Ecclesiastical law

Month: May, 2014

Objecting to an Ordination

‘if there be any of you who knoweth any impediment, or notable crime, in any of these persons presented to be [ordained], for the which he ought not to be admitted to that office, let him come forth in the name of God, and shew what the crime or impediment is’ (1662 Ordinal).

This invitation is made by the bishop to the congregation, with slight differences of wording, during the ordination services of both priests and deacons, though not of bishops.

Many years ago the author of this blog was present at an ordination service where an objection was made to one of the candidates.  She was apparently the first woman to be ordained in the Anglican Church in Wales.  This was, of course, the reason for the objection.

The Bishop made the ritual invitation quoted above.  Four clergymen in the congregation stood up in their places, but said nothing.  Then two ladies came forward.  The Bishop said to them, somewhat coldly, ‘Please address yourselves to the Chancellor, who is my legal adviser’.  The Chancellor, in wig and gown, was standing nearby.  The ladies read out a prepared statement of objection, in unison.  The Chancellor then read out his own prepared statement rebutting the objection, citing a recent amendment of the Constitution of the Church in Wales to permit the ordination of women.

The two ladies and the four clergymen, together with about 20 supporters, then walked out of the Cathedral, where representatives of the news media were busily recording the dramatic event.  Someone in the congregation shouted a reproach after them (‘May God forgive you, you know not what you do!’).  The service then proceeded as normal, and the woman candidate was ordained.

The ordination service could continue as normal because the objection to the candidate did not amount to an ‘impediment’, for the reason identified by the Chancellor.  The ordination of women was lawful.  However, the 1662 Ordinal goes on to provide that ‘if any great Crime or Impediment be objected, the Bishop shall surcease from Ordering that person, until such time as the party accused shall be found clear of that Crime’.

As well as the provision of the Ordinal for objection to be made during the service, the ordination of priests and deacons was formerly subject to a procedure known as the si quis, which may have resembled the publication of banns of marriage.  Phillimore’s Ecclesiastical Law relates a requirement that

‘proclamation [of a proposed ordination] be thrice made in the parish church where the person who offers himself to be ordained inhabits, in order to know the impediments if any be: which the minister of such parish is to certify to the bishop or his official’ (2nd edition, 1895, p.99).

Thus the older ecclesiastical law provided for no fewer than four public invitations to object to an ordination candidate.  However, the scope for objection is limited to an ‘impediment or notable crime’.  It does not extend to any allegation or complaint that a candidate is unsuitable.

The limited scope for objection was demonstrated in the case of Kensit v Dean and Chapter of St. Paul’s (1905) 2 King’s Bench 249.  It is interesting to compare the facts of this case with the Church in Wales case described earlier.  Mr Kensit was a well-known and dogged opponent of ritualism (the last great ecclesiastical controversy before women priests).    He suspected that the ordination candidates engaged in ritualistic practices.  He came forward in response to the Bishop’s invitation, and stated that he ‘felt it incumbent on him to make very serious objections’ to some of the candidates (p.250). 

However, before Mr Kensit could get around to making his objections, the Bishop cut him short by reading out a legal opinion from the Dean of the Arches to the effect that involvement in ritualistic practices, even if they were illegal, did not constitute an ‘impediment or notable crime’ within the meaning of the Ordinal.

The Bishop then warned Mr Kensit that, unless his objections satisfied the wording of the Ordinal, as interpreted by the Dean of the Arches, he should desist from reading them out and would be prosecuted if he persisted.  Mr Kensit did persist in reading out his objections.  Like the Church in Wales objectors, he then walked out of the Cathedral.  Unlike them, however, he was later convicted under the Ecclesiastical Courts Jurisdiction Act 1860 of ‘unlawfully disturbing divine service’ when the Dean and Chapter complained.  His appeal against conviction was dismissed.

