ecclesiasticallaw

Ecclesiastical law

Month: September, 2016

Holy Communion and the Constitution of the Church in Wales

‘And there shall none be admitted to the Holy Communion, until such time as he be confirmed, or be ready and desirous to be confirmed’ (Book of Common Prayer 1662, rubric)

The bishops of the Church in Wales have just issued a radical Pastoral Letter concerning admission to Holy Communion (September 2016, accessed on the Diocese of St. Davids website on 17th September).  This announces that the bishops ‘are giving permission for all those who are baptised … to receive Holy Communion’.  Confirmation, and even readiness for confirmation, will no longer be required.  As the Pastoral Letter says, this decision means that ‘even the youngest of children [will] be entitled to receive Holy Communion’.

The Pastoral Letter asserts that baptism is the only ‘gateway’ to the Eucharist, so ‘no [further] barrier should be erected to prevent all the baptised from making their communion …’.  Removing the ‘barrier’ of confirmation will ‘readopt the practice of the Early Church with respect to admission to Holy Communion’.

It is not for this blog to comment on the theological merits of the bishops’ decision.  We question only the legal authority for the decision.

The Pastoral Letter says that the bishops have ‘taken [legal] advice … and have been given the assurance that such a step does not require any change in the present Canon Law or Constitution of the Church in Wales’.

This is surprising.  A major and radical change is being made to the administration of the Church’s principal act of worship.  Surely this must require some amendment of the Church’s Constitution?  And what about the 1662 rubric, quoted above?

In the Church of England, Canon B15A(1) provides that ‘There shall be admitted to the Holy Communion … baptised persons who are communicant members of other Churches … and who are in good standing in their own Church’, as well as those referred to in the 1662 rubric.  The intention is that practising members of non-conformist Churches, which lack episcopal structure and confirmation, can still receive the Anglican Sacrament.  Canon B15A was promulged under the Admission to Holy Communion Measure 1972.

That is the English law.  The Church in Wales was constitutionally separated from the Church of England in 1920, as a result of Disestablishment.  Since then it has been governed, as the Pastoral Letter indicates, by its own Constitution.

The Constitution does not seem to contain an equivalent of Canon B15A.  It incorporates a number of ecumenical Declarations of ‘intercommunion’, or ‘full communion’, according to which ‘Each Communion agrees to admit members of the other Communion to participate in the Sacraments’ (September 1966), but such Declarations seem to be restricted to overseas Churches which possess episcopal structures (e.g the Spanish Reformed Episcopal Church).  They do not extend to local non-conformists.

However, the Church in Wales Prayer Book 1984 makes a critical amendment of the 1662 rubric:

‘Except with the permission of the Bishop, no one shall receive Holy Communion until he is confirmed, or is ready and desirous to be confirmed.’

The permission of the Bishop.  In the Pastoral Letter, the bishops are jointly giving a general permission to baptised but unconfirmed persons to receive Holy Communion.  The 1984 rubric makes clear that bishops already have a constitutional power to permit unconfirmed persons to be admitted to the Sacrament.  So maybe the legal advice referred to in the Pastoral Letter is correct, and the Constitution does not require amendment after all.

However, it is suggested that there are constitutional difficulties with the Pastoral Letter, whatever its good intentions, as follows:

(1) On its wording, the 1984 rubric indicates that confirmation remains the general rule for receiving Holy Communion.  The Bishop is empowered to dispense from the general rule, i.e allow exceptions in particular cases, but that is all.  He cannot abolish the general rule altogether.  Yet that is exactly what the Pastoral Letter is seeking to do, abolish the general rule of confirmation.  This arguably exceeds, or at least misuses, the bishops’ power, which is merely to permit exceptions.

(2) Canon B15A gives practising non-conformists the legal right to receive Holy Communion.  The 1984 rubric, by contrast, does not confer any legal right on an unconfirmed person.  It provides only for the possibility of permission from the Bishop.  The grant of permission is a matter for the Bishop’s discretion.

