ecclesiasticallaw

Ecclesiastical law

Month: November, 2017

The Crockford Preface 1987: Thirty Years On

The Preface excited remarkable interest and controversy.  By a longstanding custom, its author was anonymous.  However, even in those pre-internet days, anonymity was difficult to maintain in the face of relentless media attention.  The then Archbishop of York, Dr John Habgood, publicly condemned the ‘sourness and vindictiveness’ of the Preface, and the ‘scurrilous charges’ that it supposedly made.  Unnerved by the storm of controversy, and threatened with exposure, the author took his own life.

He was subsequently identified as the Reverend Dr Gareth Bennett (1929-1987), Oxford don and priest of the Church of England.  His Preface is 40 pages long.  It was republished in a posthumous collection of his work, To The Church of England (1988, at pp.189-228), edited by Geoffrey Rowell, a sympathetic colleague.  (Bishop Rowell himself died, of natural causes, earlier this year.)

At about the same time, Archbishop Habgood published a more measured assessment of the Preface, in Confessions of a Conservative Liberal (1988, at pp.82-91).  However, the tragic denouement of the controversy damaged his reputation, and may even have cost him the succession to St. Augustine’s Chair when it became vacant 3 years later.

Dr Bennett saw his task as the provision of ‘an informed and critical account of the state of the Anglican Communion and the Church of England in particular’ (p.189).  Hence the need for anonymity.  Anonymity made possible ‘the scrutiny of a writer who is given complete independence’ (p.190).

His essential criticism of ecclesiastical governance was that it fails to enable adequate consultation.  Improved consultation will improve the quality of ecclesiastical governance, by making it more cohesive and inclusive.

The Preface identifies 3 specific failures of consultation, within:

(1)  the Anglican Communion

(2)  the synods of the Church of England and

(3)  the Crown Appointments Commission (now called the Crown Nominations Commission), which nominates diocesan bishops to the Crown.  It was this that caused all the controversy.

(1) The Anglican Communion

The Preface begins with a survey of the fragmented state of the Anglican Communion.  Anglicanism began in England, of course, and the word ‘Anglican’ really means ‘English’.  The Church ‘followed the flag’ as the British Empire spread across the globe.

Bennett observed that ‘The Englishness of the Communion is not what it was … with the spread of American influence and the natural desire of African and Asian dioceses to break with their colonial past and develop their own indigenous styles’.  The Book of Common Prayer and its derivatives have fallen into ‘virtual disuse’ (p.197), and the new liturgies ‘have distinct doctrinal differences from each other’ (p.198).  This prompts the rhetorical question: ‘without its English style what does keep the Communion together?’ (p.197).

Another fragmenting force is the rejection of classical High Anglican theology, which found the Church’s authority in the Bible as this was interpreted in the life and practice of the Early Church (p.191).  Theologians now suggest that the authorities of the Early Church are too obscure, happened too long ago, and in too different circumstances, to guide the modern Church (cf p.200).  Modern man is therefore condemned ‘[to] live amid the ruins of past doctrinal and ecclesiastical systems, looking to the Scriptures only for themes and apprehensions which may inform [him] … ‘ (pp.200-1).

The existing pan-Anglican consultative bodies are not capable of arresting this process of fragmentation.  The Archbishop of Canterbury is no more than ‘an honoured guest’ outside England.  The Primates’ Meeting ‘lack[s] the authority to make major recommendations’ (p.203).  The ordination of women (still a novelty at that time) has undermined the unifying collegial function of the bishops: ‘the episcopal ministry … the focus of unity, has become a focus for Anglican disunity’ (p.199).

Bennett therefore argued for ‘a reconstituted [Anglican] Consultative Council … to meet more frequently, have an adequate secretariat and the assistance of theologians and experts … there will have to be some self-denying ordinance by which the provinces agree that certain matters should not be decided locally but only after a common mind has been established among the Churches’ (pp.203-4).  Thus Churches with very different cultural values would be forced to listen to each other.

This, of course, anticipated the conclusions of the Windsor Report of 2004, which fell flat.  Its proposal for a pan-Anglican ‘Council of Advice’ and an ‘Anglican Communion Covenant’ is really a more elaborate version of Bennett’s proposal.

