ecclesiasticallaw

Ecclesiastical law

Category: Ecclesiastical Patronage

Ecclesiastical Preferment: Canon 33 and Martyn v Hind

Canon 33 of 1603, The Titles of such as are to be made Ministers, provided that

‘no person shall be admitted into sacred orders, except he shall …

[1] exhibit to the Bishop … a presentation of himself to some ecclesiastical preferment then void in that diocese; or shall

[2] bring to the said Bishop a … certificate that either he is provided of some church within the … diocese … or of some minister’s place vacant …’.

It goes on to warn that

‘if any Bishop shall [ordain] any person … that hath none of these titles … then he [the Bishop] shall keep and maintain him … till he do prefer him to some ecclesiastical living.  And if the said Bishop shall refuse to do so, he shall be suspended … from giving of Orders by the space of a year’.

Canon 33 was discussed in the case of Martyn v Hind (1776) 98 English Reports 1174.  The case sheds an interesting sidelight on the status of Church of England ministers.

Mr Martyn was a newly ordained curate.  He sued his rector (or former rector), Dr Hind, after the latter dismissed him.

When appointing Mr Martyn, the rector had stated that ‘I … promise to allow him a yearly sum of 50 guineas for his maintenance … until he shall be otherwise provided of some ecclesiastical preferment …’.  Mr Martyn was referred to in the third person because the statement was addressed to the Bishop, not to him.

Some time after his appointment as curate, Mr Martyn took on the office of ‘parish reader’, an appointment in the gift of the vestry that had nothing to do with the Bishop.  (Presumably he needed the extra money.)  The rector took the view that Mr Martyn was now ‘otherwise provided of some ecclesiastical preferment’, and that this in turn had the effect of releasing the rector from his promise of payment and entitling him to dismiss Mr Martyn.

When sued for the 50 guineas, the rector tried to argue that he had no liability to Mr Martyn, because the promise had been made only to the Bishop, to satisfy the requirements of Canon 33.

However, the court held that the rector’s statement ‘[was] not a contract with the Bishop to indemnify him: but a certificate and assurance to the Bishop of a matter of fact’, viz that Mr Martyn had a suitable job to go to (p.1177).  The instrument was ‘merely a matter of information to the Bishop: the contract [was] with the curate’ (p.1178).  As well as complying with the requirements of Canon 33 and the Bishop, the rector’s act of appointment also created a contract between himself and Mr Martyn.

The court held that Canon 33 ‘shows that … it is not barely necessary that [an ordination candidate] should have a maintenance [i.e an income]: but that he should likewise have … some church where he may exercise his ministerial function: for that is the ground upon which the Bishop is entitled to ordain’ (p.1177).

This suggests that the Bishop’s right to ordain a candidate is conditional on the candidate’s possession of a title, an ecclesiastical office.  If the candidate lacks a title, that will not invalidate the ordination, but Canon 33 effectively obliges the Bishop to obtain a title for the candidate himself.  (An ordained minister could not undertake secular employment.)

The same point also disposed of the rector’s next argument.  He claimed that Mr Martyn had never really been his curate at all, because, though ordained, he had not been licensed by the Bishop.

However, the court held that the ordination itself constituted a licence to officiate as curate.  Mr Martyn had not been ordained simpliciter.  On the contrary, the Bishop had ordained him to the particular curacy.  The office of curate was ‘the very foundation and title of the ordination: therefore he [Martyn] is licensed to all intents and purposes’ (p.1178).

Canon 33 was replaced by Canon C5 of the revised Canons.  Canon C5 does not repeat the threat of financial liability on a bishop who ordains without title.  However, it still requires that an ordination candidate ‘shall first exhibit to the bishop … a certificate that he is provided of some ecclesiastical office  … which the bishop shall judge sufficient’.

However, the new regime of ‘common tenure’ suggests that it is now the Bishop’s responsibility to certify the office, not the candidate’s.  The Terms of Service Regulations 2009 provide that an ecclesiastical office ‘may be designated as a training post if the office holder is required by the … bishop to undertake initial ministerial education’ (29(3)).  Like other officeholders one newly ordained is also entitled to a written statement of particulars of office (including remuneration) from a diocesan officer nominated by the Bishop (3(1)).  This may mean that an ordination candidate is ordained to the diocese more than to a particular office.

To return to Martyn v Hind.  The court doubted that Mr Martyn really was a parish reader: ‘The term reader has confounded us … [Mr Martyn] is not a reader in any sense of the law.  This is nothing more than a parish employing a clergyman … to read prayers, and they call him a reader’ (p.1178).

As the court observed, a reader (or lector) ‘is one of the 5 minor orders of the Roman Church, inferior to the deacon’.  It was therefore a lay office: ‘a reader known to the canon law is always put in opposition to a clergyman: they [readers] are always considered laymen’.  That was why the court doubted that Mr Martyn could be a reader, because he was an ordained clergyman.

The reader’s status was a matter of contemporary practice, as well as ‘foreign’ canon law.  The court noted that parishes would appoint lay readers where clergy were lacking.  For example, ‘in the Welch dioceses, where there is no endowment worth the while of a clergyman to accept … many persons officiate as readers ‘in opposition to clergymen”.

Whatever the precise nature of the parochial office bestowed on Mr Martin, it was not an ‘ecclesiastical preferment’.  This was because ‘the office [is] such as requires no licence or authority [from the Bishop].  Therefore … it is impossible to consider this as an ecclesiastical preferment’.  So the court awarded Mr Martyn his 50 guineas.

