Ecclesiastical law

Month: April, 2013

The Cathedrals Measure 1999

The constitutions of English cathedrals are now regulated principally by the Cathedrals Measure 1999.  The 1999 Measure is the most recent of a succession of Cathedrals Measures.  The Cathedrals Measure should be distinguished from the Care of Cathedrals Measures which, as their titles imply, are mostly concerned with cathedral buildings and their contents.

The 1999 Measure effected two reforms of cathedral governance:

(1) reform of the chapter.  Every cathedral chapter must now include at least two lay members (s.4(2)).  Chapters were formerly exclusively clerical bodies.  The cathedral’s constitution may also provide for the appointment of committees by the chapter, and such committees may include persons (including laypeople) who are not members of the chapter (s.10).

(2) the creation of two new authorities for each cathedral.  These are

(1) the college of canons and

(2) the cathedral council. 

The college of canons is really an extended version of the chapter.  It comprises the dean and canons, also the assistant bishops and archdeacons of the diocese, but not the diocesan bishop himself (s.5(2)).

The novelty of the college of canons is limited.  It resembles a body known as the greater chapter, an ancient feature of the governance of many cathedrals.  Its purpose is not altogether clear.  The chapter’s historic function of electing a new diocesan bishop is now exercised by the college of canons (s.5(3)).  It is hard to see the point of this reform, as the election of the bishop under the Act of 1533 is the merest formality. 

The cathedral council is regulated by s.3 of the 1999 Measure.  Its membership is more widely drawn than that of the college of canons.  The chairman must be a layperson who is not a member of the chapter.  The bishop appoints the chairman, after consulting the chapter.  The chapter is represented on the council by the dean and between two and five other chapter members.  Two representatives of the college of canons must also be appointed.

There must also be two and four lay representatives of those who work and worship regularly at the cathedral.  The ‘cathedral community’ is defined at s.35(1) of the Measure.  The election of these representatives is a matter for the cathedral’s constitution.

Lastly, there must be 5 to 10 other persons chosen, again in a manner prescribed by the constitution, for their connection with the cathedral.  The nature of this connection is not very clearly stated in s.3.  The additional members must be

‘persons having experience in connection with the work of the cathedral, or the ability to reflect local, diocesan, ecumenical or national interests in that connection’.

This wording suggests that the additional members of the cathedral council should either be

(1) experienced in cathedral administration generally, or else

(2) connected with the particular cathedral, either through residence in the diocese or in some other context.  

The cathedral council, as constituted under s.3, will have a maximum membership of 23, and a minimum membership of 13.  The diocesan bishop may not be a member of the council, just as he may not be a member of the chapter or the college of canons.  However, the bishop may attend and speak, but not vote, at meetings of the council.

The council is the legislative authority of the cathedral.  S.28 of the 1999 Measure provides that the council may promulgate a new constitution and statutes, or revise existing ones.

Any legislative activity of the council requires the bishop’s consent.  However, cathedral legislation is promulgated by a written instrument sealed by ‘the common seal’ of the cathedral.  It is not promulgated by the bishop’s assent in the manner of the royal assent to Acts of Parliament.

No legislative proceedings can be started until the chapter has been consulted.  The general public must also be consulted in accordance with a procedure laid down by s.29 and s.30 of the 1999 Measure.  Draft legislation must be advertised in the vicinity of the cathedral and made available for public inspection, with opportunity for written representations to be made.  Draft revisions of the constitution, though not of statutes, must also be advertised in at least one local newspaper (s.29(1)(a)).

The cathedral council must have regard both to the views of the chapter and any written representations received from the public.  Following advertisement of the draft legislation, the council may amend it ‘as it thinks expedient’ (s.29(3)), after which the instrument is sealed.

While the council is the legislative authority for the cathedral, the chapter remains the executive authority, with power ‘to direct and oversee the administration of the affairs of the cathedral’ (s.4(8)).  Thus the chapter is sometimes described as the ‘administrative chapter’ or ‘administrative body’ of the cathedral (s.36(1)).

The 1999 Measure was passed in response to concerns about the lack of accountability of cathedral chapters.  However, our account has shown that the Measure has done little to alter the mediaeval character of cathedral governance.  Cathedrals remain self-governing, with their own particular laws. 

The provisions of the 1999 Measure were influenced by a Church of England report entitled Heritage and Renewal (1994).  This report was the work of a commission a large proportion of whose members were themselves cathedral officeholders, and therefore perhaps not naturally supportive of radical reform of cathedral governance.  Cathedral foundations have always been a powerful interest group, hence they have changed little from the middle ages to the 21st century.

The establishment of the cathedral council is a reform of limited value.  The council has legislative power, but little ability to control the chapter’s governance of the cathedral.  As we have seen, the dean and some canons are themselves members of the cathedral council.  This may undermine the council’s independence of the chapter.  The 1999 Measure does not require the council’s approval of the cathedral’s annual budget, or of any property transactions made by the chapter.  The council certainly cannot remove chapter members from office, in the way that a company’s shareholders can dismiss its board of directors.  It is therefore somewhat toothless.

