A Bishop’s Disciplinary Tribunal

A narrative of the law on this subject should be set in context.  Very few clergy discipline cases get as far as a tribunal.  According to the Church of England’s website there were only 5 tribunals each in 2021 and 2022, 2 in 2018, and just 1 each in 2014 and 2015.

There are unlikely to be significant factual disputes in most cases.  Minor grievances, however genuine, are dismissed in short order.  Criminal matters are turned over to the secular authorities.  Most clergy who misconduct themselves will admit their error and accept the bishop’s correction.  Conciliation is a favoured option.  A bishop’s disciplinary tribunal is a last resort, when the case, though not criminal, is too serious or too difficult to be resolved by other means.

Even at tribunal, there may be no dispute about the facts, merely about the appropriate penalty.  Sometimes accused clergy decline to appear, so the tribunal decides the case in their absence.

Disciplinary tribunals are currently regulated by the Clergy Discipline Measure 2003, and by Rules and a Code of Practice made under the authority thereof (s.45(1) and s.39).

It is likely that the 2003 Measure will be replaced in the next few years by a new Clergy Conduct Measure, which is currently being considered by the General Synod.  However, at the time of writing, the proposed new regime will retain tribunals to decide cases of serious misconduct.

Bringing a Complaint to Tribunal

A tribunal hearing is in effect the 3^rd investigation of a complaint of misconduct by a clergyman

(1)  The diocesan registrar makes a ‘preliminary scrutiny’ of the original complaint, and reports thereon to the bishop (s.11)

(2) The Designated Officer (‘the DO’) makes, or organises, a formal investigation of the complaint, and makes a report to the President of Tribunals (s.17).

(3) If the President of Tribunals decides that the clergyman has a case to answer, she refers the case to a tribunal for adjudication (s.17).

The bishop takes the decision to refer the complaint for formal investigation ((2) above).  This has the effect of removing the complaint from his jurisdiction, and from the diocese.

The DO and the President of Tribunals are national officials, whose offices were created by the 2003 Measure (s.43(1) and s.4).  The DO works for the Legal Office in Westminster, and may be contacted there (rule 101).  He is in effect the Church of England’s Public Prosecutor.  The President’s function is judicial (or quasi-judicial).  The current President of Tribunals is Dame Sarah Asplin, a justice of the Court of Appeal.

The President’s decision that there is a case to answer founds the tribunal’s jurisdiction.  Moreover, the complaint to the tribunal is as formulated by the President.  The President’s formulation may differ from the original complaint that was made to the bishop.  She may refer some allegations to the tribunal while rejecting others: ‘The President’s … decision will specify which allegations … are to be dealt with at the disciplinary hearing’ (code, para 231).

If the President of Tribunals decides that there is no case to answer, that is the end of the matter (s.17(4)).  No ecclesiastical authority is capable of overruling her decision.  A disappointed complainant’s only recourse is to apply to the High Court for judicial review of the decision.

However, a decision that there is a case to answer does not bring the President’s jurisdiction over the complaint to an end.  She can, in effect, change her mind later on, and direct that a complaint be withdrawn.  She can also stay the tribunal proceedings in favour of conciliation (s.18).

This continuing jurisdiction is consistent with the President’s oversight of the entire regime of clergy discipline.  It also makes sense that her jurisdiction should continue until the tribunal meets (which may be a long time after her decision that there is a case to answer), otherwise the complaint will be in limbo.  However, the President can intervene even after the tribunal hearing is underway.

No Right of Silence

The complaint starts or ‘institutes’ disciplinary proceedings (s.10).  However, the accused clergyman is not involved in the diocesan registrar’s investigation (investigation (1) above): ‘no formal response or detailed evidence is required from the Respondent at this preliminary stage’ (rule 10(1)(c)).

The purpose of the registrar’s investigation is to identify or clarify the complaint, i.e to establish what it is about, not whether it is true or false.  In effect, the registrar must presume that the allegations are true (cf code, para 104).

The clergyman only becomes involved in the proceedings after the registrar’s investigation has been completed.  If the complaint is not dismissed, the bishop must request the clergyman to submit a written Answer thereto.  This document must state ‘which … matters are admitted and which are contested’, and must be ‘accompanied by any written evidence … upon which the [clergyman] wishes to rely’.  It must include a statement of truth (rule 17).

The Answer is the accused clergyman’s notice of appearance in the disciplinary proceedings.

The requirement to submit an Answer indicates that an accused clergyman has no right of  silence.  He cannot reserve his position pending a tribunal hearing.  The Clergy Discipline Rules impose a ‘Duty to Cooperate … All parties [including the accused clergyman] shall cooperate with any person, tribunal or court exercising any function under the Measure’.  Failure to cooperate ‘may result in adverse inferences being made’, i.e that the clergyman has something to hide (rule 2).

This duty to cooperate indicates a difference between professional discipline (which the 2003 Measure sought to introduce for clergy) and criminal justice (on which the pre-2003 regime was based).  It was observed in the (secular) case of Salsbury v Law Society (2009) 2 All England Reports 487 that ‘the fundamental object of disciplinary proceedings is to maintain the reputation of the profession as a whole’, not the reputation of the accused.  The Court of the Arches made the same point in King (2009), a case which arose under the 2003 Measure.

The Court of Appeal observed in Kulkari v Milton Keynes NHS Trust (2010) Industrial Cases Reports 101 that ‘disciplinary proceedings … may well entail a mixture of adversarial and inquisitorial practice’ (p.115).

An accused clergyman is not required to file a specific statement in response to a formal investigation by the DO (investigation (2) above).  However, he is required to ‘cooperate with the DO … in particular by responding in writing … to any questions asked by the DO for the purpose of clarification’ (rule 28(3)).

On the positive side, the clergyman may quite properly seek to influence the DO’s investigation in his favour, by requesting him to ‘consider particular lines of inquiry, including the obtaining of evidence’ (Code, para 223).

It may be necessary to obtain documents held by a third party.  If the third party proves uncooperative, the President of Tribunals can issue a sub poena, to compel production of the documents, if they are ‘relevant and necessary for dealing fairly’ (rule 28A).

Legal Representation

The diocesan registrar may not give legal advice to the parties to a disciplinary case, because it may conflict with his duty to advise the bishop (code, para 105).  However, an accused clergyman is expressly permitted to seek legal advice from the registrar of a different diocese (para 113).  Indeed the clergyman may well end up being represented by a solicitor who is also a diocesan registrar.  (Ecclesiastical law is a very small world!)

The formal Answer which the clergyman is required to submit must include his contact address (rule 17(2)(a)).  If he wishes a solicitor to represent him, he can simply give the solicitor’s details as his contact address.  The solicitor is thereby put on the record of the disciplinary proceedings.  This follows the practice of the High Court.

Complainant and Respondent

The accused clergyman is the respondent to disciplinary proceedings.  The identity of the complainant may require clarification.  Although the 2003 Measure may suggest otherwise, the complainant will usually (though not always) be a Church official, and not the clergyman’s original accuser, i.e the person who came forward with the allegations in the first place. 

The code of practice states that ‘where the archdeacon is satisfied that there is a case of misconduct, they should bring the case, and not leave it to the private individual concerned’ (para 52).  The diocesan safeguarding adviser may bring an appropriate case (para 54).  The accuser will be a witness, rather than complainant.  The official complainant may resemble a ‘litigation friend’ to the accuser.