The court’s conclusion was therefore that the office of reader could not be an ecclesiastical office because

(1) it was an intrinsically lay office and

(2) it lacked episcopal authority.

Today a reader is still a lay officeholder (1).  The revised Canons are clear that only ‘a lay person’ can become a reader (cf Canon E4(1)).  An ordained minister is not eligible.  However, the office now requires episcopal authority just as much as that of an ordained minister (2).  It is no longer a parochial appointment but an episcopal one.

Thus a lay reader must be both (1) admitted to office and (2) licensed to officiate by the Bishop (Canons E5 and E6).  The Bishop may not licence a stipendiary reader unless satisfied that ‘adequate provision’ has been made for the reader’s maintenance (E6(4)).  A stipendiary reader also holds common tenure on the same terms as stipendiary clergy (Terms of Service Measure 2009, s.1(1)).

Curates and Contracts: England and Scotland

The Court of Appeal has recently decided that the Reverend Mr Sharpe did not have a contract, and so cannot bring a claim against the Church of England in the employment tribunal.  Mr Sharpe’s case is discussed in an earlier blogpost which is filed below.  There is also an interesting commentary on the case by Dr Russell Sandberg on the Law and Religion UK blog (2nd May 2015).

Mr Sharpe was the incumbent of a benefice (a rector).  However, the Court of Appeal discussed its own earlier decision in the case of Coker v Diocese of Southwark (1998) Industrial Cases Reports 140, which held that an assistant curate, the Rev Dr Coker, did not have a contract either.

Sandberg’s commentary discusses the persistent uncertainty and fact-sensitivity of the employment status of ministers of religion.  It may therefore be instructive to compare Coker with the House of Lords’ decision in Percy v Board of National Mission of the Church of Scotland (2006) 2 Appeal Cases 28.  Ms Percy was, in effect, an assistant curate like Dr Coker, though described as an ‘associate minister’.  The House of Lords held that Ms Percy did have a contract. However, it did not overrule or disapprove Coker.  So why did the Scottish curate have a contract when the English curate did not?

Ms Percy’s appointment was made in the context of a pastoral reorganisation.  A pastoral scheme was approved, uniting several parishes under the care of one incumbent minister.  The scheme provided for the appointment of an associate minister to assist the incumbent (para 94).

The Board of National Mission therefore found Ms Percy, and sent her to the local presbytery.  (The Church of Scotland, of course, has a presbyterian structure, not an episcopal one.)  The presbytery licensed Ms Percy as associate minister.  Later she was accused of an affair with a married man.  The presbytery instituted disciplinary proceedings against her.

The account thus far suggests that Ms Percy was in exactly the same position as an English curate.  Her position was part of the constitutional framework of the Church, because it had been constituted by the pastoral scheme.  She assisted the incumbent.  She required the Church’s licence to officiate, and she was subject to ecclesiastical discipline.

The great difference between England and Scotland concerned the role of the Board of National Mission in finding and sending Ms Percy.  The Board offered Ms Percy the position of associate minister (para 118).  They also agreed to pay her salary, and gave her other terms and conditions of appointment, to which she agreed.  The presbytery was not involved in any of these arrangements.

Thus the Board did not simply present or nominate Ms Percy to the presbytery, as an English patron nominates or ‘presents’ a candidate to the bishop.  They went much further than this.  They made an agreement with Ms Percy which was in addition to, and distinct from, her licensing by the presbytery.  By agreeing salary and other terms and conditions with her, they secured Ms Percy’s future performance of her duties.  This proactive role of the Board in supplying paid clergy to the Church gave rise to its contract with Ms Percy.

An English patron, by contrast, assumes no responsibility for anything that happens after the candidate is licensed (or instituted).  There seems to be no equivalent of the Board of National Mission in the Church of England.  The account given in Percy suggests that the Board acts as a kind of recruitment agency for the Church of Scotland.  They hire the curates and then supply them to the Church, rather as a ‘temping’ agency supplies temporary staff.

There is no such recruitment agency for curates in England.  The Church Commissioners and various diocesan committees are involved in reorganisations of the parochial structure, and are responsible for paying clergy stipends and pensions, but they have no responsibility for supplying clergy to bishops or parishes in the first place.  The bishop has a qualified duty to ‘provide, as much as in him lies, that in every place within his diocese there shall be sufficient priests’ (canon C18(6)).  He performs this duty by ordaining and licensing or instituting clergy, but he does not make agreements with them or pay them.

The House of Lords’ account in Percy indicates that the Board of National Mission is only responsible for supplying associate ministers / curates, not incumbent ministers.  New incumbents are chosen by their congregations.  The Board is not involved in their selection (para 84).  This in turn indicates that Scottish incumbents do not have contracts, only their curates do (though admittedly the House of Lords did not decide this point.)  Therefore Mr Sharpe would have been no better off had he been a Scottish incumbent instead of an English one.

It was also held in Percy that the associate minister’s rights and duties ‘were defined by her contract [with the Board of National Mission], not by the ‘office’ to which she was appointed’ (para 34).  This echoes the suggestion in Coker and in the earlier case of Employment of Church of England Curates (1912) 2 Chancery 563, that English curates cannot be employed because their duties are defined by law.

