ecclesiasticallaw

Ecclesiastical law

Category: The Church in Wales

Electing the Bishop of Llandaff: Propriety and Privacy

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.

Holy Communion and the Constitution of the Church in Wales

‘And there shall none be admitted to the Holy Communion, until such time as he be confirmed, or be ready and desirous to be confirmed’ (Book of Common Prayer 1662, rubric)

The bishops of the Church in Wales have just issued a radical Pastoral Letter concerning admission to Holy Communion (September 2016, accessed on the Diocese of St. Davids website on 17th September).  This announces that the bishops ‘are giving permission for all those who are baptised … to receive Holy Communion’.  Confirmation, and even readiness for confirmation, will no longer be required.  As the Pastoral Letter says, this decision means that ‘even the youngest of children [will] be entitled to receive Holy Communion’.

The Pastoral Letter asserts that baptism is the only ‘gateway’ to the Eucharist, so ‘no [further] barrier should be erected to prevent all the baptised from making their communion …’.  Removing the ‘barrier’ of confirmation will ‘readopt the practice of the Early Church with respect to admission to Holy Communion’.

It is not for this blog to comment on the theological merits of the bishops’ decision.  We question only the legal authority for the decision.

The Pastoral Letter says that the bishops have ‘taken [legal] advice … and have been given the assurance that such a step does not require any change in the present Canon Law or Constitution of the Church in Wales’.

This is surprising.  A major and radical change is being made to the administration of the Church’s principal act of worship.  Surely this must require some amendment of the Church’s Constitution?  And what about the 1662 rubric, quoted above?

In the Church of England, Canon B15A(1) provides that ‘There shall be admitted to the Holy Communion … baptised persons who are communicant members of other Churches … and who are in good standing in their own Church’, as well as those referred to in the 1662 rubric.  The intention is that practising members of non-conformist Churches, which lack episcopal structure and confirmation, can still receive the Anglican Sacrament.  Canon B15A was promulged under the Admission to Holy Communion Measure 1972.

That is the English law.  The Church in Wales was constitutionally separated from the Church of England in 1920, as a result of Disestablishment.  Since then it has been governed, as the Pastoral Letter indicates, by its own Constitution.

The Constitution does not seem to contain an equivalent of Canon B15A.  It incorporates a number of ecumenical Declarations of ‘intercommunion’, or ‘full communion’, according to which ‘Each Communion agrees to admit members of the other Communion to participate in the Sacraments’ (September 1966), but such Declarations seem to be restricted to overseas Churches which possess episcopal structures (e.g the Spanish Reformed Episcopal Church).  They do not extend to local non-conformists.

However, the Church in Wales Prayer Book 1984 makes a critical amendment of the 1662 rubric:

‘Except with the permission of the Bishop, no one shall receive Holy Communion until he is confirmed, or is ready and desirous to be confirmed.’

The permission of the Bishop.  In the Pastoral Letter, the bishops are jointly giving a general permission to baptised but unconfirmed persons to receive Holy Communion.  The 1984 rubric makes clear that bishops already have a constitutional power to permit unconfirmed persons to be admitted to the Sacrament.  So maybe the legal advice referred to in the Pastoral Letter is correct, and the Constitution does not require amendment after all.

However, it is suggested that there are constitutional difficulties with the Pastoral Letter, whatever its good intentions, as follows:

(1) On its wording, the 1984 rubric indicates that confirmation remains the general rule for receiving Holy Communion.  The Bishop is empowered to dispense from the general rule, i.e allow exceptions in particular cases, but that is all.  He cannot abolish the general rule altogether.  Yet that is exactly what the Pastoral Letter is seeking to do, abolish the general rule of confirmation.  This arguably exceeds, or at least misuses, the bishops’ power, which is merely to permit exceptions.

(2) Canon B15A gives practising non-conformists the legal right to receive Holy Communion.  The 1984 rubric, by contrast, does not confer any legal right on an unconfirmed person.  It provides only for the possibility of permission from the Bishop.  The grant of permission is a matter for the Bishop’s discretion.

The effect of the Pastoral Letter is that any person wishing to receive Holy Communion in future must have either

(1) episcopal confirmation or

(2) episcopal permission under the Pastoral Letter.

Yet there is an important difference between (1) and (2).  Confirmation founds a right to Holy Communion, episcopal permission merely grants a favour.  Confirmation cannot be withdrawn, but permission can be.  If the bishops can grant permission at their own discretion, they can also withdraw it at their discretion.  The ‘barrier’ of confirmation has been lowered for now, but it could be raised again just as easily.  The Pastoral Letter is arbitrary as well as permissive.

