Ecclesiastical law

Category: Cathedrals

The Regulation of Cathedral Property: Economic and Environmental

Cathedral property is regulated by 2 regimes, which may be described as

(1) economic, concerning the use of the property, and

(2) environmental, concerning the care and conservation thereof.

The 2 regimes are provided by 2 Church of England Measures

(1) the Cathedrals Measure 2021, the latest in a series of Measures dating back to 1931 and

(2) the Care of Cathedrals Measure 2011, which is a consolidation of 2 earlier Measures passed in 1990 and 1994.

The 2021 Measure is concerned with both regulatory regimes (1) and (2). The 2011 Measure, as its title implies, is concerned only with (2).

(2) takes precedence over (1). A cathedral is not for profit, of course. The principal objects of cathedral administration are

(1) ‘to advance the Christian religion in accordance with the faith and practice of the Church of England’ and

(2) ‘to care for and conserve the fabric and structure of the cathedral church building’ (s.4(1)).

Thus the economic regulation of cathedral property is only a means to an end. The environmental regulation is an end in itself. All property must be applied to its constitutional objects or ‘other charitable purposes which are ancillary [there]to’.

Economic regulation extends to all species of cathedral property, real and personal, corporeal and incorporeal. Environmental regulation is concerned only with physical property, i.e land, buildings and chattels.

The Regulatory Structure

Within the cathedral administration, the primary responsibility for both the use and the care of cathedral property belongs to the chapter (cf 2021 Measure, s.11(1)(f)).

As well as the chapter, every cathedral has a

(1) finance committee and

(2) CFO.

A cathedral may have a discrete ‘audit and risk’ committee, as well as a finance committee (s.16).

For environmental matters there is a

(1) fabric advisory committee (‘FAC’) and

(2) architect, or ‘surveyor of the fabric’ (2011 Measure, s.4(1) and s.5(1)(e)).

A cathedral may also have an archaeologist, if one is required (s.23).

Cathedral property is subject to the oversight of 2 national Church authorities

(1) the Church Commissioners (‘the Commissioners’), for economic matters and

(2) the Cathedrals Fabric Commission (‘CFC’), for environmental matters.

As well as ecclesiastical jurisdiction, the chapter is subject to the jurisdiction of the High Court with respect to charities (s.8(5)), and to secular charity law. Like other places of worship, cathedrals enjoy the ecclesiastical exemption from listed building control. Apart from this exemption, however, cathedrals will be subject to secular environmental law.

Classifying Cathedral Property

Neither the 2021 Measure nor the 2011 Measure makes any reference to the consecration of land or buildings. Thus the regulation of cathedral property is unaffected by whether it is consecrated or not.

The 2021 Measure defines a cathedral church building as ‘the buildings [plural] within the ecclesiastical exemption for that cathedral’ (s.4(2), also s.45(1)).

The 2011 Measure requires the chapter to prepare a plan of ‘land surrounding the cathedral church of which the fee simple [i.e freehold] is vested in the [chapter] (s.25). The CFC then defines the cathedral precinct by appropriate marking of the plan. The precinct, as defined by the CFC, consists of so much of the freehold land as is necessary to preserve or protect the character and setting of the cathedral and any associated buildings and archaeological or human remains.

Thus the chapter prepares the plan of the surrounding land, on the basis of its freehold of that land. The CFC defines the precinct on the basis of the plan.

If there are changes to the freehold, the chapter must alter the plan. The CFC in turn must redefine the precinct. It may also redefine the precinct of its own motion, even if there have been no changes to the freehold.

The chapter must also keep an inventory of all important objects belonging to the cathedral. This includes objects ‘to whose possession or custody the chapter is entitled’, even if not physically present on cathedral premises (2011 Measure, s.4(1)). ‘Important’ is defined as ‘of architectural, archaeological, artistic or historic interest’. The FAC determines what objects are of sufficient importance to be included in the inventory, after consulting the CFC (2011 Measure, s.24(4)).

All objects in the inventory are important. However, the FAC must also identify those inventory objects that is considers to be of outstanding interest. Thus there are 2 classes of inventory object

(1) important objects and

(2) outstanding objects.

If an important but hitherto unknown object is discovered (buried treasure) the CFC must be notified and the object recorded in the inventory (2011 Measure, s.7).

Thus, for environmental purposes, cathedral property is classified as

(1) cathedral and precinct (land and buildings)

(2) inventory objects (whether outstanding or merely important) or

(3) all other physical property, whether real or personal.

The chapter may of course own land and buildings outwith the cathedral precinct, and may own intangible investment property. For economic purposes, cathedral property is classified as

(1) inalienable – the cathedral itself and outstanding inventory objects (i.e physical property)

(2) permanent – i.e part of the permanent endowment of the cathedral (real and personal property) or

(3) other property, both real and personal.

Inalienable property cannot be sold or mortgaged, or even valued (s.20).

The Commissioners have jurisdiction to decide (under seal) whether property already held by, or on behalf of, the chapter (not any other property, so not affecting third party rights) is part of the permanent endowment (s.23). They can only decide on the application of the chapter, not of any third party, nor (apparently) of their own motion.


The chapter prepares an annual budget and accounts (s.11(1)). It must ensure ‘appropriate oversight of … internal and external audit’ (s.5(1)(j)). Accounts must be copied to the bishop and the Commissioners. The Commissioners may order the chapter to provide additional ‘financial information’ (s.30). The cathedral’s financial year end is determined by order of the Commissioners (s.30(1)).

The bishop’s power to intervene in economic matters is limited and discretionary. He may commission a review of particular aspects of cathedral governance, including its ‘financial affairs’ (s.9(6)). The chapter must co-operate with any review (8). However, they are required only to ‘have due regard to the conclusions … and any recommendations made in the review’ (9). The chapter is not bound by a review.

The FAC, as its title implies, is supposed to advise the chapter on care and conservation matters (2011 Measure, s.4(2)(a)). The CFC gives similar advice.

