Ecclesiastical law

Month: March, 2013

Jones v Archbishop of Wales

(2013) Church in Wales Provincial Court, unreported.

A Welsh parish held its annual vestry meeting as usual, chaired by the Vicar.  There were 34 candidates for election to the parochial church council (‘the PCC’).  The Constitution of the Church in Wales limits the number of elected PCC members to a maximum of 25:  Chapter 4C, Regulation 13(2).

This meant, of course, that a vote should have been taken to decide which of the 34 candidates should be elected to the PCC.  However, the Vicar, for whatever reason, declined to take a vote.  Instead he simply declared all 34 candidates elected.  He retired shortly afterwards.

The Archbishop, who was also the local diocesan bishop, was informed of the constitutional irregularity.  He decided to replace the 34 PCC members with 15 new PCC members appointed by himself (10 fewer than the permitted maximum of 25).  He did, however, permit the parish electors to nominate the 15 new members to him.  He therefore convened a special vestry meeting.  The special vestry meeting was held, a vote was taken and the 15 candidates with the most votes were nominated to the Archbishop, who then appointed them to the PCC.

Mr Jones was a parishioner (though not one of the 34 PCC members).  He objected that the Archbishop had no right to replace the PCC members in such a fashion.  He accepted that a constitutional irregularity had occurred at the annual vestry meeting (though it did not seem to him a very serious one).  He maintained, however, that two wrongs do not make a right.  If the annual vestry meeting or the Vicar had acted unconstitutionally, that did not entitle the Archbishop to act unconstitutionally as well.

Chapter 9, s.22 of the Constitution of the Church in Wales provides that the Church court

‘shall have power to hear and determine … (b) complaints against Churchwardens and lay [PCC members] in their role as such, and disputes with regard to their election’.

Mr Jones argued that, if the Archbishop was unhappy about the irregularity in the election of the 34 PCC members, he should have taken the matter to the Church court under Chapter 9, s.22 , and awaited the court’s determination.  He had not done this.  Instead he had taken direct action without any reference to the Church court.  Moreover, the action was draconian and therefore required clear authority.  The Archbishop had effectively sacked 34 people.

In justifying his action, the Archbishop relied on another provision of the Constitution: Chapter 4C, Regulation 5.  Regulation 5 provides that

‘If it is brought to the notice of the Diocesan Bishop that:

5.1 the Annual Vestry Meeting has not been held; or

5.2 Churchwardens, [PCC members], or the parochial representatives on the Diocesan Conference or the Deanery Conference have not been elected or appointed

the Bishop may appoint Churchwardens, [PCC members] or parochial representatives as the case may require …’.

The Archbishop’s view was that Regulation 5 was engaged because ‘elected or appointed’ meant ‘elected or appointed in accordance with the constitution’.  Elected PCC members must be elected ‘in accordance with the provisions of the [Constitution]’: Chapter 4C, s.9.  In this case, of course, they had not been.  This meant that they had not really been elected at all.

Mr Jones did not accept this interpretation of Regulation 5.  He argued that Regulation 5 was in the nature of a default power (or ‘lapse’ power).  If a moribund parish cannot be bothered to hold an Annual Vestry Meeting or elect a PCC, then the Archbishop can act in its place.  That was not the case here.  The annual vestry meeting had been held, and the PCC had been elected.  The large number of candidates indicated that the parish was far from being moribund.  There had been an irregularity in the PCC elections, but Regulation 5 did not empower the Archbishop to correct constitutional irregularities.  That was the function of the Church court.

Thus Mr Jones argued that the Archbishop’s interpretation of Regulation 5 took no account of Chapter 9, s.22.  If Regulation 5 permits the bishop to intervene directly to correct an irregular PCC election, then what is the purpose of the jurisdiction conferred on the Church court to determine disputes over PCC elections?  The jurisdiction would be superfluous.

However, the Provincial Court agreed with the Archbishop.  It flatly rejected Mr Jones’s interpretation of Regulation 5:

‘We do not agree that the Regulation is to be construed in such a limited way.  The words of the Regulation contain no such express limitation … Regulation 5 confers remedial powers upon the Diocesan Bishop where a parish has failed to fulfil its obligations, in this case with regard to the election of lay members of the PCC … a purposive construction of Regulation 5 lends no support to the restricted interpretation of the Regulation for which [Mr Jones] contends.’ (para 17).

The 34 PCC members had therefore not been sacked by the Archbishop, because they had not been appointed in the first place:

‘The purported appointment of [the] 34 members of the PCC … was unconstitutional and its effect was that there were no lay members of the PCC able to take part and vote in its decisions without being liable to challenge on the ground that the PCC was not a properly constituted body.’ (para 18).