The 1999 Measure scarcely addresses the function of cathedrals within the wider Church.  This reveals its conservative character.  Phillimore’s Ecclesiastical Law (2nd ed, 1895) suggests that ‘Every cathedral in its first institution was as the Temple to the whole diocese’ (p.124, citing Coke).  In other words, the cathedral is the parish church of the diocese.

The Measure provides, rather vaguely, that the cathedral is ‘a centre of worship and mission’ (s.1) and affirms the duty of the chapter to ‘order the worship and promote the mission of the cathedral’ (s.4(8)(a)).  It makes no other reference to the cathedral’s status as parish church of the diocese.

The cathedral council itself is not very representative of the diocese.  It is composed mainly of persons chosen for their connection to the cathedral rather than to the diocese.  The diocesan synod has no right of representation on the council.  The continuation of particular laws for cathedrals also tend to isolate them from the wider Church.

With few exceptions, English cathedrals still do not have parishes of their own.  The original reason for this may have been that ‘the bishop would not hold it consistent with his dignity to place a parish priest over his own head’ (Braithwaite v Hook (1862) 7 Law Times 254).

It is arguable that, with no parish of its own but several clergy, the cathedral is a unjustifiable burden to the Church’s ministry in the diocese.  Phillimore wrote that the dean’s cure of souls is limited to the chapter (possibly other cathedral officeholders as well), while the chapter have no cure of souls ‘in any respect’ (pp.130 and 140).  It is true that cathedrals resemble parish churches in having congregations of regular worshippers.  The 1999 Measure acknowledges this by extending the dean’s cure of souls to include ‘the pastoral care of all members of the cathedral community’ (s.7(2)).  The dean is now effectively the ‘vicar’ of the cathedral community.  However, nothing is said about the pastoral function of the chapter as a whole.  It has been suggested that the chapters of the more famous cathedrals exercise some kind of ‘ministry’ to tourists, but this is hard to reconcile with compulsory admission fees.

It is argued that, if the cathedral is the parish church of the diocese, it should be fully integrated into the diocese.  The governance of the cathedral ought to be the responsibility of the diocesan synod.  Management of the cathedral could be entrusted to the diocesan board of finance, or to some specially constituted diocesan committee.

The Bishop and the Cathedral: Visiting his Seat

The Cathedrals Measure 1999 not only denies the bishop membership of the chapter, but even membership of the two new authorities created by the Measure, the college of canons and the cathedral council.  By keeping the bishop at one remove from the cathedral, the Measure preserves a pattern of cathedral governance that has been apparent since late mediaeval times (an indication of its conservatism). 

However, the 1999 Measure acknowledges that the cathedral is ‘the seat of the bishop’ (s.1).  (It is well known that a cathedral is so called because it contains the bishop’s cathedra or chair of office.)  It guarantees the bishop’s right to exercise his ministry in the cathedral, including holding ordinations and synods, and ‘for other diocesan occasions and purposes’ (s.6(1)).  The 1999 Measure also follows the earlier Cathedrals Measures in providing that the bishop is ex officio visitor of his cathedral (s.6).

As visitor, the bishop has the quasi-judicial function of determining any question of the cathedral’s constitution and statutes.  He may hold a visitation of the cathedral ‘when he considers it desirable or necessary to do so’, or when requested by the cathedral council or the chapter.

During the visitation, the bishop may give directions to the chapter, or to any individual who works at the cathedral, so as to ‘better serve the due observance of the constitution and statutes’.  These directions correspond to the ‘Charge’ traditionally delivered at a visitation of parishes.  Again, the visitor’s function is quasi-judicial, to ensure proper observance of the cathedral’s laws.

The connection between the bishop’s function as visitor of his cathedral and as ecclesiastical ordinary was discussed in R v Dean and Chapter of Chester (1850) 117 English Reports 553.  A sacked cathedral chorister applied to the secular court for an order compelling the dean and chapter to reinstate him.

Chester Cathedral was founded at the Reformation by letters patent of Henry VIII.  The letters patent included statutes by which the Cathedral foundation was to be governed.  The Bishop of Chester was appointed visitor of the foundation.

The secular court therefore refused the chorister’s application.  It held that his remedy was to appeal his dismissal to the Bishop qua visitor.  The office of visitor is a lay office, whereas that of ordinary is ecclesiastical.  The office of a cathedral visitor is not materially different from that of a visitor of a secular foundation.  The visitor is

‘appointed to superintend the due execution of the [cathedral] statutes … by the letters patent the powers of the Bishop of Chester are not confined to cases in which he would have jurisdiction as ordinary … he is constituted a special visitor to see that the statutes are enforced’ (pp.555-6).

This made the point that, if Henry VIII had not appointed the Bishop visitor of the Cathedral, the Bishop would not, or at least may not, have had jurisdiction to investigate the chorister’s sacking.  The appointment and dismissal of choristers were regulated by Henry VIII’s statutes, not by the general ecclesiastical law.  The Bishop’s ordinary authority, by contrast, was a common law authority which did not extend to the special statutes.