The 2003 Measure makes clear that the DO, or a person authorised by him, conducts the case for the complainant (s.18(1)).  The complainant / accuser has no choice in the matter.  This means that, while there is nothing to stop a complainant/accuser from consulting solicitors, they have no right to be separately represented in disciplinary proceedings. 

Constituting the Tribunal: Independence and Impartiality

Having decided that there is a case to answer, the President of Tribunals must constitute a tribunal to adjudicate upon it.  Every tribunal has 5 members (larger than most secular tribunals), consisting of a legally qualified chairman, and 2 clergy and 2 lay members (s.2 and s.22(1)).

The President may take the chair herself (s.22(1) – perhaps if the case is particularly important), but otherwise she appoints the 5 members from a provincial panel (1 each for Canterbury and York) of ‘persons available for appointment’ (s.21).  All panel members must be communicant Anglicans (s.21(4)).

The clergy discipline regime seeks to ensure that the tribunal will be independent (another indication of the smallness of the ecclesiastical world).  Panel members from the accused clergyman’s own diocese may not be appointed to his tribunal (s.21(1)).  The President must be satisfied of the impartiality of tribunal members. 

The accused clergyman cannot veto an appointment to a tribunal.  However, he does have the right to know the identity of the proposed tribunal members in advance, and ‘to make representations as to [their] suitability’ (s.22(2) – a wider criterion than ‘impartiality’).

For their part, the appointed tribunal members must be given details of the parties and their witnesses, and invited to disclose any personal acquaintance (code, para 236).  They are sternly instructed not to make ‘private enquiries’ about the case or discuss it with others (para 237).

The rules do not require tribunal members to take an oath concerning their responsibilities.

The description ‘bishop’s disciplinary tribunal’ is a complete misnomer.  The tribunal is appointed by a national official on a provincial basis.  The bishop has no say in the appointment of a tribunal, nor can he even refer a case to the tribunal. 

Preparing for the Hearing

While the President appoints the tribunal members, the preparations for the hearing are primarily entrusted to the Registrar of Tribunals (s.5).  Unlike the President and the DO, which are national offices, the Registrar of Tribunals is a provincial office (1 each for Canterbury and York).  He (or she) will usually be a solicitor in private practice, who may be contacted at his firm’s address.  He must not, of course, be confused with the diocesan registrar.

The Registrar of Tribunals is responsible for the ‘just disposal of the proceedings’ (rule 30).  This means he must ensure that the parties’ evidence – witness statements and documents – is disclosed to each other, and to the tribunal, in good time.  There must be no surprises at the hearing.  Each party files a brief statement of case (practice direction 2021).  The Registrar may refer matters of ‘difficulty or dispute’ to the tribunal chairman (rule 30(2)).

One document may not be disclosed in evidence (even to the tribunal).  The DO’s report of his investigation (i.e investigation (2) above) is for the President’s eyes only (code, para 229).  This suggests that, for the purpose of the investigation, the DO’s relationship to the President may be analogous to that of a solicitor and his client.

Sufficient time must be allowed for the hearing, and the Registrar may require time-estimates from the parties (rule 38), subject to the Chairman’s decision.  The Registrar arranges the time and place of the hearing (a tribunal can meet anywhere), having ‘due regard’ to the convenience of those involved.  The tribunal will require appropriate clerical support, especially as oral evidence to the tribunal must be recorded (rule 45).

The Hearing: Proof, Privacy, Publicity and Penalty

The tribunal starts off by settling a timetable or agenda for the hearing (rule 39).  Subject to the tribunal’s time management, both sides may call their own witnesses, cross-examine each other’s, and make submissions (rule 44).  Evidence is given on oath (or affirmation) (rule 45).

The tribunal may not wish to rely solely on witnesses and documents.  The author recalls a pre-2003 case where the ecclesiastical court found it necessary to inspect the principal bedroom of a cathedral deanery, following an allegation that the Dean had committed adultery therein.  (The Dean was acquitted.)

The DO is required to prove his case to the civil standard, i.e on a balance of probabilities (s.18(3)(a)).

An accused clergyman has the right to require the tribunal to hear his case in public.  The wording of s.18(3)(c) of the 2003 Measure, ‘if … the respondent so requests’, makes this clear.  A tribunal may also direct a public hearing of its own motion, ‘in the interests of justice’.

So hearings do not have to be held in private.  But the normal rule is that they are.  The clergyman and his accuser will therefore require the tribunal’s permission to be accompanied by a friend (cf rule 47).

However, while evidence and submissions are taken in private, ‘the determination of any matter before the tribunal … shall be pronounced in public together with its reasons therefor’ (s.18(3)(b)).  (Before 2003, the ecclesiastical court, like a jury, merely announced its verdict – guilty or not guilty.)  Disciplinary decisions taken by the bishop and by the President of Tribunals, though they must give reasons, and must be disclosed to the parties, do not have to be published.

‘Any matter’ means that all tribunal decisions must be given in public, not just the decision as to the clergyman’s guilt or innocence.  The tribunal may anonymise parties and witnesses in appropriate cases, but this again requires a public reasoned decision (rule 49). 

The tribunal’s decision is taken by majority vote.  If a decision is not unanimous, the dissenting minority’s reasons must be published along with those of the majority (code, para 249).

Although the tribunal must hear and decide the case collectively, its decision (or decisions) may be announced by the chairman sitting alone (rule 50).  This may be necessary in practice if the tribunal reserves a decision.

If the tribunal decides that the clergyman has misconducted himself, this will require a further decision on penalty.  Consideration of penalty will almost certainly require an adjournment of the hearing.  The clergyman and the DO are both entitled to make submissions on penalty (practice direction of 2008).  The tribunal may (not must) invite written representations from the clergyman’s bishop, unless the bishop has already given evidence in the case (s.19(2)). 

If the condemned clergyman is a cathedral dean or other dignitary appointed by the Crown, a penalty of removal from office must be confirmed by Order in Council (s.24(2)).

Leave to Appeal

The 2003 Measure originally gave an accused clergyman a right of appeal to the Provincial Court from any adverse finding or penalty (s.20(1)).  He now requires permission, or ‘leave’, to appeal.

An application for leave to appeal can be made to the tribunal itself during the hearing, when the decision or penalty has been pronounced (Clergy Discipline Appeal Rules 2005, rule 4A).  The tribunal has an apparently unfettered discretion to grant or refuse leave.

If the tribunal refuses leave, or is not asked for it, a written application must be made to the Provincial Court.  That Court must be satisfied that the appeal would have a real prospect of success, or that there is some other ‘compelling reason’ to hear it (rule 4D(3)).

A penalty cannot be implemented while appeal proceedings are pending.

The DO may also seek leave to appeal, but only on a question of law (s.20(1)).

After the Hearing: Records and Registers

A copy of the tribunal’s decision (or decisions) must be sent inter alia to the diocesan and provincial registrars (rule 50(5)), implying that these officials should file it in their respective registries.  However, there is no statutory register of tribunal decisions.  A tribunal is not a Court of Record.

The rules are silent about the fate of the record of oral evidence.  Is it destroyed when the case is concluded, in accordance with the general rule that a tribunal hearing is private?  If not destroyed, where is it kept?  Will its contents always remain private, or will posterity be able to read it one day?

However, there is detailed regulation of the notification and recording of penalties.  The penalty must be notified to the bishop, who will be primarily responsible for enforcing it, and to the provincial registrar. (The offices of provincial registrar and Registrar of Tribunals may well be held by the same person.) It must be filed in both the diocesan and provincial registries (s.35(1), Ecclesiastical Jurisdiction Measure 1963, s.78).

