Ecclesiastical law

Category: The Canons of the Church of England

Terms of Service and the Canons

As its title implies, the Ecclesiastical Offices (Terms of Service) Measure 2009, and the regulations made thereunder, are concerned to regulate the terms of service of the Church’s clerical and lay ministers.  There is a distinction between

(1) terms of service and

(2) the service (i.e the ministry) which is the subject of the terms.

 It is therefore quite possible, in principle, for terms of service regulations to co-exist coherently with the revised canons of the Church of England.  The regulations are concerned with (1) above.  The canons are primarily concerned with (2).

However, the distinction between (1) and (2) is not absolute.  There may be an unavoidable overlap between them.  Residence in the parish, for example, is both a personal need of the incumbent (1) and part of the incumbent’s ministry to the parishioners (2).  (See canon C25).

A more serious difficulty is that there is no reference to the canons either in the 2009 Measure or in the present terms of service regulations.  Terms of service regulations and the canons can indeed co-exist, but there ought to be some co-ordination between them.

The regulations make provision for the ‘continuing ministerial education’ and ‘training’ of officeholders (regulations 19-20).  This rather begs the question, education and training for what?  If the canons are not referred to in the regulations, it is not clear that the education and training enjoined by the regulations will be appropriate to the ministry as defined by the canons.  The Archbishops’ Council may issue ‘guidance’ (regulation 19), but the Council is not required to refer to the canons either.

The same difficulty applies to the performance appraisal or ‘ministerial development review’ of officeholders (regulation 18).  An officeholder must submit to a review of his or her ministry at least every two years, but the standard or criteria against which this ministry is reviewed is not made clear.

The danger is that the canons (at least the common law canons, those not made under the authority of ‘parent’ Measures), while not being formally repealed, will be ignored.  The ministry of officeholders will be arbitrarily determined by those who control the education, review and capability procedures under the 2009 regime.

It may be that the relationship between the common law canons and modern statute law has always been a little confused.  The canons tend to be based on the assumption that all ministry is carried out in the context of traditional parishes, one parish with one incumbent.  They were mostly written before team and group parishes became widespread.  Thus a group ministry or a team ministry is likely to be regulated by its constituting pastoral scheme (which has statutory authority under the pastoral legislation) rather than by the canons.  Cathedral ministry will be likewise be regulated by the Cathedrals Measures and the cathedral constitutions (which also have statutory authority).

Still, it is unsatisfactory that a comprehensive, modernised code of terms of service, which the 2009 regime seeks to provide, should be unaccompanied by any corresponding clarification of the service itself.

The lack of c0-ordination means that canons and regulations may, indeed, regulate the same matters.  The canons are not exclusively concerned with ministry ((1) above).  They regulate tenure and discipline as well, to some extent.  At common law, the visitation was the primary means of oversight, and this is regulated by canon (canon G5).  The visitation canons have not been repealed.  This means that officeholders under the 2009 regime will be subject to two forms of oversight, common law visitation and statutory ‘ministerial development review’.

The canons also regulate the select and training of ordination candidates, albeit in very brief and general terms (canons C6-C7).  The present terms of service regulations make no provision for the training of ordination candidates (or of candidates for lay ministry).  It is arguably anomalous that the regulations should provide for post-ordination training, while being silent as to pre-ordination training.

The 2009 Measure provides that regulations apply to ‘persons holding office under common tenure’ (s.2).  Ordination candidates (i.e persons preparing for ordination) do not, as such, hold office.  However, it is argued that the use of the present tense (‘holding office’) does not preclude regulations for the preparatory training of officeholders.  It is reasonable that ‘holding office’ should be subject to threshold conditions as to competence.  It also makes sense for pre-ordination training and post-ordination training to be governed by a single regime, not two different regimes.

The Canons of 1603: Binding the Laity

The royal preface to the canons suggests that their purpose is:

(1) ‘the honour and service of Almighty God’

(2) ‘the good and quiet of the Church’ and

(3) ‘the better government thereof’.

This makes clear that canons are not concerned only with the ministry of Word and Sacrament (purpose (1)), but also with ecclesiastical jurisdiction, the power of governance (purposes (2) and (3)).