There must be a 5-yearly report on works required to be done (i.e in the future) to the cathedral and any ancillary buildings. The report is based on inspections, carried out ‘as the cathedral architect or surveyor considers necessary’ (s.26). A newly appointed architect / surveyor must make ‘a full and detailed inspection’ and report within 2 years of appointment. There must also be an annual report detailing work already done and work in progress, and any other matters relevant to the cathedral’s care and conservation.

Apart from the cathedral itself there must be a 5-yearly inspection, with report, of all other property which the chapter is liable to repair and maintain. (s.27(1)).

The chapter must report annually to the FAC about the state of the inventory (s.24(3)).

Dealings – Economic

If a cathedral is also a parish church (a few are), its statutes may provide that either the whole cathedral building, or only part thereof, is to be the parish church. The ‘parish church’ may also be moved from one part of the cathedral building to another. (s.7(1)). The Commissioners may make a scheme to provide that a cathedral, or part thereof, shall cease to be a parish church (s.41(1)).

As mentioned, the cathedral itself is inalienable. Endowment property, though permanent, is not inalienable. Dealings with endowment property, will generally require the consent of the Commissioners.

Land may not be acquired or disposed of without the Commissioners’ consent, though the Commissioners may by order except minor transactions from this requirement (s.21). (The requirements of secular charity law must still be observed (s.22(6)). Borrowing against endowment requires the Commissioners’ consent (s.24). Disposal proceeds of endowment property are likewise endowment property (s.25). Endowment property may be sold for less than its full market value (s.22(7)).

Endowed funds may be invested in land or other permitted investments, and may also be used ‘for the improvement or development of property vested in the chapter’ (s.24(1)), i.e to increase its value. However, endowed funds may not be used to pay for repairs to the cathedral itself, except in an emergency. (Repairs to the cathedral will not increase its economic value, because the cathedral is inalienable, and therefore has no economic value.) Emergency repairs require the consent of the Commissioners, and there must be a scheme to replace the money spent.

The chapter may accommodate cathedral officeholders and employees without the Commissioners’ consent (s.22(3)). The chapter is the statutory ‘housing provider’ for all stipendiary cathedral clergy, from the dean down, who are subject to common tenure, and therefore must provide them with accommodation (Terms of Service Measure 2009, s.4). The chapter’s rights and duties as housing provider are prescribed by Terms of Service Regulations 12-16.

If there are still any deans and canons who are not subject to common tenure, any sale of their official residences will require their consent, so will probably have to wait until they retire. If the dean or canon is appointed by the Crown, Her Majesty’s consent will also be required, even in a vacancy (s.22(2)).

Dealings with non-endowment property will not require the consent of the Commissioners.

Dealings – Environmental

The 2011 Measure regulates works done to the cathedral, the precinct and inventory objects. It also regulates other dealings with inventory objects (2011 Measure, s.2).

The FAC and the CFC exercise a jurisdiction over the cathedral comparable to the faculty jurisdiction of the ecclesiastical courts over parish churches and churchyards. Any significant works or dealings will require the approval of either

(1) the FAC or

(2) the CFC

according to their impact. Permanent alterations, demolitions, disturbance of human remains, and the disposal or loan of outstanding objects are all reserved to the CFC. Less significant matters are left to the FAC to decide. Applications for approval are governed by procedural rules.

The chapter may only carry out works without approval if these do not ‘materially affect … the architectural, archaeological, artistic or historic character’ of the property.

Thus, despite its title, the FAC’s function is not merely advisory. It is a decision-making authority independent of the chapter. By contrast, the 2021 Measure does not require the approval of the finance / audit committee(s) to particular economic dealings.

Discovered ‘treasure’ may be disposed of with the CFC’s approval, but the British Museum, or another museum nominated by it, must be given first refusal (2011 Measure, s.7(4)).

An application for approval to the FAC or the CFC must come from the chapter, not a third party. The FAC and CFC each have to decide whether its own approval is required, or the other’s (or perhaps neither’s). They may determine that works of a specific class or description do not require their approval.

The Chapter may appeal an unfavourable decision of the FAC to the CFC. An appeal (or rather, review) from a decision of the CFC lies to a special Commission of Review (s.11).

Although an original application for approval can only be made by the chapter, a disappointed tenant may appeal the FAC’s or CFC’s refusal to approve works to his property (s.14).

The FAC and CFC have power to give retrospective approval for illegal works and dealings falling within their jurisdiction, i.e a confirmatory faculty (2011 Measure, s.2(3)).

Not all precinct property is necessarily within the ecclesiastical exemption. If the chapter wishes to apply for listed building consent for a non-exempt precinct building, it must notify the CFC and invite representations, but the CFC’s approval of such application is not required. The FAC and the CFC have no jurisdiction over works to any cathedral-owned buildings that are outside the precinct.

The FAC’s jurisdiction to permit the sale (or other permanent disposal) of inventory objects, as well as works thereto, may overlap with the Commissioners’ jurisdiction over endowment property. If an inventory object is classified as endowment property, the consent of both FAC and Commissioners will be required to any sale.

There is apparent inconsistency between the 2021 Measure and the 2011 Measure on dealings with outstanding objects. The 2021 Measure is adamant that such objects ‘may not be alienated’ and ‘cannot be transferred from the chapter’, unless the chapter itself ceases to exist (a most unlikely event). Even then they can be transferred only to the diocesan board of finance, nowhere else (s.20). Yet the 2011 Measure suggests that the CFC may approve ‘the sale … or other disposal of … any [outstanding] object’ (s.6(1)(iv).


If the chapter illegally acquires or disposes of land without the Commissioners’ consent, the transaction is prima facie void. Third parties will be protected if the conveyance includes a sealed statement by the chapter that the Commissioners’ consent is not required (s.21(6) and s.22(9). The Commissioners’ written statement of consent to such conveyance will also protect an innocent third party, if the Commissioners later complain that their consent was obtained by misrepresentation or deceit (s.21(5) and s.22(8)). However, there is no specific protection for third parties to any other illegal dealings with endowment property.

Any dispute arising from an impugned transaction would be a matter for the High Court. Likewise if the chapter considered that the Commissioners had unreasonably refused consent to a transaction, they could apply for judicial review of the refusal.

