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The Future Governance of Cathedrals

Cathedrals Working Group Draft Report 2018

A cathedral is both

(1) the church, or ‘seat’, of the bishop (hence its title) and

(2) the parish church, or ‘mother church’, of the diocese.

Yet the cathedral is constitutionally separate from both the bishop and the diocese.

This anomaly has persisted from the middle ages to the present day.  An erudite Church of England report Heritage and Renewal (1994) observed that ‘The fate of the English cathedral was to remain unreformed [at the Reformation]’ (p.191).  There were statutory reforms of cathedral governance in the 19th and 20th centuries, of which the Cathedrals Measure 1999 is the most recent.  However, these reforms have not ended the cathedral’s independence from the wider Church.

The survival of the peculiar status of cathedrals down the centuries has encouraged its general acceptance.  Hardly anybody questions it nowadays.  It is supported by vested interests.  Heritage and Renewal suggested that ‘cathedral dignitaries … found that they did not, in all truth, have much to do’ (p.196).  The daily work of a cathedral is mostly done by lay staff and volunteers.  Secure of tenure, and free of the indignities of parish work and accountability to any external authority, deans and canons are not likely to favour radical reform of their comfortable way of life.  Nor are upwardly mobile vicars with ambitions to succeed them.

And the status quo probably suits bishops too, on the whole.  Ancient privileges may be frustrating for the zealous reformer.  On the other hand, whenever the peace of the cathedral close is disturbed by a scandal or controversy, the cathedral’s independent status means that the bishop will generally be able to avoid blame.

But scandals and controversies continue to occur, alas.  These demand effective oversight of cathedral governance.

The Cathedrals Measure 1999 (nearly 20 years old now) prescribes a constitutional structure based on the 3 classic ‘powers’ of government.  The cathedral council created by the Measure is the legislative authority of the cathedral, with power to revise its constitution and statutes (s.28), and to scrutinise the work of the chapter, as Parliament scrutinises government (s.3(6) and (7)).  The chapter is the cathedral’s executive.  The bishop holds the ancient quasi-judicial office of visitor, with power to ‘hear and determine any question as to the construction of the constitution and statutes’, and to ‘give such directions … as will … better serve the due observance of the constitution and statutes’ (s.6(3),(4) and (6)).

The draft report cited above suggests that the 1999 separation of powers has failed.  There is still ‘a lack of effective independent scrutiny’ (para 122).  In particular, the report criticises ‘the lack of teeth given to [cathedral] councils’.

However, the report’s treatment of the constitutional position of cathedrals is very confused.  Perhaps this is only to be expected, for the reasons discussed earlier.  The report declares movingly that ‘the diocese and the cathedral are part of one body, working together for the proclamation of the Kingdom’ (para 103), and that the cathedral is ‘an essential support’ to the ministry of the bishop.  Yet it does not propose the constitutional integration of the cathedral and the diocese, so as to give legal effect to this supposed corporate identity.

Instead it merely observes that ‘cathedrals and dioceses have committed to work together more closely in recent years … to align strategies’ (para 104), and that ‘In a number of cathedrals, the dean and the residentiary canons take on significant structural roles in the diocese’ (para 105).  And so to the bland conclusion that ‘We hope this will continue and develop further’.  If it does, it will be on a spontaneous, informal basis only.

Although it vaguely perceives the cathedral’s connection to the bishop and the diocese, the reforms proposed by the report are predicated on a different dual role of cathedrals as

(1) places of prayer and worship and

(2) places of (secular) national heritage and tourist destinations (cf para 69).

Cathedrals are viewed as a discrete ‘sector’ of the national Church (‘the cathedral sector’, cf para 168), rather than as the centre of the Church within their dioceses.

If anything, the report’s proposals would result in cathedrals becoming even more remote from their bishops and dioceses than they are at present.  The report considers that cathedrals should be accountable to national institutions rather than to their bishops (para 108).

Thus it recommends that the bishop should continue as ex officio visitor of the cathedral (para 147), but suggests that ‘the visitor would remain as a formal legal enforcement and dispute resolution mechanism but … not … as the normal means of reviewing and bringing about improvements in financial or other governance matters’ (para 159).  The visitor’s jurisdiction should be exercised by an ecclesiastical judge, not by the bishop personally.

Instead of an ineffectual separation of the 3 powers of government, the report argues for a ‘clear separation of governance and management‘ (para 132), which functions have become ‘blurred and conflated’ (para 122).  Cathedrals should instead be governed like charities, with ‘a trustee body … overseeing … an executive team‘ (para 121).

However, the report acknowledges a difficulty with applying the constitution of a secular charity to a cathedral.  If the cathedral and its clergy were subject to secular trustees, this would effectively secularise the cathedral: ‘for governors to direct … a cathedral’s worship would be an inappropriate crossing of boundaries’ (para 129).

So the report proposes to ‘retain the chapter as the governing body’ (para 130), instead of appointing another governing body over the chapter.  Moreover, the dean will continue to chair the chapter.  The offices of chairman and ‘CEO’ of the chapter will therefore continue to be combined.  In charities, these offices are generally separate.

At first glance, this proposal seems decidedly lame, a mere restoration of the status quo ante the 1999 Measure.  How does it effect a separation of governance and management?  How can the dean and chapter be accountable to themselves?  They will retain the same privileged, unaccountable position they have held since the middle ages.

However, the report is confident that things will be different this time.  It promises ‘some significant changes to the current structures’ (para 131).

Cathedral chapters were reformed by the 1999 Measure to include lay canons as well as residentiary clergy (s.4(2)(b)).  The chapter was also required to appoint a finance committee ‘having the function of advising … [on] financial and investment management and for the membership to include persons who have experience and expertise in that field’ (s.9(1)(h)).

The report therefore proposes further reform of the chapter, along the lines already provided in the 1999 Measure.  Not only will there be lay, non-residentiary canons in the chapter, but they will form the majority of chapter members (para 136), and so be able to outvote the dean and the residentiary canons.  The lay canons will also include ‘experts’ in finance, and risk and property management.  The finance committee will have enhanced powers of scrutiny, and a lay chairman (para 144).

The day to day management of the cathedral will be entrusted to a Senior Executive Team of cathedral officeholders, headed by the dean.  The report argues that ‘The corollary to strengthening chapter scrutiny and accountability is that deans need to be empowered to lead’ (para 182).

The dean’s position in the chapter will be weakened by the presence of a majority of lay ‘experts’, but his managerial position in the cathedral will be strengthened: ‘it [is] essential for the dean to be able to oversee and direct the work of the residentiary canons’ (para 197).

The appointment of residentiary canons (i.e clergy) should therefore be subject to the dean’s approval.  (Canons are currently appointed by the bishop or the Crown, not the dean.)  Residentiary canons ‘should report to the dean as their line manager’ (para 160), ‘deriving their authority from the dean’ (para 198).  The dean will be responsible for their ‘ministerial development review’ or work performance appraisal (para 194).  A far cry indeed from Dean Inge’s amusing comparison of the relationship between dean and canons to that of a mouse watched by 4 cats.

If these reforms are implemented the chapter is unlikely to be very collegial in character, despite the report’s affirmation of ‘the collegial and residentiary role of the clergy’ (para 129).  Collegiality does not sit comfortably with line management.  Also the chapter will be divided between 2 very different groups of canons.  A forum rather than a college.

But collegiality is not an end in itself, of course.  Loss of collegiality is a price worth paying for increased business efficiency, which in turn requires effective line management.  The report noted that ‘the financial management of cathedrals is at the core of our terms of reference’ (para 222).

The chapter’s status as governing body of the cathedral is retained out of respect for the ecclesiastical character of cathedrals.  But chapters will be accountable to the Charity Commission, a secular authority (para 168).  The report points out that most other ecclesiastical bodies are already subject to the jurisdiction of the Charity Commission.

It also criticises the 1999 Measure for ‘the absence of any independent body to act as a [cathedral] regulator’ (para 122), and argues that ‘There is a need for increased clarity about the relationship of national Church institutions with cathedrals’ (para 107).  It recommends a 5 yearly ‘assurance review’, i.e audit, of every cathedral, to be commissioned by the bishop but carried out by persons ‘drawn from the finance and operations functions of other cathedrals and the national Church’ (para 158).

All this accords with the report’s promotion of a nationwide ‘cathedral sector’.  However, there may be a difficulty here.  The Church Commissioners (who are a ‘national Church institution’, of course) ‘have made clear … that they would prefer not to have a regulatory role with regards to the cathedral sector’ (para 167).  Perhaps the national Church is not very keen to assume the task of policing its cathedrals!

The mediaeval anomaly of cathedral independence (‘A Constitutional Monstrosity’), and the Cathedrals Measure 1999, are discussed further in posts filed below under this category.

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The Royal Supremacy: Governor or Head?

Halsbury’s Laws of England (the 5th edition) suggests apparent confusion about the Monarch’s precise ecclesiastical title.