Many, if not most, of the canons are concerned with jurisdiction.  The subjects of jurisdiction include:

(1) the regulation of school teaching (canons 77-79)

(2) wills, probate and the administration of estates (canons 92-93, 126)

(3) marriage and divorce (canons 99-108)

(4) public order (canons 109, 111, 121)

The canons also provide much regulation of the practice and procedure of the ecclesiastical courts (eg canons 94, 96-98).

Offences against public order for which the Church was responsible are identified by canon 109.  They include ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life …’.  Several of the behaviours referred to remain capable of constituting criminal offences today.  They are sometimes described as ‘moral’ offences, but the wording of canon 109 makes clear that they had to have a public element in order to come under the criminal jurisdiction of the ecclesiastical courts.  The defendants’ conduct had to ‘offend their brethren’ and be ‘notorious’.

Thus canon 109 was not concerned with what is known in canon law as the ‘internal forum’.  Ecclesiastical jurisdiction over ‘secret and hidden sins’ is regulated by canon 113 instead.

The reduced scope of the canons since the 17th century has two obvious causes:

(1) much ecclesiastical jurisdiction has been abolished or secularised.  Of the jurisdictions mentioned above, the Church retains only a limited jurisdiction over the solemnisation of marriage in church.

(2) the expansion of statute law.  The canons of 1603 were promulged at a time when most ecclesiastical law (and most English law in general) was common law.

In the modern Church of England, the power of governance is mostly regulated by statute (Acts of Parliament and Measures).  The revised canons regulate ministry rather than governance.  References to governance in the revised canons are often limited to identifying or summarising the relevant statutory provisions (cf section G).

However, modern ecclesiastical legislation shows that statutes and canons need not be incompatible.  The most important modern canons, those regulating public worship (canons B1-5), are really secondary legislation made under the authority of a ‘parent’ statute (the Worship and Doctrine Measure 1974).  The ‘ecumenical canons’ (canons B43-44) are also secondary legislation.

If the Church’s ministry of Word and Sacrament can be regulated in this fashion, there seems to be no constitutional reason why ecclesiastical jurisdiction could not also be regulated by canons made under the authority of parent Measures.  This might create a comprehensive, coherent system of ecclesiastical law.

The reluctance to create such a system may be due to simple indifference.  There may also be a feeling that canons should not be used to regulate jurisdiction, even if supported by the authority of primary legislation, because of the supposed rule, associated with Lord Hardwicke’s celebrated judgment in Middleton v Crofts (1736) 26 English Reports 788, that canons cannot ‘bind’ the laity.

King James I seems to have had no doubt that his canons did bind the laity.  His preface declared that the canons should be ‘observed, performed, fulfilled and kept … by all other persons within this realm, as far as lawfully being members of the Church, it may concern them …’, not just the clergy.  In his royal assent he said ‘We … straightway enjoin and command … the [canons] to be diligently observed, executed, and equally kept by all our loving subjects … both within the Province of Canterbury and York …’.

The royal assent required that the canons be publicised to the laity: ‘every minister … shall, in the parish church or chapel where he hath charge, read all the said canons [etc] once every year, upon some Sunday, or Holy Days in the afternoon, before Divine Service … one half may be read one day, and the other another day’.  Also ‘the Book of the said Canons [is] to be provided at the charge of the parish’.

Middleton v Crofts was decided after the civil war and the glorious revolution, when the principle of parliamentary sovereignty was more firmly established than it had been during James I’s reign.  Lord Hardwicke hinted at this when he observed that ‘the law in latter times has been universally taken to be, that the canons of 1603 do not bind the laity for want of a parliamentary confirmation’ (p.790).

He also made clear that there were wide exceptions to this general rule: ‘there are many provisions contained in these canons, which are declaratory of the ancient usage and law of the Church of England, received and allowed here, which, in that respect … will bind the laity’ (p.790).