It is also doubtful that a mere permission, unsupported by a constitutional right or duty, is sufficient to bind the clergy.  A vicar who disagrees with the Pastoral Letter could not be compelled to give Holy Communion to unconfirmed persons.  Hence different parishes might adopt different policies on the matter.

In short, the constitutional position of unconfirmed communicants will be different, and inferior, to that of confirmed communicants.

Perhaps this will not matter in practice, if the bishops’ decision proves uncontroversial.  However, it is arguable that

(1) the importance of the substantive issue and

(2) the constitutional difficulties discussed here

both demand that admission to Holy Communion be regulated by the Constitution of the Church in Wales, and not merely by Pastoral Letter.

Disestablishment, Disendowment and Dismemberment

From the early 12th century until 31st March 1920, a period of about 800 years, the Church in Wales comprised four dioceses (Llandaff, St. Davids, Bangor and St. Asaph) of the Province of Canterbury in the Church of England.

The Welsh Church Act 1914 had a twofold purpose:

(1) disestablishment of the Church in Wales and

(2) disendowment of some of its property in favour of secular local authorities and University of Wales.

Opponents of the Welsh Church Act argued that it had a third consequence for the Church in Wales 

(3) dismemberment, the enforced constitutional separation of the four Welsh dioceses from the rest of the Province of Canterbury, and hence from the Church of England.

The Welsh Church Act was substantially modelled on the Irish Church Act 1869, which disestablished the Anglican Church of Ireland.  However, the Church of Ireland, unlike the Church in Wales, had never been an integral part of either of the two English Provinces.  Ireland always had its own ecclesiastical Provinces.  So although the Church of Ireland had been disestablished, it had not been dismembered.

There is no provision of the 1914 Act that in terms requires the constitutional separation of the English and Welsh Churches, or that the Church in Wales be reconstituted as a separate ecclesiastical province.  S.13(1) of the Act enabled the members of the Church in Wales to make rules for its constitutional self-government but this freedom per se did not require them to leave the Church of England.  At most, it only permitted them to do so.  

The 1914 Act actually envisaged a continuing constitutional link between the Welsh dioceses and the Church of England.  S.3(3) provided that

‘The … constitution … of the Church in Wales may … if the Archbishop of Canterbury consents, [provide] for appeals from [Welsh ecclesiastical courts] being heard and determined by the provincial court of the Archbishop [i.e the Court of the Arches] …’.

However, another provision of the Act, s.3(5), did intervene directly in the constitutional relationship between the Welsh and English Churches.  It provided that

‘As from the date of disestablishment the bishops and clergy of the Church in Wales shall cease to be members of or be represented in the Houses of Convocation of the Province of Canterbury’.

This provision was very controversial in 1914.  Opponents of Disestablishment suggested that it was unprecedented, and that Parliament had never before intervened directly in the membership and procedure of the Convocations, even at the Reformation.  (See the first report of the select committee of the House of Lords on matters affecting the Church in Wales.)

The justification offered for s.3(5) was that it was ‘impossible … to allow the Welsh dioceses to retain their present position in the Convocation of Canterbury because this would create a ‘free’ Church governed and ruled by an Established Church … the remaining English portion of the Province of Canterbury …’ (House of Commons Official Record 1914, volume 61, columns 1805-6).  If the Church in Wales was to become self-governing on the same terms as the Methodist or Baptist Churches, it could not continue to be subject to the legislative acts of the Canterbury Convocation.  Without s.3(5) the primary purpose of the 1914 Act, Disestablishment, would be frustrated.

The 1914 Act was, of course, passed before the Church of England Assembly (Powers) Act 1919.  At that time, the National Assembly and the various ‘conferences’ of the Church of England still existed on a voluntary basis only.  Supporters of Disestablishment argued that any difficulty caused by s.3(5) could be resolved if the English and Welsh bishops and clergy and any lay representatives simply met and deliberated in such a voluntary assembly:

‘After this Bill is passed the Archbishop [of Canterbury] may summon the identical persons to … the identical meeting and … transact identically the same business … They [the Welsh and English bishops and clergy] may do all the business which is now done in Convocation but it will not be Convocation.  That is the sole difference.’ (column 1908).

This suggestion anticipated the settlement created by the 1919 Act, under which the Church Assembly and the Convocations transacted ecclesiastical business, as it were, side by side.  This power-sharing arrangement proved administratively complex and confusing and was brought to an end by the Synodical Government Measure 1969.  Of course, the Archbishop of Canterbury continues to ‘summon’ (or rather, invite) the bishops of the Church in Wales to the Lambeth Conference, another assembly that exists only on a voluntary basis.

However, after the Welsh Church Act became law, the Welsh bishops and the then Archbishop of Canterbury, Randall Davidson, evidently concluded that the practical difficulties of the disestablished Welsh dioceses remaining within the Province of Canterbury were too great.  It was therefore reluctantly agreed that they would have to leave and form a separate ecclesiastical province.

