Dispensation and Ecclesiastical Law

The Reverend Dr William Adam has recently published an interesting and thought-provoking book, Legal Flexibility and the Mission of the Church.  Dispensation and Economy in Ecclesiastical Law (Ashgate Publishing, Farnham, 2011).  The book should encourage fresh thinking on ‘dispensation’ as a subject of ecclesiastical law.

‘Dispensation’ may have two meanings relevant to ecclesiastical law:

(1) The received legal definition of ‘dispensation’ is the relaxation of a general rule in a particular case.

(2) However, the word can also refer to a particular legal-constitutional system or regime.

The Reformation statutes made two points about dispensation:

(1) They denied that the Pope had power to grant ‘licences, dispensations, compositions, faculties, grants, rescripts … or any other instruments or writings … for any cause or matter’ within the jurisdiction of England (Ecclesiastical Licences Act 1533, s.2).  Thus the papal jurisdiction to grant dispensations was abolished, but only along with all other papal jurisdiction.

(2) They denied the power of  the Pope and the Church to dispense from any divine law, as revealed in the Bible (cf. Act of Succession 1533, which denied a power to dispense from the ‘prohibited degrees’ of marriage in the Bible).

However, there was nothing in the Reformation statutes which denied that purely human laws might be dispensed from.

In the 17th century, the constitutional debate shifted from the Pope to the Monarch.  The Bill of Rights 1689 deprecated King James II’s practice of ‘assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without the consent of Parliament’.  It affirmed that this ‘pretended power … by regal authority, without the consent of Parliament, is illegal’.  Again, there was no denial that laws might be dispensed from, provided that the power of dispensation was lawfully conferred and not a mere ‘pretended power’.

In the 19th century Phillimore’s Ecclesiastical Law (2nd edition 1895) made only the briefest references to particular dispensations, and did not treat dispensation as a discrete subject of ecclesiastical law.

The foregoing account may suggest that dispensation is not a difficult or controversial issue in ecclesiastical law.  The only relevant principle of ecclesiastical law is that the power of dispensation must be subject to the laws of both God and man.  However, a Church of England report Dispensation in Practice and Theory, published in 1944, prompted a revival of interest in the subject.  E Garth Moore devoted a chapter of his Introduction to English Canon Law (1st edition, OUP, 1967) to ‘Dispensation’.  That chapter survives in the most recent edition of Moore’s work (3rd edition, 1993).  Dr Adam’s book shows that interest in the subject continues into the 21st century.

The 1944 report was written in the wake of Parliament’s rejection of the revised Prayer Book.  This obliged the Church of England to adhere to the Act of Uniformity and Book of Common Prayer of 1662, even though it had long been recognised that the 1662 regime was outdated and unenforceable.

The ecumenical movement was also gathering pace in the mid-20th century.  This raised the question of whether the Eucharist could validly be administered by a non-conformist minister who was not an episcopally ordained priest.  Underlying both the liturgical and the ecumenical issues was the fundamental religious question of what the Eucharist really is.

The Church of England was powerless to prevent Parliament rejecting its revised Prayer Book, but its own legislative process was also somewhat confused.  The Church of England Assembly (Powers) Act 1919 conferred power on the Church Assembly, a nationwide body, to prepare legislative Measures for Parliament, but the two Convocations of Canterbury and York retained their ancient power to legislate by canon.

Thus there were disagreements on worship and doctrine between the various ‘parties’ in the Church, but the constitutional situation of the Church was unacceptable to them all.  As the 1944 report noted disapprovingly, the unfortunate consequence of the constitutional impasse was a general resort to ‘methods of condonation and dissimulation … which are unbecoming in the relations of fathers-in-God with their sons in the Gospel’ (p.159).

The report’s proposed solution to the Church’s difficulties was ‘the revival or extension of the practice of dispensation’ (p.159).  Individual bishops, or the bishops collectively, should be empowered to dispense from obsolescent ecclesiastical laws and inconvenient liturgical rubrics (cf p.160).

The Church’s mid-20th century constitutional difficulties were subsequently resolved, though not until many years after the 1944 report.  The Convocations ceded their ancient power to legislate by canon to the newly-constituted General Synod, pursuant to the Synodical Government Measure 1969.  Since then canons have become, in effect, the secondary legislation of ‘parent’ Measures.  This has produced much greater legislative coherence.

The Worship and Doctrine Measure 1974 finally gave the Church almost complete control of its liturgy.  The 1974 Measure did indeed provide a new dispensation.  Likewise the Ecumenical Relations Measure 1988 and canons B43 and B44 constituted a new dispensation with regard to ecumenical worship and ministry.

