ecclesiasticallaw

Ecclesiastical law

The Burden of Legislative Reform

The Legislative Reform Measure 2017, aka The Enabling Measure

According to the Church of England’s website, the General Synod is due to consider the first draft of the above Measure this coming weekend, just before the ‘Shared Conversations’ on human sexuality.

The procedural flaws in the Measure have been discussed in a separate post, which is filed below (‘The Proposed Enabling Measure: A Complex Process of Simplification’).

However, the fundamental misconception of the Measure is that it is modelled on a piece of secular legislation that has no application to the Church.  The Legislative and Regulatory Reform Act 2006 makes provision for ‘removing or reducing any burden … resulting directly or indirectly for any person from any legislation’ (s.1).

This provision appears in the draft Measure.  However, the Measure indicates a failure to appreciate the significance of another provision of the 2006 Act.  A burden-reducing order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department …’ (s.1(4)).  The 2006 Act defines a ‘burden’ as that ‘which affects the carrying on of any lawful activity’ (s.1(3)).

The 2006 Act was intended to benefit private citizens, not public officials and public authorities.  Its purpose was to cut red tape, to enable ordinary people to go about their business without unnecessary official interference.

In the Measure, by contrast, the definition of  ‘burden’ makes no reference to ‘any lawful activity’ by private citizens.  This is because ecclesiastical legislation does not regulate such activity in the first place.  Instead, the Measure refers to burdens ‘resulting … from ecclesiastical legislation’ (s.1(1)).  However, with the exception of weddings and funerals (particularly the fees involved), ecclesiastical legislation does not impose any burdens on private citizens.

Thus the only burdens that the Measure will relieve, or can relieve, are the burdens attached to ecclesiastical office and governance, because these are the only burdens imposed by ecclesiastical legislation.  This is a quite different, indeed opposite, purpose to that of the 2006 Act.  The 2006 Act was intended to reduce official interference.  The Measure is intended to make the officials’ work easier.

Legislation that promises to reduce burdens always sounds attractive.  However, reducing burdens is not as simple as it sounds.  One person’s burden is another person’s benefit.  One person’s benefit may be another person’s unemployment.  One person’s burden may be reduced merely by increasing another person’s burden, or by appointing an extra person.

The Measure makes clear that burden-reducing may involve

[1] ‘abolishing, conferring or transferring, or …. delegat[ing] … functions of any description …’ (s.1(5))

[2] ‘creating a [new] body or office’

[3] ‘abolish[ing] a body or office’  if abolition is consequential on burden-reducing (s.1(6))

[4] considering ‘the interests of any person adversely affected’ by burden-reducing (s.2(c))

The purpose of the Measure is therefore a little more nuanced than merely ‘reducing burdens’.  It rearranges red tape more than cutting it.  It seeks to reorganise official functions with a view to improving the quality of ecclesiastical governance, by making it simpler, more efficient and less expensive.

This is an admirable purpose, of course.  But it does not justify a new legislative procedure.  It can, and should, be effected by ordinary legislation.  The whole point of all ecclesiastical legislation is to improve the quality of ecclesiastical governance.  The Measure will throw a spanner into the legislative works.  It adds a new legislative procedure that serves essentially the same purpose as the existing one, with the two procedures operating side by side.

The Measure may not receive very close attention in the General Synod, if the members are preoccupied with the more sensational matters to follow.  It may prove insignificant in practice, if it is used only to make minor and uncontroversial administrative changes.  But a more confused attempt at ecclesiastical law reform is hard to imagine.

The Clerical Declaration of Assent

Chancellor Rupert Bursell QC, article in the Ecclesiastical Law Journal (2016) vol 18(2), May 2016, p.165.

This is an interesting account of the history and content of the Declaration contained in Canon C15(1) that clergy are required to make.  However, there are difficulties with its speculations about the disciplinary consequences of a ‘breach’ of the Declaration by an officeholder.

The learned author suggests that any disciplinary case involving the Declaration is likely to constitute a ‘reserved matter’, i.e an offence against doctrine, ritual and ceremonial (p.185).  Reserved matters are still regulated by the Ecclesiastical Jurisdiction Measure 1963, not the Clergy Discipline Measure 2003.

To date, no prosecution has ever been brought under the 1963 procedure for reserved matters.  There seems to be no reported case either under the 1963 Measure or the 2003 Measure concerning a breach of the Canon C15(1) Declaration.

Although described as ‘The Declaration of Assent‘, the word ‘assent’ does not appear in the text of the Declaration.  The Declaration is in the following terms:

‘I, A.B …

[1] declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the Catholic Creeds and to which the historic formularies of the Church of England bear witness and

[2] in public prayer and the administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon’.

It will be apparent from this wording that ‘the Declaration’ is actually two declarations, as to (1) religious belief and (2) compliance with the Church’s law of worship.

The two declarations are significantly different in character.  Only Declaration (2) is concerned with conduct.  Declaration (1) concerns state of mind.  Declaration (1) is expressed in the present tense.  It affirms the clergyman’s religious belief as at the time it is made.  It contains no guarantee of what the clergyman may or may not believe in the future.  Declaration (2), by contrast, is an undertaking as to future conduct.

It is difficult to see how Declaration (1) could give rise to disciplinary action, as it refers only to a state of mind.  As Dr Johnson observed, ‘Every man has a physical right to think as he pleases, for it cannot be discovered how he thinks’.  Perhaps disciplinary action would be possible if there was evidence that an officeholder had knowingly made a false declaration (e.g ‘I only made the Declaration to get the job’), though such a case might be hard to prove.

The ‘forms of service’ which are the subject of Declaration (2) are now ‘authorised or approved’ under the authority of the Worship and Doctrine Measure 1974, which was, of course, passed some years after the 1963 Measure.  The reserved jurisdiction over ritual and ceremonial in the 1963 Measure applied to the old 1662 regime of public worship.  The 1662 regime was abolished by the Worship and Doctrine Measure.  It might therefore have been appropriate to abolish the reserved jurisdiction over ritual and ceremonial at the same time, but this was not done.

Canon B2 now provides that ‘Every minister shall use only the forms of service authorised by this Canon, except so far as he may exercise the discretion permitted by Canon B5′.

Thus if an officeholder breaks the rule laid down by Canon B2, or exceeds the discretion permitted by Canon B5, this will clearly constitute disobedience, ‘doing [an] act in contravention of the laws ecclesiastical’, which is misconduct under s.8(1) of the Clergy Discipline Measure.  There will be no need to invoke the 1963 reserved jurisdiction, even if such misconduct is cognisable under this jurisdiction.

The learned author asserts that ‘Once made, the Declaration is binding unless and until a cleric formally renounces his or her orders’ i.e by exercising a deed of relinquishment (p.183).  He makes this assertion not just once but twice (at p.183 and p.187).  (It must be important to him, for some reason.)

Canon C15(1)(6) is cited as authority.  This provides that

‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place, the Declaration made under this Canon shall continue to have effect insofar as he continues to minister in the Church’.

On this wording, Canon C15(1)(6) does not provide that the Declaration continues until a clergyman formally renounces his orders.  It provides only that the Declaration continues as long as the clergyman continues to officiate.  It makes no reference to renunciation of orders.

Canon C15(1)(6) means in effect that a retired bishop or vicar (or a vicar on a career break) who helps out by taking services, as retired clergy do, will not have to take the Declaration again after retirement, but will be expected to honour the Declaration made while still in ‘active’ ministry.  It simply does not apply to clergy who do not officiate at all.  And clergy who do not officiate in the Church will have no opportunity to act in breach of the Declaration, regardless of whether they have executed a deed of relinquishment.

What did the Ornaments Rubric Mean?

‘Provided always … that such ornaments of [1] a church, and [2] the ministers thereof,

shall be retained and be in use as was [in use] in this Church of England by the authority of Parliament in [1549] until other order shall be taken by the authority of the Queen’s Majesty or of the Metropolitan of this realm [i.e the Archbishop of Canterbury] …’ (Act of Uniformity 1558)

‘the Minister, at the time of the Communion, and at all other times in his ministration, shall use ornaments in the church, as were in use by the authority of Parliament in [1549] according to the Act of Parliament [of 1558, above]’ (1558 rubric)

‘such ornaments of the church, and of the ministers thereof, at all times of their ministration, shall be retained, and be in use, as were in the Church of England, by the authority of Parliament [in 1549]’ (1662 rubric).

This question is phrased in the past tense advisedly.  The Ornaments Rubric no longer means anything to the English law of public worship.  The statutory authority that the Prayer Book rubrics once enjoyed was abolished by the Worship and Doctrine Measure 1974, except in respect of banns of marriage.  This is discussed in a separate post, filed below.

However, the Ornaments Rubric was discussed at length by the Court of the Arches and by the Privy Council in two celebrated 19th century ritual cases

(1) Liddell v Westerton (1857) and

(2) Elphinstone v Purchas, later Hebbert v Purchas (1870-1)

Liddell concerned the ornaments of the church.  A faculty was sought for the removal of various items associated with ritualism, such as cross and lights on the altar and colourful altar coverings.

Purchas concerned the ornaments of the minister.  The Rev Mr Purchas was charged with ‘wearing … whilst officiating in the communion service … a vestment called a chasuble … [and] a certain vestment called an alb, instead of a surplice’ (p.167), i.e the catholic eucharistic vestments.  Mr Elphinstone, the original prosecutor, died before the case reached the Privy Council, so Mr Hebbert had to be substituted.  (Death was not allowed to frustrate the continued pursuit of Mr Purchas, such was the gravity of the case.)

The erudite Sir Robert Phillimore, Dean of the Arches and original author of the famous commentary on ecclesiastical law, had no difficulty with the Ornaments Rubric: ‘the construction of this Rubric according to general principles of legal interpretation … appear[s] to me as plain and simple as any which is to be found in any statutory enactment’ (Phillimore’s Ecclesiastical Judgments, p.162).  He saw the irony of the Rubric being used to oppose ritualism when its original purpose was to protect the ornaments of church and minister from iconoclastic radical protestants who wished to get rid of them.