Volume 20 of Halsbury asserts that ‘The Monarch … is Supreme Governor of the Church of England’ (para 16), and cites volumes 29 and 34 as authority.  Volume 29 states that ‘the Monarch is the only Supreme Head on Earth, under God, of the Church of England’ (para 63).  Volume 34, which treats of ecclesiastical law, states that ‘the Sovereign is Supreme Ordinary and Visitor …’ (para 60).

Everyone knows that the title Supreme Head was claimed by King Henry VIII, during his break with Rome in the 1530s.  The claim appears in the Act of Supremacy 1534.  However, as volume 29 of Halsbury makes clear, the Monarch is Supreme Head by common law, as well as by statute: ‘the statutory provisions regarding the supremacy of the Monarch in spiritual matters [at the Reformation] were declaratory of common law’ (para 63n).

Thus Henry VIII was not the first King of England to be Supreme Head of the Church.  The Monarch has always been Supreme Head of the Church by common law (which is itself derived from Divine law).  As the 1534 Act says, ‘the King … is [already] and ought to be Supreme Head … yet nevertheless for corroboration and confirmation thereof … Be it enacted … that the King … shall be taken, accepted and reputed the only Supreme Head of the Church …’ (s.1).

Whatever its relationship to the true historical facts, this remains the constitutional doctrine to the present day.  The Monarch’s ecclesiastical title is an ancient common law title, not a statutory title dating from the 16th century.  The Pope’s supremacy was not abolished at the Reformation, because it had never existed in the first place.  Any papal claim was merely an illegal usurpation of the Monarch’s title.

The title Supreme Governor appeared in the Act of Supremacy 1558, the first Act of Queen Elizabeth I, Henry VIII’s daughter.  She is described in the 1558 Act as Supreme Governor of the Realm rather than the Church, though supreme ‘as well in all spiritual or ecclesiastical things or causes, as temporal’ (s.19).

The Elizabethan title was more modest and tactful than the Henrician one.  The ‘headship’ of women was less fashionable in the 16th century than it is today.  Headship could also imply that the Monarch exercised some priestly function in the Church.  The 1558 Act made clear that the Monarch’s headship is limited to the power of governance.  Her lesser known ecclesiastical title ‘Supreme Ordinary’ also makes this point.

Article 37 confirmed the constitutional position ‘Where we attribute to the King’s Majesty the chief government … we give not to our Princes the ministering either of God’s Word or of the Sacraments …’.  This Elizabethan clarification of the royal supremacy has been universally accepted.  Nobody now suggests that the Monarch is a priest.  When he republished the 39 Articles in 1628, King Charles I referred to ‘Our just title … Supreme Governour of the Church …’ (Royal Declaration).

However, the 1558 Act merely clarified the earlier law concerning the royal supremacy.  It did not abolish or replace it.  The Elizabethan title was an alternative to the Henrician title, rather than a substitute for it.  In the Elizabethan case of Cawdrey (1591) 77 English Reports 1, Sir Edward Coke held that ‘By the ancient laws of this Realm … England is an absolute empire and monarchy consisting of one Head, which is the King, and of a body politic … which the law divideth into … the clergy and the laity, both of them next and immediately under God, subject and obedient to the Head’ (p.10).

Their clarifying work done, the 1558 references to the Monarch’s title have now been repealed.  The common law remains in force, of course.  Perhaps this means that the Monarch is now correctly described as Supreme Head, and not as Supreme Governor.  However, it is argued that the two titles (and the third – ‘Ordinary’) are really one and the same, and may be used interchangeably.

The Solemnization of Matrimony: Duties and Deposits

It was reported in the news media last week that a vicar has taken to charging a deposit of £100 for weddings in his church.  He then forfeits the deposit if the bride arrives late for the ceremony.  (This is, of course, a well known bridal prerogative, but it seems that some brides have been abusing the prerogative by as much as 20 or 25 minutes.)

The vicar’s exasperation at such gross unpunctuality may be understandable.  But is he legally entitled to charge, and forfeit, a deposit in these circumstances?

It is universally assumed that parishioners have a common law right to marry in their parish church.  However, the incumbent and the Church authorities have no general common law right to charge a fee (not even a refundable deposit) for publication of the banns or solemnisation.  A contractual fee for performing the ceremony would constitute the sin of simony (cf Ecclesiastical Committee, 229th Report, para 58).

Common law would enforce an ‘accustomed duty’ of the kind described in the Prayer Book marriage service (i.e a customary marriage fee in a particular parish).  However, such a duty / fee was difficult to prove ‘from time immemorial’, and would only be worth a few pence in the money values of today.

So marriage fees are now charged under statutory authority.  This is provided by the Ecclesiastical Fees Measure 1986, as amended by an Amendment Measure of 2011.  The fees themselves are fixed by a parochial fees order made under s.2 of the 1986 Measure.

(S.12(2) confirms that the Ecclesiastical Fees Measure applies only to England.  How the Church in Wales is able to charge marriage fees is one of the great unsolved mysteries of ecclesiastical law, as the common law right is the same on both sides of the Severn.)

Under the Parochial Fees Order 2017, 2 fees are payable for a marriage service, to

(1) the diocesan board of finance (‘the DBF’) and

(2) the parochial church council (‘the PCC’).

Following the 2011 Amendment, marriage fees are no longer payable to incumbents (cf.s.1(1)).  This is a sensible reform.  Weddings are part of an incumbent’s paid duty.  He should not be paid twice for the same work.  Many weddings are solemnised by non-incumbent clergy.  And the DBF is now responsible for payment of all stipends and other clergy remuneration.  Hence the DBF is the appropriate recipient of the fee that was formerly payable to the incumbent.

These 2 statutory fees correspond to the 2 elements of the common law right

(1) the duty of the incumbent to solemnise the marriage, either personally or by deputy and

(2) the use of the church building for the ceremony.  As the Prayer Book rubric says ‘the persons to be married shall come into the body of the church with their friends and neighbours …’.  The PCC is now responsible for the upkeep of the church building.

As amended, the 1986 Measure empowers an incumbent to waive a fee payable to the DBF in a particular case (s.1(9)).  He may likewise waive a fee payable to the PCC, though only after consulting the churchwardens (s.1(10)).

These provisions indicate that the vicar may waive part of a marriage fee, i.e reduce it by £100, as an incentive to bridal punctuality.  But they do not empower him to impose an additional deposit, over and above the statutory fees.

However, the common law right to marry in church is a bare right, limited to what is legally necessary for the solemnisation, i.e reading the marriage service in the church.  It does not extend to the traditional accompaniments of a church wedding, such as music, bells, flowers and photography.  The extras, as they are called.  All these require the incumbent’s licence.

Canon B35(5) of the revised canons confirms that ‘When matrimony is to be solemnised … it belongs to the minister of the parish to decide what music shall be played, or what furnishings or flowers should be placed in or about the church for the occasion’.  Canon F8(2) provides that ‘No bell … shall be rung contrary to the direction of the minister’ (see also canon F15(1)).

Thus, although an incumbent could not charge a deposit in respect of a bare solemnisation, he may attach reasonable conditions to his licence for any extras.  He is therefore arguably within his rights to charge a deposit against late arrival, as a condition of granting  permission for the extras.

Those who supply the extras (organist, choir, bellringers) generally expect to be paid for their services.  Provision of the extras will then be a matter of contract. The incumbent will usually be the link between the couple and at least some of the suppliers of the extras.  He will be involved in making arrangements for the extras.

It may therefore be possible for the incumbent to charge a deposit on a contractual basis, as event organiser for the couple and / or as agent for the suppliers.

So the vicar in this case may be entitled to charge a deposit, on the basis of licence and / or contract.  However, the boundary between

(1) common law right (for which only statutory fees are chargeable) and

(2) extras (for which additional fees may be charged)

must always be respected.  Couples will be illegally overcharged if it is not.

Introducing the 2011 Amendment Measure, the Bishop of Exeter admitted that ‘there is considerable variation between parishes on services that are charged as extras over and above the statutory fees … people who are getting married are surprised to be asked for substantial sums for administration, vergers’ fees and so on …’ (House of Lords Official Report 23rd March 2011, column 794).

The Ecclesiastical Committee confirmed that ‘the PCC [has] never had a power to set fees of its own … over and above the statutory fees’ (229th Report, para 70).  If the incumbent has no common law right to charge a marriage fee, a fortiori the PCC has no such right.

The 2011 Measure was intended to resolve the confusion between rights and extras, but it may not have been entirely successful in this.  The 2017 Fees Order explains that the cost of lighting the church is included in the statutory fee, but that the cost of heating it is a contractual extra.  It also provides that the verger (if any) is a contractual extra.  Yet it is arguable that a verger’s work pertains to the use of the building, and is therefore covered by the statutory fee.

The Crockford Preface 1987: Thirty Years On

The Preface excited remarkable interest and controversy.  By a longstanding custom, its author was anonymous.  However, even in those pre-internet days, anonymity was difficult to maintain in the face of relentless media attention.  The then Archbishop of York, Dr John Habgood, publicly condemned the ‘sourness and vindictiveness’ of the Preface, and the ‘scurrilous charges’ that it supposedly made.  Unnerved by the storm of controversy, and threatened with exposure, the author took his own life.