It might be thought that enforcement of the cathedral’s environmental regime could likewise be entrusted to the High Court, if the chapter regrettably engaged in unapproved works, or threatened to do so. However, the 2011 Measure provides bespoke enforcement powers (ss.15 to 20), similar to those exercised by ecclesiastical courts under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018.

The FAC and the CFC are committees, not courts, so ill-equipped to enforce their own jurisdiction. Enforcement action is therefore taken by the bishop, who may hold a special visitation. If this proves insufficient, the Vicar-General’s court of the relevant province can issue injunctions and restoration orders. (This enforcement regime is discussed in more detail in a blogpost ‘Cathedrals and the Faculty Jurisdiction’, filed below.)

The Future Governance of Cathedrals

Cathedrals Working Group Draft Report 2018

A cathedral is both

(1) the church, or ‘seat’, of the bishop (hence its title) and

(2) the parish church, or ‘mother church’, of the diocese.

Yet the cathedral is constitutionally separate from both the bishop and the diocese.

This anomaly has persisted from the middle ages to the present day.  An erudite Church of England report Heritage and Renewal (1994) observed that ‘The fate of the English cathedral was to remain unreformed [at the Reformation]’ (p.191).  There were statutory reforms of cathedral governance in the 19th and 20th centuries, of which the Cathedrals Measure 1999 is the most recent.  However, these reforms have not ended the cathedral’s independence from the wider Church.

The survival of the peculiar status of cathedrals down the centuries has encouraged its general acceptance.  Hardly anybody questions it nowadays.  It is supported by vested interests.  Heritage and Renewal suggested that ‘cathedral dignitaries … found that they did not, in all truth, have much to do’ (p.196).  The daily work of a cathedral is mostly done by lay staff and volunteers.  Secure of tenure, and free of the indignities of parish work and accountability to any external authority, deans and canons are not likely to favour radical reform of their comfortable way of life.  Nor are upwardly mobile vicars with ambitions to succeed them.

And the status quo probably suits bishops too, on the whole.  Ancient privileges may be frustrating for the zealous reformer.  On the other hand, whenever the peace of the cathedral close is disturbed by a scandal or controversy, the cathedral’s independent status means that the bishop will generally be able to avoid blame.

But scandals and controversies continue to occur, alas.  These demand effective oversight of cathedral governance.

The Cathedrals Measure 1999 (nearly 20 years old now) prescribes a constitutional structure based on the 3 classic ‘powers’ of government.  The cathedral council created by the Measure is the legislative authority of the cathedral, with power to revise its constitution and statutes (s.28), and to scrutinise the work of the chapter, as Parliament scrutinises government (s.3(6) and (7)).  The chapter is the cathedral’s executive.  The bishop holds the ancient quasi-judicial office of visitor, with power to ‘hear and determine any question as to the construction of the constitution and statutes’, and to ‘give such directions … as will … better serve the due observance of the constitution and statutes’ (s.6(3),(4) and (6)).

The draft report cited above suggests that the 1999 separation of powers has failed.  There is still ‘a lack of effective independent scrutiny’ (para 122).  In particular, the report criticises ‘the lack of teeth given to [cathedral] councils’.

However, the report’s treatment of the constitutional position of cathedrals is very confused.  Perhaps this is only to be expected, for the reasons discussed earlier.  The report declares movingly that ‘the diocese and the cathedral are part of one body, working together for the proclamation of the Kingdom’ (para 103), and that the cathedral is ‘an essential support’ to the ministry of the bishop.  Yet it does not propose the constitutional integration of the cathedral and the diocese, so as to give legal effect to this supposed corporate identity.

Instead it merely observes that ‘cathedrals and dioceses have committed to work together more closely in recent years … to align strategies’ (para 104), and that ‘In a number of cathedrals, the dean and the residentiary canons take on significant structural roles in the diocese’ (para 105).  And so to the bland conclusion that ‘We hope this will continue and develop further’.  If it does, it will be on a spontaneous, informal basis only.

Although it vaguely perceives the cathedral’s connection to the bishop and the diocese, the reforms proposed by the report are predicated on a different dual role of cathedrals as

(1) places of prayer and worship and

(2) places of (secular) national heritage and tourist destinations (cf para 69).

Cathedrals are viewed as a discrete ‘sector’ of the national Church (‘the cathedral sector’, cf para 168), rather than as the centre of the Church within their dioceses.

If anything, the report’s proposals would result in cathedrals becoming even more remote from their bishops and dioceses than they are at present.  The report considers that cathedrals should be accountable to national institutions rather than to their bishops (para 108).

Thus it recommends that the bishop should continue as ex officio visitor of the cathedral (para 147), but suggests that ‘the visitor would remain as a formal legal enforcement and dispute resolution mechanism but … not … as the normal means of reviewing and bringing about improvements in financial or other governance matters’ (para 159).  The visitor’s jurisdiction should be exercised by an ecclesiastical judge, not by the bishop personally.

Instead of an ineffectual separation of the 3 powers of government, the report argues for a ‘clear separation of governance and management‘ (para 132), which functions have become ‘blurred and conflated’ (para 122).  Cathedrals should instead be governed like charities, with ‘a trustee body … overseeing … an executive team‘ (para 121).

However, the report acknowledges a difficulty with applying the constitution of a secular charity to a cathedral.  If the cathedral and its clergy were subject to secular trustees, this would effectively secularise the cathedral: ‘for governors to direct … a cathedral’s worship would be an inappropriate crossing of boundaries’ (para 129).

So the report proposes to ‘retain the chapter as the governing body’ (para 130), instead of appointing another governing body over the chapter.  Moreover, the dean will continue to chair the chapter.  The offices of chairman and ‘CEO’ of the chapter will therefore continue to be combined.  In charities, these offices are generally separate.

At first glance, this proposal seems decidedly lame, a mere restoration of the status quo ante the 1999 Measure.  How does it effect a separation of governance and management?  How can the dean and chapter be accountable to themselves?  They will retain the same privileged, unaccountable position they have held since the middle ages.

However, the report is confident that things will be different this time.  It promises ‘some significant changes to the current structures’ (para 131).