Phillimore also understood that the Rubric is expressed in mandatory, not prohibitive, terms.  It provides that the identified ornaments must be used.  It does not provide that only those ornaments may be used and no other.

Unfortunately the Privy Council interpreted the Rubric differently.  It observed in Liddell that, upon the accession of Queen Elizabeth I in 1558, ‘a great controversy arose between the more violent and the more moderate reformers as to the Church service which should be re-established’ (Six Privy Council Judgments (1872) ed W.G Brooke, p.52).  This controversy dated back to the reign of the Queen’s half-brother, the boy King Edward VI.  During his short reign, two Prayer Books (or two different versions of the same Prayer Book) were published.  The first Prayer Book, in 1549, was conservative and ‘catholic’ in character.  As the political balance of power shifted in favour of the radical reformers, the second Prayer Book, published in 1552, was more avowedly protestant.

The Elizabethan settlement of 1558 was therefore a compromise between the two parties.  Elizabethan public worship would use the forms of service in the ‘protestant’ 1552 Book, but retain the ornaments mentioned in the ‘catholic’ 1549 Book.  Protestant services with catholic ornaments.  That was the deal.

The Privy Council reasoned that ‘the word ‘ornaments’ applies, and in this Rubric [i.e the Ornaments Rubric] is confined to, those articles the use of which … is [positively] prescribed by [the 1549 Book]’ (p.52).  Ornaments not prescribed by the 1549 Book could therefore not be permitted.

Thus the apparent conclusion was that the Elizabethan compromise still bound the Church of England, and the courts, 300 years later.  If extra ornaments were permitted, this would be a breach of the compromise.  The violent reformers would be short-changed.

The Privy Council was careful to state that the phrase ‘ornaments of the church’ did not refer to all physical items within Victorian churches.  The Ornaments Rubric did not mean that all articles not expressly referred to in the 1549 Book are illegal.  The ‘ornaments’ referred to in the Rubric comprised ‘All the several articles used in the performance of the services and rites of the Church’ (p.51).  Items used to decorate the church rather than to perform liturgical actions were outside the scope of the Rubric, and so might be permitted.  Therefore ‘crosses … when used as mere emblems of the Christian faith, and not as objects of superstitious reverence … may still lawfully be erected as architectural decorations …’, even though not referred to in the 1549 Book (p.65).

So much for the ornaments of the church.  In Purchas, the Privy Council proceeded to examine the ornaments of the minister.

Prima facie the ritualists were on stronger ground here.  The 1549 Book provided that, at the holy communion, ‘commonly called the masse’, the officiating priest ‘shall put upon him … a white alb … with a [eucharistic] vestment or cope’.  Any clergy assisting him were required to wear ‘albs with tunicles’.

The Act of 1558, as quoted above, suggests that the Ornaments Rubric was intended to be a temporary provision only.  It was to apply only ‘until other order shall be taken’.  Yet the 1662 rubric, which was authorized over 100 years later, is almost exactly the same wording as the 1558 rubric.  This may suggest that no such ‘other order’ was ever taken, and that the compromise of 1558 was revived in 1662 without alteration.

This was Phillimore’s view.  Certain ‘Advertisements’ concerning public worship were published in the 1560s, but Phillimore held that ‘the Queen never gave her official or legal sanction to these’ (p.169).  The canons of 1603 make no reference to eucharistic vestments, and provide that ‘Every minister saying the public prayers, or ministering the sacraments [including holy communion] or other rites of the Church, shall wear a decent and comely surplice’ (canon 58).  At holy communion in cathedrals, likewise, the officiating clergyman was required to wear ‘a decent cope’, but again no eucharistic vestments (canon 24).

However, as Phillimore pointed out, the canons of 1603 were promulgated under the Submission of the Clergy Act 1533, a quite different statute from the 1558 Act of Uniformity.  Moreover, they did not have the sanction of the Archbishop of Canterbury, as the 1558 Act required, because the See of Canterbury was vacant at the time they were promulgated.  The Bishop of London had presided instead of the Archbishop.

Thus, while the canons of 1603 might permit clergy to officiate at holy communion in a surplice, they could not forbid clergy from wearing eucharistic vestments.  The canons of 1603 could not replace or override the 1558 Act.

Once again, the Privy Council disagreed.  It held that the Advertisements of the 1560s did have royal authority, and so did constitute ‘other order’ under the 1558 Act.  Moreover, they were enforced by royal commissioners.  The practical effect of this was ‘that within a few years after the Advertisements were issued the [eucharistic] vestments … entirely disappeared’ (p.170).  There was no attempt to revive them before 1662.  The canons of 1603 ‘ordered surplice only to be used in parish churches’ (p.176).

Although the wording of the 1662 rubric may seem almost identical to the 1558 wording, the Privy Council detected a critical difference.  The 1558 rubric contains a specific reference to holy communion.  It distinguishes between the ornaments of the minister ‘at the time of the communion, and at all other times’.  The 1662 rubric, by contrast, makes no separate reference to holy communion.

This means, or so the Privy Council reasoned, that in 1558 clergy were expected to wear different ‘ornaments’ when officiating at holy communion and when officiating at other acts of worship.  In 1662, by contrast, clergy were expected to wear the same vestments (i.e surplice only, or surplice and cope) at all acts of worship, including holy communion.

The Privy Council therefore held, with ruthless logic, that ‘If the minister is ordered to wear a surplice at all times of his ministration, he cannot wear an alb and tunicle … if he is celebrating holy communion in a chasuble, he cannot celebrate in a surplice’ (pp.178-9).

Chancellor Bursell described this interpretation of the Ornaments Rubric as ‘rigorist’.  It was unjust to Mr Purchas.  It may well be true that Eucharistic vestments were officially discouraged and fell into disuse in Elizabethan times, and that there was no wish to revive them in 1662.  It may also be true that the 1662 rubric envisages that clergy will officiate at holy communion in surplices.

However, the 1662 rubric does not forbid clergy from wearing eucharistic vestments.  The Rev Mr Purchas had been charged with an ecclesiastical offence.  In deciding his case, the Privy Council was exercising a disciplinary, indeed a ‘criminal’, jurisdiction.  He should not have been convicted of using Eucharistic vestments without a clearly worded rule positively forbidding such use.  The wording of the 1662 rubric is not nearly clear enough.

The Privy Council’s treatment of the canons of 1603 was also anachronistic.  The canons did not positively forbid Eucharistic vestments, any more than the rubric.  On their wording they do not order surplice only.  They were not directed against 19th century ritualists, but to upholding minimum liturgical standards against a radical Protestantism that wished to do away with all ecclesiastical vestments.

While the original Elizabethan provision for ornaments may have effected a stable compromise, the Privy Council’s interpretation of the Ornaments Rubric merely resulted in anarchy.  Its judgments were ignored by the Church of England, and the study and reputation of ecclesiastical law never recovered.

The Unknown Bellringer: Bells and Organs

‘The control of access to church for bellringing purposes [is] analogous to the control of sporting associations’

TH v Chapter of Worcester Cathedral et al (2016) High Court (Administrative) 1117, at para 77.

In this case, the Chapter forbade a bellringer from ringing at the Cathedral after a ‘safeguarding’ investigation made findings of sexually inappropriate conduct against him.  The bellringer applied for judicial review of the decision on various grounds, including breach of his human rights.

The court granted the bellringer anonymity, but refused his application.  There was no jurisdiction to review the Chapter’s decision, because the Chapter was not exercising any ‘governmental or public administrative function’ in taking the decision (para 67).  It was merely exercising a proprietary, and private, right (para 71).  The Chapter controlled the bell-tower on behalf of the Cathedral, and was therefore entitled to decide who might or might not enter it.  Although its decision was motivated by concerns about safeguarding, the Chapter was not acting as a safeguarding authority or exercising a legal safeguarding power.

(The informative and erudite blog Law and Religion UK provides a detailed summary of this case, posted 20th May 2016.)

The bellringer brought his claim merely as a private citizen aggrieved by the action of a public authority.  He did not attempt to argue that a Cathedral bellringer is an officeholder of the Cathedral, or that the Chapter’s decision had wrongfully interfered with his tenure of an office.

The Administrative Court’s likening of bellringing to a sporting or recreational activity (as quoted above), rather than to a strictly ecclesiastical function, is supported by a dictum in Pearce and Hughes v Rector of Clapham (1830) 162 English Reports 1063.  As the Court of the Arches pointed out in that case, ecclesiastical law only requires a church to possess one bell, not a whole ring of bells.  ‘There must be a bell to ring to church, and to toll at funerals: but that is all’ (p.1065).  Canon F8 now provides for ‘at least one bell to ring the people to divine service’.

On Sundays, the ring of bells usually falls silent 5 or 10 minutes before the time of divine service, and the bellringers depart.  The single bell is then rung until the service begins.  It is this single bell that performs the constitutional function prescribed by ecclesiastical law, not the ring of bells that precedes it.

The canons of 1603 restricted the recreational use of bells.  Bells were ‘[not] to be rung superstitiously upon Holy Days or Eves abrogated by the Book of Common Prayer, nor at any other times, without good cause to be allowed by the Minister … and by [the churchwardens]’ (canon 88).  Persons who disturbed divine service by ‘untimely ringing of bells’ suffered ecclesiastical discipline (canon 111).

Canon F8 now provides that ‘No bell … shall be rung contrary to the direction of the Minister’.  The incumbent controls the belfry of the parish church, just as the Chapter does the Cathedral belfry.  Churchwardens are said to have the property in any parish bells and bellropes.

However, while ecclesiastical law makes certain provision for bells, the bellringer himself would seem to be ‘a person unknown to ecclesiastical law, either as an official of the Church, or as a servant of the parish’.  This dictum was originally applied to organists rather than bellringers, but it is no longer true of organists.

It may be instructive to compare the relationship of bells and organs, and those who operate them, to ecclesiastical law.  The Pearce case concerned a faculty for the installation of a new organ (which was granted).  The Court of the Arches held that

‘Most certainly an organ is not necessary in a parish church for the decent performance of worship [any more than a ring of bells]: therefore the parishioners are not bound to provide an organ: but, though it is not necessary, it is extremely decent, proper and even customary in a parish … of extent and opulence’ (p.1064).