He was subsequently identified as the Reverend Dr Gareth Bennett (1929-1987), Oxford don and priest of the Church of England.  His Preface is 40 pages long.  It was republished in a posthumous collection of his work, To The Church of England (1988, at pp.189-228), edited by Geoffrey Rowell, a sympathetic colleague.  (Bishop Rowell himself died, of natural causes, earlier this year.)

At about the same time, Archbishop Habgood published a more measured assessment of the Preface, in Confessions of a Conservative Liberal (1988, at pp.82-91).  However, the tragic denouement of the controversy damaged his reputation, and may even have cost him the succession to St. Augustine’s Chair when it became vacant 3 years later.

Dr Bennett saw his task as the provision of ‘an informed and critical account of the state of the Anglican Communion and the Church of England in particular’ (p.189).  Hence the need for anonymity.  Anonymity made possible ‘the scrutiny of a writer who is given complete independence’ (p.190).

His essential criticism of ecclesiastical governance was that it fails to enable adequate consultation.  Improved consultation will improve the quality of ecclesiastical governance, by making it more cohesive and inclusive.

The Preface identifies 3 specific failures of consultation, within:

(1)  the Anglican Communion

(2)  the synods of the Church of England and

(3)  the Crown Appointments Commission (now called the Crown Nominations Commission), which nominates diocesan bishops to the Crown.  It was this that caused all the controversy.

(1) The Anglican Communion

The Preface begins with a survey of the fragmented state of the Anglican Communion.  Anglicanism began in England, of course, and the word ‘Anglican’ really means ‘English’.  The Church ‘followed the flag’ as the British Empire spread across the globe.

Bennett observed that ‘The Englishness of the Communion is not what it was … with the spread of American influence and the natural desire of African and Asian dioceses to break with their colonial past and develop their own indigenous styles’.  The Book of Common Prayer and its derivatives have fallen into ‘virtual disuse’ (p.197), and the new liturgies ‘have distinct doctrinal differences from each other’ (p.198).  This prompts the rhetorical question: ‘without its English style what does keep the Communion together?’ (p.197).

Another fragmenting force is the rejection of classical High Anglican theology, which found the Church’s authority in the Bible as this was interpreted in the life and practice of the Early Church (p.191).  Theologians now suggest that the authorities of the Early Church are too obscure, happened too long ago, and in too different circumstances, to guide the modern Church (cf p.200).  Modern man is therefore condemned ‘[to] live amid the ruins of past doctrinal and ecclesiastical systems, looking to the Scriptures only for themes and apprehensions which may inform [him] … ‘ (pp.200-1).

The existing pan-Anglican consultative bodies are not capable of arresting this process of fragmentation.  The Archbishop of Canterbury is no more than ‘an honoured guest’ outside England.  The Primates’ Meeting ‘lack[s] the authority to make major recommendations’ (p.203).  The ordination of women (still a novelty at that time) has undermined the unifying collegial function of the bishops: ‘the episcopal ministry … the focus of unity, has become a focus for Anglican disunity’ (p.199).

Bennett therefore argued for ‘a reconstituted [Anglican] Consultative Council … to meet more frequently, have an adequate secretariat and the assistance of theologians and experts … there will have to be some self-denying ordinance by which the provinces agree that certain matters should not be decided locally but only after a common mind has been established among the Churches’ (pp.203-4).  Thus Churches with very different cultural values would be forced to listen to each other.

This, of course, anticipated the conclusions of the Windsor Report of 2004, which fell flat.  Its proposal for a pan-Anglican ‘Council of Advice’ and an ‘Anglican Communion Covenant’ is really a more elaborate version of Bennett’s proposal.

Archbishop Habgood generously described the analysis of the Anglican Communion as the ‘best part’ of the Preface (p.87), though he did not endorse Bennett’s proposal.  The failure of the Windsor Report may have vindicated him on this point.  Instead, the Archbishop founded his hope for the Communion on a pan-Anglican ‘doctrine commission’ that had recently been established, but this body (if it still exists) has not been conspicuously successful either.

(2) Synodical Government

Bennett was not the first to point out that the House of Laity of the General Synod is not very representative of its constituency.  Ordinary churchgoers cannot elect its members, they can only elect those who do.  The House of Clergy is more representative, but even there the representative quality is diminished by the large number of ex officio members.

However, his most important point was that the General Synod has very little control of ecclesiastical governance.  He observed that, though the House of Commons can vote the government out of office, ‘the General Synod, by contrast, finds itself faced with a government of the Church which is almost wholly independent of it’ (p.212).

The bishops are not accountable to the General Synod in the way that ministers of the secular state are accountable to Parliament.  Ministers have to answer parliamentary questions and give evidence to select committees concerning the exercise of their responsibilities.  There is no equivalent scrutiny of bishops.

It is true that ecclesiastical legislation (Measures, canons and subordinate legislation) requires the Synod’s approval, but there is not much of this, and it is mostly uncontroversial.  Hence ‘most of the debates … are … on reports from various boards or committees … motions … whether passed or amended, lead to no action at all’ (p.212).

The General Synod’s constitution confirms its freedom (of which it takes full advantage) ‘to consider and express [its members’] opinion on any other matters of religious or public interest’ (Synodical Government Measure 1969, sch2(6)(b)).  But what does this have to do with the governance of the Church?

Synodical government is a misnomer if the synods do not govern the Church.  There is a well-known axiom that the Church of England is ‘episcopally led and synodically governed’.  However, Bennett argues that there is little connection between the two: ‘nothing the Synod does has much effect on [the bishops], the administration of their diocese or the work of the leadership group within it’ (p.212).

This explains ‘the irritation which many bishops feel at having to spend so much time at Synod meetings, and their desultory contribution to its debates’ (p.212).  And who can blame the bishops for being bored by the General Synod, if its proceedings have so little relevance to their work?

Although Bennett does not make this point, English bishops differ from their Roman Catholic counterparts as well as their secular counterparts in their lack of accountability.  Canon 399(1) of the Code of Canon Law 1983 obliges every bishop ‘to present a report to the Supreme Pontiff every 5 years concerning the state of [his] diocese … according to a [standard] form … determined by the Apostolic See’.  This form may resemble the articles of enquiry on a visitation.

The bishop presents the report personally on his obligatory ad limina visit to Rome (canon 400(1)).  (Apparently, when the bishop appears before the Pope, a map of his diocese is hung up in the papal library, for the Holy Father’s ease of reference.)  The bishop receives ‘feedback’, not only from the Pope personally, but also from the various departments of the Roman Curia.

Perhaps if English bishops were required to report regularly, and individually, on their leadership of their dioceses to the General Synod (or the constituent convocations) episcopal leadership and synodical government might become more closely linked.  Episcopal interest in synodical proceedings would certainly revive!

Besides the General Synod there are the diocesan synods, but these also lack much constitutional equipment to scrutinise episcopal leadership.  The bishop is required ‘to consult with the diocesan synod on matters of general concern and importance’ (1969 Measure, s.4).  However, the synod can merely ‘advise the bishop on any matters on which he may consult the synod’.

The Archbishop has an ancient power to visit the bishops and dioceses of his province, to the end ‘that means may be taken thereby for the supply of such things as are lacking and the correction of such things as are amiss’ (canon G5(1)).  Archiepiscopal visitations have been held in recent years, but only to particular dioceses or churches, in order ‘to correct and supply the defects of other bishops’ (canon C17(1)).  In other words, an archiepiscopal visitation is not a regular, routine review but only occurs when something goes seriously wrong and the local bishop cannot cope.

Every diocesan bishop is now required to submit to a procedure known as ministerial development review, once every 2 years.  This review is organised by the Archbishop, who must also organise one for himself (Terms of Service Regulations 2009, reg 18(2)).  However, the General Synod is not involved in this, and the review’s conclusions are kept confidential.  The requirement was introduced to demonstrate the bishop’s equality (or ‘common tenure’ as it is called) with other ecclesiastical officeholders, who are also required to undergo ministerial development review, not his accountability to Church members.

(3)  The Crown Appointments Commission

After criticising inadequate consultation between the bishops and the synods, Bennett controversially proceeded to criticise the consultation process for the nomination of new bishops.

He complained of ‘a virtual exclusion of Anglo-Catholics from episcopal office and a serious under-representation of Evangelicals’ (p.221).  He also noted ‘the personal connection of so many appointed with the Archbishop of Canterbury himself’.

Dr Bennett was of the Anglo-Catholic party himself.  Moreover, despite a brilliant academic career (including a starred First from Cambridge), ecclesiastical preferment had eluded him.  He had to endure the agony of being passed over in favour of men of inferior ability, whose churchmanship was totally at variance with his own.  He was therefore vulnerable (as he would surely have realised) to the reproach that his criticism of episcopal appointments was, as Archbishop Habgood carefully explained, ‘an outburst from a disappointed cleric’ (p.83).

Bennett concluded that ‘An Archbishop should have an influence on appointments [but] it is clearly unacceptable that so many are the protégés of one man and reflect his own ecclesiastical outlook’ (p.222).  This was represented by Habgood, and the media, as an ‘attack’ on the Archbishop of Canterbury.