Cathedral chapters were reformed by the 1999 Measure to include lay canons as well as residentiary clergy (s.4(2)(b)).  The chapter was also required to appoint a finance committee ‘having the function of advising … [on] financial and investment management and for the membership to include persons who have experience and expertise in that field’ (s.9(1)(h)).

The report therefore proposes further reform of the chapter, along the lines already provided in the 1999 Measure.  Not only will there be lay, non-residentiary canons in the chapter, but they will form the majority of chapter members (para 136), and so be able to outvote the dean and the residentiary canons.  The lay canons will also include ‘experts’ in finance, and risk and property management.  The finance committee will have enhanced powers of scrutiny, and a lay chairman (para 144).

The day to day management of the cathedral will be entrusted to a Senior Executive Team of cathedral officeholders, headed by the dean.  The report argues that ‘The corollary to strengthening chapter scrutiny and accountability is that deans need to be empowered to lead’ (para 182).

The dean’s position in the chapter will be weakened by the presence of a majority of lay ‘experts’, but his managerial position in the cathedral will be strengthened: ‘it [is] essential for the dean to be able to oversee and direct the work of the residentiary canons’ (para 197).

The appointment of residentiary canons (i.e clergy) should therefore be subject to the dean’s approval.  (Canons are currently appointed by the bishop or the Crown, not the dean.)  Residentiary canons ‘should report to the dean as their line manager’ (para 160), ‘deriving their authority from the dean’ (para 198).  The dean will be responsible for their ‘ministerial development review’ or work performance appraisal (para 194).  A far cry indeed from Dean Inge’s amusing comparison of the relationship between dean and canons to that of a mouse watched by 4 cats.

If these reforms are implemented the chapter is unlikely to be very collegial in character, despite the report’s affirmation of ‘the collegial and residentiary role of the clergy’ (para 129).  Collegiality does not sit comfortably with line management.  Also the chapter will be divided between 2 very different groups of canons.  A forum rather than a college.

But collegiality is not an end in itself, of course.  Loss of collegiality is a price worth paying for increased business efficiency, which in turn requires effective line management.  The report noted that ‘the financial management of cathedrals is at the core of our terms of reference’ (para 222).

The chapter’s status as governing body of the cathedral is retained out of respect for the ecclesiastical character of cathedrals.  But chapters will be accountable to the Charity Commission, a secular authority (para 168).  The report points out that most other ecclesiastical bodies are already subject to the jurisdiction of the Charity Commission.

It also criticises the 1999 Measure for ‘the absence of any independent body to act as a [cathedral] regulator’ (para 122), and argues that ‘There is a need for increased clarity about the relationship of national Church institutions with cathedrals’ (para 107).  It recommends a 5 yearly ‘assurance review’, i.e audit, of every cathedral, to be commissioned by the bishop but carried out by persons ‘drawn from the finance and operations functions of other cathedrals and the national Church’ (para 158).

All this accords with the report’s promotion of a nationwide ‘cathedral sector’.  However, there may be a difficulty here.  The Church Commissioners (who are a ‘national Church institution’, of course) ‘have made clear … that they would prefer not to have a regulatory role with regards to the cathedral sector’ (para 167).  Perhaps the national Church is not very keen to assume the task of policing its cathedrals!

The mediaeval anomaly of cathedral independence (‘A Constitutional Monstrosity’), and the Cathedrals Measure 1999, are discussed further in posts filed below under this category.

Cathedral Governance: A Constitutional Monstrosity

Kathleen Edwards, The English Secular Cathedrals in the Middle Ages (Manchester University Press, 2nd edition 1967)

This is a most helpful commentary on the confused subject of cathedral governance.  It explains the cause of the confusion, and also demonstrates how little the subject has changed since the middle ages.

The constitution of a cathedral church ought to be a simple thing.  Everyone knows that a cathedral is so called because it contains the cathedra, the official seat of the bishop.  The bishop’s relationship to the cathedral is analogous to that of an incumbent to a parish church.  The bishop is the incumbent of the diocese.  The cathedral is the bishop’s church, the church from which he officiates as bishop.  It is therefore the parish church, or ‘mother church’, of the whole diocese.  The proper function of any other cathedral clergy is to assist the bishop with his official duties, just as the curate assists the vicar.

But of course the constitution of an English cathedral is not nearly so simple.  Edwards relates that ‘the [mediaeval] bishop was more and more drawn away from his cathedral city, both on affairs of state and through … looking after a large diocese.  During his long absences there began to develop some sort of home government among the cathedral clergy’ (p.98).

Thus the cathedral chapter obtained a degree of autonomy from the bishop.  The absent bishop’s place at the head of the chapter was taken by the dean (cf.p.137).

Edwards quotes a graphic and prescient early warning against this separation of bishop and chapter, dating from 1313: ‘the bishop and the chapter … make one body, of which body the bishop is the head and the chapter are the members.  Therefore to argue that the dean is another head is to argue two heads in one body, which is like a monster, and prejudicial to the bishop’ (quoted, p.97).  Needless to say, this powerful argument was not accepted at the time, or subsequently.

However, the mediaeval separation of bishop and chapter makes the point that the bishop’s position is not precisely analogous to that of a parochial incumbent.  The bishop has a power of governance which incumbents do not share.  He is the principal ordinary of the diocese, and also has some responsibility for secular governance, through membership of the House of Lords (canon C18(2) and (8)).

In the old days, such responsibilities necessitated lengthy absences from the cathedral, but the cathedral still had to function without the bishop.  So perhaps the chapter had to have some autonomy then.  Of course, modern transport and communications should make it possible for the bishop to govern both the diocese and the secular state without prolonged absence from the cathedral.  (And bishops usually live right next door to their cathedrals.)  However, these improvements have not, as yet, led to the constitutional reunion of bishop and chapter.

The cathedra is always situated in the choir area of the cathedral.  It is generally an ornate and imposing structure, as befits the ‘principal seat and dignity in the cathedral’ (Cathedrals Measure 1999, s.6(1)).  It is often regally described as the bishop’s throne, an allusion to the power of governance.  However, Edwards points out that cathedra also means a professorial teaching chair (p.177).  Thus the cathedra symbolises not only the bishop’s governance, but also his pastoral function of teaching and guiding.