What was Mr Kensit’s unlawful disturbance?  He had not come forward unbidden, but in response to the Bishop’s invitation which was itself required by the Ordinal.  His objection was not frivolous or vexatious: the ordination candidates probably were involved in ritualistic practices that were then illegal. The offence against the 1860 Act is an offence against public order and freedom of worship.  Yet Mr Kensit was convicted, not because of what he did or intended to do, but only because he had misunderstood the Ordinal provision: the candidates’ conduct, even if illegal, did not amount to an ‘impediment or notable crime’.  Mr Kensit was found guilty of a criminal offence by a secular court because he had made an error of ecclesiastical law. 

If Mr Kensit had not misunderstood the rubric, and his objections had amounted to impediments or notable crimes, he could have continued to ‘disturb’ the service and yet not been guilty of an offence.  Instead, as the magistrates who convicted him pointed out, the Bishop would have been guilty of an ecclesiastical offence by continuing with the ordination in the face of Mr Kensit’s objection. 

It is argued that Mr Kensit should not have been convicted on this basis.  He was not ‘disturbing’ the service merely by making his objection, because the objection procedure was an integral part of the service.  It was not the business of a secular criminal court to decide whether or not the objection was valid in ecclesiastical law.  That was for the Bishop to decide.  The true question for the secular court was whether Mr Kensit’s conduct exceeded the licence that he needed in order to make his objection, so as to constitute an unlawful disturbance.

The si quis procedure was abolished in the Church of England under power conferred by the Miscellaneous Provisions Measure 1976, s.1.  It also seems to have been discontinued in the Church in Wales.  The 1662 Ordinal has not exactly been abolished, but it is no longer used for ordinations.  As Chancellor Bursell noted in St. Thomas, Pennywell (1995) Family 50, modern ordination services omit provision for objecting to a candidate.  Instead they merely invite the congregation to ‘assent’ to the ordinations.  This means that objections of the kind described above would constitute an unlawful disturbance if made during a modern ordination service.

The abolition of the objection procedure may be regarded as an attempt by the Church authorities to suppress dissent to their choice of ordination candidates.  However, it was not the purpose of the older ecclesiastical law to provide a democratic opportunity for public dissent and protest.  On the contrary, the objection procedure was intended to assist the bishop, by enabling him to be informed of impediments and crimes of which he might otherwise be unaware. 

It is arguable that a formal procedure for objecting to an ordination is now unnecessary.  Ordination candidates will be subject to criminal record checks, if only to establish that they are suitable to work with children (though such checks are still not expressly required by ecclesiastical law).  Modern communications should make it possible for any serious allegation against a candidate to be notified to the bishop in advance of ordination, without the need for a dramatic intervention during the ceremony itself.

Conciliation and Clergy Discipline

The Clergy Discipline Measure 2003 provides, at s.12, that if the bishop decides to proceed with a disciplinary complaint against one of his clergy, there are 4 possible courses open to him.  He can

(1)  ‘direct that the matter remain on the record conditionally’, but only with the accused clergyman’s consent.

(2)  attempt to resolve the dispute by a process of conciliation

(3)  impose a penalty, again with the clergyman’s consent

(4)  refer the complaint for ‘formal investigation’, which means turning it over to a disciplinary tribunal for adjudication.

Conciliation (option (2) above) is regulated by s.15 of the 2003 Measure.  The conciliator is appointed by the bishop, but the terms of the conciliation must be agreed by both the clergyman and the complainant.  The bishop must also be satisfied that the conciliator is impartial.

It is not easy to see how the conciliation option fits into the scheme of clergy discipline.  Indeed it is arguable that conciliation has no real place in the Clergy Discipline Measure.  It may be an appropriate means of resolving private disagreements.  However, if applied to the public order and professional discipline of the Church then it blurs the important distinction between right and wrong.  An accused clergyman has either misconducted himself or he has not.  If he has misconducted himself then he should be penalised, or at least warned.  But if he has not misconducted himself then he should not be troubled further.  Disagreement and discipline are two different subjects.  Disagreements are private, civil matters.  Discipline is a public, quasi-criminal matter.