On this view, an organ has the same ecclesiastical status as a ring of bells.  It is a desirable, but not essential ornament, of divine service.  The revised canons still do not provide that parish churches must have organs (or any musical instruments).  However, since 1988, ecclesiastical law has addressed the appointment and removal of parish organists.  Canon B20(1) provides that

‘the functions of appointing any organist, choirmaster … or director of music, and of terminating the appointment … shall be exercisable by the minister with the agreement of the parochial church council [PCC], except that, if the archdeacon … in the case of the termination of the appointment, considers that … the requirement as to the agreement of the PCC should be dispensed with, the archdeacon may direct accordingly’.

Thus the effect of canon B20(1) is that the incumbent and the archdeacon may force the dismissal of an organist against the will of the PCC.  Canon B20(1) does not address the question of who picks up the bill if a secular tribunal or court rules that a dismissal is unfair, and awards compensation to the sacked organist.  Even if the organist is hired on a self-employed basis only, without an employment contract, a dismissal may still breach his rights under the so-called ‘equality’ laws.

A cathedral, unlike a parish church, must have a ‘director of music’ by law (Cathedrals Measure 1999, s.9(1)(g)).  Further provision concerning this office is a matter for the constitution and statutes of the particular cathedral.

It seems that parish organists, unlike their cathedral counterparts, cannot be officeholders.  The case of Royce (1940) 1 Chancery 514 concerned a bequest ‘for the benefit of the [parish] choir’.  There was a dictum of Lord Hardwicke which apparently suggested that such a gift might be invalid, ‘as choristers never were allowed in parochial churches’ (p.518).

However, the court allowed the bequest, and offered this clarification:

‘what perhaps the Lord Chancellor [Hardwicke] had in mind … [was] that, as distinguished from a cathedral or collegiate church, of which the choristers might still remain part of the body [i.e they are part of the cathedral or college foundation], in parochial churches … choristers were not recognised as part of the church body or organisation … But to say that it was illegal to have a choir in the parish church … [is] a proposition for which there is no authority’ (pp.518-520).

There is no specific reference here to an organist or choirmaster, but the case suggests that the members of a parish choir, and by implication its organist or director, cannot be officeholders.  Therefore they must either be volunteers from the congregation, or paid servants or contractors.

The Dual Function of the Parochial Church Council: Representative and Trustee

‘My view is that the [parochial church council] does not represent the laity but is part of my staff’ (tactless incumbent in the case of St. Peter, Roydon (1969) 2 All England Reports 1233, quoted at p.1235)

Parochial Church Councils (‘PCCs’) are the successor of two earlier parochial institutions

(1) the Vestry and

(2) the Church Trustees,

rather as the Church Commissioners are the successor of two ‘parent’ institutions.  The comparison is admittedly inexact.  The Ecclesiastical Commissioners and Queen Anne’s Bounty were dissolved altogether by the Church Commissioners Measure 1947 (s.2).  Vestries and Church Trustees were not dissolved when PCCs were created, nor were all the functions of Vestries transferred to PCCs.  However, the PCC’s functions were inherited from the Vestry and the Church Trustees.

Like the Court of the Arches, the Vestry took its name from the place where it originally met.  It was a corporation at common law (Still and Bunn v Palfrey (1841) 163 English Reports 624 at p.626).  In Wilson v M’math (1819) 161 English Reports 1260 it was noted that ‘at the common law, every parishioner who paid to the church rates … and no other persons had a right to come to these [vestry] meetings’ (p.1261, quoting).  The ratepaying parishioners met with the incumbent or other parochial minister, the minister being ‘the first, and … integral, part of the parish’ (p.1263).  The Vestry taxed itself by voting the church rate.

In Lee and Parker v Chalcraft (1821) 161 English Reports 1439, it was further noted that ‘The assessment of the parishioners to a [church] rate … is the very object of their meeting in Vestry.  They assess their rate with their minister at their head to consider this question’ (p.1442).  The agreed church rate was then supposed to be confirmed by the Church court, though this legal formality was ‘unfortunately often omitted’.

Compulsory church rates were abolished in 1868.  This rendered the ecclesiastical Vestry somewhat superfluous.  Thenceforth the parishioners’ care of their church ceased to be a legal duty in any meaningful sense, and became instead a voluntary labour of love determined by religious piety rather than rateable value.

The Compulsory Church Rate Abolition Act 1868 therefore provided that ‘trustees may be appointed in any parish for the purpose of accepting … and of holding any contributions which may be given to them for ecclesiastical purposes in the parish’.  The Church Trustees were the incumbent and two parishioners.  One parishioner-trustee was chosen by the benefice patron, the other by the bishop.  The Church Trustees were also a corporation.

The PCC was first constituted on a legal, statutory basis by the Church of England Assembly (Powers) Act 1919 (schedule, para 2(1)(i), 12, 13, Appendix II).  The membership of the PCC is now determined by the Church Representation Rules scheduled to the Synodical Government Measure 1969.

The PCC’s functions, as distinct from its constitution and membership, were first provided in a separate Measure of 1921.  That Measure was consolidated with later pieces of legislation on PCC functions in the Parochial Church Councils (Powers) Measure 1956.  Thus the constitution and functions of PCCs are still regulated by different pieces of legislation.

The 1956 Measure expressly refers to the PCC as the ‘successor’ to the Vestry and the Church Trustees (s.4).  Between them, the Church Representation Rules and the 1956 Measure indicate that the PCC exercises two functions inherited from the two corporations from which it is descended:

(1) representative of the parish to the Church and

(2) trustee of the Church’s property in the parish.

Representative

The 1919 Act makes clear that the laity are ‘represented’ in the PCC. Like the Vestry the PCC must include the incumbent, also other clergy and lay ministers of the parish.  The PCC also includes lay representatives.  Lay representatives must be Anglican communicants.

The PCC is therefore a partly elective body (though only partly), and its membership is subject to a religious qualification (i.e Anglicans only).  The Vestry, by contrast, was not elected.  Its members represented themselves.  Membership of the Vestry was based on a property qualification, and so could include non-Anglicans.  (Some parishes used to have select vestries but, as their name implies, the membership of these bodies was selective, not elective.)  The Church Trustees, of course, were not elected by the parishioners at all, only by the bishop and the patron.

The right to elect PCC members is itself subject to a religious qualification.  Lay electors must be members of the Church of England (or prepared to declare themselves such) who either live in the parish or habitually worship in the parish church (Appendix 1, rule 1).  Their names are entered on the electoral roll of the parish.  Lay representatives must themselves be parish electors (rule 10).

parochial church meeting must be held annually, on or before 30th April, just after Easter.  All persons on the electoral roll may attend and participate in this meeting, but ‘no other lay person shall be so entitled’ (6.2).

This annual meeting, unlike the PCC, cannot claim any descent from the Vestry.  The PCC, like the Vestry, is a corporation (1956 Measure, s.3), but the annual meeting is not.  Like the electoral roll from which it is drawn, the annual meeting is a completely new creation of modern synodical government.  It provides the basis of lay representation in synodical government.  Its sole function is electoral.  Thus it elects representatives to the PCC and to the deanery synod.  It elects (or appoints) an independent examiner or auditor to scrutinise the parish finances.  (It also elects sidesmen to assist the churchwardens, though sidesmen have no involvement in synodical government.)

The annual meeting has certain rights to information, but the only apparent purpose of these rights is to inform its choice of representatives.  Thus Rule 9 provides for reports to be made on the proceedings of the PCC and the deanery synod during the past year and ‘the activities of the parish generally’, and on the fabric, goods and ornaments of the parish church (or churches).  The PCC accounts and financial statements must also be ‘furnished’ to the annual meeting (1956 Measure, s.8(1)).  As a general rule, electors are allowed to see the minutes of PCC meetings, but the PCC may deny them access to minutes that it deems confidential (Appendix 2, 12(f)).

Electors may ask questions and initiate discussion at the annual meeting.  Provision exists for special or extraordinary parochial meetings to be convened in addition to the annual meeting (rules 22(1) and 23(1)).  However, no parochial meeting can fetter or veto any decision of the PCC.  The PCC’s obligation is limited to ‘tak[ing] into consideration any expression of opinion’ by a parochial meeting (1956 Measure, s.2(3)).  If the electors are unhappy with their PCC’s decisions, all they can do is vote in new representatives at the next annual meeting.

The 1956 Measure formerly provided, at s.8(3), that the PCC accounts required the ‘approval’ of the annual meeting, but this toothless provision (if the meeting refused to approve the accounts, this still had no effect on the PCC) was repealed by the Miscellaneous Provisions Measure 2005.

If the PCC is the representative of the parishioners, the power of the Church authorities to intervene in parochial elections should be minimal.  PCC elections are not required to be confirmed by a Church authority.  Once elected, PCC members hold office automatically from the conclusion of the annual meeting (rule 16(1)).  However, there are appeals procedures for settling disputes over votes and elections, and over entries on the electoral roll (rules 44 and 43).

The bishop has a rarely used power under the Vacation of Benefices Measure 1977 (s.10(6)) to disqualify persons from serving on PCCs (rule 10).  Persons who have been disqualified under secular law from being charity trustees are likewise disqualified from the PCC.  Following the very recent Safeguarding and Clergy Discipline Measure 2016, the bishop will also be able to disqualify, or to suspend an already-elected PCC member, if the individual concerned is considered to present a ‘significant risk of harm’ to children or ‘vulnerable adults’.

The 1956 Measure provides that the incumbent and the PCC are required to ‘consult together on matters of general concern and importance to the parish’ (s.2).  This may do no more than make explicit what was implicit in the constitution of the Vestry.  However, the 1956 Measure also integrates the PCC into the modern synodical process.  Thus the PCC

(1) may give advice to the diocesan synod and the deanery synod on any matter referred to it, and also raise matters with those synods, and

(2) should also make known and put into effect any ‘provision’ made by those synods, but this is ‘without prejudice to the powers of the council on any particular matter’ (s.2).

