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Tag: Canon C18

Cathedral Governance: A Constitutional Monstrosity

Kathleen Edwards, The English Secular Cathedrals in the Middle Ages (Manchester University Press, 2nd edition 1967)

This is a most helpful commentary on the confused subject of cathedral governance.  It explains the cause of the confusion, and also demonstrates how little the subject has changed since the middle ages.

The constitution of a cathedral church ought to be a simple thing.  Everyone knows that a cathedral is so called because it contains the cathedra, the official seat of the bishop.  The bishop’s relationship to the cathedral is analogous to that of an incumbent to a parish church.  The bishop is the incumbent of the diocese.  The cathedral is the bishop’s church, the church from which he officiates as bishop.  It is therefore the parish church, or ‘mother church’, of the whole diocese.  The proper function of any other cathedral clergy is to assist the bishop with his official duties, just as the curate assists the vicar.

But of course the constitution of an English cathedral is not nearly so simple.  Edwards relates that ‘the [mediaeval] bishop was more and more drawn away from his cathedral city, both on affairs of state and through … looking after a large diocese.  During his long absences there began to develop some sort of home government among the cathedral clergy’ (p.98).

Thus the cathedral chapter obtained a degree of autonomy from the bishop.  The absent bishop’s place at the head of the chapter was taken by the dean (cf.p.137).

Edwards quotes a graphic and prescient early warning against this separation of bishop and chapter, dating from 1313: ‘the bishop and the chapter … make one body, of which body the bishop is the head and the chapter are the members.  Therefore to argue that the dean is another head is to argue two heads in one body, which is like a monster, and prejudicial to the bishop’ (quoted, p.97).  Needless to say, this powerful argument was not accepted at the time, or subsequently.

However, the mediaeval separation of bishop and chapter makes the point that the bishop’s position is not precisely analogous to that of a parochial incumbent.  The bishop has a power of governance which incumbents do not share.  He is the principal ordinary of the diocese, and also has some responsibility for secular governance, through membership of the House of Lords (canon C18(2) and (8)).

In the old days, such responsibilities necessitated lengthy absences from the cathedral, but the cathedral still had to function without the bishop.  So perhaps the chapter had to have some autonomy then.  Of course, modern transport and communications should make it possible for the bishop to govern both the diocese and the secular state without prolonged absence from the cathedral.  (And bishops usually live right next door to their cathedrals.)  However, these improvements have not, as yet, led to the constitutional reunion of bishop and chapter.

The cathedra is always situated in the choir area of the cathedral.  It is generally an ornate and imposing structure, as befits the ‘principal seat and dignity in the cathedral’ (Cathedrals Measure 1999, s.6(1)).  It is often regally described as the bishop’s throne, an allusion to the power of governance.  However, Edwards points out that cathedra also means a professorial teaching chair (p.177).  Thus the cathedra symbolises not only the bishop’s governance, but also his pastoral function of teaching and guiding.

Moreover, the bishop did not exercise the power of governance in the choir.  The choir was a place of worship, where the Divine office was celebrated.  Governance was done in the chapter house.  (The consistory court would meet in the chapter house.)

The separation of bishop and chapter did not affect the bishop’s liturgical position in the choir.  The bishop continued to enjoy an undisputed precedence at all services at which he was present, and to exercise his pastoral ministry of preaching, ordaining and confirming.

However, the chapter house, as the seat of governance, became the subject of competing claims by the bishop and the chapter.  These claims were settled by the constitution of the particular cathedral.

In the middle ages, the chapter had two functions:

(1) governing body of the cathedral (as it still is) and

(2) bishop’s council, which he consulted about the governance of the diocese.

In other words, the original function of the chapter was to assist the bishop’s governance of both the cathedral and the diocese.

Cathedral constitutions could vary widely.  At Chartres Cathedral, apparently, ‘the bishop was not allowed to enter the chapter house on any pretext’ (p.106).  York Minster ‘denied to its bishop all statutory right to sit in chapter’.  However, most cathedral constitutions gave their bishop some say in the governance of his cathedral.

The competing claims of bishop and chapter were generally resolved as follows:

(1) the bishop had no right to attend ordinary meetings of the chapter, because he was not a member of the chapter

(2) however, the bishop could attend chapter meetings on a visitation, i.e an inquiry into the governance of the cathedral, if he had a constitutional right of visitation in the first place.  Bishops generally did have the right to inquire into the governance of their cathedrals, but the right might be limited in various ways, e.g to particular times or occasions.

