Sede Vacante: How Ecclesiastical Offices are made Vacant

An ecclesiastical office can become vacant for the following reasons

(1) death

(2) resignation

(3) age

(4) if the office is for a fixed or temporary term, when that term comes to an end

(5) appointment to another ecclesiastical office

(6) removal

(1) is determined by natural law, of course. (2) to (6) are regulated by ecclesiastical law. (2) and (5) are voluntary, (3), (4) and (6) are compulsory.

Departure from office should be distinguished from redundancy, which occurs when the office itself ceases to exist, because it has been abolished or ‘dissolved’. No vacancy can therefore arise.

Different rules apply to different categories of officeholder

(1) Archbishops and bishops

(2) other clergy

(3) lay ministers

(4) ecclesiastical judges and legal officers

(5) parochial officers, i.e churchwardens and lay members of the parochial church council (‘the PCC’).

Among clergy (2), ecclesiastical law formerly made a sharp distinction between

(1) holding an office per se and

(2) a mere licence to officiate

A clergyman either held an office, or he held a licence. He resigned, or was removed from, office. Or he resigned his licence, or the licence was revoked.

The distinction has not disappeared. However, following the Clergy Discipline Measure 2003 and the Terms of Service Measure 2009, clerical office and licence are subject to a similar regime.

All lay ministers (3) are licensees. Categories (4) and (5) are officeholders per se.

Resignation

Most ecclesiastical officeholders resign to their bishop, because he is their constitutional (‘canonical’) superior. Phillimore relates that the validity of the mediaeval Pope Celestine V’s resignation was doubted, because the Pope has no earthly superior (Ecclesiastical Law, 2nd edition 1895, p.385). Modern Roman Catholic law has now resolved this doubt (Code of Canon Law 1983, canon 332(2)).

The Terms of Service Measure 2009 simplified the resignation procedure. A deed is not required. Nor does the resignation have to be formally accepted. Diocesan officeholders on common tenure resign by giving at least 3 months’ notice, in writing, to the bishop (s.3). So the resignation becomes effective when the notice period expires. The bishop may agree to waive notice. Notice of resignation can be in electronic form (Terms of Service Regulations 2009, 17(1)).

However, the older formalities still apply to Archbishops and bishops, notwithstanding their common tenure with less senior officeholders. Bishops, including suffragans, resign to the Archbishop. This requires ‘a written instrument in the prescribed form’, though not a deed. The resignation must be accepted by the Archbishop. The Archbishop signifies acceptance by endorsing the resignation instrument with a declaration of vacancy of the bishopric from a specified date (Bishops (Retirement) Measure 1986, s.1).

The Archbishop resigns to the Monarch. If the Monarch accepts the resignation, the vacancy is declared by Order-in-Council.

The diocesan chancellor resigns to the bishop, as does the registrar (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.3(2) and s.32). However, the deputy chancellor resigns to the chancellor, not to the bishop (s.4(8)).

The Dean of the Arches and Auditor resigns to both Archbishops (2018 Measure, s.11). (He is the senior judge of both Provinces, of course.) The registrar of disciplinary tribunals resigns to the Archbishop, with a notice period of at least 12 months, though the Archbishop may allow an earlier date (2003 Measure, s.5(4)).

Churchwardens, being officers of the ordinary, resign to the bishop ‘by post’ (Churchwardens Measure 2001, s.7), so presumably an email will not be effective. Resignation takes effect after 2 months, or on an earlier date determined by the bishop.

However, PCC members do not resign to the bishop (he is not their superior), but to the secretary of the PCC (Church Representation Rules, 67).

The same person may hold more than 1 ecclesiastical office. The general rule is that departure from 1 office means departure from them all. However, the bishop may permit the incumbent of a plurality to resign 1 benefice but not the other (or others) (Mission and Pastoral Measure 2011, s.32(4)).

Age

The Ecclesiastical Offices (Age Limit) Measure 1975 provides that a clerical officeholder ‘shall vacate … office on the day on which he attains the age of 70 years’ (s.1(3)). Thus the retiring officeholder does not resign, which is a matter of words, but vacates – i.e physically withdraws from the functions and facilities of the office.

At least 6 months before a bishop turns 70, the Archbishop must proactively declare the bishopric vacant with effect from the bishop’s birthday (Bishops (Retirement) Measure 1986, s.2).