The representative function of the PCC is exercised in many different contexts, e.g

(1) choice of liturgy, under the Worship and Doctrine Measure 1974, s.1(3)

(2) choice of Bible, under the Prayer Book (Versions of the Bible) Measure 1965, s.1(1)

(3) choice of ministerial vesture during divine service, under canon B8(6)

(4) choice of incumbent, under the Patronage (Benefices) Measure 1986

(5) pastoral reorganisation procedure, under the Mission and Pastoral Measure 2011 and

(6) the faculty procedure

The 1956 Measure also confirms the PCC’s ‘power to make representations to the bishop with regard to any matter affecting the welfare of the Church in the parish’ (s.7(5)), though such a power hardly requires statutory authority.

The PCC is not the only representative of the parish.  The lay representative to the deanery synod also represents the parish in synodical government.  Churchwardens continue to be elected by all resident parishioners, regardless of religion, as well as by those on the electoral roll (Churchwardens Measure 2001, s.5(1)), a wider electoral franchise.

Trustee

Being trustee for the Church in the parish is rather different from being representative of the parish.  As trustee, the PCC represents the Church authorities rather than the parishioners.

The objects of the PCC’s trust are stated in the 1956 Measure.  The inherited objects are stated at s.4(1)(ii)

‘(a) the financial affairs of the church including the collection and administration of all monies raised for church purposes …

(b) the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof

(c) the care and maintenance of any churchyard …’.

S.4(1)(ii) suggests that these objects were formerly the responsibility of the churchwardens rather than the vestry.  Hence the PCC is the successor of the churchwardens, as well as the Vestry and the Church Trustees.  However, the churchwardens exercised their responsibility as agents or executors of the parish.  The old legal duty to maintain the church and churchyard was imposed on all the parishioners.  The work involved was indeed organised by the churchwardens, but it was paid for by the parish, which meant the Vestry.  The churchwardens had no financial liability to pay for the work.  They were required to collect the church rate and then use the funds to pay for the church and churchyard, but it was the Vestry which voted and paid the rate in the first place.

As well as this inherited trust, the 1956 Measure created a new missionary trust for the PCC, stated at s.2(2)(a)

‘co-operation with the incumbent in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical’.

The original version of s.2 provided for the PCC to ‘co-operate with the minister in the initiation, conduct and development of Church work within the parish and outside’.

In St. Peter, Roydon, cited above, the consistory court held that this duty of cooperation meant that the PCC ‘must pay proper regard to the wishes or suggestions of the minister … but, having done that, they must be free to differ from him if, in their view, the honest discharge of the particular duty requires them to do so’ (p.1235).

The incumbent and the PCC jointly determine how the money raised in church collections is to be spent (s.7(4)).  If they cannot agree, the bishop decides (s.9(3)).

To perform its trust, in relation to the church and churchyard and to missionary work, the PCC has a broad power ‘to frame an annual budget of moneys required for the maintenance of the work of the Church in the parish and otherwise, and to take such steps as they think necessary for the raising, collecting and allocating of such moneys’ (s.7(i)).  It may also ‘levy and collect a voluntary church rate’ (s.7(ii)).

The PCC can acquire property, whether real or personal, ‘for any ecclesiastical purpose affecting the parish’ (s.5(1)).  This resembles the power conferred on the Church Trustees by the 1868 Act.  However, consistent with its modern missionary function, the PCC can also acquire property for educational schemes, ‘facilities for the spiritual moral and physical training of persons residing in or near the parish’.

The PCC’s trustee function is much more closely controlled by the Church than its representative function.  All dealings with the church and churchyard are, of course, subject to the faculty jurisdiction exercised by the ever-vigilant ecclesiastical courts.  Any acquisition of property requires the consent of the diocesan authority (s.6).  Although the PCC is a body corporate (s.3), it is not allowed to own real or investment property.  It may acquire such property, but the property must then vest in the diocesan authority (s.6).  The PCC is managing trustee of the property, but any dealings with it will require diocesan consent, though a recent change in the law suggests that minor dealings may not require such consent (Ecclesiastical Property Measure 2015, s.8).  The PCC’s exercise of powers concerning educational schemes also requires the consent of the diocesan authority (1956 Measure, s.5(5)).  The 1956 Measure suggests that the PCC can only own deposit accounts and short leases (i.e periodic tenancies).

PCC accounts must be ‘laid before’ the diocesan authority annually (s.8(4)).  The bishop or archdeacon, or any person authorised by them, have the right to see all PCC minutes, whether confidential or not (Appendix 2, 12(e)).  However, the PCC’s annual budget, unlike the church rate, does not require to be confirmed or approved by the diocesan authority.

Just as they retain a representative function independent of the PCC, so the churchwardens retain certain distinct responsibilities for the care of church and churchyard.  The 1956 Measure also preserves the churchwardens’ supposed property in the goods and ornaments of the Church (s.4(2)).  The administration of ecclesiastical charitable trusts was not transferred from the Vestry to the PCC (1956 Measure, s.4(1)(i)).  Such trusts are now regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.

The Code of Canon Law 1983 suggests that the trusteeship exercised by the PCC in the Church of England may be exercised by two separate committees in the Catholic Church.  Every Catholic parish must have a parochial finance committee (canon 537).  The local bishop may also establish a parochial pastoral council, under the chairmanship of the incumbent (the ‘pastor’), through which lay parishioners may ‘give their help in fostering pastoral action’ (canon 536).

The constitutions of both committees are determined by local law, so the bishop could provide that the same committee should serve both as finance committee and as pastoral council.  He could also permit parochial elections on the Anglican model.  However, the 1983 Code is clear that lay parishioners enjoy only a consultative (i.e non-binding) vote in the pastoral council.  Also parish committees can have no representative function in the Catholic Church.  The incumbent alone represents the parish (canon 532).

1989

Ralf Dahrendorf, Reflections on the Revolution in Europe (London, 1990)

This post, an appreciation of the work cited above, admittedly falls outside the stated scope of this blog, but it refers to the important and topical questions of the future relationship of the United Kingdom and Europe, and the relationship of the Christian religion with both.

Lord Dahrendorf KBE, FBA (1929-2009) was born in Germany, the son of a social democrat, and spent part of his youth in a Nazi concentration camp.  As his titles indicate, he later took British nationality, and had an illustrious career as a European Commissioner and Director of the LSE.

This book, whose title alludes to Edmund Burke’s famous work, discusses the future of Europe after the momentous events of 1989, the destruction of the Berlin wall and of the communist regimes that lay behind it.

Communism

Marxism was based on a providential concept of history.  It taught that history had chosen the proletariat to overthrow the capitalist mode of production and create a new society.  From the start, however, Marxists were not content to rely on this impersonal, and supposedly inevitable, historical process, but engaged in political activism to to advance their new society.

Marxist theory actually had little support from history.  It confused the French revolution and the industrial revolution, which did not happen in the same place or at the same time.  There was no historical evidence for supposing that the proletariat represented a new force of production.

However, Marxist theory was plausible when applied to 19th century Russia.  Russia was economically backward, and had no powerful, wealth-creating middle class as Europe and America had.  The Party therefore seemed to be the only vehicle of economic progress.  Hence Marxism makes more sense in a third-world country (which tsarist Russia was) than in an advanced society.  Communism does not survive economic advancement.

Marxism is radically different from social democracy.  While Marxists sought to overthrow the state, social democrats wished to strengthen it.

The USSR (Union of Soviet Socialist Republics, the old Soviet Union) went through 2 phases:

(1) Stalinism, a state of permanent revolution backed by terror, then

(2) Brezhnevism, an authoritarian state in which a bureaucratic elite exploited the people.  There was a relative absence of terror, and official corruption allowed a black market to operate.  The black market provided some relief from poverty.

It is wrong to be nostalgic for the ‘high culture’ that supposedly flourished under communism.  High culture was merely a substitute for other values (e.g travel, politics, religion) which communism denied to people.

However, post-communist society will inevitably be a culture shock.  The correct response to the culture shock is to hold onto the sound cultural values of the past, while not giving in to nostalgia: ‘let the huge wave of [unfamiliar and unattractive change] roll over you, and make sure that you come up again once it has passed’ (pp.107-8).

The events of 1989 effected a reunification of language, as they removed any ideological divide.  After 1989, politicians, bureaucrats and intellectuals from across Europe, both East and West, ‘all used the same words and concepts, and spoke of the same things’ (p.11).  However, unlike the French and American Revolutions in the 18th century, 1989 did not produce any new ideas.

Freedom

The intellectual void created by 1989 must not be filled by a naïve democratic idealism.  There is no such thing as ‘government by the people’ (p.9).  This is a dangerous illusion, as it merely gives opportunity to extremists.

Nor does the future lie in free market fundamentalism.  It is no coincidence that many theorists of the free market are former Marxists.  Free market fundamentalism cruelly divides human beings into winners and losers.  Like communism, it raises false hopes and expectations that it cannot fulfil.  It takes no account of the manifold inequalities between human beings.  It complacently allows the strong to exploit the weak.  This is not only wrong in itself, it also risks political instability which gives totalitarianism its opportunity.

Robespierre held that a constitution gives freedom to citizens, whereas a tyrant only gives them bread (p.76).  This view is untenable.  Man does not live by bread alone, but nor can he live only by freedom or ‘values’.  However, a constitution which promises a right to work which it cannot deliver will become discredited.  Indeed a constitution ought to guarantee a right not to work, as a protection against forced labour.

Economic prosperity is a double-edged sword.  It may create a ‘feel-good factor’ that encourages acceptance of the status quo, but it may also breed discontent and radicalism.  A democracy that rests only on economic prosperity, like the old West Germany, is precarious.  Postwar British democracy, by contrast, remained strong despite decades of economic decline.

Political change is quicker, and in a way easier, than economic change: ‘economic changes cannot be introduced in a matter of months … economic reforms will without fail lead through a valley of tears.  Things are bound to get worse before they get better’ (p.77).

The difficulty, therefore, is that liberalising reform will be rejected if it is seen to cause economic hardship.  The best solution to this problem is to mitigate the inevitable hardship caused by economic freedom with a welfare state.

The author argues that all systems, including the free market system, are tyrannies.  Any form of utopianism, however well-intentioned, must be rejected.  Post-communist governance must therefore be a-systematic.  It must create an open society which is capable of offering ‘infinite possible futures, some of which compete with each other’ (p.37).