Archbishop Habgood generously described the analysis of the Anglican Communion as the ‘best part’ of the Preface (p.87), though he did not endorse Bennett’s proposal.  The failure of the Windsor Report may have vindicated him on this point.  Instead, the Archbishop founded his hope for the Communion on a pan-Anglican ‘doctrine commission’ that had recently been established, but this body (if it still exists) has not been conspicuously successful either.

(2) Synodical Government

Bennett was not the first to point out that the House of Laity of the General Synod is not very representative of its constituency.  Ordinary churchgoers cannot elect its members, they can only elect those who do.  The House of Clergy is more representative, but even there the representative quality is diminished by the large number of ex officio members.

However, his most important point was that the General Synod has very little control of ecclesiastical governance.  He observed that, though the House of Commons can vote the government out of office, ‘the General Synod, by contrast, finds itself faced with a government of the Church which is almost wholly independent of it’ (p.212).

The bishops are not accountable to the General Synod in the way that ministers of the secular state are accountable to Parliament.  Ministers have to answer parliamentary questions and give evidence to select committees concerning the exercise of their responsibilities.  There is no equivalent scrutiny of bishops.

It is true that ecclesiastical legislation (Measures, canons and subordinate legislation) requires the Synod’s approval, but there is not much of this, and it is mostly uncontroversial.  Hence ‘most of the debates … are … on reports from various boards or committees … motions … whether passed or amended, lead to no action at all’ (p.212).

The General Synod’s constitution confirms its freedom (of which it takes full advantage) ‘to consider and express [its members’] opinion on any other matters of religious or public interest’ (Synodical Government Measure 1969, sch2(6)(b)).  But what does this have to do with the governance of the Church?

Synodical government is a misnomer if the synods do not govern the Church.  There is a well-known axiom that the Church of England is ‘episcopally led and synodically governed’.  However, Bennett argues that there is little connection between the two: ‘nothing the Synod does has much effect on [the bishops], the administration of their diocese or the work of the leadership group within it’ (p.212).

This explains ‘the irritation which many bishops feel at having to spend so much time at Synod meetings, and their desultory contribution to its debates’ (p.212).  And who can blame the bishops for being bored by the General Synod, if its proceedings have so little relevance to their work?

Although Bennett does not make this point, English differ from their Roman Catholic counterparts as well as their secular counterparts in their lack of accountability.  Canon 399(1) of the Code of Canon Law 1983 obliges every bishop ‘to present a report to the Supreme Pontiff every 5 years concerning the state of [his] diocese … according to a [standard] form … determined by the Apostolic See’.  This form may resemble the articles of enquiry on a visitation.

The bishop presents the report personally on his obligatory ad limina visit to Rome (canon 400(1)).  (Apparently, when the bishop appears before the Pope, a map of his diocese is hung up in the papal library, for the Holy Father’s ease of reference.)  The bishop receives ‘feedback’, not only from the Pope personally, but also from the various departments of the Roman Curia.

Perhaps if English bishops were required to report regularly, and individually, on their leadership of their dioceses to the General Synod (or the constituent convocations) episcopal leadership and synodical government might become more closely linked.  Episcopal interest in synodical proceedings would certainly revive!

Besides the General Synod there are the diocesan synods, but these also lack much constitutional equipment to scrutinise episcopal leadership.  The bishop is required ‘to consult with the diocesan synod on matters of general concern and importance’ (1969 Measure, s.4).  However, the synod can merely ‘advise the bishop on any matters on which he may consult the synod’.

The Archbishop has an ancient power to visit the bishops and dioceses of his province, to the end ‘that means may be taken thereby for the supply of such things as are lacking and the correction of such things as are amiss’ (canon G5(1)).  Archiepiscopal visitations have been held in recent years, but only to particular dioceses or churches, in order ‘to correct and supply the defects of other bishops’ (canon C17(1)).  In other words, an archiepiscopal visitation is not a regular, routine review but only occurs when something goes seriously wrong and the local bishop cannot cope.

Every diocesan bishop is now required to submit to a procedure known as ministerial development review, once every 2 years.  This review is organised by the Archbishop, who must also organise one for himself (Terms of Service Regulations 2009, reg 18(2)).  However, the General Synod is not involved in this, and the review’s conclusions are kept confidential.  The requirement was introduced to demonstrate the bishop’s equality (or ‘common tenure’ as it is called) with other ecclesiastical officeholders, who are also required to undergo ministerial development review, not his accountability to Church members.

