.  Today there are apparently several continuing Anglican Churches (including at least 2 in this country), each of which claims that it, and it alone, is in ‘true and valid succession’ to the Church recognised by the Affirmation.  Authority and communion have become hopelessly fragmented.

The Affirmation of St. Louis offers what might be called (to adopt the language of Brexit) a ‘hard’ continuing Anglicanism.  A softer continuing Anglicanism is to be found in the Church of England, and in the Church in Wales.  It was described in an interesting paper, ‘Ecclesiological Issues’, delivered by the Bishop of Ebbsfleet to a conference held in anticipation of today’s historic event (21-22 September 2016, text accessed on the Credo Cymru website 19 January 2017).

The Bishop belongs to the Society of St Wilfrid and St Hilda.  This Society is described as ‘an ecclesial structure which continues the orders of bishop and priest as the Church has received them’ (para 12).

The Society requires the appointment by the Church of

(1) a male bishop

(2) who only ordains male priests and

(3) is a member of the Society’s ‘College of Bishops’.

Such a bishop is required because he supplies the magic ingredient of full communion.  By providing pastoral oversight to traditionalist clergy and parishes he is their ‘focus and means of … communion’.  The full communion of the Society’s College of Bishops brings its clergy and parishes into a relationship of full communion with each other.

That is not all.  The bishop also effects a degree, or ‘dimension’, of communion (albeit something less than full communion) between his followers and their own diocesan bishops, also their ‘neighbouring parishes in the life and structures of deanery and diocese’.  In other words, a bishop of the Society forms a link or bridge between traditionalists and the rest of the Church, ‘their brothers and sisters … under the oversight of bishops who ordain both men and women’ (para 13).

Apart from the reference to ‘continuing’ the ordained ministry, this is a far cry from the Affirmation of St. Louis.  There is no triumphalist assertion of authority and communion.  The Society does not consider the existing ecclesiastical structures to have dissolved.  On the contrary, it wishes to be accommodated within them.  Nor does it make any exclusive claim of communion.  It seeks to integrate the full communion that exists between its members inter se into the communion of the Church.  So far from ‘unchurching’ other Church members who do not share its traditionalism, it humbly asks to be admitted to the same degree of communion within the Church as they.

The Bishop conceded that his Society and its College of Bishops have no authority in English law (nor in the constitution of the Church in Wales).  There is no legal mention even of their existence.  Their sole basis is the mutual recognition and consent of their members.  They are not a Church within a Church, merely an informal ‘ecclesial network of clergy and parishes, with ‘a certain ecclesial pattern’.

Above all, the Society makes a strict submission to ecclesiastical authority: ‘nothing can alienate the parish and its clergy from the juridical oversight of the diocesan bishop’ (para 9).  A bishop of the Society can offer only pastoral oversight.

Thus the ‘full communion’ proposed by the Society has no legal basis or expression to support it.   It depends entirely on the goodwill of those outside the Society who possess the necessary legal authority to appoint its bishops to positions of pastoral oversight.  If they refuse to appoint such bishops (and the Church in Wales authorities have refused so far, notwithstanding the Bishop’s eloquence at the conference), that is too bad.  There can be no full communion.

This bleak narrative of continuing Anglicanism, in both its hard and soft versions, supports the moral drawn from the experience of the non-jurors of 1688-89, quoted above.  Forty depressing years end where they began, with an individual conscientious objection.  They demonstrate that an act of conscience cannot create an authority or a communion.

Brexit: The High Court fills a Legislative Lacuna

The intention of Parliament … is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the [statutory] language used (Lord Nicholls of Birkenhead)

‘it is inappropriate for the courts to trespass further than parliamentary intention by … filling … a lacuna under the guise of public policy’ (Mr Justice David Steel)*

The famous Brexit case is formally cited as R v Secretary of State for Exiting the European Union on the application of Miller and Another (2016) EWHC 2768 Administrative Court.  It concerns the British exit (or Br-exit for short) from the European Union (‘the EU’).

What exactly is the EU?  The EU is constituted by a number of treaties (i.e contracts) made between the member states.  Joining the EU therefore means acceding to, becoming a party to, the EU treaties.  By the same token, leaving the EU means withdrawing from, ceasing to be party to, those treaties.

The issue raised by the Brexit case concerns ‘whether, as a matter of the constitutional law of the United Kingdom [not EU law], the Crown … is entitled to use its prerogative powers to give notice … for the United Kingdom to cease to be a member of the European Union’ (para 4).  Can the Crown withdraw the UK from the EU treaties unilaterally under the Royal Prerogative, or does it require the authority of Parliament to do this?

The High Court (not the usual single judge but 3 of the most senior judges in England, assisted by no fewer than 24 barristers) concluded unanimously that the Crown does not have such unilateral power.  The consent of Parliament is therefore required.