The Open Society requires 3 things:

(1) a constitution

(2) normal politics

(3) social foundations

Constitution-building is ‘the hour of the lawyers’ (p.79).  To be properly effective, a constitution requires an independent judiciary to enforce it.  The difficulty is that the judiciary is inherently the weakest of the 3 ‘powers’ of government.  It depends on the support of the executive for the practical efficacy of its judgements (p.81).  However, even a paper constitution, without an independent judiciary, has some small value.  The most tyrannical regime cannot deny what is written in its constitution.  Dissidents, and the international community, can still appeal to it.

A constitution should procure as much democracy as possible, a wide distribution of power (consistent with the ability of the government to govern), in order to minimise the risk of subversion by extremists.

Normal politics are ‘the hour of the politicians’.  The task of normal politics is to resolve, as far as possible, the inevitable tension between politics and economics.  Political reform is never popular if it causes economic hardship.  Normal politics is concerned to negotiate this tension.  Postwar West Germany provides the model for this.

Social foundations are ‘the hour of the citizen’.  These are all-important, as they give long-term stability to the Open Society, in bad times as well as in good (p.93).  They comprise ‘a multiplicity of groups and organisations and associations’ which exist outside the state, and hence protect society against the excesses of state power (p.95).  Social foundations include political parties, churches, universities, charities and small businesses.

The difficulty is that social foundations cannot suddenly be invented.  They tend to evolve spontaneously over time.  If they are artificially created and organised by the state, that will defeat their political purpose which is to be independent of the state.  Nevertheless, efforts must be made, somehow, to create social organisations outside the state.

On this view, the Christian religion or Church is both (1) a contributory to, and (2) a beneficiary of, the Open Society.  It contributes by providing one of the social foundations that gives the Open Society stability and legitimacy.  It also benefits from the religious freedom that the Open Society guarantees.

Europe

The author professes his hope for ‘a constitution of a united Europe one day’ (p.127), and for European monetary union (p.132).  Yet the Open Society is not easy to reconcile with a European superstate.  Both the democratic institutions and the social foundations on which the Open Society is based are likely to be of local or national origin and character.

The author’s point is that the Open Society must precede the European superstate.  Post-communist states must settle their constitutions, politics and social foundations first.  Only when these are sufficiently stable and mature can they be integrated into the European superstate.  Nevertheless the difficulty remains that a European superstate which lacks a democratic mandate and a basis in local communities risks causing alienation of the kind that facilitated the rise of 20th century totalitarian regimes in the first place.

This faith in internationalism and supranational institutions is rooted in a fear of totalitarianism.  Before communism there was fascism.  The experience of fascism suggests that nation-states cannot be trusted with the human rights of minorities within their borders.  The author quotes a survivor of the holocaust: ‘how fragile these human rights become when they no longer correspond with citizenship rights’ (p.125).  This attitude, though wholly understandable in a European context, is radically different from the Whig-inspired English trust in parliamentary sovereignty as the surest guarantee of liberty.

The author wrote a quarter of a century ago, a long time now.  What has happened to Europe since then?  Utopian democratic idealism seems to have been avoided successfully.  Economic liberalism, the market economy, has been universally accepted.  A former European Commissioner (also a former Marxist) is credited with the observation that ‘We are all Thatcherites now’.  The free market’s disregard of inequalities between human beings has been addressed not only by a social-democratic welfare state, but also by an ideology of so-called ‘equality’ reminiscent of that preached by communism.  The free market and the ideology of equality are both regulated, and the tension between them arbitrated, by supranational European institutions.

Christianity has been excluded from this post-1989 compromise.  The downfall of communism did not lead to a revival of Christianity, despite the efforts of the then Pope, St John Paul II (himself a native of a communist country).  His Exhortation Ecclesia in Europa (2003) presents a gloomy account of European apostasy, and there is little sign that matters have improved in the 12 or 13 years since he wrote it.  Post-communist Europe is also post-Christian Europe.

Thus the Pope’s appeal to include a reference to ‘the Christian heritage of Europe’ in the European Constitution was rejected (cf para 114).  (The British Constitution, by contrast, does make reference to its Christian heritage.) There has indeed been a reunification of language between the secular elites of Europe, but they all now speak a different language from that of traditional Christianity.  The Pope acknowledged (para 11) that the position of East European Churches and Christians has become much easier since 1989.  The position of West European Christians has become more difficult.

Communism preached the equality of all human beings, but it defined human beings by their relationship to the Party.  This produced tyranny, a flagrant denial of the most basic human rights.  Post-1989 equality does not refer to the Party, of course, and it is undeniably preferable to the evil communist version that preceded it.  However, post-1989 equality also rejects the unique truth of Christianity, holding that all religions are equally valid (and hence equally invalid).  In particular, it refuses to recognise ‘the notable gap between European culture, with its profound Christian roots, and Muslim thought’ (cf para 57).

It also rejects the Christian understanding of gender and marriage.  (The environmental (green) movement takes ‘equality’ a step further, by suggesting an equality between human beings and other created things (animals, plant-life, minerals).  It implies that there is nothing special about human beings.)  Pope John Paul’s successor warned that post-1989 equality has placed Europe ‘on the verge of a dissolution of our concept of man’ (Joseph Ratzinger, ‘Europe’s Identity’, Values in a Time of Upheaval 2005-6, p.148).

The relationship between religious faith and political constitutions is discussed in the post ‘Constitutions without Faith: the Good, the Bad and the Weak’, which is filed below.

The Proposed Enabling Measure: A Complex Process of Simplification

‘A New Enabling Measure’ (General Synod Paper 2018, January 2016)

This paper indicates four major proposals for the reform of ecclesiastical legislation.  Three proposals concern existing legislation, as follows:

(1) the consolidation of various pieces of legislation on the same subject into one comprehensive, or ‘consolidated’, Measure. Four consolidation Measures are proposed affecting (1) the Church Representation Rules (2) pensions (3) ecclesiastical jurisdiction and (4) Church property (para 49).

(2) the repeal of obsolete or redundant legislation, by way of a Repeals Measure.  The redundant legislation has been identified as such by the Legal Office (para 50).

(3) the simplification of legislation that is considered ‘over-prescriptive’, by means of special orders approved by the General Synod.  This programme of legislative simplification will be effected by the Enabling Measure referred to in the paper’s title (para 51).

The final proposal concerns future legislation:

(4)  the most important ecclesiastical legislation will continue to be in the form of Measures made under the Church of England (Assembly) Powers Act 1919.  However, Measures are likely to be much shorter in future, and concerned only with ‘important matters of principle and policy’ (para 52).  Matters of detail arising from new Measures will be dealt with by secondary legislation, made under the authority of Measures.  This secondary legislation can then be made or amended by the Church without engaging the 1919 procedure.

This is all quite reasonable.  However, the proposed Enabling Measure (3), as presently described, is very confused.

The cause of the confusion is that the proposed Measure does not specifically identify the legislation that is proposed for simplification.  No explanation is given for this non-specific approach, nor is it easy to think of one.  The Enabling Measure, like the Consolidation and Repeals Measures, is concerned with legislation that has already been made, not with legislation that may be made in the future.  Future legislation will be dealt with by proposal (4).  (Para 54 confirms this.)

It should therefore be possible to identify and schedule the specific legislation to the Enabling Measure.  If it is possible to identify redundant legislation (2), why is it not possible to identify over-prescriptive legislation?

Identifying over-prescriptive legislation would not prejudice the General Synod’s position.  If the Measure identifies a particular piece of legislation as eligible for simplification the General Synod would still decide the precise terms of the simplification order after the Measure has been approved.  It could also decide that a piece of legislation may not be appropriate for simplification after all, and refuse to make an order in respect of it.

Instead of identifying the legislation to which it will apply, the Enabling Measure merely identifies legislation to which it will not apply.  Seven well known ecclesiastical statutes (only seven) are expressly excluded, including the 1919 Act and the Worship and Doctrine Measure 1974 (para 26).  The Enabling Measure itself will also be immune from simplification (though sorely in need of it!).  A simplification order may not alter the purposes for which the income of the Church Commissioners’ general fund is applicable (para 29).

There are other, vaguer limitations, described as ‘pre-conditions’.  A simplification order should inter alia be ‘proportionate’.  It should strike a fair balance between ‘the public interest, the interests of the Church of England as a whole and the interests of any person adversely affected’.  It should not remove any ‘necessary protection’, or prevent the exercise of any right or freedom ‘which [its possessor] mght reasonably expect to continue to exercise’.  It should not be of ‘constitutional significance’ (para 22), or alter the relationship between Church and state (para 23).

The Enabling Measure prescribes an onerous procedure for making orders in respect of the legislation that it fails to specify.  Given that the whole purpose of the Measure is simplification, the complex order-making procedure reads amusingly like something out of Yes Minister.  It fully vindicates the Ecclesiastical Law Society’s warning that ‘The problem of ‘too much’ law is to be addressed by creating more’ (Response, July 2015).

Thus the important business of ‘the removal or reduction of burdens’ (para 17), defined as ‘financial cost … administrative inconvenience … an obstacle to efficiency’ is to be supervised by … a brand new committee!  The Legislative Reform Scrutiny Committee will be a committee of the General Synod, though it will include members of the Archbishops’ Council (para 34).  Also ‘more detailed provision as to the committee’s membership would be contained in the standing orders of the General Synod’.

The Archbishops’ Council will prepare draft simplification orders and submit them to the Legislative Reform Scrutiny Committee.  Before it does this, however, the Council must invite representations on a proposed order from members of the General Synod and ‘other persons and bodies who might reasonably be considered to have an interest’ (para 32).

When the draft order is at last submitted to the Legislative Reform Scrutiny Committee, that committee will prepare a report on it to the General Synod (para 36).  Standing orders will ‘specify any matters which the committee [is] required to consider and report on’, but presumably the report is needed for assurance that the draft order satisfies the various constitutional criteria stated in the Measure and referred to above.