This decision was recorded in a message from the Archbishop of Canterbury ‘To all Christian people pertaining to the Church in Wales’ dated 1st April 1920, the day after Disestablishment (also April Fool’s Day).  1st April was the date of Dismemberment but the proceedings necessary to effect Dismemberment were taken before Disestablishment.

The Welsh bishops were bound to the Archbishop by their oath of canonical obedience to him.  It was the submission of the Welsh bishops to the primatial jurisdiction of Canterbury, and their oath of obedience to the Archbishop, that had originally effected the incorporation of the Welsh Church into the Canterbury Province in the early 12th century.  Therefore in January 1920 the Bishop of St. Asaph (the senior Welsh bishop at the time), acting in accordance with a resolution of the Governing Body of the Church in Wales, formally requested the Archbishop ‘to take such steps as may be necessary to constitute the four Dioceses of Wales into an ecclesiastical province’.

The Archbishop responded by sending letters to the four diocesan bishops in which he stated that he regarded them as being ‘released from any obligation under which you lie by reason of the Oath of due obedience to the See of Canterbury …’ after Disestablishment.  Then on 10th February 1920 the Archbishop declared, in Convocation, that the Welsh dioceses should be ‘separate from the Province of Canterbury and (they so desiring) a distinct ecclesiastical Province’.

Thus it was the Archbishop of Canterbury, Randall Davidson, who created the ecclesiastical Province of Wales.  The Province was not created either by the Welsh Church Act, or by any other Act of Parliament, or by the constitution of the Church in Wales.  There is no provision in the constitution stating that ‘There shall be a Province of Wales’, or that ‘There shall be an Archbishop of Wales’.  The Archbishop of Canterbury’s declaration creating the new Province may have been the last act of English ecclesiastical law to bind the Church in Wales.

The Bishop of St. Asaph, Alfred George Edwards, became the first Archbishop of Wales (though he remained Bishop of St. Asaph as well).  He was not chosen by the Archbishop of Canterbury but elected by the Governing Body (apparently ‘by acclamation’).  However, Randall Davidson presided at the subsequent enthronement ceremony.  Not only that, he also kindly donated a wooden replica of St. Augustine’s Chair for the new Archbishop to be enthroned on.  The replica is always kept in the diocesan cathedral of the incumbent Archbishop (currently Llandaff Cathedral).  It is a visible reminder that the Archbishop of Canterbury created the Province of Wales.

Jones v Archbishop of Wales

(2013) Church in Wales Provincial Court, unreported.

A Welsh parish held its annual vestry meeting as usual, chaired by the Vicar.  There were 34 candidates for election to the parochial church council (‘the PCC’).  The Constitution of the Church in Wales limits the number of elected PCC members to a maximum of 25:  Chapter 4C, Regulation 13(2).

This meant, of course, that a vote should have been taken to decide which of the 34 candidates should be elected to the PCC.  However, the Vicar, for whatever reason, declined to take a vote.  Instead he simply declared all 34 candidates elected.  He retired shortly afterwards.

The Archbishop, who was also the local diocesan bishop, was informed of the constitutional irregularity.  He decided to replace the 34 PCC members with 15 new PCC members appointed by himself (10 fewer than the permitted maximum of 25).  He did, however, permit the parish electors to nominate the 15 new members to him.  He therefore convened a special vestry meeting.  The special vestry meeting was held, a vote was taken and the 15 candidates with the most votes were nominated to the Archbishop, who then appointed them to the PCC.

Mr Jones was a parishioner (though not one of the 34 PCC members).  He objected that the Archbishop had no right to replace the PCC members in such a fashion.  He accepted that a constitutional irregularity had occurred at the annual vestry meeting (though it did not seem to him a very serious one).  He maintained, however, that two wrongs do not make a right.  If the annual vestry meeting or the Vicar had acted unconstitutionally, that did not entitle the Archbishop to act unconstitutionally as well.

Chapter 9, s.22 of the Constitution of the Church in Wales provides that the Church court

‘shall have power to hear and determine … (b) complaints against Churchwardens and lay [PCC members] in their role as such, and disputes with regard to their election’.

Mr Jones argued that, if the Archbishop was unhappy about the irregularity in the election of the 34 PCC members, he should have taken the matter to the Church court under Chapter 9, s.22 , and awaited the court’s determination.  He had not done this.  Instead he had taken direct action without any reference to the Church court.  Moreover, the action was draconian and therefore required clear authority.  The Archbishop had effectively sacked 34 people.