The decision has been the subject of fierce but legally inarticulate criticism.  Few constitutional lawyers have opposed it.  The Supreme Court will shortly hear an appeal, which it is widely expected to dismiss.

It is well settled that the Crown, not Parliament, negotiates treaties with other countries on behalf of the UK.  The High Court acknowledged that ‘the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers’ (para 89).  Withdrawal from the EU treaties obviously engages international relations between the UK and the other members of the EU.  So why should this matter be treated any differently from other international business?

The High Court’s answer was that parliamentary approval is required because of the effect of withdrawal on UK domestic law.  ‘It is precisely because … the conduct of international relations [normally] has no effect in domestic law that the courts accept that this is a field of action left to the Crown …’ (para 89).

The European Communities Act 1972 (‘the ECA’)

The United Kingdom joined the EU on 1st January 1973, after Parliament had passed the European Communities Act 1972 (‘the ECA’).  For all its constitutional significance the ECA is a very short piece of legislation, with just 12 sections as originally enacted.  (This brevity was deliberate, to facilitate the Bill’s controversial passage through Parliament and discourage amendments.)

Why was the ECA needed in the first place?  The High Court explained that

‘by reason of the limits on its prerogative powers … the Crown could not have ratified the accession of the UK to the European Communities under the [EU] treaties … unless Parliament had enacted legislation.  Legislation … was needed to give effect to EU law in [UK] domestic law … as was required by those [EU] treaties …

‘… If this legislation [i.e the ECA] had not first been put in place, ratification of the treaties by the Crown would have immediately have resulted in the UK being in breach of its obligations under them, by reason of the absence of provisions for direct effect of EU law in domestic law’ (paras 41 and 42).

This suggests that the ECA was passed because the Royal Prerogative was in need of legislative support in order to ratify the EU treaties properly in accordance with international law.  As we shall see, the Court’s conclusion on the Brexit case is arguably inconsistent with this account, its own explanation for the ECA.

S.2(1) of the ECA provides that ‘rights … created by or arising … under the [EU] treaties … are without further enactment to be given legal effect … in the United Kingdom [and] shall be recognised and available in law, and be enforced … and followed accordingly’.  It further provides that ‘the expression enforceable Community right … shall be read as referring to [these rights]’.

The effect of s.2(1) is therefore that EU-inspired rights, which are enjoyed today by millions of people, are incorporated into UK domestic law.  Leaving the EU will not per se repeal the ECA.  (Repeal will undoubtedly require legislation.)  However, Brexit will affect the legal rights to which the ECA gave effect.  The High Court suggested that ‘virtually everyone in the United Kingdom or with British citizenship will … have their legal rights affected if notice [of withdrawal] is given’ (para 7).

Some EU-inspired rights, such as those relating to employment, could continue in domestic law even if the UK left the EU (para 58).  Other rights (eg freedom of movement and trade within EU countries) could continue only with the agreement of the remaining EU members (para 59).  Some rights (eg the right to stand for election to the European Parliament) would be lost completely (para 61).

Thus the Brexit case exposes a tension between 2 constitutional principles

(1) the Royal Prerogative to make, and withdraw from, international treaties and

(2) Parliamentary supremacy over domestic law.

Constitutional principle asserts that, while dealings with other countries are indeed a matter for the Royal Prerogative, the Prerogative cannot be used to alter domestic law.  Withdrawal from the EU will alter domestic law because of s.2(1), even though it will not repeal the ECA.  This means that constitutional principle (2) trumps (1) if there is a conflict between them.

However, the status of the EU-inspired rights in domestic law depends on the ECA.  The ECA is an Act of Parliament, not a constitutional principle.  Absent the ECA the EU rights would have no status at all in UK law.  The Brexit case therefore turns on the question of what Parliament intended by legislating as it did.  It does not turn on constitutional principle per se.  The High Court acknowledged that its decision must depend on ‘What Parliament intended by legislating in the [ECA]’ (para 82).

The answer to that question, however, was loaded with a presumption that Parliament intended to legislate in accordance with the constitutional principles identified by the Court.  ‘Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them’ (para 82).

All presumptions are rebuttable, of course.  (2) will not trump (1) if ‘it [can] be inferred that … Parliament … intended … to produce effects at variance with [constitutional principle]’ (para 82), i.e if it can be inferred that Parliament intended, when it passed the ECA, that the Royal Prerogative could be exercised even though this would affect the s.2(1) rights.

The Court therefore reviewed the text of the ECA.  Not just s.2(1), but s.2(2), and s.1 and s.3.  Also the long title of the Act ‘to make provision in connection with the enlargement of the European Communities to include the United Kingdom’.  Also the heading of s.2 ‘General Interpretation of Treaties’ (para 93).

