The informative Thinking Anglicans website has drawn attention to a potential legal dispute concerning the election of the new Bishop of Llandaff, in the Church in Wales.
Legal objections to the election of bishops are raised from time to time, of course (though they invariably fail). But the novelty of the Llandaff case is that an objection has been made even though no bishop has been elected. The objection concerns the conduct of the Electoral College that failed to elect one.
The Constitution of the Church in Wales provides that
‘If, at the close of the [Electoral College], which shall not extend beyond 3 consecutive days, no person shall have received two-thirds of the votes of those present and voting, the right to fill the vacancy shall pass to the Bench of Bishops, unless and until the Governing Body shall have otherwise determined’ (Chapter 5, Reg 23).
It is not disputed that the Llandaff Electoral College met for 3 days, nor that it failed to elect a candidate by a two-thirds majority. However, the objectors claim that the proceedings of the College during those 3 days were conducted so improperly as to render them invalid.
The invalidating impropriety consisted of ‘the raising … of the matter of sexuality or civil partnership status, in direct contravention of the Church in Wales’s own policy that sexuality or civil partnership status is not a bar to appointment as a Bishop’. (It is thought that raising this matter at the Electoral College meeting deterred some electors from voting for an openly gay candidate, and thereby caused him to fall short of the required two-thirds majority.)
There are difficulties with this objection. If accepted, it would render decisions of the Electoral College very vulnerable to external challenge in the future. It might take only 1 elector to raise an ‘inappropriate and prejudicial’ matter to invalidate the entire proceeding.
The assertion of the Church’s ‘policy’ is also questionable. Chapter 5 of the Constitution regulates ‘The Archbishop and the Diocesan Bishops’, and the Electoral College procedure. There is nothing in Chapter 5 to the effect that sexuality and civil partnership are not a bar to election as a bishop. A policy made only by means of a collective statement from the Bishops is not part of the Constitution, and therefore cannot bind the Electoral College.
(And even if sexuality etc is not a ‘bar’ to election as a bishop, that does not mean that it is irrelevant, or that any discussion is forbidden.)
Allegations of procedural irregularity will be difficult, even impossible, to prove satisfactorily, because the Constitution provides that any meeting of the Electoral College ‘shall be private‘ (Reg 21.1). This is mandatory legal language: ‘shall be private’ means ‘must be private’. There is no discretion to waive privacy.
However, let us assume (for the sake of argument) that the electoral procedure was indeed tainted with grave impropriety. Who has power to declare it invalid?
Perhaps it does not matter in this case. Suppose the Electoral College had elected a new Bishop by some improper procedure. If the election was invalid, this would mean that the Bishop-Elect had not really been elected at all.
The Constitution provides that an election is confirmed when the Bishop-Elect is notified to the Bench of Bishops and ‘if they or a majority of them … are satisfied of his fitness‘ (Reg 26.1). But if, unfortunately, they ‘are not so satisfied, another election shall be held in similar manner …’ (Reg 26.2).
The word ‘fitness’ seems to refer to the candidate’s personal qualities rather than his election. It suggests that the Bishops could reject a candidate for some personal fault or limitation, but not for any flaw in the procedure by which he was elected.
But of course it is unnecessary to decide the point here, because no candidate was elected or notified to the Bishops. Thus the constitutional provisions as to ‘fitness’ are not engaged.
Hence any impropriety by the Electoral College is arguably irrelevant, because
(1) it did not purport to elect a candidate, and
(2) it has now lost the right to elect.
Its procedure may have been invalid, but this did not result in an invalid election. The procedural impropriety may have caused the loss of the right to elect, because it caused the Electoral College to fail to elect a candidate by a two-thirds majority within 3 days. But that is the Electoral College’s own fault for acting improperly. The loss of the Electoral College’s constitutional right is therefore self-inflicted.
(Of course, the gay candidate may well be disappointed, but he has not been deprived of any constitutional right, only of a personal ambition. Indeed the constitutional rule of privacy suggests that a candidate has no right even to know that he is a candidate, unless and until the Electoral College elects him by the required majority.)
However, the objectors would presumably not have bothered to object in the first place if they had taken this view. They may argue that the procedural impropriety was such that the Electoral College never really met at all. This means that the College has not lost the right to elect, since it has not yet had the opportunity of exercising that right, and the right has not passed to the Bishops. The Electoral College must therefore meet and deliberate again, and properly this time. (And hopefully the preferred candidate will at last achieve the majority that has hitherto eluded him.)
Chapter 5, Reg 23 (quoted above) suggests that only the Governing Body of the Church in Wales has power to reconvene the Electoral College after it has failed to make an election. As it says, the lapse of the right of election to the Bishops is not unconditional after the Electoral College’s failure to elect, but only if ‘the Governing Body shall [not] have otherwise determined’ (see also Reg 24).
The Thinking Anglicans website relates that the objection ‘has now been referred to the Legal Sub-Committee, which is a body in the Church in Wales assembled to consider legal and governance matters’.
However, it is difficult to see what this Sub-Committee can achieve, however legally learned its members. Absent proper authority from the Governing Body, it has no power under the Constitution to investigate the deliberations of the Electoral College. And to be effective in practice, any investigation of the objection is bound to contravene the constitutional rule of privacy concerning the Electoral College meeting. One procedural impropriety is remedied by committing another.