In an article for the Ecclesiastical Law Journal jauntily entitled ‘A Canter’ through the disciplinary procedure, Adrian Iles, a barrister with responsibility for administering the 2003 Measure, suggested that conciliation ‘may be particularly useful where there has been a pastoral breakdown in relations between the parties …’ (January 2007, p.16).  However, when he wrote this, the Incumbents (Vacation of Benefices) Measure 1977 already provided a procedure for resolving a breakdown in pastoral relations, albeit only for incumbents, not other clergy.  The 1977 Measure was passed in the wake of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 , when the Rev Mr Bland was cleared of any serious misconduct even though his behaviour had clearly alienated his parishioners.

The 1977 Measure does not apply to the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009.  However, the 2009 regime provides for a ‘capability procedure’, similar to that operated in most secular employment (see Terms of Service Regulations, regulation 31).  The capability procedure is arguably the appropriate forum to address personal or pastoral difficulties between clergy and their colleagues or parishioners.

Mr Iles has recently contributed a second article to the Ecclesiastical Law Journal, to commemorate the 10th birthday of the Clergy Discipline Measure (January 2014, p.3).  This article further illustrates the confusion over the role of conciliation in disciplinary proceedings.  While giving a generally positive account of how the Measure has worked in practice, Iles regrets that ‘the most disappointing aspect of the Clergy Discipline Measure … has been the relatively rare use of conciliation to resolve complaints’ (p.6).  Apparently only 6 cases have been resolved by conciliation.

However, the article itself reveals the reason for this, even if the learned author seems unaware of it.  It states firmly that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters … Bishops are encouraged … to take a fairly robust approach at the preliminary scrutiny stage and to be alert to the possibility of resolving a complaint … by non-disciplinary means outside the Clergy Discipline Measure where appropriate’ (p.5).

‘Disagreements and grievances’ do indeed fall outside the scope of the Clergy Discipline Measure, because the function of the Measure is to correct and penalise misconduct, not to settle disputes.  Hence complaints which indicate no more than a disagreement are rightly rejected at the preliminary stage.  Only allegations of misconduct go forward to the second stage of the procedure, as provided by s.12.

This renders the conciliation option superfluous under the present structure of the 2003 regime.  The option is provided only at stage 2 of the disciplinary procedure, but matters suitable for conciliation will already have been dismissed at stage 1.  If conciliation has any place in the Clergy Discipline Measure, its proper place is at the preliminary scrutiny stage, not at stage 2.  A disagreement or grievance that does not amount to misconduct should be dismissed at the preliminary stage, but it may be appropriate to recommend an attempt to resolve it by conciliation.

Holy Orders: Validity and Legality

Sacrament and Non-Sacrament

The distinction between the validity and the legality of holy orders was explained by Pope Leo XIII in Apostolicae Curae (1896):

‘If … a person has seriously and correctly used the due matter and form [of a sacrament], he is … presumed to have intended to do what the Church does … a sacrament is truly a sacrament, even if it is conferred through the ministry of a heretic, or of one who is not himself baptised, provided the catholic rite is used’ (para 33).

As is well known, the Pope concluded, in Apostolicae Curae, that the Church of England’s orders did not satisfy this test.  The essential reason was that the ‘form’ or rite of ordination contained in the 1662 Ordinal and its predecessors is not adequately worded to confer Catholic priesthood.  In the original Ordinal of 1549, the words of ordination were only ‘Receive the Holy Ghost’, without any reference to priesthood.  The clarifying words ‘Receive the Holy Ghost for the office and work of a priest‘ were not added until 1662, which was too late to repair the original defect.  Moreover the Ordinal does not clearly express, indeed it positively denies, the Catholic understanding of priesthood, in particular of the priest as  ‘sacrificer’, the minister of the Eucharistic sacrifice.

These defects necessarily mean that nobody who uses the Church of England rite can intend to ordain a Catholic priest.  He therefore cannot be ‘presumed to have intended to do what the Church does’.  If he had intended to ordain a Catholic priest he would have used a different rite.