The provincial registrar, who is the Archbishop’s legal adviser, should see to it that the condemned clergyman’s name is entered on the Archbishops’ List (s.38(1)), formerly known as the ‘caution list’.  The List is not open to public inspection, but it is circulated to all diocesan bishops and registrars (rule 74), so that they are aware of which clergy are ‘under discipline’.

The tribunal can decide not to impose a penalty in a case of misconduct, on condition that the clergyman behaves himself in future (s.25).  Such a decision will be entered on a separate record of conditional discharges kept by the provincial registrar, which is also circulated to bishops and registrars (rule 53(1)). 

Paying for a tribunal

The tribunal chairman and the Registrar of Tribunals are entitled to fixed fees, paid by the Archbishops’ Council (Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2023, para 10).  The President of Tribunals seems to be unpaid, unless she officiates as tribunal chairman.  The DO is a salaried official.

The Archbishops’ Council should also be responsible for the reasonable expenses of tribunal members, staff and witnesses (s.35(1), Ecclesiastical Jurisdiction Measure 1963, s.62(1)).

A respondent clergyman becomes eligible for assistance with legal expenses when a formal complaint is laid against him, i.e when disciplinary proceedings are instituted (code, para 299).  His solicitor must apply to the Church of England’s Legal Aid Commission in Westminster (and do this before incurring any costs, because legal aid is not retrospective).

Legal aid is always discretionary.  The Legal Aid Commission must consider ‘the financial resources of the [clergyman] (including the financial resources of [his] spouse or civil partner …’.  Any legal aid granted will be subject to assessment of the solicitor’s bill. (Legal Aid Measure 1994.)

In practice, this is likely to mean that the entire cost of a tribunal is met by the Church Commissioners, since the Commissioners fund both the Archbishops’ Council and the Legal Aid Commission.

A Defence of the Public Worship Regulation Act 1874

Although the 1874 Act singularly failed to live up to its title, it did introduce one reform that has endured to the present day.  By s.7, it combined the 3 most senior judicial offices of the Church of England in a single officeholder

(1) the Dean of the Arches, the Archbishop of Canterbury’s provincial judge

(2) the Auditor, the Northern equivalent of the Dean and

(3) the Master of the Faculties, the official who exercises the Archbishop of Canterbury’s special faculty jurisdiction over both English Provinces, to grant licences to marry and to practice as a notary public.

As a result of the Act these 3 offices, like the Trinity, are 3 in 1 and 1 in 3.  The Dean of the Arches and Auditor (and Master of the Faculties) is in effect the Lord Chief Justice of the Church of England.  Ms Morag Ellis KC is the current holder of the 3 combined offices.

The Public Worship Regulation Act was a response to illegal ritualism, i.e illegal liturgical practices.  Such practices involved 

(1) ornaments of worship – whether of the fabric of the church (or churchyard), the movable furniture therein, or the vestments worn by officiating ministers.  In 1874, these were governed by the famous Ornaments Rubric of the Book of Common Prayer.

(2) rites and ceremonies.  Rites are the words used in public worship.  Ceremonies are liturgical acts or gestures.  These were likewise governed by the rubrics and other directions contained in the Prayer Book.

The purpose of the Act was therefore to uphold the rules of public worship laid down by the Book of Common Prayer (cf.s.8). 

Before the 1874 Act, ritualist clergy were prosecuted under the Church Discipline Act 1840.  However, such prosecutions were very expensive and could last several years.  The primary object of the 1874 Act was therefore to reduce expense and delay.  (This was the reason for combining the senior judicial offices in a single judge.)  However, the Act was also intended to conciliate the offending ritualists.

The 1874 Act did not repeal the 1840 Act.  It merely provided an alternative procedure (cf. s.5). An incumbent whose case was decided under the 1874 Act could not be proceeded against under the 1840 Act (or vice versa) (1874 Act, s.18).

The great difference between the Church Discipline Act and the Public Worship Regulation Act is that, while the former was criminal and penal in character, the latter provided a civil procedure.

The Public Worship Regulation Act sought to decriminalise ritualism, and treat it as a civil wrong instead.  Its purpose was not to punish past offences but to secure future compliance. 

It is, of course, particularly ironic that a law intended to decriminalise ritualism resulted in ritualist clergy being sent to prison.

Thus the 1874 Act provided that ‘Proceedings taken under this Act shall not be deemed to be such proceedings as are mentioned in the [Church Discipline] Act, s.23’, i.e that such proceedings are not a ‘criminal suit or proceeding’. The Act deliberately eschewed the language of criminal law and clergy discipline.  Hence the use of the word ‘regulation’, rather than ‘discipline’.  The long title of the Act refers only to ‘the better administration of the laws respecting the regulation of public worship’. 

Proceedings under the 1874 Act were commenced by a representation, not a charge (s.8).

The 1874 Act discouraged Low Church legal activism against ritualists by limiting the class of potential complainants.  Only the incumbent’s local archdeacon, his churchwarden(s) or any 3 male parishioners could make a ‘representation’ against him (s.8).  Complaints against cathedral clergy could be made by any 3 male inhabitants of the diocese (the cathedral being the parish church of the diocese).  Bishops were not subject to proceedings under the 1874 Act.

The Act also excluded old grievances.  No representation was allowed in respect of an illegal adjustment of the church fabric, if this had been completed more than 5 years previously.  Alleged illegal practices had to have occurred no more than 12 months previously.

The bishop could veto proceedings on a representation ‘after considering the whole circumstances of the case’ (s.9).  This meant that he could stop proceedings on grounds of mere expediency, even if the incumbent clearly had acted illegally.

The Act also provided a form of arbitration.  If he did not veto the proceedings, the bishop was required to invite both the incumbent and the complainant(s) ‘to submit to the directions of the bishop touching the said representation, without appeal’.  Thus the bishop could settle the dispute on a consensual basis.  The bishop’s decision, like an arbitration award, bound only the parties to the dispute.  It was not a binding judicial precedent.

The bishop’s arbitration function under the 1874 Act echoed his function in the Book of Common Prayer

‘to appease all such diversity … and for the resolution of all doubts, concerning the manner how to understand, do, and execute, the things contained in this Book: the parties that so doubt, or diversely take any thing, shall alway resort to the Bishop … who by his discretion shall take order for the quiet and appeasing of the same …’ (Preface).

The Act also permitted the parties to agree a special case, i.e an agreed statement of facts, for judicial determination of the correct law, thereby avoiding the need for a contested trial.

Only if these options were declined by the parties did the case go to a full trial, with pleadings, evidence and legal submissions. The Dean of the Arches and Auditor, who is described simply as ‘the judge’ in the 1874 Act, ‘shall pronounce judgment on the matter of the representation’ (s.9).  There was a right of appeal to the Privy Council.

The only remedies that could be awarded if a ‘representation’ was upheld were

(1) a monition or warning to the incumbent to desist from unlawful ritualism in future and / or

(2) a faculty to remove an unlawful ornament (cf.s.14).

If a warning (1) went unheeded the incumbent could be inhibited, i.e suspended from office.  Thus inhibition / suspension was not a remedy per se.  Its purpose under the 1874 Act was to enforce a monition. 

A suspension would be lifted upon the incumbent giving a written undertaking ‘to pay due obedience to [the] monition or order’ (s.13).  A suspended incumbent was allowed up to 3 years to submit.  Only then could he finally be removed from office altogether.