However, the Archbishop himself is trusted to retire by the due date, with no proactive action by the Monarch. Thus the Archbishop submits his resignation to the Monarch at least 6 months in advance of his birthday.

Diocesan chancellors must normally retire at 70 (2018 Measure, s.3), though they do not finally depart until they have concluded all the cases then before them (s.3(4)). The Dean of the Arches may stay until 75 (s.11). The House of Bishops is empowered to impose a lower retirement age on registrars, i.e lower than 70 (s.32).

Compulsory retirement at 70 is not an absolute rule. The appropriate superior may authorise continuance in office for a fixed or limited period: Terms of Service Regulations 29A for offices held on common tenure, the 1975 Measure for other offices. (The former Dean of Canterbury recently retired at the age of 75.) The continuance of an incumbent or priest-in-charge will require the consent of the PCC. Subject to this, they can carry on even beyond 75.

If the bishop is to continue, this will be recorded in the declaration of vacancy, i.e the declaration will record the later date, rather than the bishop’s 70th (1986 Measure, s.2).

Likewise the bishop may extend the chancellor’s tenure by up to a year at a time, subject to an absolute retirement age of 75.

The age of retirement does not apply to the Royal Peculiars, the Dean of Christ Church, Oxford, or to a residentiary canonry that is annexed to a professorship.

Fixed Term or Temporary Office

Before common tenure was introduced, many clergy held office for a fixed term of years. Fixed term was the rule for team vicars, and was also possible for team rectors, and even cathedral canons (Pastoral Measure 1983, s.20, Cathedrals Measure 1999, s.9(1)(b)). A lay member of a team ministry who is not on common tenure may still be subject to a fixed term (canons E6(1A) and E8(2A)).

Under common tenure, however, an office is usually time-limited only if it is temporary in nature, e.g to supply for the absence of a permanent officeholder, a training or probationary post, or a post subject to sponsorship funding (regulation 29). A temporary or fixed term office must be clearly identified as such to the officeholder (cf regulation 3(5)(j)).

(Roman Catholic law provides that ‘Loss of office by reason of expiry of a predetermined time … has effect only from the moment that this is communicated in writing by the competent authority’ (1983 Code, canon 186). In other words, even a fixed term appointment must still be terminated on notice. There seems to be no equivalent provision in ecclesiastical law, but perhaps one is not necessary.)

A licensed office which is linked to the holder’s employment may be terminated if the employment contract is terminated (2009 Measure, s.3(5)).

The Cathedrals Measure 2021 suggests that non-executive lay canons (as distinct from residentiary clerical canons) may be subject to fixed-term tenure (s.5(1)), though this will be determined by the constitution of the particular cathedral. (Lay canons are not subject to common tenure.)

A deputy chancellor’s tenure is tied to that of the chancellor. If the chancellor leaves office, the deputy continues to officiate, but only for 3 months (2018 Measure, s.4). The new chancellor can then decide whether or not to reappoint him.

The Deputy Dean of the Arches is temporary, but an appointment may be renewed (s.12).

Parochial offices are held for fixed terms, of course – 1 year for churchwardens, usually 3 years for PCC members, though the annual parochial meeting can decide to limit it to 1 year (Church Representation Rules, M16(2)).

Parochial offices are not subject to an age of retirement, but time limits can be imposed to their tenure. A churchwarden cannot serve more than 6 successive terms in the same parish, but can be re-elected after a year’s furlough (2001 Measure, s.3). The annual parochial meeting can impose a maximum continuous period in office for PCC members (M16(2)).

If a churchwarden retires or is not re-elected his term of office ends either

(1) when his successor is admitted to the office or

(2) 31st July

whichever is earlier (2001 Measure, s.6(2)).

PCC members are not admitted to office, so a PCC member’s term (if not re-elected) will end at the conclusion of the annual meeting (Church Representation Rules, M16(1)).

As mentioned, there is a difference between the vacation of an office and its abolition or dissolution. The Terms of Service Measure provides that an officeholder may be made redundant ‘where the office ceases to exist in consequence of a [statutory] scheme or order’ (s.3(3)).