(3) the bishop could also convene and preside over the chapter qua bishop’s council, in order to consult it about the governance of the diocese, rather than the cathedral.

Today, of course, the cathedral chapter has no responsibility for the governance of the diocese.  The bishop’s council is now a committee of the diocesan synod, which is completely different from the chapter (Synodical Government Measure 1969, schedule 3.28).

Thus the constitutional separation of bishop and chapter eventually resulted in the constitutional separation of the cathedral from the rest of the diocese.  Yet this separation is hardly consistent with the cathedral’s role as the ‘mother church’ of the diocese.

Nothing illustrates the confused state of cathedral governance so starkly as the position of archdeacons therein.  The function of archdeacons is to assist the bishop’s governance of the diocese within their respective archdeaconries (canon C22(2) and (4)).  But archdeacons, qua archdeacons, have no responsibility for the cathedral.

Edwards notes that ‘The place of archdeacons in secular cathedrals in the middle ages was peculiar … their chief work was in their archdeaconries outside the cathedral precincts’ (p.243).  She suggests that ‘in most mediaeval cathedral churches archdeacons had come to be regarded as the bishop’s official guests, to be treated with the honour due to guests’ (p.249).

Yet archdeacons can be ex officio members of the chapter, even though the bishop, whose diocesan governance they assist and whose church the cathedral is, cannot.  The Cathedrals Measure 1999 further provides that archdeacons, and suffragan bishops too, must be ex officio members of the college of canons established by the Measure for every cathedral (s.5(2)).  But the diocesan bishop is still excluded from ex officio membership of the college.  Not monstrous, perhaps, but all rather absurd.

The Cathedrals Measure 1999, and the bishop’s status as visitor of the cathedral, are discussed in separate posts, filed below.

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

Dismissal and Attempted Dismissal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) proceedings under the Vacation of Benefices Measure 1977

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

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

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

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

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

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

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

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

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

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

The Bishop: Pastor, Minister and Ordinary

The constitutional functions of a bishop are now the subject of much detailed statutory regulation.  There is also much commentary and case law to be found on the subject in the older ecclesiastical law.  However, the three functions are helpfully outlined and summarised in the revised Canons of the Church of England, principally Canon C18.

Pastor

The bishop is ‘the chief pastor of all that are within his diocese, as well laity as clergy’.  He therefore has a direct pastoral responsibility for both clergy and laity. 

The pastoral function towards the laity is known as the cure of souls.  This is shared with the incumbents of benefices.  The shared cure of souls is made clear by the traditional wording of the bishop’s deed of institution to a new incumbent ‘habere curam animarum, et accipe curam tuam et meam‘ (quoted in Phillimore’s Ecclesiastical Law, 2nd edition 1895, at p.354).  Incumbents are assisted in their pastoral duties by other priests, also by deacons and lay ministers.  In Bishop of Winchester v Rugg (1868) 2 Admiralty and Ecclesiastical 247, the Court of the Arches suggested that the Bishop ‘has cura curarum animarum within his diocese’ (p.252).

The bishop’s principal duty as pastor of the laity is to supply them with clergy.  Only a bishop may confer holy orders, and no minister, ordained or lay, may minister within the diocese without the bishop’s authorisation.  Canon C18(6) therefore requires the bishop to ‘be faithful in admitting persons into holy orders and … [to] provide, as much as in him lies, that in every place within his diocese there shall be sufficient priests’.  There is no express requirement on the bishop to supply lay ministers.

The bishop’s pastoral responsibility towards the laity also includes consecrating new churches, churchyards and burial grounds (Canon C18(4)).

However, the bishop is also pastor of his clergy, as Hooker says, ‘a pastor even to pastors themselves’.  Canon C23(1) provides that the rural dean (or area dean) has particular responsibility to advise the bishop of ‘any case of serious illness or other form of distress among the clergy’.

The bishop has a pastoral responsibility for both clergy and laity who are opposed to women priests.  The 1993 Episcopal Ministry Act of Synod requires him to ‘make pastoral arrangements so far as possible within his diocese for appropriate care and oversight of the [opposed] clergy and parishes’ (s.3). 