The Public Worship Regulation Act probably has the worst reputation of any modern ecclesiastical legislation.  It is argued that this is undeserved.  Probably very few people have actually read the Act.  Its provisions seem perfectly fair and reasonable, with nothing that is obviously objectionable.  The text of the Act gives no clue as to the controversy that it inspired.  Its moderation is in dignified contrast to the crass intransigence of the ritualists.

The fatal flaw in the Act was its naïve assumption that clergymen – of all people – would obey the law.  They did not.

That is why they had to be sent to prison.  There is no reference to imprisonment in the 1874 Act itself.  As mentioned, the Act provides no sanctions more severe than warning and suspension from office.  But the ritualists ignored these, and persisted with their illegal practices.  The court observed in the case of Serjeant v Dale that ‘Mr Dale [the ritualist] from first to last took no notice of the proceedings’ (1877) 2 Queen’s Bench Division 558 at p.561).

Mr Dale was therefore imprisoned for contempt of court, not for illegal ritualism per se.  However, this important distinction may not have been widely appreciated.

Nor was the contempt of court entirely passive.  The Reverend Mr Tooth was only incarcerated after he and a gang of supporters had physically obstructed the clergyman sent by the bishop to officiate in his place.  Once the obstruction was overcome, and the replacement clergyman safely installed, Mr Tooth was released: ‘let the order for his discharge be drawn up at once’ (Hudson v Tooth (1877) 2 Probate Division 125 at p.140).

Owen Chadwick relates that a grand total of 5 clergy were imprisoned for contempt:  The Victorian Church, vol 2 (1970) p.348.  The Reverend Mr Green’s imprisonment lasted over 18 months (‘They did not know how to get Green out’).  The others were released after a few weeks.  The aforementioned Mr Dale and Mr Tooth later had their committals quashed on technical grounds.

Why did the ritualists ignore the proceedings against them, even at the cost of imprisonment?  Chadwick suggests that ‘in their eyes a non-Anglican Parliament had no more right than the Emperor of Japan to determine [their conduct of public worship]’.  The ritualists were martyrs for the Church against the infidel secular state.

No doubt they convinced themselves of that.  However, the case for the ritualists’ martyrdom is not compelling.  Secular authority was not imposing some newfangled regime of public worship on the Church of England.  On the contrary, it sought to uphold the Book of Common Prayer, the very essence of Anglican tradition.  The 1874 procedure was indeed an Act of Parliament.  But Parliament passed the Act at the request of the bishops.  The then Archbishop of Canterbury, Archibald Campbell Tait, even drafted the original Bill himself (Oxford Dictionary of the Christian Church).  As mentioned, the Act encouraged ritualists to submit to the judgment of their bishop, an ecclesiastical authority.

Lord Selborne observed that the ritualists ‘claimed all the privileges of Establishment, while at the same time they repudiated all its conditions’ (Parliamentary Debates, Series 3, vol 219, col 949).  Their rejection of episcopal authority as well as parliamentary authority was inconsistent with a  Catholic belief in the Apostolic Succession of bishops.

(The response to the Public Worship Regulation Act reinforces the conclusion that so-called ‘Anglo-Catholic’ ritualism is neither Anglican nor Catholic, inasmuch as it repudiates both Anglican tradition and Catholic teaching.  Ritualism is just that – an exaggerated love of ritual.)

The ritualists were a small and eccentric minority.  However, their ‘martyrdom’ under the Public Worship Regulation Act was a characteristically exaggerated response to a real issue.  In the 19th century, the Anglican theocracy created at the Reformation was gradually replaced by the modern secular state.  This meant that the Church of England was governed by legislators and judges (i.e the Privy Council) who were not even nominally members of the Church.

The radical solution to this issue was Disestablishment, i.e complete severance of the link between Church and state.  Conservatives sought autonomy, a measure of ecclesiastical self-government, but maintaining the link between Church and state (with its concomitant privileges, of course).

It might be argued that the Church of England already enjoyed a measure of self-government, through the system of ecclesiastical courts.  However, even the Church courts were affected by 19th century secularisation.  Doctors’ Commons, the ecclesiastical inn of court since the 16th century, was closed in the late 1850s-early 1860s.  Sir Robert Phillimore DCL, original author of the famous commentary on ecclesiastical law, was the last inhabitant of Doctors’ Commons to officiate as Dean of the Arches.  (He was himself the son of another Doctor, Joseph Phillimore.)

When the 1874 Act was passed, Sir Robert and the then Auditor both retired, in order to facilitate the combination of their respective offices.  The first holder of both offices, the first Dean of the Arches and Auditor, was Lord Penzance. 

Lord Penzance was a retired secular judge and barrister, with no connection to Doctors’ Commons.  The Dictionary of National Biography suggests that he was a man of liberal sympathies, ‘concerned with issues of social change.  In his maiden speech [in the House of Lords] he justified the Disestablishment of the Church of Ireland …’.  This may not have endeared him to High Churchmen.  It is ironic that a supporter of Disestablishment became instrumental in sending people to prison for rejecting ecclesiastical authority.  (The way of the liberal is extremely hard!)

Apologists for the Public Worship Regulation Act correctly pointed out that Lord Penzance had the same function as his predecessors, and presided over the same courts.  However, the Church courts underwent a profound cultural change in the mid-19^th century, and the 1874 Act drew attention to this.  Ecclesiastical law ceased to be a discrete profession with its own particular body of learning and custom.  Ecclesiastical judges, like Lord Penzance, were now mere secular lawyers who happened to go to church.  And the failure of the 1874 Act did nothing to improve the reputation of ecclesiastical law and the Church courts.

The convocations were therefore the only credible vehicle for ecclesiastical self-government.  Suppressed in the early 18^th century, they were revived about the same time that Doctors’ Commons was closed down.  Chadwick relates that the practice began of proposed ecclesiastical legislation being debated by the convocations before being presented to Parliament (p.361).  Thus the failure of the Public Worship Regulation Act produced the embryo of the modern legislative procedure codified by the Church of England (Assembly) Powers Act 1919.

Phillimore suggests that the Public Worship Regulation Act was already a dead letter by the end of the 19^th century (Ecclesiastical Law, 2^nd edition 1895, p.1036).  A royal commission report of 1906 recommended repeal.  However, the Act was not repealed until as late as 1963, by the Ecclesiastical Jurisdiction Measure, s.87.

It was easier to criticise the Public Worship Regulation Act than to replace it.  A revised Book of Common Prayer was controversially rejected by Parliament in the 1920s.  The law that currently regulates public worship, the Worship and Doctrine Measure, was only passed as recently as 1974, a whole 100 years after its unfortunate predecessor.

Clergy Discipline and Contempt Proceedings

‘Concerns raised over Church’s appointment of Senior Cleric’ Western Mail, 20th January 2023

By its own account (cited above), the Western Mail, ‘national newspaper of Wales’, is in a difficulty with the Church of England.

The case concerns disciplinary proceedings against an English clergyman who was appointed to a senior position in the Church in Wales last year, 2022. (By a remarkable coincidence, our last blogpost of 2022, entitled ‘The Double Meaning in LGBT ideology’, was prompted by just such an appointment.)

The Western Mail reports that ‘we are not able to name the cleric concerned, nor to report details of the [disciplinary] proceedings, nor the allegations he faces, nor the post to which he has been appointed’.