(3)  The Crown Appointments Commission

After criticising inadequate consultation between the bishops and the synods, Bennett controversially proceeded to criticise the consultation process for the nomination of new bishops.

He complained of ‘a virtual exclusion of Anglo-Catholics from episcopal office and a serious under-representation of Evangelicals’ (p.221).  He also noted ‘the personal connection of so many appointed with the Archbishop of Canterbury himself’.

Dr Bennett was of the Anglo-Catholic party himself.  Moreover, despite a brilliant academic career (including a starred First from Cambridge), ecclesiastical preferment had eluded him.  He had to endure the agony of being passed over in favour of men of inferior ability, whose churchmanship was totally at variance with his own.  He was therefore vulnerable (as he would surely have realised) to the reproach that his criticism of episcopal appointments was, as Archbishop Habgood carefully explained, ‘an outburst from a disappointed cleric’ (p.83).

Bennett concluded that ‘An Archbishop should have an influence on appointments [but] it is clearly unacceptable that so many are the protégés of one man and reflect his own ecclesiastical outlook’ (p.222).  This was represented by Habgood, and the media, as an ‘attack’ on the Archbishop of Canterbury.

Archbishop Habgood justified his harsh words about the Preface by invoking the imperative of confidentiality.  ‘The [Crown Appointments] Commission can only do its work properly if its members feel free to discuss the lives and characters of [candidates] with total frankness, and if those who provide information can be similarly satisfied that nothing will be disclosed outside the actual meeting itself’ (p.84).

From this he concluded that a commentator who ‘claimed to write knowledgeably about the Commission … must either be abusing confidence … or … speculating on the basis of gossip’.  Either way, the Preface was dishonest.  The Archbishop concluded confidently ‘I believe [my criticism] is irrefutable’ (p.84).

It may not be.  Does confidentiality mean that knowledgeable, and fair, writing about the Commission is actually impossible?  Is the Commission’s work so confidential as to place it above and beyond all criticism?

Of course, the deliberations of the Crown Appointments Commission must be kept confidential, for the reasons identified by Archbishop Habgood.  However, the constitution, procedure and membership of the Commission are not, and should not be, confidential.  They are open to public comment and scrutiny.  And although the deliberations of the Commission are confidential, the outcome of those deliberations (i.e the appointments made as a result of them) is not.

It is not acceptable for a commentator to betray confidences, or make stuff up, and Dr Bennett did neither.  But it is acceptable to draw inferences from what is known of the constitution, procedure, membership (including the churchmanship and personalities of the members) and outcomes of the Commission.  Indeed any worthwhile commentary must draw such inferences, or it will add nothing to the known facts.  Dr Bennett did not betray confidences, nor did he lie.  He merely drew inferences from what was publicly known.

The Crown Appointments Commission is served by 2 appointments secretaries: ‘great power rests with the secretaries [because] they compile the list of candidates’ (p.219).  The Commission is chaired by the Archbishops, and ‘it is usually not difficult for a chairman to steer enough of [a committee’s] votes in the right direction’ (p.221).  The churchmanship of the Archbishops, and of the other Commission members, is known.  If no Anglo-Catholic bishops were appointed then the inference is that either no Anglo-Catholic candidates were shortlisted, or a majority of the Commission voted against them.

Of course, inferences can be mistaken.  Perhaps the bishops approved by the Commission were not mostly former colleagues and protégés of the Archbishop of Canterbury.  (That mistake, at least, should have been easy to correct.) Or perhaps they were simply the best men for the job, and their connection to the Archbishop and lack of Anglo-Catholicism a pure coincidence.  Or perhaps lots of Anglo-Catholics were offered bishoprics but turned them down.

Mistaken inferences may well be irritating to those in confidential possession of the true facts.  But they are not dishonest.  Archbishop Habgood’s criticism of ‘scurrilous charges’ was itself rather scurrilous.