The effect of the Pastoral Letter is that any person wishing to receive Holy Communion in future must have either

(1) episcopal confirmation or

(2) episcopal permission under the Pastoral Letter.

Yet there is an important difference between (1) and (2).  Confirmation founds a right to Holy Communion, episcopal permission merely grants a favour.  Confirmation cannot be withdrawn, but permission can be.  If the bishops can grant permission at their own discretion, they can also withdraw it at their discretion.  The ‘barrier’ of confirmation has been lowered for now, but it could be raised again just as easily.  The Pastoral Letter is arbitrary as well as permissive.

It is also doubtful that a mere permission, unsupported by a constitutional right or duty, is sufficient to bind the clergy.  A vicar who disagrees with the Pastoral Letter could not be compelled to give Holy Communion to unconfirmed persons.  Hence different parishes might adopt different policies on the matter.

In short, the constitutional position of unconfirmed communicants will be different, and inferior, to that of confirmed communicants.

Perhaps this will not matter in practice, if the bishops’ decision proves uncontroversial.  However, it is arguable that

(1) the importance of the substantive issue and

(2) the constitutional difficulties discussed here

both demand that admission to Holy Communion be regulated by the Constitution of the Church in Wales, and not merely by Pastoral Letter.

Unprecedented Confusion: A Tribute to Chancellor Bursell

Re Sam Tai Chan (2016) Durham Consistory Court, Chancellor Bursell QC

The erudite and informative Law and Religion UK blog (to which this blog is ever indebted for both information and inspiration) has helpfully drawn attention to this recent faculty case.  The judgment appears on the website of the Ecclesiastical Law Association (accessed 12th September 2016).

The Worshipful Chancellor Bursell QC’s singular contribution to the public understanding of ecclesiastical law has been discussed in other posts (e.g ‘The Rubrics of the Book of Common Prayer’, and ‘Liturgy and the Faculty Jurisdiction’, filed under category ‘Liturgy and Law’).  This case is another egregious example of it.

The Chancellor permitted a Chinese lady to exhume the body of her late husband for reburial elsewhere.  She, at least, has reason to be grateful to him, though other less fortunate petitioners for exhumation may not have.

When deciding exhumation cases, consistory courts have for many years followed guidance given by the Court of the Arches in the case of Blagdon Cemetery (2002) 4 All England Reports 482, without any apparent difficulty or controversy.  The guidance was given because guidance given by the Chancery Court in the earlier case of Christ Church, Alsager (1998) 3 Weekly Law Reports 1394 was considered unsatisfactory.

The Chancery Court is the Archbishop of York‘s provincial court (Ecclesiastical Jurisdiction Measure 1963, s.1(2)(a)).  It is therefore the principal court of the northern province, the Province of York.  The Durham Consistory Court, over which Chancellor Bursell presides, is also in the northern province.  The Court of the Arches, of course, is in the Province of Canterbury, the southern province.

It was for this reason that the Worshipful Chancellor found it necessary to disturb the tranquil operation of the post-Blagdon faculty jurisdiction.  He acknowledged that his intervention might prove ‘inconvenient’ (cf para 12).  But the exhumation case raised ‘the question … as to how rules of precedent apply within the two provinces’ (para 8).

After a lengthy discussion of the subject of judicial precedent in the ecclesiastical courts, he concluded that ‘in so far as the northern province (sic) the Alsager test [i.e the guidance given by the Chancery Court in the Alsager case] still prevails’ (para 22).  Canterbury and York are separate provinces, and they remain separate ecclesiastical jurisdictions.  The Court of the Arches has no superiority over the Chancery Court.  This means that northern consistory courts are not ‘bound’ by the Blagdon guidance, only southern ones.  On the contrary, the northern courts are bound to follow the Alsager guidance.