Lord Hardwicke also referred to the Submission of the Clergy Act 1533, which he noted was ‘The only Act made ex professo upon the subject of the canons … But even this statute is … silent as to the persons over whom the obligation of canons may extend’ (p.793).  The Act did not expressly state that the laity could not be bound by ecclesiastical canons.

The 1533 Act envisaged a project to reform or codify ecclesiastical law (reformatio legum ecclesiasticum), which was never effected.  Lord Hardwicke observed that ‘If the [reform of] the ancient canon law by commissioners’ authority by [the 1533 Act] had been effectually carried into execution … the system of ecclesiastical laws which they had approved, would have derived its binding force … from the legislature’ (p.796).

This account makes clear that the 1533 Act was retrospective in its effect.  It was concerned to regulate only the canons in force in 1533.  The Act was, of course, passed 70 years before the canons of 1603, so could not apply to those canons.

The rule about canons not binding the laity was not even engaged in the Middleton v Crofts case.  Mr and Mrs Middleton complained to Lord Hardwicke when the ecclesiastical court prosecuted and punished them for making a clandestine marriage.  Lord Hardwicke rejected this complaint.  He held that the ecclesiastical court did have jurisdiction to punish them for this offence, because

(1) the ecclesiastical courts had consistently exercised such jurisdiction

(2) the jurisdiction had been supported by the secular court on a previous occasion

(3) it had been implicitly recognised and affirmed by an Act of Parliament and

(4) it was consistent with public policy, which was to deter illegal marriages.

None of these points concerned the canons of 1603.

However, the ecclesiastical court had also prosecuted the Middletons for getting married at an ‘uncanonical’ time of day.  Canon 102 provided that a marriage licence was conditional on the marriage being solemnised between 8 am and 12 noon.

The Middletons, of course, had not troubled to obtain a marriage licence and got married without one.  Lord Hardwicke ruled that they were justly punished for this offence.  They had made their illegal marriage outside the hours of 8 to 12.  However, Lord Hardwicke ruled that the ecclesiastical court could not prosecute the Middletons for getting married at the wrong time, ‘that circumstance having been … introduced by the canons of 1603’ (p.802).

It should be noted that canon 102 did not make it an offence to marry outside the hours of 8 to 12.  It merely attached a condition to the grant of a marriage licence.  The ecclesiastical court had wrongly deduced that, if all marriage licences are subject to a compulsory time condition, it must be a criminal offence to get married outside that time.  But canon 102 did not say this.

Thus the injustice to the Middletons, such as it was, was not due to canon 102 but from a misunderstanding of canon 102 on the part of the ecclesiastical court.  Lord Hardwicke did not impugn or ‘quash’ canon 102 or any other canon.

Because the case concerned a clandestine marriage, Lord Hardwicke did discuss the ‘5 canons [of] 1603 that relate to clandestine marriages’ (p.789), canons 62 and 101-104.  However, discussion showed that the canons were not relevant to the case.  ‘It seems to be plain from [their wording] that none of these canons do in the words or terms of them affect the parties contracting [marriage] [i.e ‘the laity’], except the last clause of canon 104, which relates to persons married by colour of void licences … but that is not the present case…’ (p.789).

Lord Hardwicke therefore concluded that ‘For this reason [their own wording] it does not appear to us that the provisions of the canons of 1603 do extend to the laity in such a case as is now before the court’.

However, he went on to speculate ‘But, supposing lay persons might be within the words of the canons in 1603, the next consideration is, whether the authority by which those canons were made can bind the laity as to this matter’.  It was only from this speculative basis that Lord Hardwicke formulated his famous ‘rule’.

Thus the tension between James I’s view of the canons and Lord Hardwicke’s may have been exaggerated.  Middleton v Crofts makes clear that a canon will certainly bind the laity if it is supported by statutory authority.  However, there are two further confusions about the ‘binding’ effect of ecclesiastical canons.

First, there is confusion between the ancient constitutional principle of consent to legislation and the modern principle of religious freedom and ‘human rights’. 

Lord Hardwicke held that the canons could not bind the laity because, and only because, the laity had not consented to them.  The canons were made by the convocations, which were then composed exclusively of clergy.  The General Synod, by contrast, includes lay representatives as well as clergy, so there is no constitutional reason why canons passed by the General Synod should not bind laity as much as clergy.

