The Court of Ecclesiastical Causes Reserved: England’s Inquisition
by Philip Jones
Origin and Jurisdiction
In contrast to the diocesan (consistory) courts and the provincial courts of the Church of England, which date from mediaeval times, the Court of Ecclesiastical Causes Reserved (‘CECR’) is not quite 50 years old. It was first constituted by the Ecclesiastical Jurisdiction Measure 1963, following the recommendation of a Church of England report Ecclesiastical Courts, Principles of Reconstruction which was published in 1954.
The ’causes reserved’ to the CECR, which it was created to decide, are those which concern doctrine, ritual and ceremonial. Ecclesiastical law still makes a distinction between cases involving doctrine, ritual and ceremonial (the so-called ‘reserved matters’) and other legal cases.
The CECR comprises two senior judges, who must be communicants, and three diocesan bishops (1963 Measure, s.5). The CECR’s jurisdiction is regulated by s.10 of the 1963 Measure:
(1) it has original disciplinary jurisdiction in matters of doctrine, ritual and ceremonial.
(2) it may hear an appeal (described as a suit of duplex querula) against a bishop’s refusal to institute a clergyman to a benefice, where the refusal is based on a matter of doctrine or ritual.
(3) it may hear an appeal from a consistory court in any faculty case ‘involving matter’ of doctrine, ritual or ceremonial.
S.45(3) of the 1963 Measure provides that, in exercising these three jurisdictions, the CECR ‘shall not be bound by any decision of the … Privy Council in relation to matters of doctrine, ritual or ceremonial’.
Cases involving ritual and ceremonial once caused acute legal difficulty. In 1954 and 1963 public worship was still nominally regulated by the Act of Uniformity 1662 and by the Privy Council’s strict interpretation of the rubrics of the Book of Common Prayer in the 19th century. It had long been recognised that the 1662 regime was unenforceable but Parliament rejected a revised Prayer Book in the 1920s.
Having failed to persuade Parliament to abolish the 1662 regime, the Church at least freed itself from the Privy Council’s decisions concerning that regime, by means of the CECR and s.45(3).
The CECR is progressive in another respect. It exercises the same disciplinary jurisdiction over bishops and lesser clergy. This demonstrates that everyone is equal before the law regardless of status. The Clergy Discipline Measure 2003, by contrast, retains the quasi-feudal distinction between the discipline of bishops and that of lesser clergy, by providing that complaints against the former are to be heard by the Vicar-General’s Court, rather than by a disciplinary tribunal (as for other clergy).
The anarchic state of the law made it virtually impossible to treat questions of liturgical practice in the same way as other legal questions. However, not long after the 1963 Measure, the 1662 regime was finally abolished, and a new regime of public worship introduced, by the Worship and Doctrine Measure 1974.
The 1974 Measure should have sufficed to remove any need for a distinction between questions of worship and doctrine and other matters. Yet the distinction has persisted since 1974.
However, the 1954 report argued that there was another distinction between reserved matters and other cases, apart from the 1662 regime:
‘The differentiation [of reserved matters from other cases] … rests upon a solid foundation. The burden cast upon a tribunal when an issue is factual differs in essence from that when the issue involves intellectual appreciation and spiritual discernment’ (p.48).
This point is hard to accept. A reserved case will involve facts just as much as any other. It is possible that the facts may be more complex than in an ordinary case, requiring expert evidence from theologians or historians, but they are still facts. All cases require ‘intellectual appreciation and discernment’ on the part of the judges if they are to be decided justly.
The distinction between reserved matters and other misconduct was discussed by the Court of the Arches in the case of Archdeacon of Cheltenham v Bland (1972) 1 All England Reports 1012. One of the charges of neglect of duty was the Reverend Mr Bland’s alleged refusal to baptise a baby. It was suggested that a refusal to baptise that was based on doctrinal grounds might constitute a ‘reserved’ matter, an offence against doctrine, and therefore not within the Court of the Arches’ jurisdiction.
The Court rejected this suggestion. It held that ‘refusal to baptise a child is not a doctrinal offence … It is concerned with pastoral work and activity’. The defendant’s motive or intention is irrelevant to the question whether an offence is doctrinal or not. Only the defendant’s alleged conduct is relevant.