However, the Mission and Pastoral Measure 2011, which now regulates pastoral reorganisation within the diocese, apparently permits the removal of an incumbent even when the benefice does not cease to exist.

Thus s.39(2) provides that ‘If … the benefice concerned is not vacant [but] the existing incumbent is not to hold the benefice by virtue of a designation [of a new incumbent] by the scheme … the benefice shall be deemed to be vacated …’, i.e the undesignated incumbent will have to go.

However, s.39(3) then goes on to provide that ‘the effect of vacating a benefice … is not to come into operation until … at least 6 months after … the scheme is made …’.

This wording suggests that a statutory scheme may reduce an officeholder’s tenure from an indefinite period to a temporary one, notwithstanding the protection conferred by the 2009 Measure.

Appointment to another Office – the Rule against Pluralities

Statutory authority is generally required for a person to hold 2 or more ecclesiastical offices in plurality.

S.104 of the 2011 Measure provides that, absent statutory authority, an officeholder

‘on … admission to the [new office] be deemed to vacate the office or offices previously held by him’.

(Pluralism, the unscrupulous accumulation of offices merely to acquire the property and income therefrom, was a grave abuse in the Church for many centuries.)

Halsbury’s Laws offers some clarification of the word ‘admission’ in this context

‘Strictly speaking, admission is merely the bishop’s declaration that he approves the presentee as a fit person … [but] The word is more commonly used to signify generally the actual committal of the cure to the clerk …’ (vol 34, para 628, n1).

In other words, the previous office is not vacated until legal title to the new office is conferred, whether by institution or the grant of a licence. The office is not vacated when the candidate is merely nominated to the new office.

S.104 suggests that an officeholder who is promoted is not required to resign his current office, since vacation is automatic.

The Patronage (Benefices) Measure 1986 permits incumbents to exchange their benefices. Halsbury’s Laws suggests that ‘exchange only takes effect if and when both incumbents are instituted and inducted to the [new] benefices’ (para 725). If this does not happen, the exchange agreement is void and both incumbents continue in their original benefices. Either way, no vacancy is created.

The rule of automatic vacation does not apply to ecclesiastical judges, but the 2018 Measure empowers the House of Bishops to limit the number of judicial offices that may be held by 1 person at the same time (s.5(1)).

Removal

Different removal procedures apply to different categories of officeholder. It must be remembered that

(1) all clerical officeholders are subject to the Clergy Discipline Measure 2003, but

(2) not all clerical officeholders, as yet, have to be on common tenure

(3) no lay ministers are subject to the 2003 Measure and

(4) some lay ministers are on common tenure, while others are not.

Clergy All clerical officeholders, whether on common tenure or not, are liable to removal for

(1) misconduct or

(2) incapability

Misconduct

If the disciplinary tribunal makes a finding of misconduct under the 2003 Measure, it may, subject to appeal, remove the convicted clergyman from office (or revoke his licence) (s.19(1). The bishop does not have this power. Likewise, a convicted bishop or Archbishop may be removed by the Vicar General’s Court, though this must be confirmed by Order-in-Council (s.24(2)).

The bishop may remove a clergyman who is convicted of a serious criminal offence, or who is the subject of an unfavourable finding by a divorce court, or named on a ‘barred list’ (s.30). The disciplinary tribunal is not involved in this – it is based on the findings of secular authorities. The bishop’s penalty is subject to review (not appeal) by the Archbishop.

Removal in these circumstances is unusually formal. The about-to-be-removed officeholder ‘shall be entitled to be present when the penalty is imposed’ (though this may be difficult to arrange if he is in prison). The bishop ‘shall be attended by the registrar’. This formality makes the point that the bishop is acting in a quasi-judicial capacity.

The removal of a bishop or Archbishop following the finding of a secular authority requires consultation with the 2 most senior bishops of the Province (s.31). However, a confirmatory Order-in-Council is not required.

It remains theoretically possible for a bishop or other clerical officeholder to be removed (or ‘deprived’) by the Court of Ecclesiastical Causes Reserved for an offence against doctrine, ritual or ceremonial, under the Ecclesiastical Jurisdiction Measure 1962, s.45 and s.49, though none has been in nearly 60 years.

Incapability

If the capability procedure to which common tenure is subject culminates in a final determination that the officeholder be removed, then the bishop or Archbishop must – not may – give 3 months’ notice of removal, stating the reason (2009 Measure, s.3(6)).