Moreover, the bishop did not exercise the power of governance in the choir.  The choir was a place of worship, where the Divine office was celebrated.  Governance was done in the chapter house.  (The consistory court would meet in the chapter house.)

The separation of bishop and chapter did not affect the bishop’s liturgical position in the choir.  The bishop continued to enjoy an undisputed precedence at all services at which he was present, and to exercise his pastoral ministry of preaching, ordaining and confirming.

However, the chapter house, as the seat of governance, became the subject of competing claims by the bishop and the chapter.  These claims were settled by the constitution of the particular cathedral.

In the middle ages, the chapter had two functions:

(1) governing body of the cathedral (as it still is) and

(2) bishop’s council, which he consulted about the governance of the diocese.

In other words, the original function of the chapter was to assist the bishop’s governance of both the cathedral and the diocese.

Cathedral constitutions could vary widely.  At Chartres Cathedral, apparently, ‘the bishop was not allowed to enter the chapter house on any pretext’ (p.106).  York Minster ‘denied to its bishop all statutory right to sit in chapter’.  However, most cathedral constitutions gave their bishop some say in the governance of his cathedral.

The competing claims of bishop and chapter were generally resolved as follows:

(1) the bishop had no right to attend ordinary meetings of the chapter, because he was not a member of the chapter

(2) however, the bishop could attend chapter meetings on a visitation, i.e an inquiry into the governance of the cathedral, if he had a constitutional right of visitation in the first place.  Bishops generally did have the right to inquire into the governance of their cathedrals, but the right might be limited in various ways, e.g to particular times or occasions.

(3) the bishop could also convene and preside over the chapter qua bishop’s council, in order to consult it about the governance of the diocese, rather than the cathedral.

Today, of course, the cathedral chapter has no responsibility for the governance of the diocese.  The bishop’s council is now a committee of the diocesan synod, which is completely different from the chapter (Synodical Government Measure 1969, schedule 3.28).

Thus the constitutional separation of bishop and chapter eventually resulted in the constitutional separation of the cathedral from the rest of the diocese.  Yet this separation is hardly consistent with the cathedral’s role as the ‘mother church’ of the diocese.

Nothing illustrates the confused state of cathedral governance so starkly as the position of archdeacons therein.  The function of archdeacons is to assist the bishop’s governance of the diocese within their respective archdeaconries (canon C22(2) and (4)).  But archdeacons, qua archdeacons, have no responsibility for the cathedral.

Edwards notes that ‘The place of archdeacons in secular cathedrals in the middle ages was peculiar … their chief work was in their archdeaconries outside the cathedral precincts’ (p.243).  She suggests that ‘in most mediaeval cathedral churches archdeacons had come to be regarded as the bishop’s official guests, to be treated with the honour due to guests’ (p.249).

Yet archdeacons can be ex officio members of the chapter, even though the bishop, whose diocesan governance they assist and whose church the cathedral is, cannot.  The Cathedrals Measure 1999 further provides that archdeacons, and suffragan bishops too, must be ex officio members of the college of canons established by the Measure for every cathedral (s.5(2)).  But the diocesan bishop is still excluded from ex officio membership of the college.  Not monstrous, perhaps, but all rather absurd.

The Cathedrals Measure 1999, and the bishop’s status as visitor of the cathedral, are discussed in separate posts, filed below.

The Unknown Bellringer: Bells and Organs

‘The control of access to church for bellringing purposes [is] analogous to the control of sporting associations’

TH v Chapter of Worcester Cathedral et al (2016) High Court (Administrative) 1117, at para 77.

In this case, the Chapter forbade a bellringer from ringing at the Cathedral after a ‘safeguarding’ investigation made findings of sexually inappropriate conduct against him.  The bellringer applied for judicial review of the decision on various grounds, including breach of his human rights.

The court granted the bellringer anonymity, but refused his application.  There was no jurisdiction to review the Chapter’s decision, because the Chapter was not exercising any ‘governmental or public administrative function’ in taking the decision (para 67).  It was merely exercising a proprietary, and private, right (para 71).  The Chapter controlled the bell-tower on behalf of the Cathedral, and was therefore entitled to decide who might or might not enter it.  Although its decision was motivated by concerns about safeguarding, the Chapter was not acting as a safeguarding authority or exercising a legal safeguarding power.

(The informative and erudite blog Law and Religion UK provides a detailed summary of this case, posted 20th May 2016.)

The bellringer brought his claim merely as a private citizen aggrieved by the action of a public authority.  He did not attempt to argue that a Cathedral bellringer is an officeholder of the Cathedral, or that the Chapter’s decision had wrongfully interfered with his tenure of an office.

The Administrative Court’s likening of bellringing to a sporting or recreational activity (as quoted above), rather than to a strictly ecclesiastical function, is supported by a dictum in Pearce and Hughes v Rector of Clapham (1830) 162 English Reports 1063.  As the Court of the Arches pointed out in that case, ecclesiastical law only requires a church to possess one bell, not a whole ring of bells.  ‘There must be a bell to ring to church, and to toll at funerals: but that is all’ (p.1065).  Canon F8 now provides for ‘at least one bell to ring the people to divine service’.

On Sundays, the ring of bells usually falls silent 5 or 10 minutes before the time of divine service, and the bellringers depart.  The single bell is then rung until the service begins.  It is this single bell that performs the constitutional function prescribed by ecclesiastical law, not the ring of bells that precedes it.

The canons of 1603 restricted the recreational use of bells.  Bells were ‘[not] to be rung superstitiously upon Holy Days or Eves abrogated by the Book of Common Prayer, nor at any other times, without good cause to be allowed by the Minister … and by [the churchwardens]’ (canon 88).  Persons who disturbed divine service by ‘untimely ringing of bells’ suffered ecclesiastical discipline (canon 111).

Canon F8 now provides that ‘No bell … shall be rung contrary to the direction of the Minister’.  The incumbent controls the belfry of the parish church, just as the Chapter does the Cathedral belfry.  Churchwardens are said to have the property in any parish bells and bellropes.