However, it is argued that contractual duties and legal duties are not mutually exclusive.  The professional duties of solicitors are defined by law (they are officers of the court), but it is not disputed that solicitors can also be employed as such.  The Percy case suggests that the duties of Scottish clergy are defined by law, just as much as those of English clergy.  Article 3 of the Constitution of the Church of Scotland, which is scheduled to the Church of Scotland Act 1921, states that the Church ‘acknowledges its … duty to bring the ordinances of religion to … very parish in Scotland through a territorial ministry’  (quoted at para 80).  As an associate minister, Ms Percy shared this legal duty.

Yet legal duties imposed on clergy in general may still be allocated, delegated to or distributed between individual ministers by agreement, and for an agreed salary. The point is, that a clergyman who claims a contract for service(or services) must show that these legal duties have also been incorporated into the contract.

The Removal of an Irremovable Pastor: Sharpe v Diocese of Worcester

Dismissal and Attempted Dismissal

In the 20th century the courts held, in a number of reported cases, that sacked ministers of religion were not employees of their Churches, and so not eligible to claim compensation for unfair dismissal or breach of other statutory rights enjoyed by employees.  This persistent refusal to recognise an employment status in ministers of religion has given rise to the canard that clergy are ’employed by God’.

Most of the cases concerned non-Anglican ministers of religion.  However, in Church of England Curates, Employment (1912) 2 Chancery 563, and Diocese of Southwark v Coker (1998) Industrial Cases Reports 140, the courts held that assistant curates do not have contracts of employment.

Then, in the case of Percy v Board of National Mission of the Church of Scotland (2006) Industrial Cases Reports 134, the House of Lords departed from the 20th century trend.  Ms Percy was an associate minister of the Church.  She was accused of misconduct, resigned and made a claim of sex discrimination (not unfair dismissal)  in the employment tribunal.

The House of Lords held that Ms Percy did have a contract with the Church (through the Board), even if not necessarily an employment contract, and so the employment tribunal did have jurisdiction to hear her discrimination claim.

Ms Percy was an ecclesiastical officeholder, but ‘holding an office, even an ecclesiastical office, and the existence of a contract to provide services, are not necessarily mutually exclusive’ (p.141).  Nor should there be a presumption that there is no intention to make a contractual relationship where ministers of religion are concerned.

Nor did the ‘spiritual’ nature of a clergyman’s work preclude a contractual relationship.  There was ‘no cogent reason today to draw a distinction between a post whose duties are primarily religious and [another] post … where this is not so’ (p.143) and ‘[no] difference in principle between … clergy appointed to minister to our spiritual needs … [and] doctors appointed to minister to our bodily needs’ (p.176).

Unfortunately the Percy case gave rise to further misunderstandings among courts and commentators.  The tendency to assume that ministers of religion could not have contracts was succeeded by a tendency to assume that they must have contracts.  There was also a tendency to treat all ministers of religion as a single generic group, regardless of which Christian denomination, or even which religion, they belong to.

These errors were recently corrected in President of Methodist Conference v Preston (formerly Moore) (2013) UK Supreme Court 29.  Ms Preston (she changed her name while the litigation was ongoing) was a Methodist minister.  She resigned and claimed constructive unfair dismissal in the employment tribunal.  However, a majority of the Supreme Court held that Ms Preston did not have a contract of employment with the Methodist Church, or any contract, and so could not bring a claim in the employment tribunal.

This did not mean that the House of Lords had been wrong to hold that Ms Percy did have a contract with the Church of Scotland.  It meant only that the relationship between the Methodist Church and Ms Preston was different from that between the Church of Scotland and Ms Percy. 

In Ms Preston’s case, the Supreme Court found that ‘the manner in which a [Methodist] minister is engaged is incapable of being analysed in terms of contractual formation.  Neither the admission of the minister to full connexion nor her ordination are themselves contracts.  Thereafter, the minister’s duties are not consensual.  They depend on the unilateral decisions of the [Methodist] Conference’ (paragraph 20).

The constitutional structures of the Methodist Church (18th century congregationalist) and the Church of Scotland (16th century presbyterian) are obviously different.  Speaking in Preston, Lord Sumption (a historian by discipline), criticised the ‘abstract categorisation of ministers of religion’ (para 26).  He held that ‘The correct approach is to examine

[1] the rules and practices of the particular Church and

[2] any special arrangements made with the particular minister’.

Even before the Percy case, ministers of religion were not completely defenceless against dismissal.  The effect of the 20th century case law was that clergy could not claim wrongful dismissal or unfair dismissal, for lack of contract.  However, case law from the 19th century makes clear that the courts will protect clergy from what might be described as attempted dismissal.

Attempted dismissal occurs when a bishop or other Church authority purports to dismiss a clergyman, but lacks the legal power to do so under the Church’s own constitution.  The clergyman does not have to prove that he has a contract with his Church.  Attempted dismissal is discussed in two Scottish cases M’millan v General Assembly of the Free Church of Scotland (1861) 12 Scottish Revised Reports (second series) p.772 and Forbes v Eden (1867) Law Reports 1 Sc&D 568.

The Rev Mr M’Millan was purportedly dismissed by the Free Church following allegations that he had ‘exhibited symptoms of intoxication in his walk, appearance, breath and indistinctness of speech’ and, while in that condition, had ‘endeavoured to kiss a married woman in her own house and behaved violently and immodestly towards her’ (p.798).  Mr M’Millan claimed that his dismissal was a ‘gross and flagrant violation’ of the Free Church’s constitution (p.772).