Ecclesiastical law will ‘bind’ the laity just as much as employment law, criminal law or tax law.  However, ecclesiastical law, like secular law, must respect the principle of religious freedom.  The question for modern secular courts is therefore different from that addressed by Lord Hardwicke.  It is not whether the laity have consented to the canons (they have), but whether the canons are consistent with the human rights of the laity.

The second confusion concerns the very word ‘bind’.  A rule ‘binds’ when it imposes duties or liabilities or sanctions, or where it restricts legal rights.  It will not bind people merely because it affects or concerns them in some way. 

Thus a doctor is bound by professional rules when examining a patient.  The patient is not bound by those rules.  However, the patient is inevitably affected by the rules, because they govern the doctor’s treatment of the patient.  Indeed the very purpose of professional rules is to protect the patient.

However, modern discussion of the canons tends to assume that even the remotest, slightest effect amounts to ‘binding’.  The word ‘bind’ is interpreted rather loosely!

Yet Lord Hardwicke never suggested that canon 102 could not attach a compulsory time condition to marriage licences.  Canon 102 ‘binds’ the licensing authority, which can only grant a licence subject to this condition.  This obviously affects the couple seeking the licence, but it does not impose a duty or liability on them, nor does it restrict any legal right of theirs.  By definition, there is no right to a licence.

Canon B30 and Sham Marriages

Canon B30(3) provides that ‘It shall be the duty of the minister, when application is made to him for matrimony to be solemnised … to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth …’.  That doctrine is ‘expressed and maintained’ in the Prayer Book marriage service (B30(2)).

The duty imposed by Canon B30 would seem to be very recent.  There is no reference to such a duty in the canons of 1603, in the 1662 Prayer Book, or in Phillimore’s Ecclesiastical Law.

In April 2011 the House of Bishops issued ‘guidance’ to clergy concerning the solemnisation of marriage where one of the parties is from outside the European Economic Area (EEA).  This guidance was issued in response to concern that ‘sham’ marriages were being contracted in order to evade immigration controls.

The guidance acknowledges that non-EEA nationals ‘have the same rights to marry in the Church of England as British citizens’ (page 1).  However, it also refers to Canon B30 in the following terms:

‘If a couple [at least one of whom is non-EEA] decline to attend meetings for the purpose of giving the instruction required by the Canon the member of the clergy concerned will be prevented from carrying out his or her canonical duty.  In those circumstances he or she should inform the couple that the marriage may not proceed until such time as the duty has been carried out.’ (pp2-3).

Canon B30 undoubtedly imposes a duty on the officiating minister to offer religious instruction to the couple, prior to their marriage.  It is not clear, however, that the couple are obliged to receive this instruction.  On its wording, canon B30 does not impose such an obligation.  It is addressed to the officiating minister, not to the couple.  It merely assumes the willingness of the couple to receive instruction.

It is, of course, true that the minister is ‘prevented’ from giving religious instruction if the couple refuse to receive it, but that fact does not put the minister in breach of Canon B30.  A minister cannot be required to perform a duty that has been rendered impossible by the attitude of the couple.

If canon B30 does purport to impose an obligation on the couple to receive religious instruction, this may cause constitutional difficulties.  Canon B30 was promulged by the Convocations in the 1960s.  It could therefore be argued that it cannot ‘bind’ laypeople, only clergy (possibly lay ministers as well), under the rule associated with the case of Middleton -v- Crofts (1736) 26 English Reports 788, because laypeople did not consent to it. 

There is also an obvious conflict between an obligation to receive religious instruction and the ‘human rights’ of the couple.  They should not be forced to receive a religious instruction that may contradict their own religious or philosophical beliefs.