Likewise it is argued that, if an incumbent disobeys the bishop’s directions under canon B5(4), concerning the use of forms of service, this should be treated as an offence of disobedience under the Clergy Discipline Measure 2003, and not as a reserved offence under the 1963 Measure, even if the disobedience was prompted by the incumbent’s opinions on ritual and ceremonial.
The exclusion of ‘heresy’ cases from the Clergy Discipline Measure 2003 does not necessarily assist clergy of questionable orthodoxy. The protection conferred on licensed clergy (as distinct from beneficed clergy) by s.8(2) of the 2003 Measure applies only to alleged misconduct within the scope of that Measure. The Church of England report Under Authority (1996) records the case of a clergyman whose licence was revoked ‘because his [religious] views were considered to be incompatible with his diocesan role’ (p.4).
It will be interesting to see how, if at all, the ‘capability procedure’ inaugurated by s.2(1) of the Ecclesiastical Offices (Terms of Service) Measure 2009 will be applied to clergy and lay ministers whose doctrinal opinions cause offence.
S.45(3) is now somewhat otiose in relation to ritual and ceremonial, since these are regulated by the 1974 regime. The Privy Council was concerned to enforce the 1662 regime, which is now abolished. S.45(3) is therefore relevant only to doctrine.
Halsbury’s Laws identifies the following ‘doctrinal’ offences in ecclesiastical law: heresy, blasphemy (‘avowing blasphemous and impious opinions contrary to the Christian religion’), depraving the Book of Common Prayer and maintaining doctrines repugnant to the 39 Articles (4th edition, volume 14, para 1354). The 1996 report Under Authority recommended a new offence of ‘teaching, preaching, publishing or professing doctrine or belief incompatible with that of the Church of England’ (p.53), but the suggestion was not followed.
Although the CECR is not ‘bound’ by the decisions of the Privy Council, there is nothing to prevent it from considering such decisions.
There may be only four reported Privy Council decisions on doctrine. The most famous was Gorham v Bishop of Exeter (1849-50) 163 English Reports 1221. The Bishop refused to institute Mr Gorham to a benefice in his diocese because, after a lengthy examination, he found that Mr Gorham’s views on infant baptism were incompatible with the Church’s doctrine. Mr Gorham took proceedings in the Court of the Arches to compel the Bishop to institute him.
The Court held that, to decide the question of infant baptism, ‘All that the Court is called upon to do is … ascertain whether the Church has determined any thing upon the subject’ (p.1238). It continued:
‘With a view to ascertaining the doctrine of the Church on any subject … the 39 Articles are, in the first place, to be consulted: and when … they leave nothing short, but speak on any point of doctrine plainly, precisely and definitely, then there can be no occasion to search further … prima facie then the 39 Articles are the standard of doctrine’ (pp.1240-1).
Having examined the relevant Articles the Court concluded that ‘we find no solution to the point [about infant baptism]’. It therefore turned to the forms of service in the Prayer Book. Having studied these, it concluded that Mr Gorham ‘did oppose the doctrine of baptismal regeneration’ (p.1257).
As is well known, Mr Gorham appealed to the Privy Council and won his case. The Privy Council overruled the Court of the Arches and the Bishop of Exeter, and held that Mr Gorham’s views were not incompatible with Church doctrine.
However, although they came to different conclusions, both tribunals agreed on the legal construction of the formularies in matters of doctrine. The Privy Council agreed with the Court of the Arches that the 39 Articles are the primary standard of doctrine. The Articles are the Church of England’s ‘code of faith’. If the Articles are silent or inconclusive, the Book of Common Prayer may be consulted.
The Privy Council was more sensitive than the Court of the Arches to the character of the Prayer Book as a manual of public worship. It held that only the ‘dogmatical’ parts of the Prayer Book are declaratory of doctrine. By contrast the ‘devotional’ parts of the Prayer Book, and its rubrics, are not evidence of doctrine, unless clearly supported by the 39 Articles.