A diocesan bishop may be assisted by one or more suffragans, and also by bishops specially appointed under the 1993 Act of Synod to care for opponents of women priests.  The word ‘suffragan’ is derived from the Latin word suffragari ‘to help’.  Canon C20 suggests that the suffragan’s relationship to the diocesan is analogous to that between an assistant curate and an incumbent.  It rather labours the point:

‘(1) Every bishop suffragan shall … execute such things pertaining to the episcopal office as shall be commissioned to him by the bishop of the diocese …

(2) Every bishop suffragan shall use, have  or execute only such … authority … as shall be licensed or limited to him … by the [diocesan] bishop’.

As chief pastor the bishop is generally required to reside within his diocese.  However, unlike other clergy, senior bishops have a constitutional responsibility for the governance of the secular state.  Canon C18(8) therefore provides that the bishop is permitted to reside in London ‘during his attendance on the Parliament, or on the Court, or for the purpose of performing any other duties of his office’.  Such absence in London is deemed to be residence in the diocese.

According to Canon C17(4) the Archbishop is the principal minister of the province.  However, the Archbishop is not the chief pastor of the province.  Thus there is no pastor superior to the bishop.

Minister

What is the purpose of the bishop’s pastoral duties?  It is the administration of the Divine Word and Sacraments.  This ministry is the raison d’etre of the bishop’s office.  The bishop’s pastoral function is not an end in itself.

The words pastor and minister are often used interchangeably but they have different meanings.  Canon C18 rightly draws a distinction between the bishop’s pastoral and ministerial functions.  ‘Pastor’ implies leadership or oversight of a community.  ‘Minister’ implies a responsibility for the thing, or things, that are administered. 

The bishop is ‘the principal minister’ of his diocese.  He possesses the ‘fullness of ministry’ (or fullness of priesthood), since he alone may administer the ‘sacramental’ rites of confirmation and ordination (Canon C18(4)).  Otherwise, his ministerial function is shared with all ordained and lay ministers, though administration of the sacraments is reserved to ordained ministers.

The most important ministerial acts of a bishop are confirmation and ordination, but he has certain other ministerial prerogatives.  The bishop traditionally preaches in his cathedral on the great feasts of Christmas, Easter and Pentecost.  Canon C18(4) suggests that the bishop also has the right to officiate at divine service in any church or chapel within his diocese, ‘save in places … exempt by law or custom’.

Archbishops have the particular ministerial function of ordaining new bishops (Canon C17(4)), though with the assistance of other bishops.  The Archbishop of Canterbury is, of course, the minister of the ancient rite of the coronation of the Monarch.  It seems that the Archbishop of York has the right to crown a Queen Consort.

Ordinary

Canon C18 confirms that the bishop has ‘jurisdiction as ordinary’ within his diocese.  The bishop’s function and raison d’etre as principal minister of the diocese requires a power of governance. 

‘Jurisdiction as ordinary’ means immediate, ex officio jurisdiction.  These characteristics distinguish ordinary authority from delegated authority, which must be specifically conferred on the delegate by the ordinary.  The delegation of authority by the ordinary must in turn be distinguished from the ordinary’s taking advice or assistance when exercising authority personally.

The ordinary power of governance, unlike the bishop’s pastoral and ministerial functions, is not generally shared with other clergy and lay ministers.  Among the diocesan clergy, only the archdeacons share the bishop’s ordinary authority. 

Canon C22(2) provides that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’.  However, C22(4) makes clear that ‘Every archdeacon shall … carry out his duties under the bishop and shall assist the bishop in his pastoral care and office’.  The archdeacons are therefore the assistant ordinaries of the diocese. 

Trollope succinctly summarised the constitutional relationship between bishop and archdeacons in The Warden: ‘when a bishop works, archdeacons have but little to do, and vice versa’.

The chancellor also has ordinary authority in the diocese at common law.  The dean and chapter are the ordinary authority of the cathedral.  Thus there are four diocesan ordinary authorities at common law:

(1) the bishop

(2) the archdeacons

(3) the chancellor and 

(4) the cathedral chapter.

Although they share his ordinary authority, the archdeacons may not share the bishop’s pastoral ministry, because they are not ex officio parish priests.  Thus Halsbury’s Laws suggests that it is ‘doubtful whether the archdeacon as such has a cure of souls’ (4th edition, para 496).  Cathedral canons have no cure of souls for the same reason, though the older ecclesiastical law understood that the dean has the cure of souls of the chapter and of other cathedral officeholders (Phillimore Ecclesiastical Law, 2nd edition, 1895, pp.130 and 140).  