If an incapable bishop is removed, the Archbishop must also declare the bishopric vacant (s.3(8)).

If the Archbishop himself is found incapable, the other Archbishop gives notice, not the Monarch. However, the other Archbishop must then petition for an Order-in-Council to declare the Archbishopric vacant (s.3(7)).

Any incumbents and cathedral dignitaries who are not on common tenure remain subject to the capability procedures provided by the Incumbents (Vacation of Benefices) Measure 1977 and the Church Dignitaries (Retirement) Measure 1949.

Lay Ministers If a lay minister is on common tenure, he can only be removed from office for the same reasons as clergy, i.e misconduct and incapability.

The capability procedure is the same as for clergy. However, a complaint of misconduct will be governed by the canons of the Church of England, not the 2003 Measure (or the 1963 Measure). The complaint is tried by the bishop, who also imposes the penalty, subject to an appeal to the Archbishop. The disciplinary tribunal is not involved.

Nor is it only the procedure which is different. Because lay ministers are subject to the canons, and not to the 2003 Measure, the definition of ‘misconduct’ in s.8 of the 2003 Measure does not automatically apply to them. (Thus there are important limits to the commonality of common tenure!) And the canons make clear that misconduct ‘includ[es] any act or omission relating to matters involving ritual, doctrine or ceremonial’.

If a lay minister is not on common tenure, the bishop can revoke the licence ‘for any cause which appears to him to be good‘, not just for misconduct or incapability, ‘after having given the [lay minister] sufficient opportunity of showing reason to the contrary’. Again, there is an appeal to the Archbishop (canons E6(3) and E8(5)).

The canons provide that a lay minister must have his licence revoked if his name appears on a barred list. The licence may also be revoked for a criminal offence against a child, but the bishop is empowered to waive such a conviction, giving reasons therefor.

Other criminal and matrimonial offences are not specifically referred to in the canons, but they may still constitute misconduct by a lay minister on common tenure, and ‘good cause’ to remove a lay minister who is not.

Judges and Legal Officers The bishop may remove the chancellor if the bishops of the Province collectively resolve that the chancellor is ‘incapable or unfit’ (2018 Measure, s.3(3)). The 2 Archbishops may likewise remove an incapable or unfit Dean of the Arches, upon resolutions by the bishops of both Provinces (s.11). The chancellor may remove his deputy, after consultation with the bishop (s.4).

The bishop may dismiss the registrar, with the consent of the Archbishop (or of the other Archbishop, in the case of a provincial registrar), even if the registrar is not considered incapable or unfit (s.32). The Archbishop may terminate the appointment of the registrar of tribunals, subject to consultation with the President of Tribunals (2003 Measure, s.5(5)).

Parochial Officers The bishop had a very limited power to disqualify churchwardens and PCC members under the Vacation of Benefices Measure 1977, if advised that they contributed to a ‘breakdown in pastoral relations’ (s.10(6)). However, this power was only very rarely used, and the 1977 Measure does not apply to incumbents on common tenure.

Churchwardens and lay PCC members cannot otherwise be removed from office by the bishop or Church court. Their mandate to officiate comes from the parishioners who elected them. (It is true that churchwardens are admitted to office by the ordinary, but this is a formality.) Their terms of office are of relatively brief duration. If found unworthy or incapable, the obvious sanction is to vote them out at the next election.

The basis of eligibility for parochial office is the electoral roll. A churchwarden or lay PCC member is automatically disqualified (therefore effectively removed from office) if his name is removed from the electoral roll, or fails to appear on a new roll (2001 Measure, s.8(1), Church Representation Rules, M15(11)).

Churchwardens and lay PCC members will also be disqualified if they are included in a barred list, or convicted of an offence against a child (rule 46). Again, the bishop has power to waive disqualification for such a conviction.

Because churchwardens and PCC members are ex officio charity trustees, they will be automatically disqualified from office if disqualified by secular authority from officiating as charity trustees (2001 Measure, s.2, cf rule M8(8)). However, disqualification is apparently not automatic for a cathedral officeholder who is ex officio a charity trustee. The bishop must disqualify such an officeholder (2009 Measure, s.3A).