The Court of Session agreed with Mr M’Millan that, if the Free Church had contravened its own constitution in dismissing him, such action would be ‘against, and so far against, law that this [secular] Court must be entitled to interfere’ (p.788).  An attempted dismissal would be declared null and void, and damages might be awarded if the minister could prove a loss.

Forbes v Eden concerned a minister of the Scottish Episcopal Church.  Lord Chancellor Chelmsford stated that

‘the possession of a particular status, meaning by that term the capacity to perform certain functions or to hold certain offices, is a thing which the law will recognise as a patrimonial interest, and that no one can be deprived of its possession by the unauthorised or illegal act of another without having a legal remedy’ (p.575).

In Long v Bishop of Cape Town (1863) 15 English Reports 756, which concerned the Anglican Church of South Africa, the Privy Council overruled the Bishop’s purported dismissal of the Rev Mr Long, holding that the Bishop had no constitutional power to dismiss him.

The two Scottish cases were approved by Lord Denning (then Lord Justice Denning) in Abbott v Sullivan (1952) 1 King’s Bench 189.  He held that a remedy for wrongful removal from office ‘is as much the law of England as of Scotland’ (p.204).  They were also approved by the House of Lords in Percy.

However, claims of attempted dismissal are rare.  Moreover, they cannot be brought in the employment tribunal, and they do not engage statutory employment rights.  Lord Denning observed that such claims occupy ‘an uncharted area on the borderland of contract and tort’ (p.206).

Sharpe v Worcester Diocesan Board of Finance and the Bishop of Worcester (2013) EAT 0243/12

The Reverend Mr Sharpe was a Church of England clergyman. Like Ms Preston, he resigned and claimed constructive unfair dismissal in the employment tribunal.  An appeal was then brought in the Employment Appeal Tribunal (‘the EAT’). 

Unlike the subjects of the two earlier Church of England cases, Mr Sharpe was a rector, not an assistant curate or licensed minister.  The EAT’s judgment records that his appointment pre-dated the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009 (see paragraph 21).  This means that, as a rector, Mr Sharpe enjoyed the old common law parson’s freehold (i.e tenure for life).  The EAT acknowledged that a benefice is ‘a freehold office belonging to the incumbent for the time being’ (paragraph 120).

The EAT took Lord Sumption’s guidance to heart, giving a lengthy account both of English ecclesiastical law and of the quasi-legislative practices followed in Mr Sharpe’s diocese.  The judgment also contains several paragraphs describing the ‘factual differences’ between Percy and Preston and Mr Sharpe’s case (158-172).  Then it recites the guidance given in Percy and other authorities on how to establish if a minister of religion has a contract.  After delivering this lengthy dissertation, the EAT sent the case back to the employment tribunal to find out whether or not Mr Sharpe had a contract.

Notwithstanding the discussion of the factual differences with Percy and Preston, it is argued that the EAT missed a factual distinction of critical importance to Mr Sharpe’s dismissal claim.  Ms Percy and Ms Preston did not have the parson’s freehold.

In paragraph 72 of the judgment, headed ‘Termination of the Rector’s Office’, the EAT correctly observed that, prior to the introduction of common tenure, a rector who is below the age of retirement can only be removed from office when specific statutory procedures have been completed, viz:

(1) disciplinary proceedings under the Ecclesiastical Jurisdiction Measure 1963 or the Clergy Discipline Measure 2003

(2) proceedings under the Vacation of Benefices Measure 1977

(3) proceedings under the Pastoral Measure 1983 (now the Mission and Pastoral Measure 2011).

Despite this correct self-direction, the EAT failed to draw the obvious conclusion.  If Mr Sharpe had the benefit of the parson’s freehold, and if the statutory procedures referred to in paragraph 72 had not been commenced against him, then he could not have been dismissed, whether actually or constructively, fairly or unfairly.  Therefore he could have no dismissal claim in the employment tribunal.  Such a claim denies the existence of the parson’s freehold, and also ignores Lord Sumption’s guidance in Preston

The older Roman Catholic law illustrates the point nicely.  It described freeholders, with Latin succinctness, as inamovibiles, ‘irremovable pastors’ (see Code of Canon Law 1917, canon 454.2). 

If Mr Sharpe could not have been dismissed, the question of whether or not he had a contract is somewhat otiose.  It is true that the Percy case makes clear that ecclesiastical office is not incompatible with a contract.  However, even if Mr Sharpe did have some sort of contract it could not have overridden his legal freehold.  

Therefore the question for the employment tribunal (and hence the EAT) was not ‘was there a contract?’, but ‘was there a dismissal?’.  Mr Sharpe’s freehold necessarily precluded a dismissal.  That should have been the end of his dismissal claim. 

As a freeholder, Mr Sharpe could not be dismissed, but he could still be a victim of attempted dismissal.  Suppose, hypothetically, the Bishop or other Church authority had interfered with Mr Sharpe’s tenure of office in some unlawful way (e.g by sending him a notice purporting to dismiss him, or obstructing him in the performance of his official duties) in order to force him out, then he could bring a claim in respect of this conduct.  However, such a claim would have to be brought in the High Court or county court.  The employment tribunal would have no jurisdiction over such a claim.