But what about Chapter 9, s.22 and the jurisdiction of the Church court?  The Provincial Court accepted that ‘it would have been open for the [Archbishop] to bring a case in [the Church] court had he thought fit to do so’ (para 14).  However, the Archbishop was not obliged to take this course, because

‘it was not necessary.  He was empowered by Regulation 5 … to remedy the defective election.  That being so it is unnecessary to consider what the result of an application to the [Church] court under Chapter 9, s.22 might have been’ (para 22).

On this view, the Constitution of the Church in Wales provides not just one remedy for parochial indiscipline, but two alternative remedies.  The Church court and the bishop each has a separate power to remedy an irregular PCC election.

This in turn raises the question of what would happen if the Church court and the bishop were both to exercise their separate powers in respect of the same PCC election.  What if one parishioner complained to the Church court under Chapter 9, s.22, while another asked the bishop to exercise his supposed power under Regulation 5?  Which remedy would prevail over the other, the court’s or the bishop’s?  What would happen if the court and the bishop disagreed over whether there had been an irregularity at all?  The Constitution provides no answer to these questions.  A strange omission, if the Provincial Court’s interpretation is correct.

Having held that the Archbishop possessed the necessary power under Regulation 5, the Provincial Court had no difficulty in concluding that he had acted reasonably in exercising it.  In particular, there was nothing unreasonable about the Archbishop limiting the number of elected PCC members to 15.  Mr Jones’s objection was therefore dismissed.

Mr Jones is the author of this blog.  His account of the case should, of course, be read with this caveat in mind.  The complete text of the Constitution of the Church in Wales may be found on the Church’s internet website.

The Office of Churchwarden: A System of Checks and Balances

Of all ecclesiastical offices, that of churchwarden is probably the hardest to analyse satisfactorily.  The churchwarden seems to be an ecclesiastical jack-of-all-trades, with a multitude of different pastoral, disciplinary, proprietary and financial responsibilities (even if many of these have now been abolished).  The office has a somewhat shapeless appearance, not fitting neatly into any category. 

Some legal commentaries may do no more than provide a laborious catalogue of the ecclesiastical law relating to the appointment and functions of churchwardens.  Such analysis as there is tends to concentrate on the peculiar dual role of churchwardens as

(1) officers of the parish and

(2) officers of the ordinary (principally the bishop, but also the archdeacon and the chancellor).

As was observed in the House of Commons debate on the Churchwardens Measure 2001, ‘churchwardens … are not only a bishop’s appointees, but the people’s choice.  It is a very unusual position.  Churchwardens have two masters … the people and the bishop’ (Official Report, 20th March 2001, column 312).

This is true, but it does not take full account of the churchwarden’s multi-faceted role in ecclesiastical law.  Further analysis is needed to make sense of the accumulation of apparently disparate functions.

It is argued that the office of churchwarden comprises a system of constitutional checks and balances in ecclesiastical governance.  The relationship between the parish and the bishop / ordinary is indeed one aspect of this system, but only one.  The system actually regulates four different relationships, those between:

(1)  churchwarden and churchwarden

(2)  incumbent and parish

(3)  parish and bishop / ordinary / diocesan authority and

(4)  Anglicans and non-Anglicans.

The original purpose of this system is to safeguard the administration of the property and finance of the parish, the Church’s cure of souls therein, and to maintain the correct balance between diocesan authority and parochial autonomy.   More recently it has been extended to protect the rights of non-Anglican parishioners in the parish church and churchyard, and hence to balance the interests of Anglicans and non-Anglicans.

(1)  Churchwarden and Churchwarden

As is well known, there are normally two churchwardens to a parish.  There may be more.  The rule of at least two churchwardens to a parish is not absolute, being subject to existing local custom or special Act of Parliament (Churchwardens Measure 2001, s.1(1)).  It is therefore still possible to have a parish with one churchwarden only.  However, the general rule of at least two churchwardens provides an obvious safeguard against fraud and neglect in the administration of parish property and finance.  Each churchwarden ‘checks and balances’ the other churchwarden.

Halsbury’s Laws suggests that both churchwardens must concur in bringing a legal action and in doing any other official act (3rd edition 1957, Church Assembly Edition, para 369).  In the case of Northwaite v Bennett (1834) 149 English Reports 781, one churchwarden hired a contractor to repair the church, without consulting the other churchwardens.  He was held personally liable for the expense.  The court held that ‘one churchwarden cannot pledge the credit of the others’. 

(2)  Incumbent and Parish

The rule of common law was that both churchwardens were elected by the parishioners.  Canon 89 of 1603 provided that churchwardens should be chosen by the parishioners and the incumbent jointly.  In default of agreement, canon 89 directed that one churchwarden should be elected by the parishioners (the ‘people’s warden’) and one chosen by the incumbent (the ‘vicar’s warden’).