Having done this, the Court held that it is ‘clear that Parliament intended … to introduce EU law into domestic law … in such a way that this could not be undone by the exercise of Crown prerogative power’ (para 92).

The Intention of Parliament

Thus the Court’s conclusion was that Parliament had a twofold intention when it passed the ECA:

(1) to give effect to the EU treaties by introducing the treaty rights into domestic law (obvious) and

(2) to ensure that those rights could not be ‘undone’ by Royal Prerogative in the future.

Conclusion (2) above is therefore the essential reason, the ratio decidendi, for the High Court’s decision on the Brexit case.  Not constitutional principle per se, but the intention of Parliament deduced from the text of the ECA, albeit subject to a presumption that that intention will accord with constitutional principle.

It is argued that the High Court’s conclusion (2) was wrong and that its decision on the case was therefore wrong also.

The obvious difficulty with conclusion (2) is that the ECA says nothing about leaving the EU.  It is concerned only with joining the EU.  It regulates UK membership of the EU while that membership continues.  However, it makes no provision for the cessation of UK membership.

As Lord Nicholls indicated (in the dictum quoted above) the intention of Parliament depends on the language used in the statute.  The High Court did pay close attention to the language of the ECA, but this exercise merely demonstrates that the ECA simply does not address the issue raised by the Brexit case.

This means that, in reaching conclusion (2), the High Court went beyond the language of the ECA.  It imputed to Parliament an intention that Parliament did not have.  It effectively implied an unwritten provision into the ECA that Brexit requires the authority of Parliament.

If the ECA did contain a ‘Brexit clause’ that provided for, or even referred to, the possibility of EU withdrawal, then the High Court would indeed be right to interpret this provision or reference conformably with ‘background constitutional principles’.  But, as it is, there is no such provision or reference.

Perhaps the ECA ought to have included a Brexit clause, to regulate any future withdrawal from the EU.  The absence of such a provision in the ECA is arguably anomalous, a lacuna (i.e a gap or loophole).  But the Court’s function of giving effect to the intention of Parliament does not extend to filling in legislative lacunae on Parliament’s behalf.  That is a matter for Parliament itself.

Parliament has now had the best part of half a century to assert its supremacy by amending the ECA so as to include a Brexit clause.  It is still not too late for it to do so.  (And presumably it will do so if the appeal to the Supreme Court fails.)  But deciding whether or not to amend the ECA is none of the High Court’s business.

Thus it could be argued that, by presuming to fill the lacuna in the ECA concerning Brexit, the High Court was itself guilty of infringing the constitutional principle of parliamentary supremacy.

The High Court stressed the implausibility of Brexit by Royal Prerogative alone.  If an Act of Parliament gives effect to important legal rights then surely any interference with those rights must require another Act of Parliament?  ‘Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems … it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action … to switch it off again’ (para 87).

Yet there is no implausibility if we consider the historical context of the ECA.  In the early 1970s, as today, the Crown was represented by a Conservative government with a slender majority in Parliament.  The Bill that became the ECA was only passed in the face of determined opposition from within the government’s own party as well as from the official opposition.  Hence its brevity.  (History repeated itself two decades later, when Parliament passed the European Communities (Amendment) Act 1993, which concerned the Treaty of Maastricht.)

The political situation in the early 1970s was therefore the exact opposite of what it is in the current Brexit case.  A strongly pro-EU government was striving, from a distinctly weak position, to persuade a sceptical legislature to join the EU.  When viewed in this context, it is not surprising that the ECA fails to address the possibility that the government might one day seek to withdraw from the EU against the wishes of the legislature.

The High Court’s own account of the EU accession (paras 41 and 42, quoted earlier) suggests that the purpose of the ECA, i.e the intention of Parliament, was to strengthen the Royal Prerogative, not to limit or exclude it.  It could even be argued that Parliament’s intention in passing the ECA concerned international law, not domestic law at all.  Parliament intended to empower the Crown to ratify the EU treaties effectively, hence to ensure UK compliance with international law.  The introduction of EU law into UK domestic law was therefore merely incidental upon that ratification.

* Lord Nicholls’ dictum is taken from the case of R v Secretary of State for the Environment ex parte Spath Holme Ltd (2001) 2 Appeal Cases 349 at p.395.  That of David Steel J is from Hashwani v Jivraj (2010) 1 All England Reports 303 at p.317.

Holy Communion and the Constitution of the Church in Wales

‘And there shall none be admitted to the Holy Communion, until such time as he be confirmed, or be ready and desirous to be confirmed’ (Book of Common Prayer 1662, rubric)

The bishops of the Church in Wales have just issued a radical Pastoral Letter concerning admission to Holy Communion (September 2016, accessed on the Diocese of St. Davids website on 17th September).  This announces that the bishops ‘are giving permission for all those who are baptised … to receive Holy Communion’.  Confirmation, and even readiness for confirmation, will no longer be required.  As the Pastoral Letter says, this decision means that ‘even the youngest of children [will] be entitled to receive Holy Communion’.