The new committee will therefore resemble the Ecclesiastical Committee of Parliament.  Its functions of scrutinising and reporting on simplification orders are analagous to those of the Ecclesiastical Committee concerning Measures.  Like the Ecclesiastical Committee, the Legislative Reform Scrutiny Committee will be chaired by a senior judge (though an ecclesiastical one rather than a secular one) (para 34).  However, unlike the Ecclesiastical Committee, the new committee will be able to amend the legislation that it considers (para 37).

The 1919 Act requires the Ecclesiastical Committee to consider a Measure and make a report to Parliament on ‘the nature and legal effect of the Measure and its [the Committee’s] views as to the expediency thereof, especially with relation to the constitutional rights of all … subjects’ (s.3(3)).  Yet it will hardly be able to do this effectively in relation to the Enabling Measure, because the Measure declines to identify the legislation to which it will apply.  The Legislative Reform Scrutiny Committee will therefore exercise the Ecclesiastical Committee’s function instead.  Thus the constitutional function of the Ecclesiastical Committee is frustrated, and two committees are required to do the work of one.  Sir Humphrey would be proud!

If, however, the Enabling Measure did specify the legislation to which it applies there would be no need of a new scrutiny committee, because the Ecclesiastical Committee would be able to scrutinise effectively.  As well as being inconsistent with the Ecclesiastical Committee’s function, the proposed order-making procedure is arguably inconsistent with the legislative function of the General Synod ‘to consider matters concerning the Church of England’ (Article 6(a), Synodical Government Measure 1969, sch2), and with the function of the Archbishops’ Council ‘to co-ordinate, promote, aid and further the work and mission of the Church of England’ (National Institutions Measure 1998, s.1(1)).  Striking balances between the public interest and the Church’s interest, policing Church-state relations and determining ‘constitutional significance’ (paras 22-23) are not pertinent to either of these ecclesiastical institutions.

The Church of England should be free to simplify its own administration, provided that simplification will not materially affect the rights, interests and functions of third parties, i.e private individuals, the general public and secular bodies, both private and public.  Any simplification that affects only the rights, interests and functions of ecclesiastical officials and institutions (clergy, parochial church councils, diocesan committees and officers) should be a matter for the Church itself to decide.

We therefore respectfully submit to Sir Humphrey that the simplification of ecclesiastical legislation may well be a sensible reform in principle, but that the proposed Measure requires amendment as follows:

(1) ecclesiastical legislation considered eligible for simplification should be specifically identified and scheduled to the Measure and

(2) the Measure should provide that simplification orders may not materially affect the rights, interests and functions of third parties.

The Ecclesiastical Committee will then be able to scrutinise the Measure effectively, and the General Synod will be able to make the simplification orders without the need for any new committee or special consultation procedures and reports.  If a particular simplification order were to impinge upon third parties in breach of the Measure then that order could be ‘quashed’ by the High Court in judicial review proceedings.

The proposed Measure suffers from two further difficulties:

(1) its title.  The word ‘enabling’ evokes the 1919 Act, which is widely known as the ‘Enabling Act’.  It implies constitutional reform and ecclesiastical autonomy.  Yet the Measure serves only the modest aim of simplifying ecclesiastical administration.  As mentioned, it is not supposed to affect the relationship of Church and state.

(2) a continuing fixation with the Legislative and Regulatory Reform Act 2006.  The Ecclesiastical Law Society’s sartorial criticism of the proposed Measure as an ”off the peg’ solution … borrow[ed] from [the 2006 Act]’ (Response, para 3.2, July 2015) has been answered with an assurance that the Measure will be ‘specifically tailored to the particular context of the Church’ (para 16).  However, it is argued that the 2006 Act cannot be applied to the Church of England, even in a ‘tailored’ form, for reasons discussed in the post ‘Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice’, which is filed below.

In Persona Christi: Eucharistic Sacrifices

The author of this blog recently attended, for the first time, a service of Mass in the Extraordinary Form, also known as the Tridentine Mass or the Mass of Ages – i.e the traditional Latin Mass.  It was organised by the Latin Mass Society, with the permission of the genial local priest.  ‘Come along out of nostalgia!’, he winkingly encouraged his parishioners when announcing the event.  Almost none did.  There were only about six in the congregation.  The parish priest himself gave the Mass a miss.

As an aesthetic experience, the Mass was disappointing.  It was quickly over.  The sublime Latin of the Roman Canon was inaudible, as the celebrant dropped his voice to a near-whisper, ‘the blessed mutter of the Mass’.  It was only possible to follow the action by the elevation of the Host and the Chalice and the ringing of the bell.

And yet, from the 6th century (or even earlier) until as recently as the 1960s, this was the Mass of the Latin Church.  Untold millions of Catholics down the centuries knew no other.  Compared to it, the new Mass, which was only introduced in 1970, is a mere blink of the eye.  It inspired the Elizabethan martyrs of England and Wales to suffer hideous torture and death (and their fellow countrymen to inflict this on them).

Today the Eucharist is generally regarded as an ecumenical success story.  The Church of England has always agreed with the Catholic Church that the Eucharist is a sacrament ‘ordained of Christ our Lord in the Gospel’ (Article 25), by means of which ‘the Body and Blood of Christ … are verily and indeed taken and received by the faithful’ (Catechism).  The Holy See acknowledged that, of all ecumenical issues, ‘it is in respect of Eucharistic doctrine that the [Anglican-Roman Catholic] Commission were able to achieve the most notable progress towards a consensus’ (Response to Final Report, 1991).

The principal ecumenical difficulty concerns the Eucharist as sacrifice rather than sacrament.  English ecclesiastical law at first seemed to reject any belief in a Eucharistic sacrifice.  Article 31 holds that ‘the sacrifices of Masses … were blasphemous fables, and dangerous deceits’.  All mediaeval references to the priest as sacrificer were removed from the reformed ordination rite.  (This was one reason why Anglican orders were held invalid by Pope Leo XIII in Apostolicae Curae (1896).)

Liturgical practices that suggested sacrifice were also suppressed.  Altars were replaced by ‘convenient and decent tables’ (canon 82 of 1603) placed in the chancel or in the centre of the church.  The east end, where Mass was formerly celebrated, was used to display the Ten Commandments instead.  Unleavened bread was replaced by ‘bread such as is usual to be eaten’.  And, of course, the Eucharist was celebrated in English, not Latin.

The case of Faulkner v Litchfield and Stearn(1845) 163 English Reports 1007 may be the first legally reported ritual case.  The Court of the Arches refused a faculty for a stone altar, described as a ‘table’, on the grounds that it was not a communion table within the meaning of the Prayer Book rubric and the 1603 canon.  In later cases the Privy Council held that Eucharistic vestments, unleavened bread and the eastward position were all unlawful (Hebbert v Purchas(1871) Law Reports 3 Privy Council 605), as were candles on the communion table ‘when [they] were not wanted for the purpose of giving light’ (Martin v Mackonochie (1868) Law Reports 2 Privy Council 365).  The Court of the Arches also held in Mackonochie that the elevation of paten and chalice was unlawful ((1868) 2 Admiralty and Ecclesiastical 116).

However, the Book of Common Prayer retained one phrase from the Latin Mass which describes the Eucharist as a ‘sacrifice of praise and thanksgiving’.  Citing this rather slender authority, the Bishop of Chichester, Eric Kemp, held in St Stephen’s Walbrook (1987) 2 All England Reports 578 that ‘a doctrine of the Eurcharistic sacrifice which is not that of a repetition of the sacrifice of Calvary can lawfully be held in the Church of England …’ (p.583).

The old regime of public worship was finally abolished by the Worship and Doctrine Measure 1974.  Liturgical practices that were formerly unlawful are now permitted, and many have indeed become almost universal.  Canon F2 of the revised canons continues to refer to the ‘holy table’ rather than the ‘altar’, but allows that a communion table may be made of stone, and hence indistinguishable from an altar.  In St Stephen’s Walbrook, the Court of Ecclesiastical Causes Reserved permitted the introduction of a stone altar by Henry Moore.  Bishop Kemp, who was one of the judges, held that ‘an altar falls within the wide bounds of what can reasonably be called a holy table’ (p.581)

Just as the Church of England began to rediscover the Eucharistic sacrifice, so the Catholic Church seemed to move towards the Anglican conception of the Eucharist as a communal celebration, a sacrament of unity and charity rather than a sacrifice.  The new Mass is almost always celebrated in the vernacular, it provides for active participation by the laity and it disdains the eastward position.  In this country, at least, High Mass now usually begins and ends with the singing of rousing Protestant hymns.

The Oxford Dictionary of the Christian Church (3rd ed 1998) noted that the Anglican-Roman Catholic ‘Agreed Statement’ on the Eucharist in 1971 (just after the introduction of the new Mass) ‘relegat[ed] the term transubstantiation to a footnote’.  Canon law also softened the emphasis on sacrifice.  A commentator relates that the original Code of Canon Law 1917 treated the sacrifice and the sacrament of the Eucharist in separate chapters.  The modern Code, promulgated in 1983, presents a more ‘integral’ treatment of the Eucharistic action (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.643).  The author of this blog recalls a bright young Anglican theologian asserting, in 1985 or 1986, that the Catholic Church no longer believed in transubstantiation.

However, the 1983 Code is clear that ‘the Eucharistic Sacrifice [is] the memorial of the death and Resurrection of the Lord, in which the Sacrifice of the Cross is for ever perpetuated’ (canon 897).  The Code also provides explicitly that the priest (described as sacerdos in the definitive Latin text), acting in persona Christi, ‘bring[s] into being (conficere valet) the Sacrament of the Eucharist’ (900).

These provisions explain the Catholic Eucharistic Sacrifice.  As Bishop Kemp recognised in the Walbrook case, the Catholic sacrifice is not a repetition of Christ’s sacrifice (as the reformers may have erroneously concluded).  On the contrary, the sacrifice offered by the priest is one and the same as the sacrifice of Christ.  Hence the priest is acting, as the canon says, in persona Christi.

Today the structure and ceremonial of the Eucharist qua sacrament may be almost identical in the Catholic and Anglican Churches.  However, the Eucharistic sacrifices offered by the two Churches remain radically different.

