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Ecclesiastical law

Tag: Code of Canon Law 1917

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).

In Persona Christi: Eucharistic Sacrifices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The English Parish

Phillimore’s Ecclesiastical Law records an ancient dictum that ‘A parish is the place in which the people belonging to one church dwell’ (2nd edition, 1895, quoted at p.1638).  On this view an ecclesiastical parish has three essential elements, a territory (the place), a community (the people) and place of worship (the church).  However, a place of worship will require an incumbent minister, who will in turn require to be appointed and maintained.  A community will also require some form of governance.

It is therefore argued that a parish has 9 constitutive elements.  This is an attempt to identify and describe them, but not to provide a comprehensive account of the law by which they are regulated.  (That would require an entire book.)

1.  Territory

Blackstone describes a parish as ‘that circuit of ground in which the souls under the care of one parson or vicar do inhabit’ (Commentaries vol 1, p.107).  The English parochial structure remains strongly territorial in character.  This territoriality is, of course, the basis of the Church of England’s proud claim to be a truly national Church, with ‘no inch of territory … no place … beyond the reach of the spiritual ministrations of a priest or place of worship’ (L Paul The Deployment and Payment of the Clergy (1964), p.23).

The area of a modern statutory parish will now usually be indicated on a map or plan annexed to the scheme by which it is constituted (Mission and Pastoral Measure 2011, s.52(2)).  Every new parish must be named by its constituting scheme (s.31(2)).

Parishes are subject to extra-parochial places, which are defined as universities, colleges, schools, hospitals and other public or charitable institutions (Extra-Parochial Places Ministry Measure 1967, s.2(1)).  As their name implies, such places are outwith the parochial structure, even if physically located within the territory of a parish.  However, a person who resides in an extra-parochial place is deemed to reside in the parish which it abuts, and hence to be a parishioner.  Any uncertainty on this point is determined by the bishop’s council of the diocese (Church Representation Rules 1(3)).  Any uncertainty about whether a particular area or place is, or is within, a parish or extra-parochial place is determined by the Church Commissioners after consultation with the bishop (s.105(2)).

Independent mission initiatives may also operate within parishes.  Mission initiatives first received legal recognition under the Dioceses, Pastoral and Mission Measure 2007.  They are now regulated by the 2011 Measure (ss.80-84).  A mission is constituted by order of the bishop.  The objective of the mission should be ‘fostering or developing a form of Christian community, to promote or further the mission of the Church, or any aspect of it’.

If an ecclesiastical parish is understood as a territory, it follows that ‘parishioners’ may include persons who are not members of the Church of England.  Roman Catholics, Methodists and Muslims are obviously not members of the Church of England but they are still all parishioners, because they all live within the territory of a parish.

2.  Community

While English law defines the parish as a territory, Roman Catholic law defines it as a corporation.  According to the Code of Canon Law 1983, a parish is ‘a definite community of the Christian faithful’ (canon 515.1).  Thus, in contrast with English law, persons who are not members of the Church cannot be parishioners.  A commentary suggests that the word ‘parish’ is derived from a Greek word that originally meant ‘a pilgrim people’ (in contrast to the English idea of a settled community), and that ‘however important territorial factors are in parish organisation, what is really constitutive of the parish is its being a community of persons’ (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.416).

Despite its corporate character a Roman Catholic parish ‘as a general rule is to be territorial’ (canon 518).  However, personal parishes may be established if this is ‘useful’ (canon 518).  Thus Eastern rite Catholics within the jurisdiction of a Latin rite bishop may be constituted as a personal parish.  The Anglican Ordinariates comprise personal parishes of former members of the Anglican Communion.

As the churchgoing population has become more mobile, modern English law has extended the definition of a parishioner to include persons who worship regularly in the parish church but who do not live within the parish.  A non-resident lay communicant is entitled to have his name entered on the electoral roll of the parish if he has worshipped regularly in the parish church during the previous 6 months (Church Representation Rules 1(2) and (4)).  He also has the same right as a resident parishioner to marry in the parish church (Marriage Act 1949, s.72(2)).  The Marriage Measure 2008, as amended in 2012, extended the right to marry in the parish church to persons who can show a personal or familial connection with the parish or the church.

3.  Church

If a building is not already a parish church it cannot be legally constituted as such until

(1) the Commissioners approve it as ‘suitable’, and

(2) it is consecrated (Mission and Pastoral Measure 2011, s.41(2)).

‘Suitable’ is not defined further.  Canon law suggests that only a permanent place of worship should be consecrated.  The original Roman Catholic Code of 1917 forbade consecration ‘if it can be reasonably foreseen that a church will be turned to profane uses’.  Churches made of wood or iron were not supposed to be consecrated on account of their impermanent character (canons 1165, now abolished).