In justifying his action, the Archbishop relied on another provision of the Constitution: Chapter 4C, Regulation 5.  Regulation 5 provides that

‘If it is brought to the notice of the Diocesan Bishop that:

5.1 the Annual Vestry Meeting has not been held; or

5.2 Churchwardens, [PCC members], or the parochial representatives on the Diocesan Conference or the Deanery Conference have not been elected or appointed

the Bishop may appoint Churchwardens, [PCC members] or parochial representatives as the case may require …’.

The Archbishop’s view was that Regulation 5 was engaged because ‘elected or appointed’ meant ‘elected or appointed in accordance with the constitution’.  Elected PCC members must be elected ‘in accordance with the provisions of the [Constitution]’: Chapter 4C, s.9.  In this case, of course, they had not been.  This meant that they had not really been elected at all.

Mr Jones did not accept this interpretation of Regulation 5.  He argued that Regulation 5 was in the nature of a default power (or ‘lapse’ power).  If a moribund parish cannot be bothered to hold an Annual Vestry Meeting or elect a PCC, then the Archbishop can act in its place.  That was not the case here.  The annual vestry meeting had been held, and the PCC had been elected.  The large number of candidates indicated that the parish was far from being moribund.  There had been an irregularity in the PCC elections, but Regulation 5 did not empower the Archbishop to correct constitutional irregularities.  That was the function of the Church court.

Thus Mr Jones argued that the Archbishop’s interpretation of Regulation 5 took no account of Chapter 9, s.22.  If Regulation 5 permits the bishop to intervene directly to correct an irregular PCC election, then what is the purpose of the jurisdiction conferred on the Church court to determine disputes over PCC elections?  The jurisdiction would be superfluous.

However, the Provincial Court agreed with the Archbishop.  It flatly rejected Mr Jones’s interpretation of Regulation 5:

‘We do not agree that the Regulation is to be construed in such a limited way.  The words of the Regulation contain no such express limitation … Regulation 5 confers remedial powers upon the Diocesan Bishop where a parish has failed to fulfil its obligations, in this case with regard to the election of lay members of the PCC … a purposive construction of Regulation 5 lends no support to the restricted interpretation of the Regulation for which [Mr Jones] contends.’ (para 17).

The 34 PCC members had therefore not been sacked by the Archbishop, because they had not been appointed in the first place:

‘The purported appointment of [the] 34 members of the PCC … was unconstitutional and its effect was that there were no lay members of the PCC able to take part and vote in its decisions without being liable to challenge on the ground that the PCC was not a properly constituted body.’ (para 18).

But what about Chapter 9, s.22 and the jurisdiction of the Church court?  The Provincial Court accepted that ‘it would have been open for the [Archbishop] to bring a case in [the Church] court had he thought fit to do so’ (para 14).  However, the Archbishop was not obliged to take this course, because

‘it was not necessary.  He was empowered by Regulation 5 … to remedy the defective election.  That being so it is unnecessary to consider what the result of an application to the [Church] court under Chapter 9, s.22 might have been’ (para 22).

On this view, the Constitution of the Church in Wales provides not just one remedy for parochial indiscipline, but two alternative remedies.  The Church court and the bishop each has a separate power to remedy an irregular PCC election.

This in turn raises the question of what would happen if the Church court and the bishop were both to exercise their separate powers in respect of the same PCC election.  What if one parishioner complained to the Church court under Chapter 9, s.22, while another asked the bishop to exercise his supposed power under Regulation 5?  Which remedy would prevail over the other, the court’s or the bishop’s?  What would happen if the court and the bishop disagreed over whether there had been an irregularity at all?  The Constitution provides no answer to these questions.  A strange omission, if the Provincial Court’s interpretation is correct.

Having held that the Archbishop possessed the necessary power under Regulation 5, the Provincial Court had no difficulty in concluding that he had acted reasonably in exercising it.  In particular, there was nothing unreasonable about the Archbishop limiting the number of elected PCC members to 15.  Mr Jones’s objection was therefore dismissed.

Mr Jones is the author of this blog.  His account of the case should, of course, be read with this caveat in mind.  The complete text of the Constitution of the Church in Wales may be found on the Church’s internet website.

The Church in Wales Review

Published in July 2012.  The full text is available on the internet website of the Church in Wales.  It contains some thought-provoking  recommendations concerning ecclesiastical ministry and governance.

Ministry

The Review observes that the traditional parochial structure (one incumbent of one parish) has been eroded in recent decades by the formation of team and group ministries, and by the amalgamation of parishes (p.6).  It goes a step further than these recent changes, and proposes the abolition of the old parochial structure altogether, or at least ‘moving away from the idea of the parish as the basic unit of ministry’.