The 2001 Measure largely reverts to the common law.  It provides that, as a general rule, both churchwardens should be elected by the parishioners.  It seems that the incumbent may vote as well, but does not have a special casting vote (s.5(6)).

However, the incumbent has one important power over the choice of churchwardens.  If he feels that there might be ‘serious difficulties’ between himself and a particular would-be churchwarden ‘in the carrying out of their respective functions’, he can rule that only one churchwarden is to be elected by the parishioners.  The incumbent then chooses the second churchwarden, but his choice is limited to one of the other candidates nominated at the parish meeting.  The incumbent’s choice must be announced before the election of the other churchwarden by the parish.

Thus the incumbent does not exactly have the right to veto the election of a particular candidate, but he can effectively suspend the parishioners’ right to vote for a second churchwarden (rather like the bishop’s right to suspend the exercise of the right of presentation to a benefice).

The relationship between incumbent and churchwardens (whether chosen by the incumbent or the parishioners) was discussed by Sir William Scott in Hutchins v Denziloe and Loveland (No.1) (1792) 161 English Reports 514.

In this case the relationship was evidently poor.  The  Rev Hutchins prosecuted his churchwardens (Messrs Denziloe and Loveland) when they sought ‘to obstruct and and prohibit the singing of the parish [choir], accompanied by the organ’, during divine service.  The churchwardens had acted thus because they ‘supposed that, as they paid the organist and managed the [choir], they [and not the incumbent] were to direct when the organ should or should not play’ (p.515).

However, Scott held that the churchwardens could not intervene during divine service in such a manner, even if the incumbent was himself acting unlawfully.  He affirmed that ‘if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary … if private and decent application to the minister … fail … in preventing the repetition of an irregularity’ (p.516). 

He continued: ‘In the service churchwardens have nothing to do but collect the alms at the offertory: and they may refuse the admission of strange preachers [i.e visiting preachers] into the pulpit’, though, ‘when letters of orders are produced [by the visiting preacher], their authority ceases’.

Thus ‘In all other respects, [the churchwarden’s] is an office of observation and complaint, but not one of control, with respect to divine worship’.

Canon B17(2) suggests that the churchwardens remain responsible for providing the bread and wine for holy communion.  Canon E1(4) affirms that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’.

Canon E1(4) provides that churchwardens must ‘use their best endeavours by example and precept to encourage the parishioners in the practice of true religion and to promote unity and peace among them’.  Norman Doe describes this function as ‘quasi-priestly’ (The Legal Framework of the Church of England, Clarendon Press, Oxford, 1996, p.241).  

These authorities indicate that churchwardens assist, and even share, the incumbent’s cure of souls.  It may be said that assisting and sharing the incumbent’s ministry, whether by providing bread and wine, maintaining order or promoting piety and unity,  is the principal duty of churchwardens.  Having said that, however, churchwardens are not merely the incumbent’s pastoral assistants.  It is also part of their office to scrutinise the incumbent’s performance of his official duties, as Sir William Scott said, by means of ‘observation and complaint’.  In this way the churchwardens ‘check and balance’ the incumbent.  They do this both as officers of the parish, which is the object of the cure of souls, and of the bishop, who shares the cure of souls with the incumbent.  The balance is indeed a delicate one.

The churchwardens’ ability to scrutinise the ministry of the incumbent and any assistant clergy is arguably undermined by the incumbent’s chairmanship of the parochial church council (‘the PCC’) and the ex officio membership of the PCC of all other parish clergy (Church Representation Rules, Appendix 2 and rule 14(1)(a)).  The involvement of the clergy with the PCC is also open to the objection that it leaves the clergy with less time for the ministry of Word and Sacrament which is their raison d’etre

The Church of England report Church and State (1918) included a persuasive recommendation (never followed) by Lord Hugh Cecil that PCCs should be exclusively lay committees under the chairmanship of the churchwardens.

Cecil argued that

‘it would be most mischievous to make the incumbent ex officio chairman of [the PCC].  It would be difficult and unseemly for a Council over which a culpable incumbent presided to take any steps by way of complaint … against him … A far better safeguard would be found in emphasising the distinctness of function of the incumbent and council by excluding the incumbent from membership altogether’ (pp.294-6).

(3)  Parish and Ordinary 

The churchwardens’ status as officers of the parish is much less important than it used to be.  Their common law duties towards the parish church and churchyard have been transferred to the PCC: Parochial Church Councils (Powers) Measure 1956, s.4(1)(ii). 

However, the 1956 Measure did not alter the constitutional relationship between the churchwardens and the incumbent, nor the churchwardens’ status as officers of the ordinary.  Also, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 reversed the trend of modern legislation to some extent by imposing additional duties on the churchwardens, both as officers of the parish and of the ordinary (see s.4 and s.5 of the Measure). 