Why ever not? ‘The reason … is the threat of contempt proceedings, from a senior Church lawyer’, Mr Justin Gau, barrister, chancellor and vicar-general, who is representing the mystery clergyman. ‘In making his threat Mr Gau referred us to the Clergy’s Code of Practice’.

It is remarkable, and somewhat chilling, that in the 21st century the Church of England is apparently still able to muzzle a newspaper, and a Welsh newspaper to boot.

The Church of England is, of course, established by law and has certain law-making powers, though these require the approval of Parliament. The Ecclesiastical Committee of Parliament is required to scrutinise Church Measures ‘especially with relation to the constitutional rights of all His Majesty’s subjects’ (Church of England (Assembly) Powers Act 1919, s.3(3)). Press freedom is, of course, a very important constitutional right.

Perhaps the Ecclesiastical Committee has failed in its function? However, it is hard to see how the relevant clergy discipline legislation supports the reported ‘threat’.

There are 3 pieces of legislation

(1) the Clergy Discipline Measure 2003

(2) the Clergy Discipline Rules 2005, which were originally made under the authority of the 2003 Measure, at s.45, now under the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.83(1), and

(3) the Code of Practice, authorised by s.39 of the Measure.

The Code of Practice (3) is not strictly legislation at all. It is guidance, of a sort often described as ‘quasi-legislation’ or ‘soft law’.

The Church in Wales is no longer part of the Church of England. It was disestablished in 1920, more than 100 years ago now. Since that time almost all ecclesiastical law has been confined to England. The Clergy Discipline Measure is no exception. It contains the usual provision that the ‘extent’ of the Measure is limited to ‘the Provinces of Canterbury and York’, though allowing for the possibility of its being applied to the Channel Islands and the Isle of Man (s.48(3)). But certainly not to Wales.

The 2005 Rules echo this provision, being headed ‘Ecclesiastical Law, England’.

The special status of the Established Church means that its courts and tribunals are courts of the land and public authorities, not mere domestic tribunals. It is therefore possible for a newspaper to be in contempt of such court or tribunal.

The Ecclesiastical Jurisdiction Measure 1963 asserts the right of Church courts to the same protection from contempt as their secular counterparts (s.81(2)). Any contempt proceedings must be brought in the High Court (3). Thus the Church authorities themselves cannot punish contempt. Only the High Court can do this. (See also the more recent Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.25.)

The High Court’s jurisdiction, unlike the ecclesiastical court’s, extends to Wales as well as England.

Neither the 2 Ecclesiastical Jurisdiction Measures nor the Clergy Discipline Measure itself make provision for contempt of disciplinary tribunals. However, the Clergy Discipline Rules provide that ‘If any person does or omits to do anything which is a contempt in connection with

[1] proceedings before or …

[2] an order made by

the [disciplinary] tribunal, the chair[man] may certify … a contempt, and refer the matter to the High Court …’ (rule 105).

So a contempt may relate to the disciplinary proceedings generally, or to a specific order.

The Rules go on to provide that disobedience to an order [2] ‘shall not be deemed to be a contempt’ unless the order contains an explicit warning that anyone who disobeys it risks punishment, i.e a penal notice.

A disciplinary tribunal has power to order ‘that the name and any other identifying details of any person involved or referred to in the proceedings must not be published or otherwise made public’ (Rule 49).

Such order can be made if it is

‘(a) desirable to protect the private life of any person …

(b) in the interests of any child … or

(c) otherwise in the interests of the administration of justice’.

The Western Mail might therefore be in contempt if it identified the clergyman and his alleged misconduct in defiance of an order not to do so, and the order was endorsed with the required penal notice. However, the Western Mail report (which is all we have to go on) does not refer to the existence of such an order, merely to a ‘threat’ by the clergyman’s lawyer.

As noted above, contempt of the proceedings is possible, even without disobedience to a specific order. In the case of R v Daily Herald ex parte the Bishop of Norwich (1932) 2 King’s Bench 402, which also concerned clergy discipline, the Daily Herald newspapers was fined for ‘gross contempt’, after it published statements ‘calculated to prejudice the fair hearing of the complaint’.

So the deliberately prejudicial reporting of a case may amount to contempt. But that does not mean that any reporting is contempt.

As the Western Mail report notes, the general rule is that disciplinary hearings are held in private (Clergy Discipline Measure, s.18(3)(c)). (Before 2003 they used to be held in public.) So infringement of the tribunal’s privacy, by reporting what is said and done at the hearing, may amount to contempt. However, ‘private’ is not the same as ‘secret’. It is not a contempt to report that a disciplinary hearing is taking place, or that it may take place in the future.

It is perfectly normal for newspapers to report complaints against clergy, and ongoing disciplinary proceedings. And it is normal practice for the Church authorities to acknowledge the existence of such proceedings, identifying both the clergyman and the complaint. There must be countless instances of this practice.

The Code of Practice ((3) above) provides no support for a threat of contempt proceedings. As mentioned, the Code is not law in the proper sense. It is addressed only to ‘persons exercising functions in connection with clergy discipline’ (2003 Measure, s.3(3)(b)), not to the press and public.

The Code addresses the subject of ‘Publicity and Media Relations’ in relation to disciplinary proceedings (in its last 3 paragraphs, 264-266). It observes that ‘media coverage in advance of any determination of a complaint can be speculative and misinformed, which can damage [those involved]’. However, it makes no reference to contempt proceedings. (The word ‘contempt’ does not even appear in the Code.) It merely suggests that ‘it is advisable for anyone involved in a complaint who is approached by the media to refer the enquirer straightaway to the appropriate [Church] communications officer’.

(Pressreader website accessed today.)

Sede Vacante: The Administration of a Vacant Bishopric

Last year we were sadly reminded that 1 ecclesiastical office is never made vacant, even by death – that of the Supreme Head (or Supreme Governor) of the Church.   It is said that ‘the Monarch never dies’. 

The new King therefore acquired a complete and perfect title to the Crown – and thereby the Church – from the moment of our late Queen’s death.  The Accession ceremonies and proclamations, and the forthcoming Coronation, add nothing to that title.  (This is discussed further in ‘The Coronation Oath: Right and Rite’, filed under category ‘Royal Supremacy’.)

This is a constitutional difference between the Monarchy and the Holy See (the Papacy), which regularly falls vacant.

In the Roman Catholic Church there is a type of suffragan bishop, known as a coadjutor, who not only assists the diocesan bishop, but has the right to succeed him (1983 Code, canon 403(3).  (The office apparently has ancient origins.)  Thus, if a diocese has a coadjutor, there will be no vacancy in the see when the incumbent diocesan bishop leaves office.  The Bishops Resignation Act 1869 made similar provision for the Church of England, but that Act was repealed in 1951.

(Coadjutors in the Latin Church are appointed by the Pope.  The Pope is himself a diocesan bishop, of course.  Last year there was some media speculation that the present Pope might appoint a coadjutor with right of succession to himself, and thereby override the cardinals’ right to elect his successor.)

Declaring the Vacancy

The resignation or other departure of an officeholder, including a bishop, must be distinguished from a notice or declaration that the office is now vacant.

When a benefice becomes vacant, or is shortly to become vacant, the bishop gives notice to the ‘designated officer’ of the diocese, who then administers the process of appointing a new incumbent (Patronage (Benefices) Measure 1986, s.7).  When a bishop resigns, or retires at 70, the Archbishop declares the vacancy: Bishops (Retirement) Measure 1986, s.1.  When the Archbishop himself departs, the Monarch declares the vacancy by Order-in-Council.  An Order-in-Council is also required to declare a vacancy when a bishop is removed for misconduct: Clergy Discipline Measure 2003, s.24(2)).

