At common law there are said to be four things necessary to ‘complete a parson’:
(3) institution and
(Bishop of St. Davids v Lucy (1699) 91 English Reports 126).
The benefice patron presents his chosen candidate for a vacant benefice to the bishop, who may then admit the candidate. Presentation is now regulated by statute law, principally the Patronage (Benefices) Measure 1986. Presentation is formally effected by the patron sending the bishop a notice presenting the candidate for admission, the second stage in the appointment process (s.13(6)).
Institution is granted by deed of the bishop. When ‘signed, sealed and delivered’, it confers title to the benefice on the presentee. If the bishop is himself the patron, the incumbent is said to be collated rather than instituted. Induction confers possession of the church and other property of the benefice. The formalities of institution and induction are ancient, and now mostly regulated by canons C10 and C11.
It would seem that all benefices are now either presentative or collative. There used to be benefices described as donative, ‘in the free gift … of the patron, without making any presentation to the bishop; and without admission, institution or induction by any mandate from the bishop … but the donee may, by the patron or by any other authorized by the patron, be put into possession’ (Phillimore, Ecclesiastical Law, 2nd edition 1895, pp.252-3).
The distinction between admission and institution to benefices is often blurred. Indeed the terms are sometimes used interchangeably. S.106(1) of the Mission and Pastoral Measure 2011 understands the word admission to include ‘institution and induction, collation, licence and any other process by which a person becomes incumbent of a benefice …’. Phillimore explains that ‘In a larger sense admission is sometimes used to include also institution, but … properly, admission is taken to be when the bishop upon examination approves of the presentee as a fit person to serve the cure of the church to which he is presented’ (p.350).
The admission process makes the important point that a candidate validly presented to a benefice still requires the approval of the bishop. The Patronage (Benefices) Measure 1986 provides that the patron cannot normally make an offer of presentation to his preferred candidate for the benefice without the bishop’s prior consent (s.13(1)). However, s.17(1) of the 1986 Measure is careful to provide that ‘Nothing in this Measure shall affect the power of a bishop to refuse to institute or admit a presentee’.
Thus the bishop has two rights of veto over a candidate for a benefice. He can refuse to allow the patron to make initial offer, and he can refuse to institute even where he has allowed the patron to make the offer. Thus in effect the bishop can change his mind about the candidate’s suitability.
There are sound reasons for retention of the bishop’s second veto. As chief pastor, he has responsibilities that are not shared with the patron and parish of a vacant benefice. Canon C10(2) provides that the bishop must inspect the presentee’s letter of orders, or require other sufficient evidence that he has been ordained. He may also require further evidence of the candidate’s ‘former good life and behaviour; and … sufficient learning’.
Canon C15(1) requires the candidate to make the declaration of belief before he is instituted. The declaration of canonical obedience is also required (canon C14(3)), as is the oath of allegiance and supremacy (Clerical Subscription Act 1865, s.5 and canon C14(3)). However, s.5 of the 1865 Act makes clear that the bishop may not impose any subscription, declaration or oath other than those imposed by law or canon.
It is likely that the candidate will be required to submit to enquiries into his suitability to work with children, but this requirement is not referred to in any Measure or canon.
It is obviously possible that the admission process may bring to light information about the candidate that was not known at the presentation stage. The bishop therefore requires an additional right to veto the presented candidate before institution.
The bishop’s refusal to institute a clergyman who has been validly presented to him is governed by the Benefices Act 1898, not the 1986 Measure. S.2 of the 1898 Act provides that a bishop may refuse to institute a presentee who was ordained less than three years previously, or whom he considers unfit for the duties of the benefice. The definition of ‘unfitness’ in s.2 is fairly obvious, including physical or mental infirmity or incapacity, serious pecuniary embarrassment, or other serious professional or personal misconduct.
However, s.3(1) of the 1898 Act provides that the bishop’s right to refuse institution is not limited to the grounds specified in s.2, but extends to ‘unfitness or disqualification of the presentee otherwise sufficient in [common] law …’.