However, while ecclesiastical law makes certain provision for bells, the bellringer himself would seem to be ‘a person unknown to ecclesiastical law, either as an official of the Church, or as a servant of the parish’.  This dictum was originally applied to organists rather than bellringers, but it is no longer true of organists.

It may be instructive to compare the relationship of bells and organs, and those who operate them, to ecclesiastical law.  The Pearce case concerned a faculty for the installation of a new organ (which was granted).  The Court of the Arches held that

‘Most certainly an organ is not necessary in a parish church for the decent performance of worship [any more than a ring of bells]: therefore the parishioners are not bound to provide an organ: but, though it is not necessary, it is extremely decent, proper and even customary in a parish … of extent and opulence’ (p.1064).

On this view, an organ has the same ecclesiastical status as a ring of bells.  It is a desirable, but not essential ornament, of divine service.  The revised canons still do not provide that parish churches must have organs (or any musical instruments).  However, since 1988, ecclesiastical law has addressed the appointment and removal of parish organists.  Canon B20(1) provides that

‘the functions of appointing any organist, choirmaster … or director of music, and of terminating the appointment … shall be exercisable by the minister with the agreement of the parochial church council [PCC], except that, if the archdeacon … in the case of the termination of the appointment, considers that … the requirement as to the agreement of the PCC should be dispensed with, the archdeacon may direct accordingly’.

Thus the effect of canon B20(1) is that the incumbent and the archdeacon may force the dismissal of an organist against the will of the PCC.  Canon B20(1) does not address the question of who picks up the bill if a secular tribunal or court rules that a dismissal is unfair, and awards compensation to the sacked organist.  Even if the organist is hired on a self-employed basis only, without an employment contract, a dismissal may still breach his rights under the so-called ‘equality’ laws.

A cathedral, unlike a parish church, must have a ‘director of music’ by law (Cathedrals Measure 1999, s.9(1)(g)).  Further provision concerning this office is a matter for the constitution and statutes of the particular cathedral.

It seems that parish organists, unlike their cathedral counterparts, cannot be officeholders.  The case of Royce (1940) 1 Chancery 514 concerned a bequest ‘for the benefit of the [parish] choir’.  There was a dictum of Lord Hardwicke which apparently suggested that such a gift might be invalid, ‘as choristers never were allowed in parochial churches’ (p.518).

However, the court allowed the bequest, and offered this clarification:

‘what perhaps the Lord Chancellor [Hardwicke] had in mind … [was] that, as distinguished from a cathedral or collegiate church, of which the choristers might still remain part of the body [i.e they are part of the cathedral or college foundation], in parochial churches … choristers were not recognised as part of the church body or organisation … But to say that it was illegal to have a choir in the parish church … [is] a proposition for which there is no authority’ (pp.518-520).

There is no specific reference here to an organist or choirmaster, but the case suggests that the members of a parish choir, and by implication its organist or director, cannot be officeholders.  Therefore they must either be volunteers from the congregation, or paid servants or contractors.

The Cathedrals Measure 1999

The constitutions of English cathedrals are now regulated principally by the Cathedrals Measure 1999.  The 1999 Measure is the most recent of a succession of Cathedrals Measures.  The Cathedrals Measure should be distinguished from the Care of Cathedrals Measures which, as their titles imply, are mostly concerned with cathedral buildings and their contents.

The 1999 Measure effected two reforms of cathedral governance:

(1) reform of the chapter.  Every cathedral chapter must now include at least two lay members (s.4(2)).  Chapters were formerly exclusively clerical bodies.  The cathedral’s constitution may also provide for the appointment of committees by the chapter, and such committees may include persons (including laypeople) who are not members of the chapter (s.10).

(2) the creation of two new authorities for each cathedral.  These are

(1) the college of canons and

(2) the cathedral council. 

The college of canons is really an extended version of the chapter.  It comprises the dean and canons, also the assistant bishops and archdeacons of the diocese, but not the diocesan bishop himself (s.5(2)).

The novelty of the college of canons is limited.  It resembles a body known as the greater chapter, an ancient feature of the governance of many cathedrals.  Its purpose is not altogether clear.  The chapter’s historic function of electing a new diocesan bishop is now exercised by the college of canons (s.5(3)).  It is hard to see the point of this reform, as the election of the bishop under the Act of 1533 is the merest formality. 

The cathedral council is regulated by s.3 of the 1999 Measure.  Its membership is more widely drawn than that of the college of canons.  The chairman must be a layperson who is not a member of the chapter.  The bishop appoints the chairman, after consulting the chapter.  The chapter is represented on the council by the dean and between two and five other chapter members.  Two representatives of the college of canons must also be appointed.

There must also be two and four lay representatives of those who work and worship regularly at the cathedral.  The ‘cathedral community’ is defined at s.35(1) of the Measure.  The election of these representatives is a matter for the cathedral’s constitution.

Lastly, there must be 5 to 10 other persons chosen, again in a manner prescribed by the constitution, for their connection with the cathedral.  The nature of this connection is not very clearly stated in s.3.  The additional members must be

‘persons having experience in connection with the work of the cathedral, or the ability to reflect local, diocesan, ecumenical or national interests in that connection’.

This wording suggests that the additional members of the cathedral council should either be

(1) experienced in cathedral administration generally, or else

(2) connected with the particular cathedral, either through residence in the diocese or in some other context.  

The cathedral council, as constituted under s.3, will have a maximum membership of 23, and a minimum membership of 13.  The diocesan bishop may not be a member of the council, just as he may not be a member of the chapter or the college of canons.  However, the bishop may attend and speak, but not vote, at meetings of the council.

The council is the legislative authority of the cathedral.  S.28 of the 1999 Measure provides that the council may promulgate a new constitution and statutes, or revise existing ones.

Any legislative activity of the council requires the bishop’s consent.  However, cathedral legislation is promulgated by a written instrument sealed by ‘the common seal’ of the cathedral.  It is not promulgated by the bishop’s assent in the manner of the royal assent to Acts of Parliament.