Death in office is now very rare. Resignation and retirement are the norm, but it was not always thus.   An old edition of Halsbury’s Laws observed that ‘Avoidance [of a bishopric] in ordinary cases takes place either by death or translation [i.e moving the bishop to another diocese].  An ordinary vacancy ought to be certified to the Crown … by the dean and chapter’ (3^rd edition, 1957, p.75n).  It seems unnecessary for the dean and chapter to certify a vacancy to the Crown where the bishop is translated, because translation is by authority of the Crown, so the Crown will already be aware of the vacancy.

(Canon C23(1) provides that a vacant benefice or other vacant cure in the diocese should be notified to the bishop by the rural (area) dean.)

Temporalities

The office of bishop (and Archbishop) comprises

(1) temporalities, the proprietary rights that attach to the office.  In former times these were very considerable: ‘castles, manors, lands, tenements, parsonages, tithes … [and] rights of presentation [to benefices]’ (Halsbury’s Laws, 1^st edition, vol 11, para 781).

(2) spiritualities are the duties attached to the office.  They include ‘all manner of jurisdictions of courts ecclesiastical, such as granting licences to marry … admissions and institutions [to benefices]’ (para 782), consecrating new churches and ordaining new clergy.

When the see is vacant, temporalities and spiritualities are subject to different regimes.  There has never been any doubt that the Monarch is sole guardian of the temporalities ‘by his prerogative as founder [i.e donor] of all Archbishoprics and bishoprics, to whom during the vacancy they revert’.  The temporalities of a vacant see were formerly a lucrative source of income for the Crown.

However, the most recent edition of Halsbury’s Laws observes that ‘the temporalities of all Archbishoprics and bishoprics, except rights of patronage, are now vested in the Church Commissioners, so that it is now only rights of patronage

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that are administered by the Crown during a vacancy’ (5th edition 2011, para 209).  Such rights have no economic value.

A recent statute, cumbersomely entitled the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010, confirms the common law rule that the diocesan bishop’s rights of patronage, being temporalities, revert to the Crown during a vacancy (s.2).  However, the 2010 Measure goes on to provide that such rights are prima facie exercisable by a suffragan bishop.  Thus the right of presentation still belongs to the Crown, but it is exercised by the suffragan on behalf of the Crown, as the Crown’s representative.

The Crown may always choose to exercise the right directly: ‘Her Majesty may give notice … to the [suffragan] … that she wishes to exercise her right of presentation …’, in which case the suffragan may not do so (s.2(3)).

It may not be quite accurate to say that rights of presentation are the only temporalities remaining to a bishop.  A recent article in the Ecclesiastical Law Journal suggests that a bishop may be the legal freeholder of certain cemetery chapels (D and P McClean, ‘Shared Burial Grounds’, September 2022, pp295-308) . Although he is not its legal owner, the bishop’s private chapel may not be entered on the official list of places of worship when the see is vacant (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.41(7)).

Spiritualities

Regulation of the spiritualities during a vacancy is more complex.  Not being a source of profit, the spiritualities were of no interest to the Crown and so were left to the Church.  Historically, guardianship was claimed both by

(1) the Archbishop of the Province and

(2) the cathedral chapter of the vacant see.

It is hard to see any modern justification for the chapter’s claim to the spiritualities.  The chapter was originally the bishop’s council or senate, assisting him to the govern the diocese.  This is presumably the basis of its claim.  However, the chapter’s diocesan responsibility ceased many centuries ago.  Since the middle ages (well before the Reformation) the chapter’s constitutional responsibility has been limited to governing the cathedral, and the cathedral itself has been constitutionally independent of the rest of the diocese.  (See various posts filed under category ‘Cathedrals’.)  Today the bishop’s council is a quite different body from the cathedral chapter (Church Representation Rules, rule 44(2)(h)).

The Archbishop’s claim to guardianship of the spiritualities is overwhelmingly stronger than the chapter’s claim.  It is inherent in his common law metropolitical jurisdiction over the Province ‘as superintendent of all ecclesiastical matters therein’ (canon C17(2)).  The chapter’s claim denies that jurisdiction.  It may amount to a contrary custom, by denying the Archbishop’s common law right.

It is therefore unsurprising that the chapter’s claim enjoys little support from commentators.  Halsbury’s Laws suggests that ‘In … most dioceses it seems that the guardianship has by long usage been exercised by the Archbishop’ (5th ed, para 210).  Moore’s Introduction to English Canon Law suggests that the dean and chapter exercise the guardianship in the diocese of Durham (4th edition 2013).  However, Mark Hill’s Ecclesiastical Law states categorically that ‘The guardianship of the spiritualities during a vacancy no longer vests in the dean and chapter’ (4th edition, p.127).

Yet canon C19, ‘Of Guardians [plural] of the Spiritualities’, though recently amended, refuses to abandon the chapter’s claim, providing that

‘Wherever a bishopric be vacant the guardianship of the spiritualities … shall be exercisable by the Chapter … unless by prescription or composition or by virtue of an enactment or other legal instrument it belongs to the Archbishop … (C19(2)).

(The recently amended version of canon C19 refers to the Crown’s rights of presentation on a vacancy, indicating a failure to appreciate that presentation is a temporality, not a spirituality.)

The Spiritual Jurisdiction of the Monarch

Admittedly the constitutional position is different when the Archbishopric itself is vacant.  An Archbishop has no episcopal superior.  The Archbishop of Canterbury is not the Archbishop of York’s superior, nor vice versa.

However, the Monarch is undoubtedly the constitutional superior of both Archbishops, ‘the highest power under God in this Kingdom, and has supreme authority over all persons in all causes, as well ecclesiastical as civil’ (canon A7). 

Yet Halsbury’s Laws specifically denies the Monarch’s guardianship of spiritualities when an Archbishopric (either Canterbury or York) is vacant (para 151).  Furthermore, it avers that

‘During a vacancy of the See of Canterbury, the dean and chapter, as guardian of the spiritualities, are empowered … to grant all such licences and dispensations throughout both provinces as may be granted by the Archbishop under the Ecclesiastical Licences Act 1533’, mostly special marriage licences.

It is true that the 1533 Act confers this power on ‘the guardian of the spiritualities’, at s.10.  But it does not identify the dean and chapter of Canterbury as guardian.  It makes no explicit reference to them at all, only to ‘the guardian of the spiritualities’.  Thus it confer power on the guardian, but does not confer guardianship on the dean and chapter, or even confirm them as guardian. A reference to ‘the guardian’ is like a reference to ‘the ordinary’ – it is capable of referring to more than 1 authority.

It is argued, contrary to Halsbury, that the Monarch does have an inherent guardianship of the spiritualities of a vacant Archbishopric, as part of the supreme authority acknowledged by canon A7.  Any guardianship exercised by the chapter is therefore subject to the Monarch’s overriding jurisdiction.

Moore’s Introduction reminds us that there is a precedent for the Monarch’s spiritual jurisdiction (3rd ed, 1993, p.22).  The late Thomas Cromwell was appointed Vicegerent in Spirituals, or royal Vicar-General, shortly after the 1533 Act was passed.  It is true that this office has never been revived since Cromwell, but, as Moore points out, it could be revived in the future.  Phillimore’s Ecclesiastical Law (2^nd edition 1895) also discusses the possibility of a royal visitation of the Church (p.1062).