The traditional expression of ordinary authority in the diocese is the archdeacon’s annual visitation of all the parishes in the archdeaconry.  Canon 60 of 1603 provided that the bishop should visit his diocese once every three years and use the occasion to administer confirmation.  The archdeacons only visited two years in every three.

The revised Canons relieve the bishop of the duty to make a triennial visitation.  (A visitation is no longer necessary for the bishop to administer confirmation.)  However, Canon C18(4) affirms that the bishop has the right to hold a visitation of his diocese ‘at times limited by law or custom’.  Canon G5(2) provides that when the bishop holds a visitation the ordinary jurisdiction of the archdeacons is automatically suspended or ‘inhibited’.

Canon E1(4) confirms that the churchwardens are the officers of the ordinary within the parish.  As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church.  The rural dean (or area dean) may also be a kind of officer of the ordinary, having the responsibility to ‘report to the bishop any matter within the deanery which it may be necessary or useful for the bishop to know …’ (Canon C23(1)).

The pastoral arrangements made for those opposed to women priests do not impair the bishop’s ordinary jurisdiction.  The 1993 Act of Synod confirms that the bishop continues as ordinary of his diocese. 

Canons C18(3) and C22(3) provide that a bishop or archdeacon may delegate his ordinary authority, in the bishop’s case, to ‘a vicar-general, official or other commissary’, and in the archdeacon’s case, to an ‘official or commissary’.  However, the revised Canons provide no definition of a ‘commissary’.  Canon 128 of 1603 was rather more specific, providing that ordinary authority could only be delegated to a beneficed priest or a suitably qualified ecclesiastical lawyer.  The grant of marriage licences is delegated to officials known as ‘surrogates’, who are usually senior parish clergy.

Suffragan bishops are not ordinaries at common law, nor indeed in statute law.  Their original function was to assist the diocesan bishop with his pastoral work, usually by ordaining and confirming, while the archdeacons assisted with jurisdiction.  Today, however, the distinction between suffragans and archdeacons is becoming increasingly blurred (perhaps to the point where the distinction can no longer be justified). 

The Dioceses, Pastoral and Mission Measure 2007 continues the modern trend towards the sharing of episcopal functions, both of ministry and governance, within the diocese.  Under s.13 of the 2007 Measure the bishop may delegate to a suffragan or assistant bishop on an ongoing basis.  The 2007 Measure does not turn suffragan bishops into ordinary authorities.  However, a permanently delegated authority is, in practice, hard to distinguish from ordinary authority.

The functions delegated under s.13 must be specified in the instrument of delegation.  Any and all episcopal functions may be delegated except

(1) the power under Canon 4(3A) to request permission to ordain a divorced person and

(2) any power to refuse to permit women to be ordained or to officiate as priests within the diocese.

Episcopal functions may be delegated subject to conditions and may, but need not, be limited to a particular area of the diocese.  The instrument of delegation may provide for functions to be shared between the bishop and the suffragan.  A delegation under s.13 must normally be approved by the diocesan synod, but in a case of urgency the approval of the bishop’s council will suffice.  The diocesan bishop may vary or revoke a delegation, again subject to synodical approval.  The instrument may provide for its own termination after a specified period of time.

While the bishop and archdeacons exercise ordinary jurisdiction in the diocese, the Archbishop exercises metropolitical jurisdiction over the province.  The nature of this jurisdiction is explained by Canon C17(2):

‘The archbishop has throughout his province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation, jurisdiction as ordinary …’.

Canon C17(3) confers a similarly vague power of delegation on the Archbishop to that conferred on bishops and archdeacons.

The wording of Canon C17(2) makes clear that the constitutional relationship between the Archbishop and the diocesan bishop is not analogous to that between the bishop and the archdeacons.  The bishop’s authority does not automatically yield to that of the Archbishop.  Metropolitical jurisdiction is only engaged for some specific reason connected with the bishop’s inability to exercise his ordinary jurisdiction effectively. 

Thus in 1996 the Archbishop of Canterbury held a metropolitical visitation of Lincoln Cathedral in response to the unseemly squabbling there.  Recently there has been a metropolitical visitation of the Chichester diocese.