A subsequent nomination of the Crown Appointments Commission suggests that there was some force in Bennett’s criticism.  And it was made when Archbishop Habgood was still in office, and still co-chairman of the Commission.  A candidate for one of the leading sees had a criminal conviction for indecency.  Yet this rather salient fact was not known to the representative members, who then approved the candidate’s nomination in ignorance of his past.  (Perhaps this could not happen nowadays, on account of the rigorous ‘safeguarding’ requirements.)

 

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The Coronation Oath: Right and Rite

Graeme Watt, Barrister, ‘The Coronation Oath’, Ecclesiastical Law Journal, Sept 2017, p.325

‘the oath … shall … be administered to [the Monarch] at the time of their coronation … by the Archbishop of Canterbury …’ (Coronation Act 1688, s.2)

‘Every King and Queen … shall have the coronation oath administered to him, her or them at their respective coronations, according to the [1688] Act’ (Act of Settlement 1700, s.2)

The Coronation Oath Act was passed in the wake of the Glorious Revolution.  The text of the oath is prescribed by s.3.  This well-researched, absorbing article draws attention to a curious fact.  S.3 has never been expressly amended since 1688.  Yet the oath actually taken by the Monarch at the coronation has varied several times over the years.  Its present wording is now significantly different from the unamended statutory text.  Does this difference mean that the oath, as actually taken by the Monarch, is illegal?

The article relates that the oath was first altered for King George I, to refer to ‘Great Britain’ rather than ‘England’, on account of the Anglo-Scottish Union of 1707.  It was altered again because of the Anglo-Irish Union of 1800, which created the United Church of England and Ireland.  Then the reference to the Irish Church was removed following the disestablishment of the Church of Ireland in 1869.

The present version of the oath dates from the coronation of King George VI (our present Queen’s father) in 1937.  The 1937 variation was precipitated by the Statute of Westminster 1931, which granted or confirmed the right of the overseas Dominions of the Crown (Canada, Australia, New Zealand etc) to self-government.  The 1937 oath was repeated by the Queen at her coronation in 1953.

The learned author’s opinion is that the pre-1937 variations of the coronation oath all had proper legal authority, even though s.3 of the 1688 Act was never amended.  They were authorised either expressly or by necessary implication in the Acts of Parliament which effected the Anglo-Scottish and Anglo-Irish Unions, and Irish Disestablishment.  However, he argues that the 1937-1953 variation of the oath did not enjoy such authority, because it went beyond any requirement of the Statute of Westminster.

In the 1937-1953 oath, the Monarch promises ‘to govern the peoples of Great Britain, Ireland, Canada etc … according to their respective laws and customs’ (p.330).  However, it omits the promise in the 1688 oath to govern ‘according to the statutes in Parliament agreed upon’.

The author seems to accept that the Statute of Westminster necessitated some amendment of the coronation oath.  The oath could not very well contain an unqualified commitment to govern according to the Acts of the Westminster Parliament, because the Statute made clear that many of the Monarch’s subjects were not to be governed from Westminster in the future.  And the 1937 oath does promise to govern ‘according to … laws and customs’, which presumably includes statute law.  Is it not farfetched to characterise the 1937 oath as a royal ‘power grab’?

However, the Glorious Revolution was an assertion of the constitutional supremacy of Parliament.  Parliamentary supremacy remains the basis of the British Constitution to this day, notwithstanding British membership of the European Union, and the devolution of legislative powers to Scotland, Wales and Northern Ireland.

Thus the author argues that the Statute of Westminster did not justify ‘The absence of any reference to Parliament as the ultimate source of the laws of the realm [this] does, in theory, reignite old controversies which date to the days of Charles II and … further back to Edward II … ‘.  He therefore concludes ‘with reluctance’ that ‘any oath administered at a coronation is unlawful if it does not … refer to Parliament’ (p.332).

Though he strives to remain calm and optimistic, it is clear that the learned author’s conclusion gives rise to a most alarming possibility.  Perhaps ‘unlawful oaths equal unlawful reigns’ (p.336).  Just imagine ‘the constitutional chaos that would ensue’!  If the Monarch failed to take the oath as required by the 1688 Act and by the Act of Settlement perhaps she is not really Queen.  All the laws passed during her long reign will be invalid, since she had no authority to approve them.