Article 31 is entitled ‘the one oblation of Christ finished upon the Cross’. It asserts that ‘The offering of Christ once made, is that perfect redemption, propitiation and satisfaction for all the sins of the whole world … and there is none other satisfaction for sin, but that alone’. Hence its rejection of ‘the sacrifices of Masses’.  The Prayer Book liturgy follows Article 31 by asserting Christ’s ‘one oblation of himself once offered … a full, perfect and sufficient sacrifice’.

Therefore, while the Catholic sacrifice is one and indivisible,  the Anglican Eucharist is concerned with 2 separate sacrifices:

(1) the once-for-all sacrifice of Christ offered in Palestine 2000 years ago and

(2) the sacrifice of praise and thanksgiving offered by the Church in response to Christ’s sacrifice.

Modern Anglican liturgies may perhaps move (1) and (2) closer together than they are in the Prayer Book, but the distinction between them never disappears.

There is a metaphysical link or bridge between (1) and (2).  This enables those who receive the bread and wine in (2) thereby to receive the Body and Blood of Christ given in (1).  However, this is subject to the recipient’s piety of disposition.  Article 28 affirms that ‘The Body of Christ is given, taken and eaten … only after an heavenly and spiritual manner.  And the mean whereby the Body of Christ is received and eaten … is faith’.  Article 29 makes clear that ‘The wicked, and such as be void of a lively faith, although they do carnally and visibly press [the bread and wine] with their teeth … yet in nowise are they partakers of Christ’.

On this doctrine, the priest cannot act in persona Christi, because Christ’s sacrifice is once for all, finished.  Christ is the only true sacerdos.  So far from acting in persona Christi, the priest acts in persona ecclesiae.  He, or she, offers the Church’s sacrifice to Christ, but not vice versa.

The Anglican Eucharist, freed at last from all the restrictions imposed by the Privy Council, is often richly clothed in elaborate and colourful ritual that was originally inspired by the Catholic Eucharistic sacrifice.  This may serve to obscure the difference between the two.  The folksy informality of some modern Catholic worship may have the same effect, of course.  But the effect is superficial, not a truly ecumenical convergence.

Even though it was reduced to a footnote, the discussion of transubstantiation in the 1971 Agreed Statement is helpful: ‘The term [transubstantiation] should be seen as affirming the fact of Christ’s presence and of the mysterious and radical change which takes place … not … as explaining how the change takes place’.

The doctrine of transubstantiation is often associated with St. Thomas Aquinas and with mediaeval scholastic philosophy.  However, Aquinas and his colleagues were merely offering a rational explanation, or model, of how bread and wine become the Body and Blood of Christ.  They were not defining any religious belief.  As this footnote makes clear, the Catholic Church believes, and has always believed, that transubstantiation does occur, but it does not require acceptance of the Thomist explanation (or any other explanation) of how it occurs.

Part Time Churches: Closed for Regular Public Worship, but Open for Occasional Public Worship

A recent Church of England report contains some interesting suggestions on the future management of church buildings (Church Buildings Review Group, September 2015).

The canons of 1603 emphasised the sacred character of churches as places of worship.  Canon 88 lays down a general rule that ‘no plays, feasts, banquets, suppers, church-ales, drinkings [etc] or any other profane usage to be kept in the church, chapel or churchyard’.  However, this rule was apparently not absolute.  ‘Profane’ activities could be allowed for ‘good cause’, and with the permission of the incumbent and churchwardens.

Canon F16 of the revised canons cautiously permits plays, concerts, and exhibitions in churches, but only if they ‘are such as befit the House of God, are consonant with sound doctrine, and make for the edifying of the people’.  Permission is subject to any general directions issued by the bishop or other ordinary.  If the minister is in any doubt he must refer the matter to the ordinary ‘and obey his directions therein’.

The Sharing of Church Buildings Act 1969 permits the Church of England to share its places of worship with other Christian denominations, by means of an agreement under seal (s.1(8)).  A sharing agreement may provide for different denominations to hold their own services in the same building.  It may also dispense with the requirement to hold Church of England services on Sunday ‘to such extent as may be necessary’ to enable non-Anglican worship to take place (s.4(1)).

Shared churches must remain in the sole ownership of the Church of England if they are consecrated (which they generally will be) (s.5(1)).  The parochial church council (‘the PCC’) will also remain responsible for the care of a shared parish church, though the sharing agreement may provide for the other denominations to assist or make financial contributions (s.3(4)).

The ecclesiastical courts were initially conservative on the use of places of worship.  In the case of St. John’s, Chelsea (1962) 2 All England Reports 850, the Deputy Chancellor took the extreme (and absurd) position that churches are so sacred that any secular use of consecrated land is forbidden, even if no church is actually built on the land, or likely to be built in the future.

However, as churches grew short of worshippers and of money, the ecclesiastical courts pragmatically permitted income-producing secular use (delicately described as ‘shared use’ or ‘communal use’) that went considerably further than the scope of canon F16 and the Sharing of Church Buildings Act, a complete U-turn from St. John’s, Chelsea.  (See the blogpost ‘Shared Use’, which is filed below.)

Ecclesiastical law facilitated this new liberalism by the Pastoral (Amendment) Measure 2006 (now consolidated as s.68 of the Mission and Pastoral Measure 2011), which enabled the ecclesiastical court to sanction a lease of part of a church, subject to the restriction that the church premises ‘are, taken as a whole, used primarily as a place of worship’ (s.68(3)).

The obvious practical need for extending the secular use of a church is that the church might have to close altogether if the use is not permitted.

Common law made no provision for the closure of a parish church.  It may have regarded churches rather like highways: ‘once a church, always a church’.  However, it was held in Church Estate Charity, Wandsworth (1871) Law Reports 6 Chancery Appeals 296 that ‘at common law, parishioners are not bound to rebuild a church which has fallen down’ (p.299). In St George’s, Birmingham (1960) 1 Weekly Law Reports 1069, the chancellor held that the ecclesiastical court had an ‘ancient jurisdiction’ to permit the demolition of a church, without requiring statutory authority (p.1170). The church in that case was in ‘a very dangerous condition’ and it was ‘quite unrealistic to expect [it] to be preserved or reconstructed’ (p.1171).  So perhaps common law accepted that churches might cease to be used as such on account of destruction or extreme dilapidation.

The Church Building Act 1845 provided that a church might be demolished under the authority of a faculty, but only where a new church was built to replace it (s.1).  The faculty jurisdiction to replace a old church with a new one is now regulated by ss.17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (recently amended by the Miscellaneous Provisions Measure 2014, s.13).  A church may be demolished by faculty only if the court is satisfied that another church will be erected on the site or curtilage.  A faculty may permit the demolition of part of a church.  S.18 also confers an emergency power on the chancellor to authorise the demolition of the whole or part of a church without a normal faculty.

Replacement of one building with another on the same site is not the same as closing down a church altogether.  The statutory procedure for making a ‘superfluous’ church redundant seems to have been first introduced by the Union of Benefices Measure 1923 (ss.19-27).  This was followed later in the 20th century by the Pastoral Measures 1968-1983.

Then the Dioceses, Pastoral and Mission Measure 2007 provided that the nasty words ‘redundant’ and ‘redundancy’ should no longer be applied to any dealings with churches. Redundant churches would henceforth be merely ‘closed for regular public worship’.  In a commentary on the 2007 Measure, Ms Ingrid Slaughter carefully explained that the r-word was considered ‘unhelpful’, not to mention ‘unduly negative and not a wholly accurate description of the outcome of the process’ (Ecclesiastical Law Journal, January 2009, pp.6 and 20).

The redundancy / closure procedure is now consolidated in the Mission and Pastoral Measure 2011.  There are 2 stages to the procedure

(1) closure, terminating the building’s constitution as a parish church and

(2) disposal, i.e deciding what is to be done with the church after it has been closed as such.

(1) and (2) both require the authority of a statutory scheme, not a mere faculty.  They may require separate schemes.  Closure of a church is effected by a pastoral church buildings scheme (so called to distinguish it from other pastoral schemes which do not involve closure).  A church buildings scheme may then be followed by a pastoral (church buildings disposal) scheme.

S.42 of the 2011 Measure provides that a declaration of closure may be made in respect of a church or chapel, or part of one, if it is not required, or will cease to be required as a result of the scheme.  (Thus the definition of redundancy remains, even if the terminology does not.)  Closure may be ordered even if the parish is left without a church as a result.

It is possible for both closure and subsequent disposal to be dealt with by a church buildings scheme only, without a separate disposal scheme.  A single scheme will be acceptable if

(1) a new church or licensed place of worship will be provided in the area of the benefice and there are satisfactory proposals for the future of the old building or

(2) the old building will be preserved or put to a suitable use. 

There is also a special expedited procedure in respect of certain long-disused churches (if there are any left).  If the bishop certifies that a church, or part of a church, has not been used for public worship since 1st April 1964, the Church Commissioners may dispose of the building without a scheme, but only if the incumbent, patron and PCC all agree (s.66).

S.66(2) provides that, where a church has already been demolished otherwise than under statutory authority, a disposal scheme may be made in respect of the site.  S.66(2) will apply in situations similar to that in St. John’s, Chelsea (1962), where the church had been destroyed by wartime bombing.

When a church has been closed but not yet disposed of, the legal ownership of the building and the responsibility for its care and maintenance both pass to the diocesan board of finance (s.61).  The parochial liability ceases.  The building also ceases to be subject to the faculty jurisdiction, unless the scheme provides otherwise (s.74(1)).

S.63 prescribes 4 options on a disposal:

(1) the appropriation of the church building to a ‘suitable’ permanent use, as specified in the scheme.

(2) the preservation of the building, if it is sufficiently important.  If preservation is ordered, the church is transferred to the Churches Conservation Trust (s.71(7))

(3) the building may remain vested in the diocesan board of finance for specified uses, and may be let or licensed by the board to a third party

(4) only if none of the above options is feasible is demolition permitted.  Demolition is the last resort.

S.79 of the 2011 Measure usefully provides that a closed church, whether vested in the board or the Trust, may be transferred by agreement to the government or to English Heritage, a secular body.  This will, of course, relieve the Church of the cost of maintaining the building.  A s.79 agreement effectively overrides the disposal process.  Any disposal provision ceases to apply when its subject is acquired by the secular body.  The secular body is not bound by it.