The Chancellor modestly forbore to mention that he was himself a member of the Chancery Court that decided Alsager, and was therefore a co-author of the unsatisfactory guidance.  He seemed to resent the Court of the Arches’ criticism of the guidance (cf para 22)  (Which is understandable, of course).  He also had a dig at some fellow northern chancellors who meekly followed the Blagdon guidance instead of adhering to the Northern Precedent (paras 13 and 14).

It is argued that the Chancellor misunderstood the doctrine of judicial precedent.  A precedent is what the court decides, not what it says, in the particular case.  Stare decisis, not stare dictis.

What, exactly, did the Court of the Arches decide in Blagdon?  The Court granted an exhumation faculty because the consistory court, which had refused exhumation, ‘did not address this [case] specifically in terms of the bringing together of parents and child in a family grave … the exercise of the [consistory court’s] discretion was flawed in so far as it was based on an erroneous evaluation of the facts in this respect, and … in the way [it] treated the lapse of time as determinative’ (para 39).

The consistory court in Blagdon had refused exhumation because it was following, or trying to follow, the Alsager guidance.  The guidance had confused the chancellor and led him into error.  The Court of the Arches therefore issued its own guidance.

Thus the only discernible ‘precedents’ in Blagdon are that

(1) a long lapse of time between a burial and an exhumation request should not be determinative of an exhumation petition, and

(2) a discretionary decision should be set aside if based on an erroneous evaluation of facts.

The guidance given in Blagdon had nothing to do with the Court’s decision on the particular case.  The decision was merely the occasion for issuing the guidance.  The guidance was issued to assist consistory courts to avoid erroneous decisions, and hence avoid the need for future appeals.

Thus the Blagdon guidance did not engage the doctrine of judicial precedent.  The guidance is just that – guidance.  It does not ‘bind’ the consistory courts of either province.  It merely seeks to assist them to avoid errors and appeals.  Guidance is not binding precedent.

Chancellor Bursell was therefore not obliged to follow the Blagdon guidance, if he did not want to.  (Whether he was wise not to do so is quite another matter, of course.)  He was free to follow his own guidance in Alsager.  Indeed a chancellor in the southern province could choose to follow the Alsager guidance and ignore the Blagdon guidance.  Or a chancellor could choose to ignore both.

Bursell’s judgment reveals a second misunderstanding about precedent.  The doctrine of judicial precedent does not apply to the grant or refusal of faculties at all, because this is not a judicial function, even though it is exercised by courts and judges.  The grant or refusal of faculties (which are licences or permissions) is an administrative or pastoral function, not a judicial one.  It is an administrative discretion.  (See post ‘Doing Justice to Faculties’, filed below).  Administrative discretion should be exercised fairly and consistently.  Clear guidance will assist this.

It is true that Bursell is far from being alone in these confusions.  The doctrine of judicial precedent is widely misunderstood.  Court judgments are often read and interpreted as if they were legislation.  And ecclesiastical judges seem unable to grasp that the faculty jurisdiction is administrative, not judicial (just as they cannot grasp that ecclesiastical courts are governed by English law and not ‘canon law’).

However, Bursell’s judgment is of poor quality, even apart from its basic confusions.  It strongly suggests that Bursell used the case merely as a convenient peg on which to hang his flawed thesis on judicial precedent.  The facts of the case and the reasons for the granting the faculty are not adequately stated.

The Chinese lady’s husband died in 1978, but the Chancellor did not require an explanation of why exhumation was not sought until nearly 40 years later.  Lapse of time may not be determinative of an exhumation case, but it is still relevant to the case.  The lady sought exhumation because the original burial was ‘a mistake by virtue of mis-information’ (para 5), but the mistake and the mis-information are not described.

Moreover, the Chancellor did not grant the faculty on the basis of a mistake, but because ‘the different ethnic approach to burial within the Chinese Christian Church provides a good and proper reason for exhumation’ (para 27), but again this ‘ethnic approach’ is not described.  Yet non-Chinese Christians whose petitions for exhumation are refused might be interested to know what it is.