The Pastoral Letter asserts that baptism is the only ‘gateway’ to the Eucharist, so ‘no [further] barrier should be erected to prevent all the baptised from making their communion …’.  Removing the ‘barrier’ of confirmation will ‘readopt the practice of the Early Church with respect to admission to Holy Communion’.

It is not for this blog to comment on the theological merits of the bishops’ decision.  We question only the legal authority for the decision.

The Pastoral Letter says that the bishops have ‘taken [legal] advice … and have been given the assurance that such a step does not require any change in the present Canon Law or Constitution of the Church in Wales’.

This is surprising.  A major and radical change is being made to the administration of the Church’s principal act of worship.  Surely this must require some amendment of the Church’s Constitution?  And what about the 1662 rubric, quoted above?

In the Church of England, Canon B15A(1) provides that ‘There shall be admitted to the Holy Communion … baptised persons who are communicant members of other Churches … and who are in good standing in their own Church’, as well as those referred to in the 1662 rubric.  The intention is that practising members of non-conformist Churches, which lack episcopal structure and confirmation, can still receive the Anglican Sacrament.  Canon B15A was promulged under the Admission to Holy Communion Measure 1972.

That is the English law.  The Church in Wales was constitutionally separated from the Church of England in 1920, as a result of Disestablishment.  Since then it has been governed, as the Pastoral Letter indicates, by its own Constitution.

The Constitution does not seem to contain an equivalent of Canon B15A.  It incorporates a number of ecumenical Declarations of ‘intercommunion’, or ‘full communion’, according to which ‘Each Communion agrees to admit members of the other Communion to participate in the Sacraments’ (September 1966), but such Declarations seem to be restricted to overseas Churches which possess episcopal structures (e.g the Spanish Reformed Episcopal Church).  They do not extend to local non-conformists.

However, the Church in Wales Prayer Book 1984 makes a critical amendment of the 1662 rubric:

‘Except with the permission of the Bishop, no one shall receive Holy Communion until he is confirmed, or is ready and desirous to be confirmed.’

The permission of the Bishop.  In the Pastoral Letter, the bishops are jointly giving a general permission to baptised but unconfirmed persons to receive Holy Communion.  The 1984 rubric makes clear that bishops already have a constitutional power to permit unconfirmed persons to be admitted to the Sacrament.  So maybe the legal advice referred to in the Pastoral Letter is correct, and the Constitution does not require amendment after all.

However, it is suggested that there are constitutional difficulties with the Pastoral Letter, whatever its good intentions, as follows:

(1) On its wording, the 1984 rubric indicates that confirmation remains the general rule for receiving Holy Communion.  The Bishop is empowered to dispense from the general rule, i.e allow exceptions in particular cases, but that is all.  He cannot abolish the general rule altogether.  Yet that is exactly what the Pastoral Letter is seeking to do, abolish the general rule of confirmation.  This arguably exceeds, or at least misuses, the bishops’ power, which is merely to permit exceptions.

(2) Canon B15A gives practising non-conformists the legal right to receive Holy Communion.  The 1984 rubric, by contrast, does not confer any legal right on an unconfirmed person.  It provides only for the possibility of permission from the Bishop.  The grant of permission is a matter for the Bishop’s discretion.

The effect of the Pastoral Letter is that any person wishing to receive Holy Communion in future must have either

(1) episcopal confirmation or

(2) episcopal permission under the Pastoral Letter.

Yet there is an important difference between (1) and (2).  Confirmation founds a right to Holy Communion, episcopal permission merely grants a favour.  Confirmation cannot be withdrawn, but permission can be.  If the bishops can grant permission at their own discretion, they can also withdraw it at their discretion.  The ‘barrier’ of confirmation has been lowered for now, but it could be raised again just as easily.  The Pastoral Letter is arbitrary as well as permissive.

It is also doubtful that a mere permission, unsupported by a constitutional right or duty, is sufficient to bind the clergy.  A vicar who disagrees with the Pastoral Letter could not be compelled to give Holy Communion to unconfirmed persons.  Hence different parishes might adopt different policies on the matter.

In short, the constitutional position of unconfirmed communicants will be different, and inferior, to that of confirmed communicants.

Perhaps this will not matter in practice, if the bishops’ decision proves uncontroversial.  However, it is arguable that

(1) the importance of the substantive issue and

(2) the constitutional difficulties discussed here

both demand that admission to Holy Communion be regulated by the Constitution of the Church in Wales, and not merely by Pastoral Letter.