Chancellor Rupert Bursell QC, article in the Ecclesiastical Law Journal (2016) vol 18(2), May 2016, p.165.
This is an interesting account of the history and content of the Declaration contained in Canon C15(1) that clergy are required to make. However, there are difficulties with its speculations about the disciplinary consequences of a ‘breach’ of the Declaration by an officeholder.
The learned author suggests that any disciplinary case involving the Declaration is likely to constitute a ‘reserved matter’, i.e an offence against doctrine, ritual and ceremonial (p.185). Reserved matters are still regulated by the Ecclesiastical Jurisdiction Measure 1963, not the Clergy Discipline Measure 2003.
To date, no prosecution has ever been brought under the 1963 procedure for reserved matters. There seems to be no reported case either under the 1963 Measure or the 2003 Measure concerning a breach of the Canon C15(1) Declaration.
Although described as ‘The Declaration of Assent‘, the word ‘assent’ does not appear in the text of the Declaration. The Declaration is in the following terms:
‘I, A.B …
 declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the Catholic Creeds and to which the historic formularies of the Church of England bear witness and
 in public prayer and the administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon’.
It will be apparent from this wording that ‘the Declaration’ is actually two declarations, as to (1) religious belief and (2) compliance with the Church’s law of worship.
The two declarations are significantly different in character. Only Declaration (2) is concerned with conduct. Declaration (1) concerns state of mind. Declaration (1) is expressed in the present tense. It affirms the clergyman’s religious belief as at the time it is made. It contains no guarantee of what the clergyman may or may not believe in the future. Declaration (2), by contrast, is an undertaking as to future conduct.
It is difficult to see how Declaration (1) could give rise to disciplinary action, as it refers only to a state of mind. As Dr Johnson observed, ‘Every man has a physical right to think as he pleases, for it cannot be discovered how he thinks’. Perhaps disciplinary action would be possible if there was evidence that an officeholder had knowingly made a false declaration (e.g ‘I only made the Declaration to get the job’), though such a case might be hard to prove.
The ‘forms of service’ which are the subject of Declaration (2) are now ‘authorised or approved’ under the authority of the Worship and Doctrine Measure 1974, which was, of course, passed some years after the 1963 Measure. The reserved jurisdiction over ritual and ceremonial in the 1963 Measure applied to the old 1662 regime of public worship. The 1662 regime was abolished by the Worship and Doctrine Measure. It might therefore have been appropriate to abolish the reserved jurisdiction over ritual and ceremonial at the same time, but this was not done.
Canon B2 now provides that ‘Every minister shall use only the forms of service authorised by this Canon, except so far as he may exercise the discretion permitted by Canon B5′.
Thus if an officeholder breaks the rule laid down by Canon B2, or exceeds the discretion permitted by Canon B5, this will clearly constitute disobedience, ‘doing [an] act in contravention of the laws ecclesiastical’, which is misconduct under s.8(1) of the Clergy Discipline Measure. There will be no need to invoke the 1963 reserved jurisdiction, even if such misconduct is cognisable under this jurisdiction.
The learned author asserts that ‘Once made, the Declaration is binding unless and until a cleric formally renounces his or her orders’ i.e by exercising a deed of relinquishment (p.183). He makes this assertion not just once but twice (at p.183 and p.187). (It must be important to him, for some reason.)
Canon C15(1)(6) is cited as authority. This provides that
‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place, the Declaration made under this Canon shall continue to have effect insofar as he continues to minister in the Church’.
On this wording, Canon C15(1)(6) does not provide that the Declaration continues until a clergyman formally renounces his orders. It provides only that the Declaration continues as long as the clergyman continues to officiate. It makes no reference to renunciation of orders.
Canon C15(1)(6) means in effect that a retired bishop or vicar (or a vicar on a career break) who helps out by taking services, as retired clergy do, will not have to take the Declaration again after retirement, but will be expected to honour the Declaration made while still in ‘active’ ministry. It simply does not apply to clergy who do not officiate at all. And clergy who do not officiate in the Church will have no opportunity to act in breach of the Declaration, regardless of whether they have executed a deed of relinquishment.