No legislative proceedings can be started until the chapter has been consulted.  The general public must also be consulted in accordance with a procedure laid down by s.29 and s.30 of the 1999 Measure.  Draft legislation must be advertised in the vicinity of the cathedral and made available for public inspection, with opportunity for written representations to be made.  Draft revisions of the constitution, though not of statutes, must also be advertised in at least one local newspaper (s.29(1)(a)).

The cathedral council must have regard both to the views of the chapter and any written representations received from the public.  Following advertisement of the draft legislation, the council may amend it ‘as it thinks expedient’ (s.29(3)), after which the instrument is sealed.

While the council is the legislative authority for the cathedral, the chapter remains the executive authority, with power ‘to direct and oversee the administration of the affairs of the cathedral’ (s.4(8)).  Thus the chapter is sometimes described as the ‘administrative chapter’ or ‘administrative body’ of the cathedral (s.36(1)).

The 1999 Measure was passed in response to concerns about the lack of accountability of cathedral chapters.  However, our account has shown that the Measure has done little to alter the mediaeval character of cathedral governance.  Cathedrals remain self-governing, with their own particular laws. 

The provisions of the 1999 Measure were influenced by a Church of England report entitled Heritage and Renewal (1994).  This report was the work of a commission a large proportion of whose members were themselves cathedral officeholders, and therefore perhaps not naturally supportive of radical reform of cathedral governance.  Cathedral foundations have always been a powerful interest group, hence they have changed little from the middle ages to the 21st century.

The establishment of the cathedral council is a reform of limited value.  The council has legislative power, but little ability to control the chapter’s governance of the cathedral.  As we have seen, the dean and some canons are themselves members of the cathedral council.  This may undermine the council’s independence of the chapter.  The 1999 Measure does not require the council’s approval of the cathedral’s annual budget, or of any property transactions made by the chapter.  The council certainly cannot remove chapter members from office, in the way that a company’s shareholders can dismiss its board of directors.  It is therefore somewhat toothless.

The 1999 Measure scarcely addresses the function of cathedrals within the wider Church.  This reveals its conservative character.  Phillimore’s Ecclesiastical Law (2nd ed, 1895) suggests that ‘Every cathedral in its first institution was as the Temple to the whole diocese’ (p.124, citing Coke).  In other words, the cathedral is the parish church of the diocese.

The Measure provides, rather vaguely, that the cathedral is ‘a centre of worship and mission’ (s.1) and affirms the duty of the chapter to ‘order the worship and promote the mission of the cathedral’ (s.4(8)(a)).  It makes no other reference to the cathedral’s status as parish church of the diocese.

The cathedral council itself is not very representative of the diocese.  It is composed mainly of persons chosen for their connection to the cathedral rather than to the diocese.  The diocesan synod has no right of representation on the council.  The continuation of particular laws for cathedrals also tend to isolate them from the wider Church.

With few exceptions, English cathedrals still do not have parishes of their own.  The original reason for this may have been that ‘the bishop would not hold it consistent with his dignity to place a parish priest over his own head’ (Braithwaite v Hook (1862) 7 Law Times 254).

It is arguable that, with no parish of its own but several clergy, the cathedral is a unjustifiable burden to the Church’s ministry in the diocese.  Phillimore wrote that the dean’s cure of souls is limited to the chapter (possibly other cathedral officeholders as well), while the chapter have no cure of souls ‘in any respect’ (pp.130 and 140).  It is true that cathedrals resemble parish churches in having congregations of regular worshippers.  The 1999 Measure acknowledges this by extending the dean’s cure of souls to include ‘the pastoral care of all members of the cathedral community’ (s.7(2)).  The dean is now effectively the ‘vicar’ of the cathedral community.  However, nothing is said about the pastoral function of the chapter as a whole.  It has been suggested that the chapters of the more famous cathedrals exercise some kind of ‘ministry’ to tourists, but this is hard to reconcile with compulsory admission fees.

It is argued that, if the cathedral is the parish church of the diocese, it should be fully integrated into the diocese.  The governance of the cathedral ought to be the responsibility of the diocesan synod.  Management of the cathedral could be entrusted to the diocesan board of finance, or to some specially constituted diocesan committee.

The Bishop and the Cathedral: Visiting his Seat

The Cathedrals Measure 1999 not only denies the bishop membership of the chapter, but even membership of the two new authorities created by the Measure, the college of canons and the cathedral council.  By keeping the bishop at one remove from the cathedral, the Measure preserves a pattern of cathedral governance that has been apparent since late mediaeval times (an indication of its conservatism). 

However, the 1999 Measure acknowledges that the cathedral is ‘the seat of the bishop’ (s.1).  (It is well known that a cathedral is so called because it contains the bishop’s cathedra or chair of office.)  It guarantees the bishop’s right to exercise his ministry in the cathedral, including holding ordinations and synods, and ‘for other diocesan occasions and purposes’ (s.6(1)).  The 1999 Measure also follows the earlier Cathedrals Measures in providing that the bishop is ex officio visitor of his cathedral (s.6).

As visitor, the bishop has the quasi-judicial function of determining any question of the cathedral’s constitution and statutes.  He may hold a visitation of the cathedral ‘when he considers it desirable or necessary to do so’, or when requested by the cathedral council or the chapter.

During the visitation, the bishop may give directions to the chapter, or to any individual who works at the cathedral, so as to ‘better serve the due observance of the constitution and statutes’.  These directions correspond to the ‘Charge’ traditionally delivered at a visitation of parishes.  Again, the visitor’s function is quasi-judicial, to ensure proper observance of the cathedral’s laws.

The connection between the bishop’s function as visitor of his cathedral and as ecclesiastical ordinary was discussed in R v Dean and Chapter of Chester (1850) 117 English Reports 553.  A sacked cathedral chorister applied to the secular court for an order compelling the dean and chapter to reinstate him.

Chester Cathedral was founded at the Reformation by letters patent of Henry VIII.  The letters patent included statutes by which the Cathedral foundation was to be governed.  The Bishop of Chester was appointed visitor of the foundation.