The old structure, which is territorial in character, should be replaced by a more congregation-based structure.  The Church will be organized on the basis of congregations rather than parishes (p.7).  Congregations will still exist within a ‘natural geographical unit’, but this will be much larger than a traditional parish.  This new super-parish will be called a ministry area (p.8).  Deaneries, like traditional parishes, will be abolished.

A super-parish or ministry area might contain circa 25 congregations (p.7).  Each congregation will have a leader, who is likely to be either a lay minister or a non-stipendiary minister (p.13).  Perhaps three ministers in the area will be full time (p.7).  The congregation leaders will form a team with responsibility for the whole ministry area, under a team leader.

The change from traditional parish to ministry area would, however, be without prejudice to the legal rights of ‘parishioners’ to be married and buried in their local church and churchyard (p.8).

The abolition of the traditional parochial structure would significantly affect the ancient duty of residence.  Clergy would be obliged only to live within ‘easy access’ of their ministry area (p.23), not actually in it.  Moreover, clergy would cease to be provided with official residences, though their stipends would be increased to take account of this loss.

A single integrated training programme would be provided for all ministers, ordained and lay (p.13).  The programme would cover both pre-ordination and post-ordination training (p.15).  The regime created by the Ecclesiastical Offices (Terms of Service) Measure 2009 does not seem to have achieved a completely integrated training programme for Church of England ministers.

The ministry team and its team leader (who might be the former area dean) would be subject to the oversight of the archdeacon, and thence the bishop.  An archdeacon would be responsible for the oversight of 10 to 12 teams (p.8).

The Review does not propose the abolition of dioceses as well as parishes, but recommends that they share or ‘pool’ their administration in three centres, one in North Wales and two in South Wales (p.17).  (In the Church of England, regular interdiocesan administration was first permitted by the Dioceses, Pastoral and Mission Measure 2007, s.19.)  The six dioceses of the Church in Wales might eventually be reduced to three, but with no reduction in the number of bishops (p.18). 

Governance

The Review makes two criticisms of the diocesan and provincial structure of the Church in Wales:

(1) it is cumbersome and top-heavy and

(2) it does not provide adequate channels of information and communication.

It therefore argues for

(1) better systems of communication within the Church and

(2) fewer, and smaller, decision-taking authorities.

This suggests that participants in Welsh ecclesiastical governance will be better informed, but also fewer in number.

The Constitution of the Church in Wales is criticised generally as ‘large, complex and unwieldy … an inhibitor of necessary change’ (p.33) but this rather begs the questions

(1) what is necessary change? and

(2) who decides what is or is not necessary?

There are two specific criticisms relating to information and communication

(1) the deliberative processes in the Church: ‘there is no proper flow of ideas and resolutions from parish or deanery to diocese, and from there to the Governing Body and the Representative Body’ (p.4)

(2) the election of diocesan bishops (and the Archbishop): ‘the present system … is … unable to offer the electors adequate information about potential candidates’ (p.32).

The Review recommends that diocesan conferences should be renamed diocesan synods, in order to improve the deliberative process, and that candidates for election to the Governing Body should be required to produce a ‘short manifesto’, so that electors can be better informed’ (p.5).

However, even with the benefit of election manifestos, the Governing Body and the Representative Body are deemed unsuitable for ‘comprehensive leadership’ (p.34).  Instead the Review proposes the smaller Standing Committee as the principal engine of the Church’s governance.  The size of the Electoral College (which elects the diocesan bishops and the Archbishop) should also be significantly reduced (p.32).

Ecclesiastical Law and Disestablishment

The Welsh Church Act 1914, which provided for the disestablishment of the Church in Wales, was discussed by the House of Lords in the case of Representative Body of the Church in Wales v Tithe Redemption Commission (1944) 1 All England Reports 710, in which they overruled the decision of the Court of Appeal in Tithe Redemption Commissioners v Commissioners of Church Temporalities (1943) 1 All England Reports 605.

Interestingly, the law lords who decided the Tithe Redemption case were headed by the then Lord Chancellor, Viscount Simon, who, as the Liberal Attorney-General Sir John Simon, had successfully promoted the bill which became the Welsh Church Act.

The Tithe Redemption case prompted Lord Denning to formulate his famous thesis on the division of ecclesiastical law into ‘general’ and ‘technical’ law in an article ‘The Meaning of Ecclesiastical Law’ (1944) Law Quarterly Review, vol 60, p.235.  This article has been discussed elsewhere.  Lord Denning defined ‘technical’ ecclesiastical law as ‘the law administered by ecclesiastical courts and persons’ (p.236), though his analysis concentrated rather more on the courts than the persons.

As Lord Denning noted, the Welsh Church Act does not contain any definition of ecclesiastical law.  Nor did the Irish Church Act 1869, which effected the disestablishment of the Church of Ireland and provided the model for the Welsh Church Act.