It is therefore argued that, if dissatisfied with the Metropolitical chapter’s guardianship of the spiritualities, the Monarch could appoint the other Archbishop, or a third party, to exercise this function instead.

And even if s.10 of the 1533 Act does confer some right on the dean and chapter of Canterbury per se, that right would be limited to the matters referred to therein.  It would not extend to all guardianship functions.

The Modern Law

The chapter’s claim to guardianship of the spiritualities would be just and reasonable if the Chapter was still the bishop’s council, assisting the bishop to govern the diocese.  Apart from the anachronism of canon C19, and though coadjutors are no longer appointed, modern ecclesiastical law is based on a sensible policy of giving responsibility to those who now assist the bishop (rather than to those who ceased to do so many centuries ago), subject to appropriate interventions by the Archbishop, thereby ensuring a smooth transition to the new bishop.

This means that, even if the chapter’s claim to the spiritualities is admitted, the modern law effectively prevents it from being exercised in practice.

Thus the jurisdiction of other diocesan authorities continues, notwithstanding a vacancy in see.  Their jurisdiction is not ‘inhibited’ by the vacancy.  Canon C22(2) confirms that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’, i.e the archdeacon’s jurisdiction is not merely delegated by the bishop.

The Care of Churches and Ecclesiastical Jurisdiction Measure 2018 makes clear that ecclesiastical courts, whether diocesan or provincial, continue to exercise jurisdiction (s.22).  The work of the disciplinary tribunals likewise continues (Ecclesiastical Jurisdiction Measure 1963, s.12(1) – see also s.99(3) of the 2018 Measure for the Vicar-General’s Court).

A vacancy in see does not affect the function of the Vicar General, or his surrogates (2018 Measure, s.99(4)).  These are the officials responsible for marriage licences.

The Acting Bishop – or Bishops

The diocesan bishop’s own jurisdiction is regulated by the Dioceses Pastoral and Mission Measure 2007.  S.12 imposes a duty on the bishop to ‘keep under review the provision of episcopal ministry and oversight’.  It is argued that this duty includes the provision of arrangements if the bishop has to vacate his office, or becomes incapable of exercising it. 

Pursuant to his s.12 duty, s.13 authorises the bishop to delegate his official functions.  A delegation must be approved by the diocesan synod, or at least by the bishop’s council.  The only function that may not be delegated concerns the procedure for ordaining divorced and remarried persons.  Such procedure will have to await the appointment of a new bishop.

S.13 further provides that a delegation ‘may provide for it to continue to have effect … after … the bishop … ceases to hold that office’ (6).  Such a delegation ‘shall … continue … until … 6 months [after] another person becomes bishop’ (9).  The ability to exercise the Crown’s right of presentation during a vacancy in see, as discussed above, will depend on such delegation.

If appropriate delegation is lacking when a bishopric falls vacant, the Archbishop may delegate instead, under s.14.  If the Archbishopric itself is vacant, the next most senior bishop of the Province exercises this power.

Hill’s Ecclesiastical Law explains that ‘The role of acting bishop … may be exercised during a vacancy by 2 or more persons [bishops], with the functions divided between them territorially or otherwise’ (p.127).

Canon B16(2) suggests that an acting bishop cannot authorise the exclusion of a ‘notorious offender’ from Holy Communion.  Only the Archbishop can do this in a vacancy.  Likewise the power to licence a clergyman for secular occupation is reserved to the Archbishop in a vacancy under canon C28(4)).  However, it may well be argued that the 2007 Measure, which has ‘the force and effect of an Act of Parliament’, prevails over the canons, which lack such authority (Church of England (Assembly) Powers Act 1919, s.4).

The Cathedrals Measure 2021 follows earlier Measures by providing that the bishop is ex officio the Visitor of his cathedral (s.10).  Nevertheless the office of Visitor is separate and distinct from the office of bishop.  The 2021 Measure obliquely makes this point – s.9 is entitled ‘The bishop’, s.10 is entitled ‘The Visitor’.

It is therefore unlikely that the 2007 Measure empowers either the diocesan bishop or the Archbishop to delegate the Visitor’s function during the vacancy of the see.  S.14 of the Cathedrals Measure supports this view, by providing that a requirement to consult the Visitor ‘is to be ignored’ when the bishopric is vacant.

During a vacancy, the bishop’s functions under the Church Representation Rules, including those as president of the diocesan synod, are exercisable by ‘such person in episcopal orders as the Archbishop … may appoint’ (79).  This acting bishop may not delegate his functions to anyone else. 

An acting bishop may attend and speak, but not vote, at a meeting of the Upper House of Convocation, i.e the House of Bishops (canon H3).  If there is more than 1 acting bishop of the diocese, the Archbishop nominates the attendee.

The Archbishop – and the Other Archbishop

The bishop’s duty under s.12 of the 2007 Measure applies to the Archbishop qua diocesan bishop, though not qua Archbishop.  The Interpretation Measure 1925 confirms that ‘The expression ‘bishop’ in relation to the diocese of an Archbishop means the Archbishop’ (s.3).  It therefore follows that, when the Archiepiscopal see is vacant, the next most senior bishop of the Province will have the same power to delegate functions in the Archbishop’s diocese as he has over other vacant dioceses in the Province.

Although the 2 Archbishops are not each other’s superior, Hill’s commentary notes that ‘Where the Archbishopric becomes vacant … many of the functions of the Archbishop are exercised by the [other] Archbishop’.  The Archbishop’s functions under the Church Representation Rules are exercised by the other Archbishop during a vacancy (rule 79(3)). The Archbishop’s disciplinary functions over clergy and licensed lay ministers are likewise exercised by the other Archbishop: Clergy Discipline Measure 2003, s.30(6) and s.31(6), canons E6 and E8.  The Archbishops’ joint power to review an award of compensation for loss of office may be exercised by 1 Archbishop only during a vacancy (Mission and Pastoral Measure 2011, schedule 6, 6(11)).

Sede Vacante: How Ecclesiastical Offices are made Vacant

An ecclesiastical office can become vacant for the following reasons

(1) death

(2) resignation

(3) age

(4) if the office is for a fixed or temporary term, when that term comes to an end

(5) appointment to another ecclesiastical office

(6) removal

(1) is determined by natural law, of course. (2) to (6) are regulated by ecclesiastical law. (2) and (5) are voluntary, (3), (4) and (6) are compulsory.

Departure from office should be distinguished from redundancy, which occurs when the office itself ceases to exist, because it has been abolished or ‘dissolved’. No vacancy can therefore arise.

Different rules apply to different categories of officeholder

(1) Archbishops and bishops

(2) other clergy

(3) lay ministers

(4) ecclesiastical judges and legal officers

(5) parochial officers, i.e churchwardens and lay members of the parochial church council (‘the PCC’).

Among clergy (2), ecclesiastical law formerly made a sharp distinction between

(1) holding an office per se and

(2) a mere licence to officiate

A clergyman either held an office, or he held a licence. He resigned, or was removed from, office. Or he resigned his licence, or the licence was revoked.

The distinction has not disappeared. However, following the Clergy Discipline Measure 2003 and the Terms of Service Measure 2009, clerical office and licence are subject to a similar regime.

All lay ministers (3) are licensees. Categories (4) and (5) are officeholders per se.