The EAT’s judgment does not indicate why Mr Sharpe made his claim in the first place.  News reports on the internet suggest that he and his family were subject to a nasty campaign of harassment by anonymous parishioners or others.  Mr Sharpe’s complaint against the Bishop and other diocesan authorities was not that they were involved in this harassment, but that they failed to support him against it.

Reading the news reports will inspire sympathy for Mr Sharpe, and for his family.  But it is hard to see how these facts could support a claim of attempted dismissal, of the kind affirmed in M’millan, Forbes and Long.  Attempted dismissal requires some active interference with the officeholder’s tenure by the Church authority, not merely lack of support.

That may not leave Mr Sharpe without a legal remedy.  Canon C18 provides that the bishop is the chief pastor of the clergy of his diocese, as well as the laity.  Hooker describes the bishop as ‘a pastor even to pastors themselves’.  Canon C23(1) provides that the rural dean (or area dean) has particular responsibility to advise the bishop of ‘any case of serious illness or other form of distress among the clergy’.  This may imply that the bishop has some corresponding responsibility to try to relieve clergy who are in distress.  Under the Patronage (Benefices) Measure 1986, the bishop has substantial, though not complete, control over the selection of a new incumbent for a parish.

Perhaps it could be argued that this relationship between the bishop and the incumbent may give rise to some common law duty of care or support on the part of the bishop and the Church towards an incumbent who faces a difficult pastoral situation.  Especially if the bishop knew or ought to have known that he was sending the incumbent to a difficult parish.  However, as with attempted dismissal, such a claim is made in tort rather than contract, and would not be a matter for an employment tribunal.

Admission and Institution

At common law there are said to be four things necessary to ‘complete a parson’:

(1)  presentation

(2)  admission

(3)  institution and

(4)  induction

(Bishop of St. Davids v Lucy (1699) 91 English Reports 126).

The benefice patron presents his chosen candidate for a vacant benefice to the bishop, who may then admit the candidate.  Presentation is now regulated by statute law, principally the Patronage (Benefices) Measure 1986.  Presentation is formally effected by the patron sending the bishop a notice presenting the candidate for admission, the second stage in the appointment process (s.13(6)).

Institution is granted by deed of the bishop.  When ‘signed, sealed and delivered’, it confers title to the benefice on the presentee.  If the bishop is himself the patron, the incumbent is said to be collated rather than instituted.  Induction confers possession of the church and other property of the benefice.  The formalities of institution and induction are ancient, and now mostly regulated by canons C10 and C11.

It would seem that all benefices are now either presentative or collative.  There used to be benefices described as donative, ‘in the free gift … of the patron, without making any presentation to the bishop; and without admission, institution or induction by any mandate from the bishop … but the donee may, by the patron or by any other authorized by the patron, be put into possession’ (Phillimore, Ecclesiastical Law, 2nd edition 1895, pp.252-3).

The distinction between admission and institution to benefices is often blurred.  Indeed the terms are sometimes used interchangeably.  S.106(1) of the Mission and Pastoral Measure 2011 understands the word admission to include ‘institution and induction, collation, licence and any other process by which a person becomes incumbent of a benefice …’.  Phillimore explains that ‘In a larger sense admission is sometimes used to include also institution, but … properly, admission is taken to be when the bishop upon examination approves of the presentee as a fit person to serve the cure of the church to which he is presented’ (p.350).

The admission process makes the important point that a candidate validly presented to a benefice still requires the approval of the bishop.  The Patronage (Benefices) Measure 1986 provides that the patron cannot normally make an offer of presentation to his preferred candidate for the benefice without the bishop’s prior consent (s.13(1)).  However, s.17(1) of the 1986 Measure is careful to provide that ‘Nothing in this Measure shall affect the power of a bishop to refuse to institute or admit a presentee’.

Thus the bishop has two rights of veto over a candidate for a benefice.  He can refuse to allow the patron to make initial offer, and he can refuse to institute even where he has allowed the patron to make the offer.  Thus in effect the bishop can change his mind about the candidate’s suitability.

There are sound reasons for retention of the bishop’s second veto.  As chief pastor, he has responsibilities that are not shared with the patron and parish of a vacant benefice.  Canon C10(2) provides that the bishop must inspect the presentee’s letter of orders, or require other sufficient evidence that he has been ordained.  He may also require further evidence of the candidate’s ‘former good life and behaviour; and … sufficient learning’.

Canon C15(1) requires the candidate to make the declaration of belief before he is instituted.  The declaration of canonical obedience is also required (canon C14(3)), as is the oath of allegiance and supremacy (Clerical Subscription Act 1865, s.5 and canon C14(3)).  However, s.5 of the 1865 Act makes clear that the bishop may not impose any subscription, declaration or oath other than those imposed by law or canon.

It is likely that the candidate will be required to submit to enquiries into his suitability to work with children, but this requirement is not referred to in any Measure or canon. 

It is obviously possible that the admission process may bring to light information about the candidate that was not known at the presentation stage.  The bishop therefore requires an additional right to veto the presented candidate before institution.

The bishop’s refusal to institute a clergyman who has been validly presented to him is governed by the Benefices Act 1898, not the 1986 Measure.  S.2 of the 1898 Act provides that a bishop may refuse to institute a presentee who was ordained less than three years previously, or whom he considers unfit for the duties of the benefice.  The definition of ‘unfitness’ in s.2 is fairly obvious, including physical or mental infirmity or incapacity, serious pecuniary embarrassment, or other serious professional or personal misconduct.