However, Pope Leo did not hold that Anglican orders are invalid because the Church of England left the Catholic Church at the Reformation.  On the contrary, orders may be validly conferred outside the Catholic Church.

This conclusion was reaffirmed in the case of Archbishop Marcel Lefebvre, who was excommunicated in 1988 for ordaining bishops in breach of canon law.  Lefebvre’s ordinations were said to be valid but unlawful.

It must always be remembered that the distinction between the validity and legality of holy orders depends on the Roman Catholic doctrine that orders are a sacrament.  The Code of Canon Law 1983 makes clear that orders are one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840, reiterated in canon 1008).

English ecclesiastical law, by contrast, is clear that orders are not a sacrament as the 1983 Code understands this.  Article 25 states that baptism and ‘the supper of the Lord’ are the only two sacraments ‘ordained of Christ our Lord in the Gospel’.  The other five Catholic sacraments, including orders, ‘are not to be counted for sacraments of the Gospel … for that they have not any visible sign or ceremony ordained of God’. 

This means that the ‘valid but unlawful’ distinction of Roman Catholic law cannot be applied to English ecclesiastical law.  If a particular rite is not sacrament instituted by God, then it cannot be both valid and unlawful.  It can only be lawful or unlawful.  Its validity depends upon its lawfulness, because, lacking divine authority, it can have no other basis but human authority.  To be valid, a rite that is not a sacrament must possess an authority conferred or recognised by human law.

Article 23 strongly emphasises the importance of legality in ministry: ‘It is not lawful for any man to take upon him [ministerial] office … before he be lawfully called, and sent to execute the same … by men who have publick authority given unto them in the Congregation’.  There is no reference to any particular rite of ordination as the condition of a valid ministry.

Article 26 states that those with ‘authority in the ministration of the Word and Sacraments … do not the same in their own name but in Christ’s, and do minister by His commission and authority …’.

This suggests that human authority within the Church is an extension of Christ’s authority.  Ministers lawfully ordained by the Church are ordained by Christ.  The divine authority to exercise the ministry of Word and Sacrament is mediated through human authority.  However, the precise form of the ordination is not relevant, so long as it is conferred lawfully.

The form or rite of ordination is regulated by Article 34, which confirms that

‘Every particular or national Church hath authority to ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.

Thus the 1662 ordination rite, and modern alternatives thereto, are indeed ‘rites of the Church ordained only by man’s authority’.

However, the Roman Catholic distinction between validity and legality has sometimes echoed within the Church of England in the modern controversy over female ordination.  ‘Traditionalists’ may suggest that, while Lefebvre’s ordinations were valid but unlawful, Anglican ordinations by or of women are lawful but invalid!  This is yet another example of the confusion which results from treating English ecclesiastical law as if it were part of canon law.

Legality and Illegality

In a recent article for the Ecclesiastical Law Journal, the Reverend Dr William Adam discusses the legal consequences arising from the appointment of a woman as diocesan bishop in the Church of Ireland (vol 16(2), May 2014, p.187).  Women may not, as yet, be ordained as bishops in the Church of England, and parishes enjoy a statutory right to veto the appointment of a female incumbent.  However, there is no English law to prevent male priests ordained by the Irish woman bishop from officiating anywhere in the Church of England.  The parish veto applies only to women priests, not to male priests ordained by a woman bishop.  Moreover, clergy from the Church of Ireland who wish to officiate in England are not subject to the Overseas and Other Clergy Measure 1967, and so do not require special permission from the two Archbishops.  (The 1967 Measure applies only to Anglican Churches outside the British Isles, not to the Anglican Churches in Wales, Ireland and Scotland.)    

Citing an opinion of the Legal Advisory Commission published in 2004, Adam points out that the 1967 Measure refers to recognition of the orders of Churches rather than orders conferred by individual bishops.  Canon C1, which was promulgated about the same time as the 1967 Measure, confirms that to be a ‘priest’ in English law, one must have been ordained in the Church of England, ‘or ha[ve] had formerly episcopal consecration or ordination in some Church whose orders are recognised and accepted by the Church of England’.