Fortunately this may not be the case after all.  The article cites a reassuring dictum of the Court of Appeal: ‘our Queen … has been accepted by Parliament and by the nation, as the rightful person to inherit the Crown as of the date of her coronation … it is not now, in the year 2000, open to … challenge her right to the succession’ (p.337).

The learned author offers 2 possible solutions to the hidden constitutional crisis that he has uncovered:

(1) Her Majesty might have acquired a prescriptive right to the Crown ‘pursuant to lengthy occupancy of the throne’, despite the invalid oath (p.337).  However, there is a difficulty here: ‘prescription is dependent on the [fiction] that the right claimed has a lawful origin.  The exposure of the fiction is fatal …’ (p.338).  Thus a prescriptive right to the Crown would depend on the presumption that the coronation oath had been lawfully taken, but the ‘well-documented evidence to the contrary’ would rebut that presumption.  So the prescriptive claim would fail, alas.

(2) the equitable doctrine of part performance might apply.  A person who has conscientiously performed her side of bargain should not be deprived of the benefit of it just because a legal formality was overlooked when the bargain was struck.

It is incontestable that Her Majesty has always acted in accordance with the 1688 oath, even if she never validly took it.  She has always  scrupulously respected  Parliamentary supremacy.  Thus she has kept her side of the post-1688 constitutional bargain with her subjects.  Therefore, happily, ‘we might be permitted to conclude that the person taking the oath should be regarded by law as being in the same position as if the oath had been correctly taken’ (p.340).

This all makes gripping reading.  However, it is argued that the constitutional difficulty, if it exists (which we rather doubt), is not quite as serious as the learned author imagines.  The flaw in his fascinating thesis is that it assumes that the coronation oath, in the correct form, is a condition of the Monarch’s title to the Crown.  It is not.

‘The King is dead – long live the King!’ is a traditional acclamation of the accession of a new Monarch.  F.W Maitland observed in The Constitutional History of England (1911) that ‘The King never dies … under the Act of Settlement, and some centuries before it, the heir begins to reign at the moment of the ancestor’s death’ (p.343).

The coronation rite begins with a ceremony known as The Recognition.  The Monarch formally shows herself to her subjects, while the Archbishop says ‘Sirs, I here present unto you Queen Elizabeth, the undoubted Queen of this Realm … ‘.  The Recognition occurs before the oath is taken, and before the Monarch is crowned.  It makes the point that the Monarch is already fully entitled to the Crown.  The coronation rite proclaims the Monarch’s title, celebrates it, invokes God’s Blessing on it.  But it does not confer, or even confirm, that title.

The coronation oath is therefore not comparable to the oath of office sworn by the President of the United States at his inauguration.  The learned author himself admits that King Edward VIII was never crowned at all, and so never took the oath, but there is no doubt that he was the lawful Monarch till his abdication.  Maitland suggested that ‘The coronation … does not seem to be a legally necessary ceremony’.

It is true, however, that the coronation oath is a mandatory legal requirement.  It is not discretionary or negotiable.  If a hypothetical Monarch declined to have the oath administered to him or her in accordance with the Act of Settlement, i.e flatly refused to take the oath, then this would cause a constitutional crisis.  Possibly it could be argued that a Monarch who refuses the oath has thereby forfeited his or her right to the Crown.  However, the right would not be forfeit ab initio, but only from the time of refusal.  And, of course, refusal of the oath is not the issue here.  The only issue is the correct administration of the oath.

The statutory provisions quoted above are worded passively.  The Monarch does not take the oath:  the oath is administered to the Monarch by the Archbishop of Canterbury.  Thus it is the Archbishop, not the Monarch, who is responsible for the correct administration of the oath, including the correct wording.  It follows that, if the oath is not administered correctly, any legal consequences will fall on the Archbishop alone.

There are 2 possible consequences:

(1) the secular court could require the Archbishop to administer the oath again, and correctly this time and / or

(2) the Archbishop could be haled before the ecclesiastical court to answer a disciplinary complaint of ‘neglect or inefficiency in the performance of the duties of his office’ (cf. Clergy Discipline Measure 2003, s.8(1)(c)).

Which would all be very embarrassing for the poor Archbishop, no doubt.  But the Monarch’s title to the Crown would continue serene and undisturbed.