However, s.3(1) of the 1898 Act provides that the bishop’s right to refuse institution is not limited to the grounds specified in s.2, but extends to ‘unfitness or disqualification of the presentee otherwise sufficient in [common] law …’.

The 1898 Act makes clear that Crown benefices are subject to its provisions (s.13(1)).  Thus although the bishop may not veto a Crown presentation (per s.35 of the 1986 Measure) he can still refuse to institute the Crown’s candidate.

If the patron or the presentee dispute the bishop’s refusal to institute they may appeal to a special tribunal comprising the Archbishop and either the Dean of the Arches and Auditor or a diocesan chancellor nominated by the Dean.

However, a different regime applies if the bishop’s refusal to institute is founded on a so-called ‘reserved matter’, i.e an issue of doctrine, ritual or ceremonial.  In such a case the presentee may challenge the refusal in the Court of Ecclesiastical Causes Reserved: Ecclesiastical Jurisdiction Measure 1963, s.10(1).

Just as there are four things necessary ‘to complete a parson’, so there are four things necessary to complete a bishop.  These are

(1)  election

(2)  confirmation

(3)  consecration (ordination) and

(4)  installation (now often described as ‘enthronement’)

(per Bishop of St. David’s v Lucy).

Thus there is no equivalent process of admission in the appointment of a bishop.  The obvious reason for this is the English legal doctrine that ‘All bishoprics were of the King’s foundation and thereupon accrued to him the right of patronage’ (Phillimore, p.33, citing Coke).

The Appointment of Bishops Act 1533 makes clear that, although the four stages of appointment of a new bishop are effected by ecclesiastical authority, the Crown controls the entire process.

Thus s.4 of the 1533 Act provides that, on a vacancy in the see, the Monarch grants a licence to the dean and chapter to elect a new bishop.  However, the licence is always accompanied by a letter containing the name of the person whom they shall elect.  The dean and chapter’s responsibility is now exercised by a new cathedral body, the college of canons (Cathedrals Measure 1999, s.5(3)).

When the candidate has been elected, the 1533 Act provides that the Monarch sends letters patent to the Archbishop, commanding him to confirm the election and ‘invest and consecrate the person to the office and to give all such ceremonies and other things requisite for the same’ (s.5).

If the chapter (or college of canons) decline to elect the Monarch’s candidate, the Monarch, like the patron of a benefice, presents the candidate to the Archbishop (s.4).  The Archbishop must then invest and consecrate the candidate to the office, without confirmation.

The 1533 procedure was discussed in the case of R v Archbishop of Canterbury (1902) 2 King’s Bench 503, in which the Archbishop’s confirmation of the election of a controversial new Bishop of Worcester was unsuccessfully challenged in the secular court.

The court held that the 1533 Act gives the Archbishop no discretion to refuse to confirm a valid election just because he (or others) doubted the candidate’s fitness for the office.  A refusal to confirm would be an act of disobedience to a lawful royal command.  S.7 of the Act even prescribes penalties against anyone doing anything contrary to the Act.  Moreover, the Act gives the Archbishop a mere 20 days to confirm.  This was ‘wholly inconsistent with the idea that the statute referred to a recognized practice [i.e of disputing a bishop-elect’s fitness for office] … [involving] protracted litigation’ (p.542).

The court also noted the Monarch’s power under s.4 of the 1533 Act to override the ecclesiastical election and present its candidate to the Archbishop for consecration and installation.  The existence of this power proves that confirmation is not legally essential to the appointment of a bishop.  Before the disestablishment of the Church of Ireland, all Irish bishops were appointed by letters patent of the Crown, without any confirmation by an Archbishop (p.547).  Therefore ‘bishoprics have always had largely the character of donatives’ (p.541).

Although the last stage of appointment to a bishopric, installation / enthronement in the cathedral, is an ecclesiastical ceremony, s.6 of the 1533 Act provides that a new bishop ‘shall have out of the King’s hands all the possession and profits spiritual and temporal belonging to the bishopric’. 

However, there is an interesting anomaly in the law governing the appointment of bishops.  The Bishops in Foreign Countries Act 1841 permits the two Archbishops to consecrate bishops for overseas service, but only if they have been ‘fully ascertained of the sufficiency of [the candidate] in good learning, of the soundness of his faith, and of the purity of his manners’ (s.3).  The Home Church, by contrast, enjoys no such guarantee of the quality of its bishops.  The Crown cannot be compelled to consider learning, sound faith and purity when exercising its powers under the 1533 Act.  It can only be trusted to do so.

The Bishop and the Patronage (Benefices) Measure 1986

The 1986 Measure retained the ancient system of private patronage of benefices, though with significant modifications.  It also provided that the parish, through its churchwardens or other representatives, must be consulted in the appointment of a new incumbent. 

The appointment of a new incumbent is therefore effected by tripartite negotiation between (1) the patron (2) the bishop and (3) the parish, as regulated by the 1986 Measure.  However, diocesan bishop are themselves ex officio patrons of a significant number of benefices.

It may be helpful to divide the rights and responsibilities of the bishop under the 1986 Measure into three categories, as follows:

(1)  The Bishop and the Patron

Although the bishop may restrict the exercise of rights of patronage in certain circumstances, he cannot control who shall exercise those rights (subject to one exception, discussed in (3) below).  The diocesan register of patrons is, in effect, the responsibility of the diocesan (consistory) court, not the bishop.  The register is maintained and, if necessary, rectified by the registrar, though subject to a right of appeal to the chancellor (ss1 and 4, also schedule 1).