Despite the lack of a definition, Lord Denning argued that the structure of the Welsh Church Act supported his suggested distinction between technical and general ecclesiastical law.  He noted that the Act makes specific provision for certain matters ‘which would fall within ecclesiastical law in a general sense … such as rights of patronage, vesting of Church property and so forth’ (p.236).  Where specific provision is lacking, any ‘ecclesiastical  law’ referred to in the Act must be restricted to that administered by ecclesiastical courts and persons.

S.3 of the 1914 Act refers to ecclesiastical law in the following terms:

‘ecclesiastical courts and persons … shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1))

‘ecclesiastical law shall include … such law so far as it is embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892 or the Ecclesiastical Dilapidations Acts 1871-2, or any other Act of Parliament’ (s.3(4))

S.38(1) of the Act defines ‘ecclesiastical person’ as ‘the holder of any ecclesiastical office who is in holy orders’.

It must be acknowledged that s.3, considered in isolation, does tend to support Lord Denning’s analysis.  It seems to identify ecclesiastical law with clergy and Church courts.  The Acts of Parliament referred to in s.3(4), which have now all been repealed, regulated the functions of the clergy.

However, it is argued s.3 has to be understood in the context of the Welsh Church Act as a whole.  The long title of the Act makes clear that the purpose of the Act was

[1] ‘to terminate the establishment of the Church in Wales … and

[2] ‘to make provision in respect of the Temporalities thereof and …

[3] ‘other purposes in connection with [1 and 2]’.

S.1 of the Act provides that ‘the Church in Wales … shall cease to be established by law’.  ‘Established by law’ means ‘constituted by law’.  ‘Temporalities’ refers to property and property rights.

The Welsh Church Act therefore had a twofold purpose

(1) to reconstitute the Church in Wales on a voluntary basis and

(2) to dispose of its property.

The references to ‘ecclesiastical law’ in s.3 of the 1914 Act should therefore be understood in the context of the Church’s establishment.  The ‘establishment’ of the Church is its constitutional structure, its organisation.  The law of the Church regulates its function.  The function of the Church in Wales, as of any Church, is the administration of the Christian religion.  Ecclesiastical law regulates the administration of the Christian religion.

Thus the 1914 Act reconstituted both the Church’s

(1) structure / organisation and

(2) its function

on a voluntary basis.  Henceforward the members of the Church in Wales would decide its organisation and function on the basis of rules agreed between themselves, though subject to the secular law.

Thus the 1914 Act made a distinction between the Church’s religion and its property, not between its ‘general’ and ‘technical’ law.  It is rather absurd to divide the administration of the Christian religion into ‘general’ and ‘technical’ aspects.

It may indeed be difficult, even impossible, to define the exact boundaries of ecclesiastical law.  Where does the administration of religion end and secular governance begin? 

The House of Lords specifically declined to answer this question in the Tithe Redemption case.  ‘It is not … necessary to pronounce finally on these niceties’ (Viscount Simon, p. 713).  ‘I am not clear as to the precise effect of the very general words of s.3’ (Lord Wright, p.717).  ‘I do not desire to dogmatise as to the effect of s.3’ (Lord Porter, p.718).  ‘I do not think it necessary to determine the exact scope of that ‘ecclesiastical law’ … which by s.3 … is to cease to exist as law’ (Lord Simonds, p.720).

The scope of ecclesiastical governance was sharply reduced in the mid-19th century, before the Irish Church Act and the Welsh Church Act were passed.  By 1914 it was almost exclusively liturgical, restricted to activity within the church and churchyard.  However, ecclesiastical governance continued to engage rights of property.  (It still does, of course.)  The function of the 1914 Act was therefore to regulate the future relationship between ecclesiastical governance and property.

As its name implies the Tithe Redemption case was concerned with tithes (or tithe rentcharge, which was derived from tithes).  Tithes were connected to the administration of religion, hence to ecclesiastical governance, because they were used to pay for the maintenance of the Church.  A tithe owner was liable at common law to repair the chancel of the parish church.

But, as Lord Wright noted, tithe or tithe rentcharge is ‘an incorporeal hereditament … a well-known type of real property’ (p.717).  Ownership of tithe rentcharge and the liability to pay it are questions of property law, rather than ecclesiastical law.

The Welsh Church Act provided, at s.8, that tithe rentcharge in ecclesiastical ownership should in effect be secularised.  Ownership was to be transferred from the Church to the Welsh local authorities and to the University of Wales.

However, s.28(1) provided that

‘Nothing in this Act shall affect … the liability of any lay impropriator of any tithe rentcharge to repair any ecclesiastical building [i.e the chancel], but a [local authority] shall not … be liable for the repair of any ecclesiastical building’.