As Ms Slaughter implied, an ex-parish church can still be used for some sort of worship

The Churches Conservation Trust may permit the use of a preserved church for worship as authorised by the bishop (s.57(9)).  This may include non-Anglican Christian worship.  Likewise the diocesan board of finance may permit such worship ‘occasionally’ in its church buildings (s.61(2)).  Such worship is always a permissible use to which a closed church may be appropriated (s.63(13)).  Also, a closed church may be reopened and restored to use as a place of worship by a subsequent church buildings scheme (s.70).  This is possible even if the church has been transferred under s.79, but only if the secular body consents.

The recent report seems to propose, or at least hint at, a kind of spectrum of use of church buildings. A church at one end of the spectrum will remain in full and exclusive use as a place of worship. A church at the other end will be completely given over to secular use.  Churches in between will be subject to shared use, which may be predominantly religious or predominantly secular. A church might become a ‘festival church’, its religious use being limited to occasional worship on important festivals (para 147).

To this end, the report recommends (para 133) an amendment of the Parochial Church Councils (Powers) Measure 1956, so that the care of open churches should be legally transferable from the PCC to another body, whether secular or ecclesiastical, that is willing to assume the responsibility, while retaining the incumbent’s freehold.  A local community trust or parish council, or some national body might be an appropriate body to look after the parish church.  Or the Churches Conservation Trust might do so, even though the church has not been closed and is still a parish church.

Our account suggests that this model of church use is not particularly radical, but merely continues the trend of modern ecclesiastical law.

Preaching as a Profession: Against Ignorance and Sedition

The canons of 1603 provided that the Christian religion should be taught from:

(1) the Catechism contained in the Book of Common Prayer

(2) the authorised books of homilies and

(3) sermons preached by authorised preachers.

Clergy were required to ‘examine and instruct the youth and ignorant persons of [the] parish, in the Ten Commandments, the Articles of the Belief [i.e the Creed], and in the Lord’s Prayer: and shall diligently hear, instruct and teach them the Catechism set forth in the Book of Common Prayer’ (canon 59).  This duty was shared with licensed schoolmasters (canon 79).  Familiarity with the Catechism was an essential precondition of confirmation: ‘none shall be presented to the Bishop for [confirmation] but such as can render an account of their faith, according to the Catechism …’ (canon 61).

There are two authorised books of homilies, dating from 1547 and 1571 respectively.  The canons of 1603 anticipated that further homilies would be authorised in the future.  Thus canon 49 refers to ‘the Homilies already set forth, or hereafter to be published by lawful authority …’ (see also canon 46).  Every church was required to possess copies of the homilies, as well as the Bible and the Book of Common Prayer (canon 80).

As a general rule, the teaching function of the clergy was limited to (1) and (2) above.  They were required to teach the Catechism and to read the authorised Homilies to their parishioners, but not to preach their own sermons.  Not only were clergy in general not required to preach, they were positively forbidden to do so.

It is easy to forget this now.  However, as the Court noted in the case of Colefatt v Newcomb 92 English Reports 296, ‘By the old canon law preaching was not part of the minister’s office … but only reading mass and administering the sacraments: and nobody preached then without licence of the bishop, but he appointed preachers’.

This is confirmed by Lyndwood’s Provinciale (circa 1432), which provides that

‘no [ordained clergyman] which is not authorised by the law, or otherwise specially privileged, to preach the Word of God shall take upon himself the office or use of preaching the said Word of God … except he first present himself to the Diocesan [bishop] of that place where he intendeth to preach and … be then sent to preach by the Diocesan unto one certain parish, or unto many, as it shall seem expedient …’ (Book 5, Title 1, Chapter 1).

The reformers appreciated the importance of preaching, but there were difficulties, as Phillimore records:

‘The clergy in Queen Elizabeth [I]’s time being very ignorant … and moreover the state having a jealous eye upon them, as if they were not very affected to the Reformation none were permitted to preach without licence, but they were to study and read the homilies … and they that were instituted subscribed a promise to the same effect’ (Ecclesiastical Law, 2nd edition 1895, p.786).

The situation had evidently not improved when King James I succeeded to the throne.  Another commentator observed that ‘The canons of 1603 have many provisions on the subject of preaching, there being at that time a close association between the pulpit and sedition’ (The Book of Church Law, 10th edition 1905, p.120).

Preaching was indeed closely regulated by the 1603 canons.  Preachers were the clerical elite.  Cathedral dignitaries were ex officio preachers (cf canon 43).  However, other clergy required a special licence to preach from a bishop, the Archbishop, or from Oxford or Cambridge Universities (cf canon 51).  At the very least they required permission to preach from their diocesan bishop (canon 49).

Thus canon 49 provided that ‘No person whatsoever, not examined or approved by the Bishop of the diocese, or not licensed … for a sufficient and convenient preacher, shall take upon him to expound in his own cure, or elsewhere, any Scripture or matter of doctrine: but shall only study to read plainly and aptly (without glossing or adding) the [authorised] Homilies ….’.

Incumbents who were also licensed preachers were supposed to preach in their churches every Sunday. Unpreaching incumbents were required to ‘procure’ sermons at least once a month (canon 47). A non-resident incumbent was expected to supply a preaching curate ‘if the worth of the benefice will bear it’. If no preacher was available, an authorised homily would be read instead of the sermon. Cathedral dignitaries were required to preach in their own churches (canon 43).

Preaching was allowed in private or institutional chapels, and in private houses when ministering to those too ill or frail to attend church (canon 71). However, preaching ‘in market towns or other places’ was forbidden ‘without the licence and direction of the Bishop … first obtained and had under his hand and seal …’ (canon 72).

All preaching activity was carefully controlled.  Incumbents and churchwardens ‘shall [not] suffer any man to preach within their churches … but such as, by showing their licence to preach, shall appear unto them to be sufficiently authorised thereunto’ (canon 50).  Cathedral chapters were likewise obliged to forbid unlicensed preaching in their cathedrals (canon 51).  Visiting preachers were required to sign a special register recording the date of the sermon and the name of the preacher’s licensing bishop (canon 52).

Preachers shared a collective responsibility for the Church’s preaching ministry.  They were required to refrain from controversy inter se.  A preacher was not supposed to ‘impugn or confute any doctrine delivered by any other preacher in the same church, or in any church near adjoining’ without the bishop’s permission (canon 53).  Thus any doctrinal disputes were supposed to be referred to the bishop for resolution, not fought out from opposing pulpits.  As canon 53 wisely observed ‘upon such public dissenting and contradicting there may grow much offence and disquietness unto the people’.  The bishop could impose silence on a controversial preacher.  Preachers who refused to submit to professional discipline lost their licences (canon 54).

In Gates v Chambers (1824) 162 English Reports 259, the Court of the Arches observed that, by the early 18th century, this old regime of preaching had fallen into desuetude and that licences to preach ‘are now included either in letters of orders or in the licences of ministers to particular cures’ (p.264).  Writing in the late 19th century, Phillimore noted cheerfully that ‘the bishops do generally and justly forbear to put the [1603] Canons as to [preaching] in execution: and every priest is permitted to preach, at least in his own cure …’ (ibid, p.786).

The Worship and Doctrine Measure 1974 provides, somewhat vaguely, that the Prayer Book Catechism, being a ‘form of service’ contained in the Book of Common Prayer shall ‘continue to be available for use in the Church of England’ (s.1(2)).  The revised Canons are vague too.  The Prayer Book Catechism is no longer specifically referred to.  Reference is made only to ‘the Church Catechism‘ (canons B26(1) and B27(2)), but this is not identified further.  It is not made clear whether any other Catechism has been authorised, or when, or where such Catechism is to be found.

The Oxford Dictionary of the Christian Church (3rd edition 1998) relates that a revised Catechism ‘was in 1962 commended by the Convocations for use during a period of 7 years, which has been repeatedly extended’.  To have proper authority, any revised Catechism will now require the approval of the General Synod, by a two-thirds majority in all 3 Houses (canon B2).

No further books of homilies have been authorised since 1571.

The modern legal regulation of preaching is rather more perfunctory than that of 1603.  Canon B18(1) provides that at least one sermon shall be preached on Sunday, ‘except for some reasonable cause approved by the bishop’.  The purpose of a sermon is said to be ‘to minister the word of truth, to the glory of God and to the edification of the people’ (B18(3)).  The modern liturgical book Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach (see canons E4 and E7).  Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister, may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan directions.

The revised canons confirm that Oxford and Cambridge Universities can still grant licences to preach, notwithstanding that both were separated from the Church of England and secularised in the 19th century. Canon C8(2)(c) even provides that a minister who has such a licence ‘may preach the Word of God in any diocese … throughout England … without any further authority from the bishop thereof’. However, this privilege is hard to reconcile with s.15 of the Act of Uniformity 1662, which provides that a person is not permitted to preach in any place of public worship without the approval and licence of the appropriate bishop or Archbishop.

Although lay ministers may now preach, the administration of the 7 traditional sacraments is still reserved to ordained ministers.  Lay ministers may only assist the ordained to administer the sacraments (though any layperson may administer baptism in an emergency.)

In the Roman Catholic Church, by contrast, only clergy may preach at the Eucharist (Code of Canon Law 1983, canon 767).  This is not because clergy are necessarily better preachers than laypeople, but because of ‘the closely connected functions of teaching and sanctifying’ (cf Instruction on the Collaboration of Non-Ordained Faithful in the Sacred Ministry (1997)).  Only ordained ministers are capable of combining those two functions, which are both celebrated at the Eucharist.  (It should be remembered that ‘clergy’ in the Roman Catholic Church include married permanent deacons, as well as priests and bishops, and the function of permanent deacons may be hard to distinguish in practice from that of licensed lay readers.) Laypeople may preach on other occasions outside the Eucharist if this is ‘necessary or … advantageous’, subject to local law (canon 766).

Ignorance and sedition may not be the serious problems that they once were, but it is possible that a more exact and detailed regulation of catechesis and preaching might improve the quality and efficacy of the Church of England’s teaching ministry.