These modern authorities are entirely consistent with the requirements of the 39 Articles that any valid ministry must have lawful authority.  All the authorities point to the conclusion that there could never be an Anglican equivalent of the late Archbishop Lefebvre.  If a ‘rogue’ bishop purported to ordain priests without any authority other than his own episcopal orders, such ordinations would be invalid.  This is because they would contravene the fundamental principle of Article 23, that those who administer and receive ordination both require ‘publick authority given unto them in the Congregation’.   They could not be valid just because the rogue bishop used an authorised ordination rite, or that he intended to do what the Church does.  

It must be admitted, however, that there is little case law on irregular ordinations, and this is inconclusive.  In Bishop of Natal v Gladstone (1866) Law Reports Equity 1, the Bishop sued the trustees of the Colonial Bishoprics Fund (of whom Gladstone was one) for payment of his stipend, which they had withheld.

The Bishop had been consecrated by the Archbishop of Canterbury and sent to Natal, South Africa, under the authority of letters patent of the Crown.  The problem was that the letters patent were issued without the authority either of the Westminster Parliament or of the South African colonial legislature.

The Fund had been set up to pay the stipends of colonial bishops.  However, the trustees argued that, because the letters patent did not have statutory authority, either in Britain or South Africa, the Bishop’s appointment was a nullity.  He was not really the Bishop of Natal and so any payment to him out of the Fund would be in breach of the trust.

The Court held that the Bishop was a bishop of the Church of England, because he had been consecrated by the Archbishop on the mandate of the Crown.  The Crown did not require statutory authority to order the consecration of a new bishop.  It had power to do so under the Royal Prerogative.

This case tends to support the view that the validity of an ordination in English law is dependent on its lawfulness.  As the court said, if the Archbishop had consecrated the Bishop without the royal mandate, the consecration would have been unlawful, and the Bishop would certainly not have been a bishop of the Church of England.  However, the court specifically declined to speculate as to ‘what his peculiar status in the Catholic Church of Christ might be’ (p.47).

In Bishop of St. Albans v Fillingham (1906) Probate 163, the ecclesiastical court disciplined the Rev Mr Fillingham after he purported to ordain a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  The court held that such action was ‘an usurpation … of powers which belong to the Christian society itself and … an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  This dictum echoes Article 23.  However, Mr Fillingham was not a bishop, only a priest.  The charge against him was ‘purporting to ordain a priest without himself being a bishop’ (p.176).

The case of Macmanaway (1951) Appeal Cases 161 concerned a priest of the Church of Ireland who got himself elected to Parliament.  However, the law then in force provided that any person ‘having been ordained to the office of priest or deacon’ was ipso facto disqualified from election to Parliament.

The Privy Council confirmed that the Rev Mr Macmanaway was indeed disqualified.  It was not relevant that he belonged to a disestablished Church rather than to the Church of England: ‘any ordination that can properly be described as episcopal is a valid admission of a person to the order of priest or deacon … whether within or without the Church of England’ (p.173).

This dictum may support the view that an episcopal ordination may be valid even if unlawful, just so long as it is recognisably episcopal.  However, it must be remembered that Mr Macmanaway’s priestly orders were not questioned in the case.  It was not suggested that he had not been ordained, or that his ordination had contravened either English law or the constitution of the Church of Ireland.  The only issue was whether the legal prohibition on priests and deacons being elected to Parliament applied only to Church of England ordinations, or to ordinations in other episcopal Churches.

Apart from Apostolicae Curae and the Lefebvre case, there seems to be little Roman Catholic jurisprudence concerning the validity or legality of ordinations.  The Catholic Church has an annulment procedure for ordination (canons 1708-12), just as it has for marriage but, unlike the marriage annulment procedure, it is rarely used (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.1019).