Rights of patronage may only be exercised by communicant Anglicans (s.8).  When a benefice falls vacant, non-Anglican individual patrons, and institutional patrons, must appoint communicant Anglicans to represent them.  Again, the bishop has no say in the choice of representatives, and does not decide if they satisfy the religious qualification.

When a vacancy arises, the bishop inaugurates the process of presentation to the benefice by notifying the vacancy to the diocesan ‘designated officer’, who will usually be the secretary of the diocesan pastoral committee (s.7).

If the bishop is not himself the benefice patron, any offer of presentation made by the patron or his Anglican representative must be approved by the bishop (also by the parish representatives) (s.13).  If the bishop refuses to approve the offer he must give written reasons for this.  The bishop’s and parish representatives’ approval is not required if the Crown is the patron making the offer (s.35).

If the patron neglects to make the required declaration of communicant status, or to appoint a representative who has done so, the bishop may make an offer of presentation to priest of his own choice, though subject to the approval of the parish representatives (s.14).  A clerical patron or representative is not required to declare that he is a communicant, but he is required to inform the designated officer that he is in holy orders (s.9(5)).

As well as the right to refuse an offer of presentation by the patron, the bishop retains the right to refuse to institute or admit a candidate who has been presented with his approval.  This means in effect that the bishop may change his mind about the candidate’s suitability (s.17).

(2)  The Bishop and the Parish

The bishop may require a special joint meeting between himself, the patron and the parochial church council (‘the PCC’) of the vacant benefice, in order to ‘exchange views’ on the ‘section 11 statement’ prepared by the PCC (s.12(1)).  This is the statement describing ‘the conditions, needs and traditions of the [vacant] parish’ required under s.11.  The patron and the PCC may each likewise request a joint meeting.

If such a meeting is held, the bishop must provide a statement ‘describing in relation to the [vacant] benefice the needs of the diocese and the wider interests of the Church’ (s.12(2)).  This is known as a ‘section 12 statement’.  The statement must also be given in writing, if either the patron or the PCC requests this.

The bishop is obliged to produce the statement if a joint meeting is convened, but he is not absolutely obliged to attend the meeting.  However, if he is ‘unable’ (as distinct from unwilling) to attend, he must appoint a representative to attend on his behalf (s.12(6)).

If the PCC fail to supply a section 11 statement or fail to request a joint meeting, the bishop may agree to the patron making an offer of presentation without waiting for the approval of the parish representatives.

Once the candidate for the benefice has been presented and admitted by the bishop, the bishop must send to the PCC secretary a prescribed notice of his intention to institute or, if the bishop is himself the patron, to collate the candidate (s.19).

(3)  The Bishop and the Church

A right of patronage that is vested in an ecclesiastical corporation (e.g a cathedral chapter or the incumbent of another benefice ex officio) may not be transferred to another patron without the bishop’s consent, unless the transfer is effected by statutory authority.  If the bishop is himself the transferor, the Archbishop must give consent (s.3(2)).  Where the bishop’s consent is required to a transfer of patronage, he must consider any representations made to him, and may require the transferor to confer with him (s.3(5)).

If the bishop (or a parish representative) refuses to approve an offer of presentation to a clergyman, the patron may refer the matter to the Archbishop for ‘review’ (s.13(5)).  The Archbishop may overrule the refusal and authorise the patron to make the offer.

If the bishop has not received a notice of presentation from the patron after 9 months, the right of presentation passes to the Archbishop (s.16).  The bishop is required to notify the Archbishop accordingly.  This is a change from the earlier law ‘under which patronage lapsed after 6 months from the patron to the bishop’ (see also s.31(1)).

The bishop acts as patron if the right of presentation to a vacant benefice vests in the incumbent of another benefice, and that other benefice is also vacant, or under sequestration, or the incumbent is suspended or inhibited from office (s.20).  This may repeal by implication a provision in the Ecclesiastical Jurisdiction Measure 1963, at s.76(1), which suggested that in these circumstances the patronage vests in the patron of the other benefice.

Two incumbents may agree to exchange their benefices, but this requires the agreement of their bishop, or bishops, also of the respective patrons and PCCs (s.22).

Patronage and Integrity

It has been pointed out that the Patronage (Benefices) Measure 1986, which effectively regulates appointments to benefices, says little about how candidates are actually selected.  s.11(1)(c) of the Measure provides that the parochial church council (‘PCC’) may request the benefice patron to advertise a vacancy, but the PCC cannot insist on this.  The ‘headhunting’ process is evidently rather informal.  Bishops and institutional patrons apparently keep lists of potential candidates.  There may be an official at Church House Westminster who acts as a kind of recruitment agency.  But these practices are not referred to in the Measure.

A candidate for ecclesiastical office was formerly required to make a declaration against ‘the detestable sin of simony’: see canon 40 of 1603, as amended by the Clerical Subscription Act 1865.  Following the Miscellaneous Provisions Measure 1976, the General Synod has seen fit to abolish this requirement.