Archbishop Habgood justified his harsh words about the Preface by invoking the imperative of confidentiality.  ‘The [Crown Appointments] Commission can only do its work properly if its members feel free to discuss the lives and characters of [candidates] with total frankness, and if those who provide information can be similarly satisfied that nothing will be disclosed outside the actual meeting itself’ (p.84).

From this he concluded that a commentator who ‘claimed to write knowledgeably about the Commission … must either be abusing confidence … or … speculating on the basis of gossip’.  Either way, the Preface was dishonest.  The Archbishop concluded confidently ‘I believe [my criticism] is irrefutable’ (p.84).

It may not be.  Does confidentiality mean that knowledgeable, and fair, writing about the Commission is actually impossible?  Is the Commission’s work so confidential as to place it above and beyond all criticism?

Of course, the deliberations of the Crown Appointments Commission must be kept confidential, for the reasons identified by Archbishop Habgood.  However, the constitution, procedure and membership of the Commission are not, and should not be, confidential.  They are open to public comment and scrutiny.  And although the deliberations of the Commission are confidential, the outcome of those deliberations (i.e the appointments made as a result of them) is not.

It is not acceptable for a commentator to betray confidences, or make stuff up, and Dr Bennett did neither.  But it is acceptable to draw inferences from what is known of the constitution, procedure, membership (including the churchmanship and personalities of the members) and outcomes of the Commission.  Indeed any worthwhile commentary must draw such inferences, or it will add nothing to the known facts.  Dr Bennett did not betray confidences, nor did he lie.  He merely drew inferences from what was publicly known.

The Crown Appointments Commission is served by 2 appointments secretaries: ‘great power rests with the secretaries [because] they compile the list of candidates’ (p.219).  The Commission is chaired by the Archbishops, and ‘it is usually not difficult for a chairman to steer enough of [a committee’s] votes in the right direction’ (p.221).  The churchmanship of the Archbishops, and of the other Commission members, is known.  If no Anglo-Catholic bishops were appointed then the inference is that either no Anglo-Catholic candidates were shortlisted, or a majority of the Commission voted against them.

Of course, inferences can be mistaken.  Perhaps the bishops approved by the Commission were not mostly former colleagues and protégés of the Archbishop of Canterbury.  (That mistake, at least, should have been easy to correct.) Or perhaps they were simply the best men for the job, and their connection to the Archbishop and lack of Anglo-Catholicism a pure coincidence.  Or perhaps lots of Anglo-Catholics were offered bishoprics but turned them down.

Mistaken inferences may well be irritating to those in confidential possession of the true facts.  But they are not dishonest.  Archbishop Habgood’s criticism of ‘scurrilous charges’ was itself rather scurrilous.

A subsequent nomination of the Crown Appointments Commission suggests that there was some force in Bennett’s criticism.  And it was made when Archbishop Habgood was still in office, and still co-chairman of the Commission.  A candidate for one of the leading sees had a criminal conviction for indecency.  Yet this rather salient fact was not known to the representative members, who then approved the candidate’s nomination in ignorance of his past.  (Perhaps this could not happen nowadays, on account of the rigorous ‘safeguarding’ requirements.)

 

The Coronation Oath: Right and Rite

Graeme Watt, Barrister, ‘The Coronation Oath’, Ecclesiastical Law Journal, Sept 2017, p.325

‘the oath … shall … be administered to [the Monarch] at the time of their coronation … by the Archbishop of Canterbury …’ (Coronation Act 1688, s.2)

‘Every King and Queen … shall have the coronation oath administered to him, her or them at their respective coronations, according to the [1688] Act’ (Act of Settlement 1700, s.2)

The Coronation Oath Act was passed in the wake of the Glorious Revolution.  The text of the oath is prescribed by s.3.  This well-researched, absorbing article draws attention to a curious fact.  S.3 has never been expressly amended since 1688.  Yet the oath actually taken by the Monarch at the coronation has varied several times over the years.  Its present wording is now significantly different from the unamended statutory text.  Does this difference mean that the oath, as actually taken by the Monarch, is illegal?

The article relates that the oath was first altered for King George I, to refer to ‘Great Britain’ rather than ‘England’, on account of the Anglo-Scottish Union of 1707.  It was altered again because of the Anglo-Irish Union of 1800, which created the United Church of England and Ireland.  Then the reference to the Irish Church was removed following the disestablishment of the Church of Ireland in 1869.

The present version of the oath dates from the coronation of King George VI (our present Queen’s father) in 1937.  The 1937 variation was precipitated by the Statute of Westminster 1931, which granted or confirmed the right of the overseas Dominions of the Crown (Canada, Australia, New Zealand etc) to self-government.  The 1937 oath was repeated by the Queen at her coronation in 1953.

The learned author’s opinion is that the pre-1937 variations of the coronation oath all had proper legal authority, even though s.3 of the 1688 Act was never amended.  They were authorised either expressly or by necessary implication in the Acts of Parliament which effected the Anglo-Scottish and Anglo-Irish Unions, and Irish Disestablishment.  However, he argues that the 1937-1953 variation of the oath did not enjoy such authority, because it went beyond any requirement of the Statute of Westminster.

In the 1937-1953 oath, the Monarch promises ‘to govern the peoples of Great Britain, Ireland, Canada etc … according to their respective laws and customs’ (p.330).  However, it omits the promise in the 1688 oath to govern ‘according to the statutes in Parliament agreed upon’.

The author seems to accept that the Statute of Westminster necessitated some amendment of the coronation oath.  The oath could not very well contain an unqualified commitment to govern according to the Acts of the Westminster Parliament, because the Statute made clear that many of the Monarch’s subjects were not to be governed from Westminster in the future.  And the 1937 oath does promise to govern ‘according to … laws and customs’, which presumably includes statute law.  Is it not farfetched to characterise the 1937 oath as a royal ‘power grab’?

However, the Glorious Revolution was an assertion of the constitutional supremacy of Parliament.  Parliamentary supremacy remains the basis of the British Constitution to this day, notwithstanding British membership of the European Union, and the devolution of legislative powers to Scotland, Wales and Northern Ireland.

Thus the author argues that the Statute of Westminster did not justify ‘The absence of any reference to Parliament as the ultimate source of the laws of the realm [this] does, in theory, reignite old controversies which date to the days of Charles II and … further back to Edward II … ‘.  He therefore concludes ‘with reluctance’ that ‘any oath administered at a coronation is unlawful if it does not … refer to Parliament’ (p.332).

Though he strives to remain calm and optimistic, it is clear that the learned author’s conclusion gives rise to a most alarming possibility.  Perhaps ‘unlawful oaths equal unlawful reigns’ (p.336).  Just imagine ‘the constitutional chaos that would ensue’!  If the Monarch failed to take the oath as required by the 1688 Act and by the Act of Settlement perhaps she is not really Queen.  All the laws passed during her long reign will be invalid, since she had no authority to approve them.

Fortunately this may not be the case after all.  The article cites a reassuring dictum of the Court of Appeal: ‘our Queen … has been accepted by Parliament and by the nation, as the rightful person to inherit the Crown as of the date of her coronation … it is not now, in the year 2000, open to … challenge her right to the succession’ (p.337).

The learned author offers 2 possible solutions to the hidden constitutional crisis that he has uncovered:

(1) Her Majesty might have acquired a prescriptive right to the Crown ‘pursuant to lengthy occupancy of the throne’, despite the invalid oath (p.337).  However, there is a difficulty here: ‘prescription is dependent on the [fiction] that the right claimed has a lawful origin.  The exposure of the fiction is fatal …’ (p.338).  Thus a prescriptive right to the Crown would depend on the presumption that the coronation oath had been lawfully taken, but the ‘well-documented evidence to the contrary’ would rebut that presumption.  So the prescriptive claim would fail, alas.

(2) the equitable doctrine of part performance might apply.  A person who has conscientiously performed her side of a bargain should not be deprived of the benefit of it just because a legal formality was overlooked when the bargain was struck.

It is incontestable that Her Majesty has always acted in accordance with the 1688 oath, even if she never validly took it.  She has always  scrupulously respected  Parliamentary supremacy.  Thus she has kept her side of the post-1688 constitutional bargain with her subjects.  Therefore, happily, ‘we might be permitted to conclude that the person taking the oath should be regarded by law as being in the same position as if the oath had been correctly taken’ (p.340).

This all makes gripping reading.  However, it is argued that the constitutional difficulty, if it exists (which we rather doubt), is not quite as serious as the learned author imagines.  The flaw in his fascinating thesis is that it assumes that the coronation oath, in the correct form, is a condition of the Monarch’s title to the Crown.  It is not.

‘The King is dead – long live the King!’ is a traditional acclamation of the accession of a new Monarch.  F.W Maitland observed in The Constitutional History of England (1911) that ‘The King never dies … under the Act of Settlement, and some centuries before it, the heir begins to reign at the moment of the ancestor’s death’ (p.343).