A parish has no right to a parish church.  Thus a new parish may be created even if it has no parish church (2011 Measure, s.31(4)).  A scheme may also provide that an existing parish church shall cease to be constituted as such (s.41(1)).  If there is already a church in the area of a newly-created parish, this may, but need not, be designated as the parish church.

However, a parish with no parish church must still have some place of worship.  If a parish has no church the bishop must licence a building, or part of a building, within the parish for public worship (s.43(1)).  Thus the bishop consecrates a permanent place of worship but licences a temporary one.  This rule seems to echo the canon law.

A licensed place of worship may also be designated the parish centre of worship (PCW).  Thus a building which is not a church requires to be both

(1) licensed for public worship by the bishop and

(2) appropriately designated by him

in order to become a PCW.  The designation of a PCW must be under seal (s.43(6)).

Although the bishop is obliged to licence a place of public worship he is not expressly obliged to designate a PCW.  S.43(3) suggests that a bishop may designate a PCW even if there is already a parish church.

4.  Benefice

While upholding the fixed territorial character of parishes, modern ecclesiastical law permits considerable flexibility of parochial ministry.  A single incumbent may have pastoral responsibility for more than one parish.  Contrariwise, a single parish may be under the pastoral care of more than one incumbent.

The former arrangement may be effected in one of two ways:

(1) the single incumbent may hold two or more benefices in plurality (2011 Measure, s.32)

(2) the benefices themselves may be united or merged into a single united benefice (s.31).  A distinction is therefore drawn between a parish and the area of a benefice.  Several parishes may share the same benefice.

A plurality is obviously a looser arrangement than a united benefice.  The bishop may permit the incumbent of a plurality to resign one or some benefices but not all of them (s.32(4)).  Also, on a vacancy in the benefices, the plurality may be terminated at the instance either of the bishop or one of the parochial church councils (s.32(2)).  A united benefice may not be dissolved in such circumstances, unless its constitution provides for this.

The latter pastoral arrangement may also be effected in one of two ways:

(1) In a group ministry, each incumbent is required to assist the other incumbents in the group ‘so as to make the best possible provision for the cure of souls throughout the area of the group’ (s.35(1)).

(2) A team ministry is a more radical departure from traditional parochial ministry.  It is a sharing of the cure of souls by two or more clergy within the area of one benefice (s.34(1)).  A team ministry comprises a team rector and one or more team vicars.  In a traditional parish a rector and vicar never work side by side.  Teams vicars are quasi-incumbents, though their offices are licensed, not beneficed (s.34(4).  A team vicar, or other member of the ‘team’, may be assigned a special cure of souls of part of the area of a benefice or a particular ‘pastoral function’ within the team ministry (s.34(8)).

Group ministry and team ministry are not mutually exclusive.  A group ministry may include a benefice which is constituted as a team ministry (s.35(6)).

If a benefice is vacant for a long time, a licensed priest-in-charge acts in place of the incumbent.

5.  Patronage

A right of presentation to a benefice, or advowson, was originally a right of property, a so-called ‘incorporeal hereditament’ similar to a right of way.  However, as a result of the Patronage (Benefices) Measure 1986, most advowsons have been severed from land (s.32).  Now they are merely the personal right of the patron.  Only rights of presentation attaching to benefices and bishoprics retain a connection to land.  Thus if an incumbent is ex officio the patron of another benefice, the right of patronage continues to be part of the incumbent’s benefice property.

The patronage of a statutory benefice or plurality should be provided in its constitution (2011 Measure, s.46(2)).  If the constitution is silent the right of presentation vests in the diocesan patronage board (s.46(3)).  The patronage of a team rectory and the appointment of a team vicar are regulated by schedule 3 of the 2011 Measure.

A patron’s title is now proved by registration on a diocesan register (1986 Measure, s.1).

The patron’s exercise of a right of presentation (as distinct from his ownership of it) may be suspended under s.88 of the 2011 Measure.  Hence the need for a priest-in-charge.

6.  Endowment

The mediaeval canon law discussed in the preceding post suggests that the parish church and the supporting endowment were originally inseparable, and that together they formed the basis of the ecclesiastical parish.  Blackstone held that the boundaries of a parish were originally determined by the appropriation of tithes to a particular church and incumbent (Commentaries, vol 1, p.109).  From the middle ages until relatively recently, incumbents resembled self-employed farmers, men of property who lived off the rents and profits of their glebe land, and, of course, tithes.