However, s.11 of the Patronage (Benefices) Measure contains provisions evidently intended to maintain the integrity of appointments to benefices.  If the patron of the vacant benefice is a clergyman, or the spouse of a clergyman, that clergyman is disqualified from presentation.  The outgoing incumbent and his spouse may not be involved in the preparation of the ‘section 11 statement’ that the PCC is required to prepare describing the conditions, needs and traditions of the parish.  Nor may they be involved in the selection of those who are to represent the parish in the appointment of the new incumbent.  If the patron or his appointed representative is himself a member of the PCC he may not attend meetings of the PCC which concern the vacancy.

There are other ‘integrity’ provisions.  S.28 of the 1986 Measure provides that where a benefice becomes vacant because a simoniacal presentation is ‘voided’, the next presentation shall be made by the diocesan patronage board, not the original patron.  The Mission and Pastoral Measure 2011 provides that no person may hold benefices in plurality, except under the terms of a statutory scheme or order (s.104).  The dean or canon of a cathedral may not hold a benefice unless the cathedral’s constitution permits this.  If anyone holds office in contravention of this rule, he shall, on admission to the new office, be deemed to have vacated the previous office.  An ecclesiastical officeholder may serve additionally as vicar of a guild church in the City of London, but the bishop may prevent this if the two offices ‘cannot properly be combined’.

The Ecclesiastical Commissioners Act 1836 forbids an incumbent who is promoted to a bishopric to continue to hold his benefice in commendam (s.18).  S.76(1) of the Ecclesiastical Jurisdiction Measure 1963 provides that, if a bishop is suspended from office, his ex officio rights of patronage vest in the Archbishop.  S.76(1) further provides that if an incumbent who is ex officio patron of another benefice has been suspended or inhibited under the disciplinary process, his right of patronage vests in the patron of his own benefice.  This may conflict with s.20 of the 1986 Measure, which provides that the bishop of the vacant benefice exercises the patronage in these circumstances.

In the (nowadays unlikely) event that a candidate for a beneficed or licensed office is himself the incumbent of a sequestrated benefice, he may not be appointed without the written consent of his bishop, and of the sequestrator of the benefice (Sequestration Act 1871, s.7).

Revoking a Presentation

The Legal Advisory Commission has drawn attention to an interesting point of ecclesiastical patronage law, in an opinion ‘Revocation of Presentation by the Patron, and Refusal of Presentee by the Bishop’ (published on the internet website of the Church of England, accessed 29th June 2012).

Can a patron

(1) revoke a presentation made to the bishop (i.e change his mind about a candidate that he has recommended) and / or

(2) vary a presentation by recommending two or more candidates to the bishop, instead of just one candidate?

The Patronage (Benefices) Measure 1986, which now regulates presentation, does not seem to consider this possibility.  S.13 of the Measure provides only that

(1) ‘The registered patron … shall not make to any priest an offer to present him to a benefice until [the making of the offer has been approved in accordance with the Measure]’

and

(6) ‘Where a priest accepts an offer made in accordance with the provisions of this section to present him to a benefice … the patron shall send the bishop a notice presenting the priest to him for admission to the benefice’.

No provision is made for the patron changing his mind, or presenting more than one candidate.

However, common law suggests that a lay patron may indeed revoke or vary a presentation.  This means that the bishop could not institute a priest whose presentation has been revoked.

The case of Rogers v Holled (1775) 96 English Reports 611 arose from a disputed right of presentation.  Mr Holled and another layman each claimed the right of presentation to the same vacant benefice, and presented different candidates to the bishop.

They later settled their dispute.  As part of the settlement, the other man withdrew his presentation in favour of Mr Holled’s.  He did this by notice in writing to the bishop, in which he requested the bishop ‘to deliver up the same

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to be cancelled’.

The court held that the notice of withdrawal was effective. ‘There is no doubt, but that by our law a lay patron may revoke his presentation at any time’.  Thus the bishop could not institute the candidate whose presentation had been revoked.

There is nothing in the Patronage (Benefices) Measure to disapply the common law rule.  The 1986 Measure imposes conditions and restrictions on the making of the presentation by the patron, but not on the revocation of a presentation.

However, the 1986 Measure may in effect restrict the lay patron’s right to vary presentation.  An offer of presentation generally requires the approval of the bishop and of the parish representatives.  They could therefore refuse to allow the patron to present more than one candidate.

According to Rogers v Holled, a clerical patron, as distinct from a lay patron, may not vary a presentation, and probably may not revoke a presentation either (p.612).

The reason for this distinction may be that a lay right of presentation is a right of property, whereas a clerical presentation is a spiritual function, subject to the bishop’s jurisdiction.  But this is to conjecture.

The references in s.13 of the Patronage (Benefices) Measure to an offer and acceptance of a presentation do not turn a presentation into a contract between the patron and the candidate.  There is no consideration for the offer, and if there was, it would be simony.

It is said that ‘Presentation passeth no interest, but is as a commendation’: Kitchin v Calvert (1611) 145 English Reports 332, at 334.  A presentee will therefore have no rights against patron who presented him to the bishop, and then changed his mind and withdrew the presentation.

There is nothing wrong in principle with a patron offering the bishop a choice of candidates.  It may well be good practice to do so.  Roman Catholic law clearly answers question (2) above in the affirmative.  Canon 160.1 of the Code of Canon Law 1983 provides that ‘A [patron] can present one or even several candidates, either at one time or successively’.   When a suffragan bishop is to be appointed in the Church of England, the diocesan bishop is required to nominate two candidates to the Monarch (Suffragan Bishops Act 1534).  A similar practice is followed when a diocesan bishop is to be appointed.