The coronation rite begins with a ceremony known as The Recognition.  The Monarch formally shows herself to her subjects, while the Archbishop says ‘Sirs, I here present unto you Queen Elizabeth, the undoubted Queen of this Realm … ‘.  The Recognition occurs before the oath is taken, and before the Monarch is crowned.  It makes the point that the Monarch is already fully entitled to the Crown.  The coronation rite proclaims the Monarch’s title, celebrates it, invokes God’s Blessing on it.  But it does not confer, or even confirm, that title.

The coronation oath is therefore not comparable to the oath of office sworn by the President of the United States at his inauguration.  The learned author himself admits that King Edward VIII was never crowned at all, and so never took the oath, but there is no doubt that he was the lawful Monarch till his abdication.  Maitland suggested that ‘The coronation … does not seem to be a legally necessary ceremony’.

It is true, however, that the coronation oath is a mandatory legal requirement.  It is not discretionary or negotiable.  If a hypothetical Monarch declined to have the oath administered to him or her in accordance with the Act of Settlement, i.e flatly refused to take the oath, then this would cause a constitutional crisis.  Possibly it could be argued that a Monarch who refuses the oath has thereby forfeited his or her right to the Crown.  However, the right would not be forfeit ab initio, but only from the time of refusal.  And, of course, refusal of the oath is not the issue here.  The only issue is the correct administration of the oath.

The statutory provisions quoted above are worded passively.  The Monarch does not take the oath:  the oath is administered to the Monarch by the Archbishop of Canterbury.  Thus it is the Archbishop, not the Monarch, who is responsible for the correct administration of the oath, including the correct wording.  It follows that, if the oath is not administered correctly, any legal consequences will fall on the Archbishop alone.

There are 2 possible consequences:

(1) the secular court could require the Archbishop to administer the oath again, and correctly this time and / or

(2) the Archbishop could be haled before the ecclesiastical court to answer a disciplinary complaint of ‘neglect or inefficiency in the performance of the duties of his office’ (cf. Clergy Discipline Measure 2003, s.8(1)(c)).

Which would all be very embarrassing for the poor Archbishop, no doubt.  But the Monarch’s title to the Crown would continue serene and undisturbed.

Wise Virgins: The Cardiff Convention 1917

Controversy

It is easy to forget – and its present leaders may prefer to forget – that the Church in Wales was strongly opposed to its own Disestablishment.  Disestablishment gave rise to ‘more bitterness and acrimony than any political controversy in which the Welsh nation has ever been engaged’ (House of Commons Official Record 1945, vol 409, column 527).  Devolution and Brexit were amicable by comparison.

The Disestablishment controversy was fought on party political lines.  The Liberal Party’s electoral support came from the nonconformist chapels, which resented the perceived wealth and privilege of the Established Church.  In Wales, the Church was widely regarded as an alien, English institution, with only a small number of adherents.

However, the Church was still ‘the Tory Party at prayer’.  For many years, the large Tory majority in the House of Lords frustrated Liberal attempts at Disestablishment.  The Welsh Church Act 1914 was only enacted at the 4th attempt, and only after the Parliament Act 1911 had made it impossible for the House of Lords ultimately to prevent the enactment of legislation approved by the House of Commons.

Disestablishment per se might not have been so controversial.  However, the 1914 Act also provided for a substantial disendowment of the Church in Wales.  Most of its glebe and tithe property, on which its clergy depended for their income, was secularised, transferred to the Welsh local authorities and to the University of Wales (s.8(1)(c)-(e)).

S.13 of the Welsh Church Act contains 2 provisions for the post-Disestablishment governance of the Church in Wales:

‘(1) Nothing in any Act, law or custom shall prevent the bishops, clergy and laity of the Church in Wales from holding synods or electing representatives thereto, or from framing … constitutions and regulations for the general management and good government of the Church in Wales and the property and affairs thereof …

(2) If … it is shown to the satisfaction of His Majesty the King that the said bishops, clergy and laity have appointed … persons to represent them and hold property for any of their uses and purposes, His Majesty in Council may by Charter incorporate such persons … as the representative body.’

S.38(1) clarifies that ‘The expression synod [in s.13(1)] includes any assembly or convention’.

These 2 provisions are different in character.  S.13(1) merely confirms that, having ‘cease[d] to be established by law’ (per s.1), the Church in Wales has the same freedom to govern itself as any other voluntary association.  It does not confer any status on the Church’s synods or assemblies.

S.13(2), by contrast, confers a positive power on the state (‘His Majesty in Council’) to incorporate the Representative Body.  Before exercising this power, the state had to be satisfied that the appointed persons did indeed represent the Church in Wales.

S.8 provided that the property left to the Church in Wales after Disestablishment should ultimately vest in the Representative Body.  However, s.4(1) provided that, at the date of Disestablishment, the property should first vest in the Welsh Commissioners, a state agency.  The Welsh Commissioners would then transfer the property to the Representative Body.

(s.4(2) excepted movable chattels from this rule.  Chattels remained the property of their ecclesiastical owners, then vested automatically in the Representative Body when incorporated.)

Disestablishment, and Disendowment, were originally scheduled to occur no later than a year after the passage of the Welsh Church Act (s.1).  However, the outbreak of the First World War caused Disestablishment to be postponed for the duration of hostilities: Suspensory Act 1914, s.1.  This gave the Church in Wales more time to prepare its future constitution.

Cardiff

The 4 Welsh diocesan conferences were the primary vehicle for the Church in Wales’s forced march to self-governance.  Diocesan conferences were no novelty in 1914.  They had existed in England and Wales since the 19th century, but only on an unofficial, voluntary basis.

Each conference appointed 100 delegates to represent it, led by the bishop: one third clergy, two thirds laity (including, progressively, one lady delegate).  The 4 conferences also passed identical resolutions giving their delegates full power to act on their behalf (12).  These 400 delegates became the Cardiff Convention.  The Convention was therefore a representative assembly of the diocesan conferences, and drew its authority from the diocesan conferences.

The Convention met from 2nd to 5th October 1917, exactly 100 years ago this week.  The venue was apparently Cory Hall, which no longer exists.  There is a group photograph of the delegates which looks as if it was taken outside what is now Cardiff Crown Court.

Nobody in the Church in Wales was more trenchantly opposed to Disestablishment than its senior bishop, Alfred George Edwards, the Bishop of St. Asaph.  (He was, in today’s parlance, a ‘remainer’ or ‘remoaner’.)  By virtue of his seniority, he officiated as President of the Convention.  His opening speech graphically illustrates the Disestablishment controversy:

‘The [Welsh Church] Act proclaims that on the day the War ends it will smash our machinery and rob the safe’.

He continued defiantly:

‘Our answer is clear.  We shall do our best to prevent you [i.e the Liberal Party] doing your worst’ (Convention Official Report, p.7)

The Presiding Bishop was particularly distressed by s.4(1) of the 1914 Act.  Disendowment was bad enough.  But the prospect of the Church’s remaining property also falling into the clutches of a secular agency was dire.  His priority was therefore to ensure that a Representative Body was constituted and incorporated, ready to take over the Church’s property at Disestablishment.

His memoirs contain this poignant entry: ‘to constitute a Representative Body … in January 1915 … I was summoned to London to an all-important committee meeting, and I struggled painfully through it, for on that morning the news had reached me that my youngest son had been killed in action’ (Memories, London, 1927, p.270).

The Cardiff Convention created 2 new institutions for the Church in Wales:

(2) a Representative Body to secure the Church’s property and

(1) a Governing Body to provide for the Church’s governance after Disestablishment.

The Cardiff Convention constituted the Representative Body, but the Representative Body’s authority would come from its Royal Charter, when granted according to s.13(2).  By contrast, the Governing Body’s authority came from the diocesan conferences, via the Cardiff Convention.  The diocesan conferences’ authority came from the freedom conferred by s.13(1).

The constitution of the Governing Body was the embryo of the future constitution of the Church in Wales.  The Cardiff Convention constituted the Governing Body, and thereby enabled the Governing Body to provide a constitution for the entire Church.

The work of preparing the 2 constitutions was led by Mr Justice Sankey, the future Lord Chancellor Sankey, who was then Chancellor of Llandaff.  He took a more positive view of Disestablishment than the Presiding Bishop:

‘Unto us there comes the privilege which is seldom given to a generation, the opportunity of directing and shaping the course of the Church, it may be, for centuries’ (Convention Official Report, p.25).

Nevertheless he warned that ‘There will be chaos in the Church if the Governing Body is not in existence [at Disestablishment] and has not framed its constitution’ (p.18).  He counselled that ‘our watchword [should be] ‘Be ye prepared’.  Forgive me for reminding you of the parable of the wise and foolish virgins’ (p.13).

The Wise Virgins were well supplied with oil to trim their constitutional lamps.  They had a wealth of precedents to draw on.  The Church of Ireland had been disestablished in 1870.  (The Irish Church Act 1869 provided the precedent for the Welsh Church Act.)  In the 19th century, a number of overseas Anglican missions (South Africa, Canada, Australia and New Zealand) had involuntarily separated from the Home Church, when their colonies became self-governing.  When the colonies became independent and self-governing, their Churches were obliged to follow suit.  There is a detailed history of this Victorian colonial constitution-making in Phillimore’s Ecclesiastical Law (2nd ed 1895), at pp.1769-82.