The secular court therefore refused the chorister’s application.  It held that his remedy was to appeal his dismissal to the Bishop qua visitor.  The office of visitor is a lay office, whereas that of ordinary is ecclesiastical.  The office of a cathedral visitor is not materially different from that of a visitor of a secular foundation.  The visitor is

‘appointed to superintend the due execution of the [cathedral] statutes … by the letters patent the powers of the Bishop of Chester are not confined to cases in which he would have jurisdiction as ordinary … he is constituted a special visitor to see that the statutes are enforced’ (pp.555-6).

This made the point that, if Henry VIII had not appointed the Bishop visitor of the Cathedral, the Bishop would not, or at least may not, have had jurisdiction to investigate the chorister’s sacking.  The appointment and dismissal of choristers were regulated by Henry VIII’s statutes, not by the general ecclesiastical law.  The Bishop’s ordinary authority, by contrast, was a common law authority which did not extend to the special statutes.

However, in Boyd v Phillpotts (1874) 4 Admiralty and Ecclesiastical 297, Sir Robert Phillimore doubted that the status of visitor added much to the bishop’s ordinary authority over his cathedral: ‘It is the ordinary episcopal authority with which [the Bishop] is clothed on [cathedral visitations] and not the spiritual authority which belongs only to the visitor of a college or private foundation’ (p.335).

Phillimore also drew a distinction between the bishop’s visitorial status and that of a secular visitor by holding that the Court of the Arches had jurisdiction to hear an appeal from the bishop’s visitation order.  As he pointed out, there is no appeal from the decision of a secular visitor.

The Privy Council agreed with Phillimore on these points.  Lord Hatherly cited Burn’s dictum that ‘all deans and chapters are subject to the visitation of the bishop jure ordinario and of the Archbishop … jure metropolitico’ (Phillpotts v Boyd (1875) Law Reports 6 Privy Council 435).  It should be remembered that Phillpotts was concerned with the governance of Exeter Cathedral which, unlike Chester, is a pre-Reformation foundation.  However, the case makes no distinction between cathedrals of the ‘old’ and ‘new’ foundations.

It could be argued that the Cathedrals Measure 1999 has established something of a classic separation of powers in the governance of cathedrals.  The cathedral council is the legislature of the cathedral, the chapter is its executive and the bishop its judiciary.  However, the bishop’s status as visitor indicates another confusion about the identity and function of cathedrals which the 1999 Measure fails to address.  If the cathedral is the bishop’s own church, his ‘seat’, then it may be somewhat absurd that he should also be its ‘visitor’.

Cathedrals and the Faculty Jurisdiction

It is often said that the cathedral is ‘exempt’ from the faculty jurisdiction.  It would be more accurate to say that cathedrals are subject to a different faculty jurisdiction from that which regulates parish churches.

The present faculty jurisdiction over cathedrals was first conferred by the Care of Cathedrals Measure 1990.  This was supplemented by two further Care of Cathedrals Measures, passed in 1994 and 2005 respectively.  All three Measures were at length consolidated into the Care of Cathedrals Measure 2011.

Like the Cathedrals Measure 1999, the Care of Cathedrals Measure 1990 established two new cathedral authorities:

(1) a fabric advisory committee (‘FAC’), which every cathedral is required to have, and to which the chapter must report annually (2011 Measure, s.4(1) and s.24(3)).

(2) the Cathedrals Fabric Commission.  This is a national body with responsibility for all English cathedrals.  Most of the Commission’s members are appointed by the Archbishops, but five members are elected by, and from, the General Synod.  At least one elected member must be a chapter member (2011 Measure, sch.1).  The Commission is supposed to promote ‘standards of good practice’ concerning the care of cathedral property (s3(3)).

Neither the consistory court nor the bishop is involved in deciding cathedral faculties.  Instead the chapter must apply for a faculty to the cathedral’s FAC.  It seems that nobody else, not even the bishop or the cathedral council, may apply for a faculty, only the chapter.

The FAC has jurisdiction to grant faculties for minor works.  More significant works must be referred to the Comission for approval (s.6).  Confirmatory faculties (i.e faculties approving work ‘illegally but usefully done’) may be granted only by the Commission (ss.2(3) and 6(11)).

The Fabric Commission has power under s.6 to exclude minor works from the requirement of a faculty.  It may also hear appeals from decisions of the FAC (s.10(1)).  Appeals from decisions of the Fabric Commission are heard by a special Commission of Review chaired by the Dean of the Arches or a chancellor appointed by the Dean (s.11(3)).

A faculty petition must be initiated by the chapter but a cathedral tenant may appeal where a faculty has been refused, or granted only conditionally, for works by the tenant for which the consent of the chapter is required.  In these circumstances the tenant may appeal whether or not the chapter has appealed.

Although the bishop is not involved in cathedral faculties, he is responsible for enforcing the faculty jurisdiction on the chapter.  He may order a ‘special visitation’ of the cathedral, if he fears that the chapter has carried out, or may carry out, works without proper authorisation(s.16).

A special visitation by the bishop under the Care of Cathedrals Measure differs from an ordinary visitation in that it is not subject to the cathedral’s constitution.  It has the effect of an injunction.  When a special visitation is ordered the chapter may not act ‘with regard to the matter under inquiry’ (i.e the suspected contravention of the Measure) without the bishop’s written approval.  The bishop may also give directions to the chapter in respect of the matter under inquiry, after consulting the Fabric Commission, which the chapter must obey (s.17).

The Care of Cathedrals Measure confers enforcement powers similar to those conferred on the consistory court by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.  Having ordered his special visitation the bishop may authorise proceedings against the chapter for an injunction or restoration order.  These proceedings are heard by the Vicar-General’s Court (the same body that is constituted to determine disciplinary complaints against bishops).

The Vicar-General’s Court may order an injunction or restoration order on similar terms to the consistory court in faculty proceedings, and has a similar power to join any offending parties to the proceedings by special citation (s.20).

The strong enforcement powers that can be applied to the chapter in relation to dealings with cathedral buildings and their contents distinguish the Care of Cathedrals Measure from the Cathedrals Measure 1999, which is notably lacking in enforcement powers.