Canon E1(4) affirms that churchwardens are ex officio officers of the ordinary.  As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church. 

It was held in Fuller v Lane (1825) 162 English Reports 348 that ‘The distribution of seats [in church] rests with the churchwardens as the officers, and subject to the control of, the ordinary.  Neither the ministers nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners’ (p.825).

The 1956 Measure makes clear that ‘Nothing herein contained shall affect … [the churchwardens’] powers, duties and liabilities with respect to visitations’ (s.4(1)(ii)(c).  The churchwardens are required to make written ‘presentments’ to the archdeacon on the state of the parish in advance of the annual visitation (canon G6(1)).   This duty is now shared with the incumbent.  Canon 113 of 1603 provided only that the incumbent might ‘join in the presentments’ if he wished to do so.  The implication of canon 113 is that the incumbent might become involved in the presentments if there was some matter he particularly wished to raise, or if he suspected that the churchwardens themselves were neglecting their duties.

The process of appointing churchwardens alludes to their dual function as officers of both the parish and the ordinary.   The process is now regulated by the 2001 Measure.  The candidates are elected by the parish meeting (s.4(1)).  However, the churchwardens-elect do not take office until they are admitted thereto by the bishop or his representative (s.6(1)).  It is the admission by the ordinary that confers title to the office of churchwarden, not election by the parish.

Elected lay members of the PCC, by contrast, ‘hold office from the conclusion of the annual meeting at which they were elected’ (Church Representation Rules, rule 16(1)).  Being officers of the parish only, they are not required to be admitted to office by the ordinary.  They are automatically admitted when the annual meeting ends.  The PCC is independent of the bishop. 

However, although his admission is required to confer the office, and although the churchwardens are his officers, the bishop / ordinary has no discretion to refuse to admit a validly elected churchwarden if he doubts his fitness for office.  The duty to admit is said to be ‘ministerial’, not discretionary (Phillimore Ecclesiastical Law, 2nd ed, 1895, p.480). 

Thus in R v Sarum (1916) 1 King’s Bench 466 the secular court compelled an understandably reluctant bishop to admit as churchwarden a man who had been convicted of using ‘filthy and indecent language to the rector and in the presence of the rector’s wife’, and in the parish church.  The bishop’s obligation to accept a churchwarden elected by the parish, rather than appoint his own, is an obvious safeguard of parochial autonomy.

As churchwardens are the bishop’s officers they also resign their office to the bishop (2001 Measure, s.7(1)).

(4) Anglicans and Non-Anglicans

In Adey v Theobald (1836) 163 English Reports 157 an exasperated ecclesiastical judge complained of the ‘extraordinary anomaly’ of non-Anglicans officiating as churchwardens.  He noted that ‘There are various duties … by the ecclesiastical law which this person [i.e a non-Anglican churchwarden] could not perform … [for example] the preserving order during divine service’ (p.159). 

Quaker churchwardens were a particular difficulty.  The duty of keeping order in church included (and still includes) ensuring that men remove their hats in church.  At one time, Quakers apparently refused to take their own hats off, even when in church.

However, Sir John Nicholl observed in Palmer v Tijou (1824) 162 English Reports 266 that ‘It is [the churchwardens’] duty to attend church for the very purpose of preserving order … [but] if they are dissenters from the Established Church and from … conscience cannot attend its worship, they are allowed by law to serve the office by sufficient deputy’ (p.267).

The Churchwardens Measure 2001 retains the old rule that churchwardens are elected by all the parishioners, regardless of religion, not just those on the church electoral roll (s.4(2)).

This rule may be anachronistic, as churchwardens no longer have any responsibility for secular local government, only for matters pertaining to the Church of England.  However, parishioners retain common law rights to marry in the parish church and to burial of their remains in the churchyard.  It is therefore thought appropriate for non-Anglican parishioners to retain a limited influence on ecclesiastical administration.  (cf House of Lords Official Report, 30th March 2001, column 543, Bishop of Guildford). 

Nevertheless the judge’s objection in Adey remains valid.  A churchwarden who is not a regular Anglican churchgoer is hardly capable of performing the duties attaching to the office.

The present law is therefore something of a compromise. Non-Anglican parishioners are entitled to vote in the election of churchwardens, but they may only elect a churchwarden who is an Anglican communicant, and enrolled on the church electoral roll (2001 Measure, s.1(3)).   However, in undefined ‘exceptional circumstances’, the bishop may permit the election of a churchwarden who is not a communicant or church elector, but the churchwarden must still be baptised (s.1(4)) (so Quakers are presumably ineligible). 

The Bishop of London may permit a non-communicant to serve as warden of a guild church in the City of London even where the circumstances are not exceptional (s.9(1)).