Sankey related that he and his colleagues ‘consulted every constitution of every disestablished Church … circulated questions … to the most celebrated divines and historians’ (p.11).  His method was cautious: ‘We shall only do what is absolutely urgent and what is absolutely essential’.

The draft constitutions reflected this caution:

‘no originality is claim for these schemes.  We are not running after any new thing.  With few exceptions to meet the particular facts of our own case, every paragraph in both of these schemes [for the Governing Body and the Representative Body] is taken from some [existing] constitution which has been tried in the balance and is found not to be wanting’ (p.13).

The Governing Body and the Representative Body are easily confused.  It may be wondered why two separate ‘Bodies’ were considered necessary.  S.13 does not require this.  Perhaps the Representative Body could have served both to govern the Church and to hold and administer its property.

However, Sankey’s researches showed that every other voluntary Anglican Church had two distinct bodies, a synod and a finance committee (p.18).  He suggested that the finance committee/Representative Body should be ‘a small body with trained and expert knowledge’, whereas the synod/Governing Body handles ‘general questions of policy and the control of the many activities and organisations of the Church.  Here you want a larger body … representative … of all shades of thought and opinion’ (p.17).

He might have added that the Representative Body should be accountable for its stewardship of the Church’s property, and this required that it should be separate from, and subordinate to, the Governing Body.

The Governing Body held its first meeting on 8th January 1918, not in Wales, but in Church House, Westminster.  It proceeded to constitute diocesan and deanery conferences, parochial church councils and patronage procedures (p.18) on the basis of draft schemes prepared by Sankey and his colleagues.

The Representative Body was incorporated by Royal Charter on 24th April 1919.

Conclusion

The Disestablishment controversy had a relatively happy ending.  The carnage of the War put sectarian squabbles in perspective.  Any question of disestablishing the Church of England disappeared from the secular political agenda.  Welsh Disestablishment was irreversible, and eventually took place on 31st March 1920:  Welsh Church (Temporalities) Act 1919, s.2.  However, the Liberal-led government was by then heavily dependent on Tory support.  This assisted the Presiding Bishop to negotiate a substantial payment of public money to the Church in Wales, to mitigate the hardship of Disendowment (s.3(2)).

Sankey’s cautious approach of following precedent and ‘only do[ing] what is absolutely urgent and what is absolutely essential’ has stood the test of time, as he hoped it would.  While it has changed in matters of detail, the structure of the Constitution is still largely his work.  Its longevity compares favourably with the first Roman Catholic Code of Canon Law, which was also promulgated in 1917.  The 1917 Code was a great juristic achievement, but it was found to be unsatisfactory and out of date in practice almost immediately, and was eventually abrogated by the present Code in 1983.

There is a masterly analysis of Sankey’s work by Jeffrey Gainer, ‘John Sankey and the Constitution of the Church in Wales’ (LLM dissertation, Cardiff University, 1994).

Alsager v Blagdon: Binding and Guiding

Christ Church, Alsager (1998) 3 Weekly Law Reports 1394

Blagdon Cemetery (2002) 4 All England Reports 482

Both the cases cited above concerned requests for exhumation of deceased persons by their relatives.  In Alsager, the Chancery Court (which is the provincial court of York) observed that

‘applications for exhumation are common … [but] there is no reported relevant case in either this Court or the Court of Arches’ (p.1399).

It therefore took the opportunity to issue guidance to consistory courts on how to decide exhumation cases in future.

A few years later, in Blagdon, the Court of the Arches (the provincial court of Canterbury) issued its own guidance on private exhumation, because it found the Alsager guidance unsatisfactory.

The Worshipful Chancellor Bursell QC was one of 3 judges of the Chancery Court which decided Alsager.  Despite the passage of time, he has evidently not forgiven the Court of the Arches for rejecting the guidance of which he was a co-author.  He took his revenge in the case of Sam Tai Chan (2016), in which he officiated as Chancellor of Durham (which is in York Province, of course).

Citing supposed ‘rules of precedent … within the 2 Provinces’ (para 9), Bursell concluded that ‘in so far as the Northern Province (sic) the Alsager test still prevails’ (para 22).  Northern ecclesiastical courts remain ‘bound’ by the Alsager guidance, whatever the southern provincial court might say.

(This confusion of binding precedent and mere judicial guidance is discussed in a separate post ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed below.)

Yet Bursell would have avoided his confusion in Sam Tai Chan if he had re-read his own judgment in Alsager.  The Chancery Court said of its guidance that ‘We hope and believe that this judgment will assist all chancellors, both in this [northern province] and in the southern province’ (p.1398).

This makes clear that guidance from the provincial court is

(1) not ‘binding’ in the way that precedent is and

(2) meant to assist all ecclesiastical courts, not just the courts in its own province.

Perhaps Bursell has now re-read Alsager.  In a recent article ‘Aspects of Exhumation and Burial’ (Ecclesiastical Law Journal, May 2017) he extolled the quality of the Alsager guidance, but did not repeat his flawed thesis on precedent.

However, the damage is done.  The Worshipful but muddled Lady Chancellor of Sheffield was clearly misled by Bursell’s thesis, and even added a further confusion of her own.  She concluded that ‘I can exercise my discretion … bound by the Alsager test and guided by the Blagdon test’: David Bell deceased 2016, para 3.  (Rather difficult to be guided by one person while being bound by another person at the same time!)

The 2 tests are briefly stated.  The Blagdon guidance commended

‘the straightforward principle that a faculty for exhumation will only be exceptionally granted’ (p.489).

The earlier guidance in Alsager had suggested that

‘the critical question … is ‘Is there a good and proper reason for the exhumation … ?’ (p.1401).

If the Alsager guidance had stopped there, the Blagdon guidance might not have been needed.  That exhumation requires a ‘good and proper reason’ is an eminently reasonable suggestion, indeed rather obvious.  Perhaps it sets the bar too low.  Any proposal to exhume a departed loved one is likely to have a good reason, or at least an understandable one.  The Blagdon guidance is stricter, requiring an exceptional reason.

But the real difficulty with Alsager is that it does not stop with its requirement of a good and proper reason for exhumation.  The full guidance reads

‘Is there a good and proper reason for the exhumation, that reason being likely to be regarded as acceptable by right thinking members of the Church at large?’

This reference to right thinking Church members seems otiose.  If there is good and proper reason for exhumation, then right thinking Church members will surely regard it as acceptable.

The Court of the Arches’ criticism was that ‘the reference to right thinking members of the Church at large is an extremely difficult test to apply in practice’ (p.488).  Chancellor Bursell did not accept this criticism in his recent article.  He grumbled that ‘civil courts have had no difficulty in applying the approach of … the man on the Clapham omnibus or of right-thinking members of society, the officious bystander, the reasonable landlord and the fair-minded and informed observer, and it is unclear why ecclesiastical courts should have greater difficulties’ (p.189).

He also cited a dictum of the Supreme Court that ‘These legal fictions [officious bystander etc] ‘belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to [Roman law]’ (n98).

But that is precisely the difficulty with the Alsager guidance.  The Chancery Court did not make clear that its ‘right thinking members of the Church’ are fictional members only, and not real members.  As the Court of the Arches noted in Blagdon ‘The Chancellor may consider that evidence ought to be taken on the matter [of what right thinking Church members would regard as acceptable]’.  How should he go about doing that?

The lay petitioner, legally unqualified and unaware of legal fictions, will be even more confused than the court: ‘For the petitioner the [Alsager] test may give the impression that mustering support … is the way to persuade the court’.  Consider a bereaved family undergoing the distress and humiliation of knocking on doors and soliciting signatures from strangers for the exhumation of their departed relative, in the mistaken belief that this will persuade the Church court to grant them a faculty.  A frankly sickening prospect.

Although the Blagdon test for exhumation is stricter than the Alsager test, the Court of the Arches’ decision on the case was actually more generous than that of the Chancery Court.  In Alsager, the petitioner wished to rebury his father’s ashes in the same grave as his (uncremated) mother, who had died many years later.  Father and mother were both interred in the same churchyard, 30 feet apart.  The mother had died in the Catholic Church, which still officially disapproves of cremation (Code of Canon Law 1983, canon 1176(3)).

Reuniting one’s parents in these circumstances is surely as good and proper reason as any for exhumation.  Yet the Chancery Court refused a faculty.  ‘Right thinking members of the Church at large’ might well consider this distinctly harsh.

In Blagdon, by contrast, the Court of the Arches sympathetically allowed parents to exhume the body of their dead son and rebury him in unconsecrated ground a long way away, but nearer to where they now lived.

The Burial Act 1857: A Grave Offence

‘Except … where a [dead] body is removed from 1 consecrated place of burial to another by faculty … it shall not be lawful to remove any body … which may have been interred in any place of burial, without licence [from the Secretary of State] …

‘any person who shall remove any such body or remains, contrary to this enactment … shall, on summary conviction before [the magistrates], forfeit and pay [a fine]’.  S.25 of the Burial Act 1857, the original version.