Thus s.28(1) expressly exempted the local authority tithe rentcharge from the liability to repair the chancel.  However, no such exemption was granted to the University, or to any other lay owner (‘impropriator’) of tithe rentcharge.

The Court of Appeal reasoned that chancel repair was a duty imposed by ecclesiastical law, and hence was governed by s.3 of the 1914 Act.  This meant that the duty had ceased to be a legal duty where the tithe rentcharge was in ecclesiastical ownership, because ecclesiastical law had ceased to exist as law after Disestablishment.

The University had inherited tithe rentcharge that was formerly in ecclesiastical ownership, at Disestablishment.  It could not therefore be liable for chancel repair.  The legal duty to repair the chancel could only attach to tithe rentcharge that had been in lay ownership before Disestablishment.

The House of Lords disagreed with this analysis.  It held that the question of chancel repair liability was governed by s.28(1), not by s.3.  The University was a ‘lay impropriator’ within the meaning of s.28(1), and therefore liable for chancel repair.  The exemption granted to local authorities did not extend to the University.  If chancel repair had ceased to be a legal duty after Disestablishment, the exemption in s.28(1) would not have been necessary.

Tithe rentcharge was actually abolished, or ‘extinguished’, by the Tithe Act 1936, passed over 20 years after the Welsh Church Act.  In consequence, the liability of owners of tithe rentcharge for chancel repair was also abolished.  The 1936 Act provided for a system of compensation.  Former lay owners of tithe rentcharge received compensation for the loss of their ‘incorporeal hereditament’.  However, the Church also received compensation, because it had lost a legally enforceable right to the repair of its chancels.

Thus the practical effect of the decision in the Tithe Redemption case was that the Church in Wales, through its Representative Body, received compensation under the Tithe Act 1936, because it had lost the legal right to require the University of Wales to repair some of its chancels.

Marriage Fees and the Church in Wales

According to its internet website (accessed 14th May 2012) the Church in Wales charges fees for publishing banns of marriage and for solemnising marriage in church.  However, the legal authority for these marriage fees in unclear.

The Welsh Church Act 1914 provides that ‘as from the date of Disestablishment [in 1920] … the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1)). 

However, the later Welsh Church (Temporalities) Act 1919 introduced an important exception to this provision:

‘Nothing in this Act or in the Welsh Church Act 1914 shall affect … the law with respect to marriages in Wales’ (s.6).

If parishioners have the right at common law to the publication of their banns and solemnisation of their marriages in the parish church, how can the Church in Wales charge fees for performing these services?

The Church of England charges marriage fees under the authority of Fees Measures.  Church of England Measures have statutory authority, and so are capable of overriding or restricting common law rights.  However, Fees Measures only apply to England, not Wales.

Common law held that no fee could be charged for marriage, unless the Church could prove an ‘immemorial custom’ in the particular parish, i.e that a marriage fee was paid in that parish from before the time of legal memory.  Such a custom is very difficult to prove, and any customary fee would only be worth a few pence in the money values of today.  Common law also held that a customary fee could not be adjusted for inflation (Bryant v Foot 1867 Law Reports 2 Queen’s Bench 161).

Some 19th century Acts of Parliament provided for marriage fees to be charged in the ‘new parishes’ created at that time.  However, any 19th century fees, like customary fees, would only be worth a few pence today.

The Church in Wales also charges a fee for the grant of a marriage licence.  It is probably entitled to do this.  It is said that ‘a licensor stands on his own price’.  By definition, there is no right to a licence.

However, if marriage by banns is a legal right, it is difficult to see how the Church in Wales can have the legal right to charge fees for this, unless statutory authority is given.

Ecclesiastical Discipline: the Williams case

R v Provincial Court of the Church in Wales ex parte Williams (1998) EWHC Admin 998

The High Court rejected the Rev Mr Williams’ application to ‘quash’ a decision of the Church’s Provincial Court finding him guilty of misconduct.

Mr Williams’ principal complaint was that the Church in Wales Court had found him guilty according to the civil standard of proof, even though it was agreed that the criminal standard of proof applied in English ecclesiastical law.  (This was before the Clergy Discipline Measure 2003.)

The High Court replied that the constitution of the Church in Wales entitled the Provincial Court to apply the civil standard of proof.  It noted two provisions of the constitution:

(1)  a provision which expressly disapplied the Clergy Discipline Act 1892 to the Church in Wales after Disestablishment.  The High Court held that this Act ‘forms the basis of the principle that the criminal standard …applies’ (para 21)

(2) a provision that Church in Wales courts are not bound by decisions of the English courts in matters of ‘discipline’.