The 1898 Act makes clear that Crown benefices are subject to its provisions (s.13(1)). Thus although the bishop may not veto a Crown presentation (per s.35 of the 1986 Measure) he can still refuse to institute the Crown’s candidate.
If the patron or the presentee dispute the bishop’s refusal to institute they may appeal to a special tribunal comprising the Archbishop and either the Dean of the Arches and Auditor or a diocesan chancellor nominated by the Dean.
However, a different regime applies if the bishop’s refusal to institute is founded on a so-called ‘reserved matter’, i.e an issue of doctrine, ritual or ceremonial. In such a case the presentee may challenge the refusal in the Court of Ecclesiastical Causes Reserved: Ecclesiastical Jurisdiction Measure 1963, s.10(1).
Just as there are four things necessary ‘to complete a parson’, so there are four things necessary to complete a bishop. These are
(3) consecration (ordination) and
(4) installation (now often described as ‘enthronement’)
(per Bishop of St. David’s v Lucy).
Thus there is no equivalent process of admission in the appointment of a bishop. The obvious reason for this is the English legal doctrine that ‘All bishoprics were of the King’s foundation and thereupon accrued to him the right of patronage’ (Phillimore, p.33, citing Coke).
The Appointment of Bishops Act 1533 makes clear that, although the four stages of appointment of a new bishop are effected by ecclesiastical authority, the Crown controls the entire process.
Thus s.4 of the 1533 Act provides that, on a vacancy in the see, the Monarch grants a licence to the dean and chapter to elect a new bishop. However, the licence is always accompanied by a letter containing the name of the person whom they shall elect. The dean and chapter’s responsibility is now exercised by a new cathedral body, the college of canons (Cathedrals Measure 1999, s.5(3)).
When the candidate has been elected, the 1533 Act provides that the Monarch sends letters patent to the Archbishop, commanding him to confirm the election and ‘invest and consecrate the person to the office and to give all such ceremonies and other things requisite for the same’ (s.5).
If the chapter (or college of canons) decline to elect the Monarch’s candidate, the Monarch, like the patron of a benefice, presents the candidate to the Archbishop (s.4). The Archbishop must then invest and consecrate the candidate to the office, without confirmation.
The 1533 procedure was discussed in the case of R v Archbishop of Canterbury (1902) 2 King’s Bench 503, in which the Archbishop’s confirmation of the election of a controversial new Bishop of Worcester was unsuccessfully challenged in the secular court.
The court held that the 1533 Act gives the Archbishop no discretion to refuse to confirm a valid election just because he (or others) doubted the candidate’s fitness for the office. A refusal to confirm would be an act of disobedience to a lawful royal command. S.7 of the Act even prescribes penalties against anyone doing anything contrary to the Act. Moreover, the Act gives the Archbishop a mere 20 days to confirm. This was ‘wholly inconsistent with the idea that the statute referred to a recognized practice [i.e of disputing a bishop-elect’s fitness for office] … [involving] protracted litigation’ (p.542).
The court also noted the Monarch’s power under s.4 of the 1533 Act to override the ecclesiastical election and present its candidate to the Archbishop for consecration and installation. The existence of this power proves that confirmation is not legally essential to the appointment of a bishop. Before the disestablishment of the Church of Ireland, all Irish bishops were appointed by letters patent of the Crown, without any confirmation by an Archbishop (p.547). Therefore ‘bishoprics have always had largely the character of donatives’ (p.541).
Although the last stage of appointment to a bishopric, installation / enthronement in the cathedral, is an ecclesiastical ceremony, s.6 of the 1533 Act provides that a new bishop ‘shall have out of the King’s hands all the possession and profits spiritual and temporal belonging to the bishopric’.
However, there is an interesting anomaly in the law governing the appointment of bishops. The Bishops in Foreign Countries Act 1841 permits the two Archbishops to consecrate bishops for overseas service, but only if they have been ‘fully ascertained of the sufficiency of [the candidate] in good learning, of the soundness of his faith, and of the purity of his manners’ (s.3). The Home Church, by contrast, enjoys no such guarantee of the quality of its bishops. The Crown cannot be compelled to consider learning, sound faith and purity when exercising its powers under the 1533 Act. It can only be trusted to do so.