The Revised Canons

For the purposes of legal study and analysis, the revised canons may be divided into 5 categories:

(1) regulations made under statutory power conferred by a ‘parent’ Measure, in effect secondary legislation

(2) regulations made under the ancient legislative power of the Convocations, recognised by common law and now vested in the General Synod (Synodical Government Measure 1969, s.1 and schedule 1)

(3) declarations or summaries of, or references to, statute and common law already in force

(4) mere exhortation, advice and guidance

(5) doctrinal statements

In the first edition of the revised canons, published in 1969, the canons comprised only categories (2) to (5).  Category (1) canons were not introduced until the 1970s. 

A single canon may fall into more than one category, and different provisions of the same canon may fall into different categories.  Categories (3) to (5) are not proper legislation at all.  The difference between categories (2) and (3) is often unclear.  A particular canon may be introducing a new rule for the very first time, or merely restating an old rule.

The 1969 canons resemble a legal ‘handbook’, a guide to the relevant law for those involved in the ministry of Word and Sacrament.  The 1969 edition was the fruit of the 1947 report The Canon Law of the Church of England.  The draft canons appended to the 1947 report cite statutes, legal commentaries and case law for their authority.  This suggests that the intention was to declare or clarify existing law, rather than make new law.

Category (4) canons may have derived from category (3).  They originated at a time when people were legally obliged to attend their parish church, and to pay for its repair through church rates.  Such obligations are, of course, no longer enforceable.  Hence they have been recast as guidance for churchgoers, particularly those involved in parochial administration.  Many of the canons in section F (‘Things appertaining to Churches’) take the form of guidance.

The ‘parent’ Measures in category (1) of the revised canons were passed between 1972 and 1993, a period of approximately 20 years:

(1) Admission to Holy Communion Measure 1972

(2) Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s.9(2), though inserted much later by the Clergy (Ordination) Measure 1990, s.1

(3) Deaconesses and Lay Ministry Measure 1972

(4) Deacons (Ordination of Women) Measure 1986

(5) Ecumenical Relations Measure 1988

(6) Legal Aid and Miscellaneous Provisions Measure 1988

(7) Miscellaneous Provisions Measure 1976

(8) Priests (Ordination of Women) Measure 1993

(9) Worship and Doctrine Measure 1974

The Admission to Holy Communion Measure provides that ‘the rubric … shall not prevent the General Synod from making provision by canon and regulations …’.  The wording of the other ‘parent’ Measures is that ‘It shall be lawful for the General Synod to make provision by canon …’.

Whatever their benefit to the Church, the post-1969 canons have spoiled the character of the 1969 canons as a coherent, unified code or handbook of law for those involved in ministry.  Their subject-matter is the same as that of the 1969 canons, but their character is different.  They are the secondary legislation of different parent statutes, so do not sit comfortably with a single unified code.  Nor were they introduced simply to clarify existing law.  Rather, their purpose was to reform the Church’s ministry of Word and Sacrament.  This required the authority of primary legislation.

The Worship and Doctrine Measure 1974 was central to the policy of reform.  That Measure and the canons promulged under its authority (canons B1-5) form a code of law in their own right, regulating the public worship of the Church following the abolition of the 1662 regime.

The other post-1969 legislation is a response to the sociological changes that have occurred since 1662.  The right of baptised non-Anglicans to receive Holy Communion is confirmed (Admission to Holy Communion Measure).  Joint worship and ministry is permitted between the Church of England and non-conformist Churches under the Ecumenical Relations Measure 1988.  The 1988 Measure and the canons promulged thereunder (B43-44) constitute a code of ecumenical law, similar to the 1974 code of liturgical law.

Lay ministers are given a considerable responsibility for ministry (Deaconesses and Lay Ministers Measure 1972).  Women may be ordained (1986 and 1993 Measures).  Divorced persons may also be ordained (amended 1964 Measure).  Formalities of admission to office that are deemed anachronistic may be abolished (1976 Measure).

The doctrinal canons of category (5) are not secondary legislation, but they now depend for their legal force on the definition of doctrine now contained in the Worship and Doctrine Measure 1974, s.5(1).

Canons are amended from time to time to take account of changes in the statute law, but such amendments do not constitute secondary legislation.

It is nearly 20 years now since the canons were last used as a form of secondary legislation (the 1993 Measure).  The next use of canons as secondary legislation is likely to be the ordination of women to the episcopate.