As an example of the distinction between the ‘dogmatical’ and ‘devotional’ parts of the Prayer Book, the Privy Council cited the burial service, which on its wording seems to promise eternal life for everyone, even though this is not the Church’s doctrine.
The other 19th century doctrinal cases were Williams v Bishop of Salisbury (1864) 15 English Reports 943, Sheppard v Bennett (1872) Law Reports 4 Privy Council 350 and Voysey v Noble (1870-1) Law Reports 3 Privy Council 374.
Unlike Gorham, which was a civil dispute, the other three cases were ‘criminal’ prosecutions for alleged unorthodoxy. In the first two cases, the defendants were acquitted. As a commentator noted, the Privy Council ‘while narrowly restricting the limits of permissible ritual, enlarged the latitude of permissible belief’ (C.Y Sturge, Points of Church Law (1907), p.111).
However, in Voysey v Noble, the Reverend Mr Voysey was found guilty of having ‘maintained and promulgated doctrines contrary and repugnant to, or inconsistent with, the Articles of Religion and formularies of the Church of England’, and was deprived of his living.
It was suggested in the Williams case that a prosecution for heresy must
‘(1) distinctly state the [heretical] opinions which the clerk has advisedly maintained
(2) set forth the passages in which these opinions are stated
(3) specify the doctrines of the Church which such opinions or teaching of the clerk are alleged to contravene and
(4) the particular Articles of Religion, or portions of the Formularies, which contain such doctrines’ (p.961).
A Lesson for Lawyers
It is salutary for ecclesiastical lawyers to study the history of the CECR. Ecclesiastical courts are of particular interest to ecclesiastical lawyers, for obvious reasons. They are the special preserve of lawyers. They are the one means by which lawyers can take their own decisions concerning the Church, rather than merely seek to influence decisions taken by others. An ecclesiastical lawyer’s preferred solution to a particular problem within the Church is likely to involve the creation of a new court or tribunal.
There is therefore an enormous volume of law and legal commentary concerning ecclesiastical courts. Yet this is out of all proportion to their practical function in the modern Church. With a slight hint of shock, Norman Doe wrote of his researches into the law of the Anglican Communion that ‘The evidence from decisions of Church courts is weakest … available in only half a dozen Churches … in several Churches, replies indicated that Church courts simply do not sit’ (Canon Law in the Anglican Communion (1998), Clarendon, Oxford, p.5).
The likely reason for this dearth of material is that bishops and other ecclesiastical officeholders, and indeed churchpeople generally, do not share the lawyers’ natural enthusiasm for Church courts. Like all sensible people, they try to avoid the expense and unpleasantness of litigation if they possibly can.
The experience of the CECR, above all, shows that it is one thing to establish a new tribunal and another to make use of it. The learned authors of the 1954 report clearly had high ambitions for their brainchild. They argued that the proposed new Court ‘must possess … such spiritual authority as will lead the Church as a whole not only to accept but to welcome its pronouncements on the vital matters with which it is to deal’ (p.53).
Nor did the 1954 report overlook the burden that the new Court would place on the resources of the Church. It would require the assistance of ‘assessors, theologians … and liturgists … the assembly of such a Court from … one diocese [only] would be impossible and would … tax the resources of a province if the hearings were frequent or protracted’. Thus there should be ‘one such Court … for the whole Church of England …’ (p.54).
True, the Church did adopt the proposal for the CECR, though nearly a decade after the report was written. Yet in the half century since then the CECR has apparently met only twice, on both occasions to hear appeals in faculty cases. No prosecution for a reserved offence has ever been brought under the 1963 Measure. The ambitions of the CECR’s promoters have been disappointed, to put it mildly. It is likely that few churchpeople have even heard of it.
The two reported faculty cases are St Michael and All Angels, Great Torrington (1985) Family 81 and St. Stephen’s Walbrook (1987) 2 All England Reports 578. The Walbrook case is notable, not for any doctrinal pronouncement, but for the judges’ powerful critique of the test of ‘necessity’ devised by the ecclesiastical courts for faculty applications. However, this powerful critique has been studiedly ignored by the ecclesiastical courts for the last 25 years.