The case of Greenslade v Darby (1868) 37 Law Journal 137 suggests that the churchyard may be a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The rector (who in that case was a lay rector, not an incumbent) therefore has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

Tithes were originally payable in kind (wood, grain, cattle, sheep, poultry etc).  Later, they took the form of a payment of money called the tithe rentcharge or corn rent.  The Tithe Act 1836 commuted almost all tithes into rentcharges.  Tithe rentcharge was finally abolished a century later by the Tithe Act 1936.

The Endowments and Glebe Measure 1976 finally severed the ancient connection between parish church and endowment.  Under s.15 of the Measure, all benefice glebe that had hitherto vested in the incumbent was transferred to the diocesan board of finance (s.15), and so became part of the diocesan glebe instead (s.45(1).  Modern incumbents therefore resemble salaried employees rather than gentleman farmers.  The diocesan board of finance is now responsible for the payment of clergy stipends (Miscellaneous Provisions Measure 2000, s.1(1)).  There is a national minimum stipend fixed by the Archbishops’ Council (Terms of Service Regulations 2009, reg 11(1)).  Pensions are also administered nationally by the Church of England Pensions Board.

7.  Parsonage

Although he is no longer master of glebe and tithe, the incumbent remains the nominal freeholder of the parsonage (the official residence of the benefice) even if his occupation of it now resembles that of a tenant or licensee of the Church.

The Parsonages Measure 1938, extensively amended by more recent Measures, and the Repair of Benefice Buildings Measure 1972 are the two principal statutes regulating parsonages.

Much of the 1972 Measure resembles a kind of statutory lease, stating the respective rights and duties of the Church and the incumbent towards the parsonage.  It regulates the incumbent’s occupation of the parsonage.  The 1938 Measure, by contrast, regulates dealings with parsonages between the Church and outside third parties.  It is principally concerned with the sale of old parsonages and the purchase of new ones.  Thus, while much of the 1972 Measure resembles a lease, the Parsonages Measure resembles a conveyancing contract and protocol.

Although the incumbent is freeholder, the Endowments and Glebe Measure 1976 confers a power of compulsory acquisition of the parsonage from him, if the Church considers that it is no longer necessary for his ‘convenient occupation’ of the incumbent (s.32).

A house that is built or purchased for use as a parsonage must be certified as such by the bishop (Parsonages Measure 1938, s.11).  The constitution of a benefice may, but need not, designate the official residence of the incumbent, or of a team vicar (Measure and Pastoral Measure 2011, s.45(1)).

An incumbent has no a priori right to a parsonage house, just as a parish has no right to a parish church.  However, under the new regime of ‘common tenure’ introduced by the Ecclesiastical Offices (Terms of Service) Measure 2009, other full-time stipendiary clergy and lay ministers are entitled to accommodation ‘for the better performance of [their] duties’ (s.4(1)).  A priest-in-charge of a vacant benefice will usually live in the parsonage (cf. 2011 Measure, s.86(4)).

8.  Churchwardens

The normal rule is two churchwardens to a parish, but the Churchwardens Measure 2001 permits a different number of churchwardens on the basis of local custom or special statutory authority (s.11).  Moreover, if a single parish has more than one parish church, or has a parish church and a PCW, there must be two churchwardens for each church or PCW (s.1).

If there is a team ministry for a parish containing more than one church or place of worship, the constituting scheme may allow for deputy churchwardens for each, and for the functions of churchwardens to be delegated to them (Mission and Pastoral Measure 2011, schedule 4.3(2)(d)).

9.  Parochial Church Council

Every parish must have a parochial church council (‘PCC’).  The constitution of the PCC is provided in the Church Representation Rules.  The PCC must include a certain number of lay members elected at the annual parish meeting by those enrolled on the electoral roll of the parish.

The Church Representation Rules permit parishioners to make certain variations to the structure of parochial administration.  Such variations may also be authorised under the Measure and Pastoral Measure 2011, but on a temporary, experimental basis only.  There are five particular variations:

(1) If a parish has more than one place of worship, the PCC may be specially structured ‘in such manner as to ensure due representation of the congregation of each church or place [of worship]’ (rule 18).  Thus each congregation will be separately represented on the PCC.

(2) More radically, a separate district church council (‘DCC’) may be constituted for the district of the parish in which a church or place of worship is situated.  A DCC need not be constituted for every district in the parish containing a place of worship, and it is possible to have both a specially structured PCC and one or more DCCs at the same time.

Variations (1) and (2) apply to a parish with more than one place of worship.  The other three variations depend on the benefice rather than the place of worship:

(3) There may be a joint PCC where two or more parishes share a single benefice or where benefices are held in plurality (rule 19).

(4) A team council may be established where two or more parishes are served by the same team ministry (rule 20).

(5) A group council may be established for the parishes served by a group ministry (rule 21).

However, notwithstanding these variations, each individual parish retains its own PCC at all times.

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.