The 1944 report contains a learned account of the historical development of the practice of dispensation in the Church.  However, the report is of very limited assistance to the study of ecclesiastical law, and not only because the ecclesiastical law has changed so much since it was written.  With the exception of Mr Justice Vaisey, its authors seem to have been historians and theologians rather than lawyers. Moreover, the primary subject of the report is the worship and doctrine of the Church, not its law.

The report may also have confused the two legal meanings of dispensation described above.  It argued for an episcopal power of dispensation, but it was really seeking a new dispensation, or regime, of public worship.

Even if the report did not confuse these two meanings, it did not really address the legal difficulty.  The Church’s need in the mid-20th century was for a new regime to regulate its worship and doctrine, i.e a dispensation in sense (2) above.  The power of dispensation in sense (1) was invoked in order to free the Church from laws which were outdated but which unfortunately could not be abolished.  However, dispensation in sense (1) requires legal authority just as much as dispensation in sense (2).  The power of dispensation must itself be conferred by law.  The same constitutional difficulty which precluded the introduction of a new dispensation (2) also precluded the exercise of a power of dispensation (1).

In the case of Martin v Mackonochie (1868) 2 Law Reports Privy Council 365, the Privy Council categorically denied that bishops had power to dispense from the 1662 regime: ‘In the performance of the services, rites and ceremonies ordered by the Prayer Book, the directions contained in it must be strictly observed: no omission and no addition can be permitted’ (pp.382-3).

There is another source of confusion in the 1944 report.  The historical evidence suggests that ‘dispensation’ in the early Church was the process of reconciling heretical and schismatic groups who had left the Church, and Christians who had renounced their faith through fear of persecution (Adam, p.10).  The authors of the 1944 report may have understood ‘dispensation’ in this sense, or something like it, as a process of reconciling the various different parties (Anglo-Catholic, Low Church etc) within the contemporary Church of England.  However, the received legal definition of dispensation, as the relaxation of a general rule in a particular case, bears no resemblance to this idea of reconciliation.

Mark Hill correctly observes that ‘Though well developed in Roman Catholic canon law, no explicit doctrine of [dispensation] is discernible in the laws of the Church of England’ (Ecclesiastical Law, 3rd edition, OUP, 2007).  Adam’s book contains a useful chapter on the Roman Catholic law concerning dispensation.

English ecclesiastical law does contain provision for dispensation.  This is helpfully described in Adam’s book.  The revised canons, and other ecclesiastical legislation, confer power to dispense from a number of general rules concerning the Church’s ministry.  Most of these general rules, and the power to dispense therefrom, are probably derived from mediaeval canon law.

The power of dispensation is generally reserved to Archbishops and bishops.  For example, the Archbishop of Canterbury may dispense from the minimum canonical age for ordination (canons C3(6) and (7)).  Bishops may dispense their clergy from the obligation of residing on benefice (canon C25(2)), though residence will in future be governed by the terms of service regulations and ‘common tenure’.  Bishops may also dispense from the general rule forbidding clergy to engage in secular employment (canon C28).

However, there is little or no ecclesiastical law concerning the exercise of a power of dispensation, the criteria according to which a dispensation should be granted or refused.  Decisions granting or refusing a dispensation are not published.  This affords little scope for legal commentary on ecclesiastical dispensation.

A marriage licence is often described as a ‘dispensation’ from banns.  This may be inaccurate.  It is true that a licence dispenses with the need for banns.  However, dispensation in the legal sense is dispensation from a law, not a need.  A common licence is an alternative to banns, rather than a dispensation from them.

The only marriage licence which may properly be regarded as a dispensation is the Archbishop of Canterbury’s special licence.  The law requires that all Church of England marriages must be solemnised only in an authorised church or chapel, and within the ‘canonical hours’.  The special licence dispenses from this general rule by allowing marriage to be solemnised at any convenient time and place (Marriage Act 1949, s.79(6)).

Canon C14 provides that the officiating Archbishop may ‘dispense’ with the oath of canonical obedience when consecrating a bishop who is to minister outside the Church of England.  Again, this is to dispense with an oath, not a law.  The law, or rule, of canonical obedience applies only to bishops within the Archbishop’s jurisdiction.  If a new bishop is not within the Archbishop’s jurisdiction in the first place, no relaxation of the law is required in his favour, but there is a need to dispense with the oath.