The case of Fairmile Cemetery (Oxford Consistory Court 2017) concerned a petition for a faculty to exhume a body which had mistakenly been buried in a plot that had been reserved for someone else.  (The case is discussed in a separate post, filed below.)

The judgment relates that some burial authorities correct mistakes of this kind informally, by a practice known as sliding (para 35).  Sliding  involves ‘excavating the ground so as to move the coffin sideways … but without lifting it out of the ground’ (para 34).  This is done without troubling either the ecclesiastical court or the Secretary of State for a licence.  The burial authority, literally, covering up its mistake.

The burial authority involved in the Fairmile case had initially proposed to resolve it by sliding, though an official piously assured the court that this was ‘not a practice she herself would ever resort to’ (para 35).  However, the Chancellor was clearly appalled that sliding had even been considered.  He warned sternly that ‘Should cases of this happening become known to the court, I shall instruct the Registrar to report the matter … to the Police with a view to their investigating whether a criminal offence has been committed’.

Referring to s.25 of the Burial Act 1857, the Chancellor correctly observed that ‘If [sliding] amounts to the remains being ‘removed’ it is … a criminal offence’.  But does sliding amount to removal within the meaning of s.25?

S.25 makes it an offence to remove a dead body, not to disturb one.  It could be argued that not every disturbance of a dead body amounts to removal.  The ecclesiastical exception in s.25 refers to removal ‘from 1 consecrated place of burial to another’.  A ‘consecrated place’ refers to a consecrated burial ground, not to a particular plot within the burial ground.  This may suggest that the s.25 offence applies only to the removal of a body from a burial ground altogether, not to the relocation of the body within the same burial ground.

It is also unlikely that s.25 was originally addressed to incompetent burial authorities.  It was directed rather at grave robbers, known ironically as ‘resurrection men’, one of the grimmer manifestations of the 19th century ‘Age of Science’.

In Gilbert v Buzzard (1820) 161 English Reports 1342, another burial case, the Chancellor, Sir William Scott, shuddered at the ‘ravages … to be dreaded … of the persons engaged in the employment of furnishing bodies for dissection, an employment which, whatever be its necessity, is certainly not conducted without lamentable violation of natural feelings, and occasionally of public decency itself’ (p.1347)

Grave robbers unscrupulously took advantage of the common law rule that there is no property in a dead body.  If a dead body does not belong to anyone then it cannot be stolen.  Grave robbers could therefore dig up a body and sell it on to the medical school with impunity.  S.25 was intended to prevent this.

As the Chancellor observed in Fairmile, s.25 of the 1857 Act has recently been rewritten.  The Miscellaneous Provisions Measure 2014 substituted a new version (at s.2).  The 19th century wording has been tightened up.  S.25(2) now provides that ‘It is an offence for a body or … remains which have been interred in a place of burial to be removed’ without licence or faculty.  There is no longer a reference to a body being removed from 1 place of burial to another.  Perhaps this means that ‘removed’ now refers to disturbance of the original interment, and not merely removal from the cemetery, or consecrated part of the cemetery.  The Chancellor seemed to think so.

The concern expressed in Fairmile is understandable, of course.  Decent and respectful treatment of the dead demands a high degree of formality.  Incompetent cemetery management undoubtedly risks disrespect for the dead, and distress to relatives.  However, the magistrates court may not be the best forum for remedying this.  Political and administrative means, such as scrutiny by councillors, staff disciplinary procedures and references to an ombudsman, may be more appropriate.

A Rogue Bishop

It is reported that a Church of England curate has been illegally ordained, or consecrated, as a ‘bishop’ by the Presiding Bishop of a breakaway Anglican Church based in South Africa.

Reacting to the distressing news, the Church authorities were not slow to refer to the Overseas and Other Clergy Measure 1967.  The Presiding Bishop could only perform episcopal functions in an English diocese ‘at the request and by the commission of … the [diocesan] bishop … and with the consent and licence … of the Archbishop’ (s.4(1)).  Yet he had acted without any such authority.

S.4(2) of the 1967 Measure stresses the authority of the diocesan bishop: ‘any person ordained priest or deacon by a [visiting] bishop acting on such request and by such commission as aforesaid shall be deemed to have been ordained by the [diocesan] bishop … and not by the [visiting] bishop’.  Of course, this provision refers only to the ordination of lesser clergy, not bishops.

The ordination of priests and deacons requires the authority of the diocesan bishop.  The consecration of a bishop requires the authority of the Monarch.

Thus the 1662 Ordinal provides that, before a new bishop is consecrated, ‘the Archbishop [shall] demand the Queen’s Mandate for the consecration, and cause it to be read [i.e read aloud]’ (rubric).  The consecration of a new bishop is performed by archbishops and bishops, but their authority to consecrate comes from the Monarch.  The choice of bishops is a jealously guarded royal prerogative.

Thus even if the local bishop and the Archbishop had given their full agreement to the consecration in accordance with the 1967 Measure, this would still have been ineffective without the Royal Mandate.

The 1967 Measure (which is only 50 years old, after all) may therefore not be the correct starting point for this case.  The Measure probably does not contemplate the illegal ordination of bishops, only of priests and deacons.  The true starting point is the Reformation statutes concerning the Monarch’s rights over the Church and its bishops: the Appointment of Bishops Act 1533, the Suffragan Bishops Act 1534.  And the Submission of the Clergy Act 1533, which provides that no ecclesiastical proceeding ‘shall be contrary or repugnant to the King’s prerogative royal …’ (s.3).

S.4(2) of the 1967 Measure provides that ‘If any overseas bishop performs any episcopal functions … otherwise than in accordance with this section [i.e without the authority of the local bishop and the Archbishop] he shall be guilty of an [ecclesiastical] offence’.

Yet if the offending bishop does not belong to the Church of England, disciplinary proceedings against him are unlikely to be effective in practice.  Moreover s.6(1) provides that an ‘overseas bishop’ means a bishop ‘in communion with the Church of England‘.  The breakaway South African Church is not in communion with the Church of England, apparently.  So the Presiding Bishop could not be subject to ecclesiastical discipline.

However, the English curate who was purportedly ‘consecrated’ by the Presiding Bishop certainly is subject to ecclesiastical discipline.  The Clergy Discipline Measure 2003 provides that ‘doing any act in contravention of the laws ecclesiastical’ constitutes misconduct for which disciplinary proceedings may be taken (s.8(1)).

The case of Bishop of St. Albans v Fillingham (1906) Probate 163 may be instructive here.  The Rev Mr Fillingham was an incumbent of Low Church persuasion.  He objected to the ritualism practised by another incumbent in the same diocese.  He was also disgruntled by the neglect or inability of the Bishop to take action against the ritualist.

He therefore decided to take direct action himself, by purporting to ‘ordain’ a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  His idea was that the non-conformist would undertake an alternative mission in the ritualist’s parish.

Mr Fillingham was duly prosecuted and convicted of an ecclesiastical offence.  The Court of the Arches held that his purported ‘ordination’ constituted ‘an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  His defence of necessity was rejected: ‘he cannot justify his acts … by shewing that they were intended to counteract the wrongful acts of someone else’ (p.176)

The Court found that Mr Fillingham’s offence was unprecedented (p.183).  His case may therefore be the only legally reported case of schism in the Church of England.

The judgment makes clear that a dispute over doctrine or moral values is not a schism.  Schism concerns the power of governance in the Church.  It requires a deliberate act of rejection by the schismatic of an authority to which he is subject.  Yet schism is more than mere disobedience.  It requires an express or implied claim of some other authority, in place of the authority that is rejected.

A century later, in Coekin v Bishop of Southwark (2006), unreported, the Rev Mr Coekin was involved in the ordination of two deacons by another breakaway Anglican bishop.  Mr Coekin did not directly participate in the act of ordination itself, but he associated himself with it and, in particular, he was responsible for ‘the making of necessary administrative arrangements’ in connection with the ordination (para 20).  The report on his case concluded that ‘by the part he played in arranging the [ordination] service [Mr Coekin] bore some degree of responsibility for the resultant breach of canon law’ (para 34).

The facts of these 3 cases are not identical.  Mr Fillingham purported to ordain a priest, Mr Coekin merely facilitated the purported ordination of deacons.  The curate in this case purported to be ordained a bishop.  However, all 3 cases involved active participation in an unlawful ordination.

Mr Fillingham and Mr Coekin were both dealt with leniently.  The Court of the Arches suggested in Fillingham that ‘offences of this nature differ from very grave moral offences in this, that they are not so irretrievable in their results on the reputation of the guilty person’ (p.186).  Mr Fillingham was suspended for two years, but was not deprived of his benefice after undertaking not to repeat his offence.  Likewise, Mr Coekin was allowed to keep his licence after giving suitable undertakings (para 39).

The offence in the present case is arguably graver than the first two, and not just because a bishop is more senior than a priest or a deacon.  It is, of course, part of a bishop’s function to perpetuate the ordained ministry by ordaining new clergy.  The 1662 Ordinal provides that a new bishop must promise to ‘be faithful in ordaining, sending or laying hands upon others‘.