However, in Boyd v Phillpotts (1874) 4 Admiralty and Ecclesiastical 297, Sir Robert Phillimore doubted that the status of visitor added much to the bishop’s ordinary authority over his cathedral: ‘It is the ordinary episcopal authority with which [the Bishop] is clothed on [cathedral visitations] and not the spiritual authority which belongs only to the visitor of a college or private foundation’ (p.335).

Phillimore also drew a distinction between the bishop’s visitorial status and that of a secular visitor by holding that the Court of the Arches had jurisdiction to hear an appeal from the bishop’s visitation order.  As he pointed out, there is no appeal from the decision of a secular visitor.

The Privy Council agreed with Phillimore on these points.  Lord Hatherly cited Burn’s dictum that ‘all deans and chapters are subject to the visitation of the bishop jure ordinario and of the Archbishop … jure metropolitico’ (Phillpotts v Boyd (1875) Law Reports 6 Privy Council 435).  It should be remembered that Phillpotts was concerned with the governance of Exeter Cathedral which, unlike Chester, is a pre-Reformation foundation.  However, the case makes no distinction between cathedrals of the ‘old’ and ‘new’ foundations.

It could be argued that the Cathedrals Measure 1999 has established something of a classic separation of powers in the governance of cathedrals.  The cathedral council is the legislature of the cathedral, the chapter is its executive and the bishop its judiciary.  However, the bishop’s status as visitor indicates another confusion about the identity and function of cathedrals which the 1999 Measure fails to address.  If the cathedral is the bishop’s own church, his ‘seat’, then it may be somewhat absurd that he should also be its ‘visitor’.

Cathedrals and the Faculty Jurisdiction

It is often said that the cathedral is ‘exempt’ from the faculty jurisdiction.  It would be more accurate to say that cathedrals are subject to a different faculty jurisdiction from that which regulates parish churches.

The present faculty jurisdiction over cathedrals was first conferred by the Care of Cathedrals Measure 1990.  This was supplemented by two further Care of Cathedrals Measures, passed in 1994 and 2005 respectively.  All three Measures were at length consolidated into the Care of Cathedrals Measure 2011.

Like the Cathedrals Measure 1999, the Care of Cathedrals Measure 1990 established two new cathedral authorities:

(1) a fabric advisory committee (‘FAC’), which every cathedral is required to have, and to which the chapter must report annually (2011 Measure, s.4(1) and s.24(3)).

(2) the Cathedrals Fabric Commission.  This is a national body with responsibility for all English cathedrals.  Most of the Commission’s members are appointed by the Archbishops, but five members are elected by, and from, the General Synod.  At least one elected member must be a chapter member (2011 Measure, sch.1).  The Commission is supposed to promote ‘standards of good practice’ concerning the care of cathedral property (s3(3)).

Neither the consistory court nor the bishop is involved in deciding cathedral faculties.  Instead the chapter must apply for a faculty to the cathedral’s FAC.  It seems that nobody else, not even the bishop or the cathedral council, may apply for a faculty, only the chapter.

The FAC has jurisdiction to grant faculties for minor works.  More significant works must be referred to the Comission for approval (s.6).  Confirmatory faculties (i.e faculties approving work ‘illegally but usefully done’) may be granted only by the Commission (ss.2(3) and 6(11)).

The Fabric Commission has power under s.6 to exclude minor works from the requirement of a faculty.  It may also hear appeals from decisions of the FAC (s.10(1)).  Appeals from decisions of the Fabric Commission are heard by a special Commission of Review chaired by the Dean of the Arches or a chancellor appointed by the Dean (s.11(3)).

A faculty petition must be initiated by the chapter but a cathedral tenant may appeal where a faculty has been refused, or granted only conditionally, for works by the tenant for which the consent of the chapter is required.  In these circumstances the tenant may appeal whether or not the chapter has appealed.

Although the bishop is not involved in cathedral faculties, he is responsible for enforcing the faculty jurisdiction on the chapter.  He may order a ‘special visitation’ of the cathedral, if he fears that the chapter has carried out, or may carry out, works without proper authorisation(s.16).

A special visitation by the bishop under the Care of Cathedrals Measure differs from an ordinary visitation in that it is not subject to the cathedral’s constitution.  It has the effect of an injunction.  When a special visitation is ordered the chapter may not act ‘with regard to the matter under inquiry’ (i.e the suspected contravention of the Measure) without the bishop’s written approval.  The bishop may also give directions to the chapter in respect of the matter under inquiry, after consulting the Fabric Commission, which the chapter must obey (s.17).

The Care of Cathedrals Measure confers enforcement powers similar to those conferred on the consistory court by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.  Having ordered his special visitation the bishop may authorise proceedings against the chapter for an injunction or restoration order.  These proceedings are heard by the Vicar-General’s Court (the same body that is constituted to determine disciplinary complaints against bishops).

The Vicar-General’s Court may order an injunction or restoration order on similar terms to the consistory court in faculty proceedings, and has a similar power to join any offending parties to the proceedings by special citation (s.20).

The strong enforcement powers that can be applied to the chapter in relation to dealings with cathedral buildings and their contents distinguish the Care of Cathedrals Measure from the Cathedrals Measure 1999, which is notably lacking in enforcement powers.