However, the Clergy Discipline Act (now repealed) did not make express provision for the standard of proof to be applied to disciplinary proceedings against clergy.  It merely assumed the pre-existing, common law standard of proof.  Therefore it does not form the ‘basis’ for the criminal standard in ecclesiastical law.  It did not impose the criminal standard, it merely applied that standard to the proceedings that it regulated.

There are also difficulties with point (2).  The word ‘discipline’ admits of different meanings.  It is an old word for ‘governance’.  In the Church of Scotland, ‘discipline’ apparently refers to the entire constitutional structure of the Church (The Constitution and Laws of the Church of Scotland, ed James L Weatherhead, Edinburgh, 1997, p.62).

However, the use of the word in the constitution of the Church in Wales must be understood according to its context.  The relevant section of the constitution states that

‘The [English] ecclesiastical law [pre-Disestablishment] … with the exception of [certain statutes, including the Clergy Discipline Act 1892] shall be binding on the members (including any body of members) of the Church in Wales and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the constitution …’ (now found in Chapter 1, s.5).

The effect of this provision is that English ecclesiastical law, with the exception of the named statutes, is incorporated into the constitution, subject to any contrary provision in the constitution.

Then comes the proviso:

‘the Courts of the Church in Wales shall not be bound by any decision of the English courts in relation to matters of faith, discipline or ceremonial’.

Thus the proviso must be understood in the context of the general rule that immediately precedes it.  The general rule is that English ecclesiastical law is incorporated into the constitution, and is to be applied to any question or dispute between Church members and authorities.

If too broad a meaning is given to the proviso this will have the effect of overriding or ignoring the general rule.  If ‘discipline’ is understood in the Scottish sense, to refer to any constitutional matter whatsoever, English ecclesiastical law would not have the binding force accorded to it by the general rule, since any question or dispute is likely to involve some issue of governance.  Too broad a meaning would also have the absurd consequence that ecclesiastical law should bind all members and governing authorities of the Church in Wales, but not its courts.

The general rule is concerned with ecclesiastical law, the proviso with ecclesiastical courts.  Their wording indicates that ‘discipline’ refers to something which, according to ecclesiastical law, is the subject of judicial decision.

Moreover, two of the statutes exempted from incorporation into the constitution were the Church Discipline Act 1840 and the aforementioned Clergy Discipline Act 1892.  The ‘discipline’ that was the subject of these Acts was the professional discipline of clergy.  This indicates that the word ‘discipline’ in the proviso refers to clergy discipline.

The phrase ‘faith, discipline or ceremonial’ suggests that the proviso was primarily intended to liberate public worship from unpopular and impractical judicial decisions taken in the 19th century to forbid ‘ritualism’, certain liturgical practices which had, nevertheless, become widespread by the early 20th century.

(The phrase ‘English courts’ in the proviso may be somewhat careless, since the most important decisions were taken by the Privy Council, which is not strictly a court.)

‘Discipline’ therefore refers to the personal or official conduct of the clergy.  The effect of the proviso is that Church in Wales courts are not bound by what the English courts consider to be misconduct or indiscipline by clergy.  Likewise, in faculty case, the Church in Wales courts may permit an ornament which English courts have held to be illegal.  The intention was probably to protect ‘ritualist’ clergy and discourage petty liturgical disputes.

However, the proviso does not refer to the standard of proof to be applied in disciplinary cases (or in faculty cases).  It refers only to ‘faith, discipline or ceremonial’, not to ‘faith, discipline, ceremonial or evidence’.  It entitles the Church in Wales courts to decide for themselves whether the proven facts of a case amount to misconduct or indiscipline by the accused person.  It does not entitle them to decide how the facts shall be proved in the first place.  The High Court understood the word ‘discipline’ to include ‘evidence’, but the wording and context of the proviso do not admit of such a broad, loose interpretation.

The constitution of the Church in Wales provides for the appointment of a rule committee, composed of ecclesiastical judges, which has power to issue rules ‘for regulating … the administration, practice and procedure’ of the Chruch courts (now found in Chapter 9, s.38).  Any rule concerning the standard of proof should be sought either in the constitution or in the procedural rules made under the authority of the constitution.  If both constitution and rules are silent, the standard of proof must be determined by the English ecclesiastical law as at the date of Disestablishment.  This law will bind the courts of the Church in Wales, unless and until overridden by the constitution or by procedural rules made by the rule committee.

If the proviso concerning ‘discipline’ entitled the Church in Wales courts to disregard the standard of proof laid down by English law, this would allow the possibility that different Church courts, or even different constitutions of the same court, might apply different standards of proof in different cases.  One clergyman’s guilt might be decided according to the criminal standard, another’s according to the civil standard.