The ordinations in which Mr Fillingham and Mr Coekin were involved were one-offs.  There was no proven intention to participate in future schismatic acts.  By contrast, receiving unlawful ordination as bishop arguably demonstrates an intention to administer unlawful ordinations in the future, and hence to establish a schismatic ordained ministry.  The late Archbishop Lefebvre was, of course, excommunicated for ordaining bishops without the permission of the Pope, as were the bishops he ordained (though the latter excommunications have since been lifted).

The validity of unlawful ordinations is discussed in the blogpost ‘Holy Orders: Validity and Legality’, which is filed below.

The Case of Fairmile Cemetery: A Distinguished Judgment

Oxford Consistory Court 2017, published on the internet website of the Ecclesiastical Law Association (accessed 5th May 2017).

This case offers much food for thought (albeit rather hard to digest) on the faculty jurisdiction over exhumation.

The late Mr Miller was buried in Plot 172 of the consecrated municipal cemetery.  Unfortunately Plot 172 had already been reserved by Mr Leventis, who was still alive.  Mr Leventis had reserved Plot 172 because he wanted to be buried adjacently to other members of his family.

The burial of Mr Miller in Plot 172 therefore infringed Mr Leventis’s legal right.  This was entirely the fault of the local authority.  They had mistakenly advertised Plot 172 as Plot 171.  So Mr Miller’s family thought they were burying him in an unreserved space.

Mr Leventis sought a faculty to have Mr Miller exhumed from Plot 172, but the Chancellor refused to grant one.

The facts stated in the judgment suggest that this was probably the right decision.  Although Mr Leventis could not be buried exactly as he had intended, his wish for a close family burial ‘can be approximately satisfied by the acquisition … of alternative plots … in a different configuration’ (para 80).  The contrite local authority ‘have said they will make such vacant plots as there are available to the Leventis family in any configuration they wish’ (para 85).  (They also paid all the legal expenses of the case (para 87)).  If Mr Leventis was still dissatisfied, he could complain to an ombudsman or sue for damages in the secular court. (para 84).  The slight interference with his burial plans did not justify the disturbance of Mr Miller’s remains and the ‘serious distress’ that this would cause to his family, who were entirely innocent of the mistake (para 80).

The Chancellor also rightly held that, though a mistake over burial and infringement of a right of burial are indeed grounds on which the court may grant an exhumation faculty, the court is never obliged to do this.  A faculty is always a matter for the court’s discretion, which depends on the facts of the particular case.  (He might have added that, though the faculty jurisdiction is subject to legal rights, it is not obliged to vindicate legal rights that others have infringed.)

So far, so reasonable.  But the Chancellor was clearly aware that, though exhumation faculties are not inevitable in cases of mistake and infringement of third party rights, they generally are granted in such cases.  Moreover, he himself had recently granted an exhumation faculty in just such a case:  Twyford Cemetery (2015).

This awareness seems to have made the Chancellor excessively anxious to distinguish this case from other cases where exhumation faculties have been granted.  The decision itself is reasonable, but these attempts to distinguish it from other decisions in similar cases are not.  Two false distinctions are made, concerning

(1) the nature of mistake and

(2) opposed and unopposed cases.

(1) The leading case on private exhumation is Blagdon Cemetery (2002) 4 All England Reports 482, in which the Court of the Arches held that ‘a mistake as to the location of a grave can be a ground upon which a faculty for exhumation may be granted … for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else …’ (quoted in para 42)

The Chancellor correctly observed that this dictum ‘does not amount to a rule, or even a presumption, that exhumation will be permitted where a mistake as to the location of a grave has been made’ (para 48).  The language is discretionary (‘can’, ‘may’).  But he went much further: the dictum did not apply to the case at all.

A baffling suggestion.  Surely this is exactly the sort of case to which the dictum applies?  Mr Miller had been buried in the wrong burial plot, which was also reserved for someone else.  There could not be a clearer case of mistake.

The Court of the Arches had gone on to suggest in Blagdon that exhumation faculties in mistake cases ‘amount to correction of an error in administration’, but that the presumption of permanent burial ‘is predicated upon disposal of remains in the intended not in an unintended plot …’.

The Chancellor seized on this last phrase: ‘Mr Miller’s body was buried where his family intended him to be buried … The misdescription of the vacant plot … is not material to that intention’ (para 49).  From this he concluded that ‘This is not … the sort of case identified by the Court of the Arches as being one where faculties can readily be granted’ (para 50).

What does this mean?  That Blagdon only applies where the person seeking the exhumation is the one responsible for the mistake?  Or that it only applies where the mistake concerns the physical location of the burial?

Mr Miller’s family were, of course, not responsible for the mistake.  And the family did intend to bury Mr Miller where they did.  But this intention was vitiated by their ignorance of Mr Leventis’s legal right.  They did not intend to bury Mr Miller in Mr Leventis’s reserved space.  If Mr Levantis’s legal right had been known at the time, Mr Miller would not have been buried where he was.  He was therefore buried in Plot 172 by mistake.  The judgment on this point makes a false distinction, based on an over-analysis of the Blagdon guidance that is strained to the point of perversity.

(2) The exhumation of Mr Miller’s remains was, understandably, opposed by his family.  Most private faculties (like most faculties in general) are unopposed, and they usually concern only the deceased person’s relatives, not third parties.

The Chancellor saw this opposition as a further distinction from Blagdon.  He asserted that ‘Blagdon does not provide any guidance as to how petitions where exhumation is opposed should be dealt with’ (para 48).  He continued: ‘where the Court of Arches addresses cases of mistake [in the Blagdon guidance] it is concerned with cases where exhumation is carried out … with the support of the family of the deceased’ (para 51).

He therefore turned to the Victorian case of Dixon (1892) Probate 386, where the court held that exhumation may be permitted

‘[1] on the application of members of the family, for reasons approved of by the court, or

[2] upon the application of other parties upon the ground of necessity or proved public convenience …’ (quoted para 51).

On the basis of this supposed authority the Chancellor held that, because ‘it is ‘other parties’ [i.e Mr Leventis] who apply for the faculty the test would seem to be a higher one than that which applies where the application is made by … the [Miller] family’.  Mr Leventis would have to show necessity or public convenience, not a mere private right.

It is true that Blagdon was unopposed.  But so was Dixon.  In that case the deceased’s widow was evidently an enthusiast for the then novel practice of cremation.  She wished to exhume her late husband (who had died 18 years earlier) in order to cremate him, so that his ashes could be mingled with hers when the time came.  A faculty was refused.

It should be fairly obvious from this context that the dictum about ‘other parties’ did not refer to a disputed private exhumation.  It referred to public exhumation, i.e cases where exhumation is sought in order to facilitate some development (e.g enlargement of the church, road-widening, reordering of the churchyard).  It was not addressed to the dispute in this case.

In Blagdon, the case which the Court had to decide was unopposed.  However, the guidance that it gave along with its decision was addressed to opposed and unopposed private exhumations alike.

In the published report, the Blagdon guidance is entitled ‘Exhumation: General Principles’ (above para 18).  This hardly suggests that it is limited to unopposed cases.  On the contrary, it is general guidance.  Moreover, the guidance does contain at least one explicit reference to opposed exhumation:

‘we do not regard it as persuasive that there is particular support for an unopposed petition any more than support for a contested petition of this nature would affect the decision on the merits of the petition’ (para 36).

An opposed case will require a more onerous procedure, and is likely in practice to receive closer scrutiny than an unopposed case.  However, there is no reason of principle why opposition to a private exhumation should per se affect the substantive final decision on the case.  Why should two dead bodies be treated differently just because one is the subject of a dispute and the other is not?

As well as the 2 false distinctions, the judgment contains exaggerations introduced to justify the decision.  The Chancellor was understandably influenced by the fact that Mr Miller had been buried with Anglican rites and that his family were practising Christians (para 62), and less impressed by Mr Leventis’s clannish desire to be buried with his family (paras 64-68).  He emphasised the finality of Christian burial (paras 58-61).  However, he went too far in holding that ‘To exhume and relocate [Mr Miller’s] body now would be contrary to the Christian belief of the family’ (para 62).  There is no such Christian belief.  The fact that ecclesiastical courts regularly permit exhumation demonstrates this.

The Chancellor also found Mr Leventis guilty of ‘undue delay’ in applying for Mr Miller’s exhumation.  ‘Approximately a year’ passed between his awareness that his reserved plot had been taken by Mr Miller and the lodging of the faculty petition (para 69).  This may be rather harsh, as secular courts allow as long as 12 years for claimants to assert their proprietary rights.

However, as we noted earlier, the faculty jurisdiction is not concerned with the vindication of legal rights.  The Chancellor cited Watson v Howard, aka St. Luke, Holbeach (1991) 1 Weekly Law Reports 16 (para 55).  The decision to permit exhumation in that case seems to have been taken according to equitable criteria.  Mrs Watson had acted promptly in asserting her right to the burial plot, and had not acted unreasonably in declining alternative arrangements for her burial.