Resignation

Most ecclesiastical officeholders resign to their bishop, because he is their constitutional (‘canonical’) superior. Phillimore relates that the validity of the mediaeval Pope Celestine V’s resignation was doubted, because the Pope has no earthly superior (Ecclesiastical Law, 2nd edition 1895, p.385). Modern Roman Catholic law has now resolved this doubt (Code of Canon Law 1983, canon 332(2)).

The Terms of Service Measure 2009 simplified the resignation procedure. A deed is not required. Nor does the resignation have to be formally accepted. Diocesan officeholders on common tenure resign by giving at least 3 months’ notice, in writing, to the bishop (s.3). So the resignation becomes effective when the notice period expires. The bishop may agree to waive notice. Notice of resignation can be in electronic form (Terms of Service Regulations 2009, 17(1)).

However, the older formalities still apply to Archbishops and bishops, notwithstanding their common tenure with less senior officeholders. Bishops, including suffragans, resign to the Archbishop. This requires ‘a written instrument in the prescribed form’, though not a deed. The resignation must be accepted by the Archbishop. The Archbishop signifies acceptance by endorsing the resignation instrument with a declaration of vacancy of the bishopric from a specified date (Bishops (Retirement) Measure 1986, s.1).

The Archbishop resigns to the Monarch. If the Monarch accepts the resignation, the vacancy is declared by Order-in-Council.

The diocesan chancellor resigns to the bishop, as does the registrar (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.3(2) and s.32). However, the deputy chancellor resigns to the chancellor, not to the bishop (s.4(8)).

The Dean of the Arches and Auditor resigns to both Archbishops (2018 Measure, s.11). (He is the senior judge of both Provinces, of course.) The registrar of disciplinary tribunals resigns to the Archbishop, with a notice period of at least 12 months, though the Archbishop may allow an earlier date (2003 Measure, s.5(4)).

Churchwardens, being officers of the ordinary, resign to the bishop ‘by post’ (Churchwardens Measure 2001, s.7), so presumably an email will not be effective. Resignation takes effect after 2 months, or on an earlier date determined by the bishop.

However, PCC members do not resign to the bishop (he is not their superior), but to the secretary of the PCC (Church Representation Rules, 67).

The same person may hold more than 1 ecclesiastical office. The general rule is that departure from 1 office means departure from them all. However, the bishop may permit the incumbent of a plurality to resign 1 benefice but not the other (or others) (Mission and Pastoral Measure 2011, s.32(4)).

Age

The Ecclesiastical Offices (Age Limit) Measure 1975 provides that a clerical officeholder ‘shall vacate … office on the day on which he attains the age of 70 years’ (s.1(3)). Thus the retiring officeholder does not resign, which is a matter of words, but vacates – i.e physically withdraws from the functions and facilities of the office.

At least 6 months before a bishop turns 70, the Archbishop must proactively declare the bishopric vacant with effect from the bishop’s birthday (Bishops (Retirement) Measure 1986, s.2).

However, the Archbishop himself is trusted to retire by the due date, with no proactive action by the Monarch. Thus the Archbishop submits his resignation to the Monarch at least 6 months in advance of his birthday.

Diocesan chancellors must normally retire at 70 (2018 Measure, s.3), though they do not finally depart until they have concluded all the cases then before them (s.3(4)). The Dean of the Arches may stay until 75 (s.11). The House of Bishops is empowered to impose a lower retirement age on registrars, i.e lower than 70 (s.32).

Compulsory retirement at 70 is not an absolute rule. The appropriate superior may authorise continuance in office for a fixed or limited period: Terms of Service Regulations 29A for offices held on common tenure, the 1975 Measure for other offices. (The former Dean of Canterbury recently retired at the age of 75.) The continuance of an incumbent or priest-in-charge will require the consent of the PCC. Subject to this, they can carry on even beyond 75.

If the bishop is to continue, this will be recorded in the declaration of vacancy, i.e the declaration will record the later date, rather than the bishop’s 70th (1986 Measure, s.2).

Likewise the bishop may extend the chancellor’s tenure by up to a year at a time, subject to an absolute retirement age of 75.

The age of retirement does not apply to the Royal Peculiars, the Dean of Christ Church, Oxford, or to a residentiary canonry that is annexed to a professorship.

Fixed Term or Temporary Office

Before common tenure was introduced, many clergy held office for a fixed term of years. Fixed term was the rule for team vicars, and was also possible for team rectors, and even cathedral canons (Pastoral Measure 1983, s.20, Cathedrals Measure 1999, s.9(1)(b)). A lay member of a team ministry who is not on common tenure may still be subject to a fixed term (canons E6(1A) and E8(2A)).

Under common tenure, however, an office is usually time-limited only if it is temporary in nature, e.g to supply for the absence of a permanent officeholder, a training or probationary post, or a post subject to sponsorship funding (regulation 29). A temporary or fixed term office must be clearly identified as such to the officeholder (cf regulation 3(5)(j)).

(Roman Catholic law provides that ‘Loss of office by reason of expiry of a predetermined time … has effect only from the moment that this is communicated in writing by the competent authority’ (1983 Code, canon 186). In other words, even a fixed term appointment must still be terminated on notice. There seems to be no equivalent provision in ecclesiastical law, but perhaps one is not necessary.)

A licensed office which is linked to the holder’s employment may be terminated if the employment contract is terminated (2009 Measure, s.3(5)).

The Cathedrals Measure 2021 suggests that non-executive lay canons (as distinct from residentiary clerical canons) may be subject to fixed-term tenure (s.5(1)), though this will be determined by the constitution of the particular cathedral. (Lay canons are not subject to common tenure.)

A deputy chancellor’s tenure is tied to that of the chancellor. If the chancellor leaves office, the deputy continues to officiate, but only for 3 months (2018 Measure, s.4). The new chancellor can then decide whether or not to reappoint him.

The Deputy Dean of the Arches is temporary, but an appointment may be renewed (s.12).

Parochial offices are held for fixed terms, of course – 1 year for churchwardens, usually 3 years for PCC members, though the annual parochial meeting can decide to limit it to 1 year (Church Representation Rules, M16(2)).

Parochial offices are not subject to an age of retirement, but time limits can be imposed to their tenure. A churchwarden cannot serve more than 6 successive terms in the same parish, but can be re-elected after a year’s furlough (2001 Measure, s.3). The annual parochial meeting can impose a maximum continuous period in office for PCC members (M16(2)).

If a churchwarden retires or is not re-elected his term of office ends either

(1) when his successor is admitted to the office or

(2) 31st July

whichever is earlier (2001 Measure, s.6(2)).

PCC members are not admitted to office, so a PCC member’s term (if not re-elected) will end at the conclusion of the annual meeting (Church Representation Rules, M16(1)).

As mentioned, there is a difference between the vacation of an office and its abolition or dissolution. The Terms of Service Measure provides that an officeholder may be made redundant ‘where the office ceases to exist in consequence of a [statutory] scheme or order’ (s.3(3)).

However, the Mission and Pastoral Measure 2011, which now regulates pastoral reorganisation within the diocese, apparently permits the removal of an incumbent even when the benefice does not cease to exist.

Thus s.39(2) provides that ‘If … the benefice concerned is not vacant [but] the existing incumbent is not to hold the benefice by virtue of a designation [of a new incumbent] by the scheme … the benefice shall be deemed to be vacated …’, i.e the undesignated incumbent will have to go.

However, s.39(3) then goes on to provide that ‘the effect of vacating a benefice … is not to come into operation until … at least 6 months after … the scheme is made …’.

This wording suggests that a statutory scheme may reduce an officeholder’s tenure from an indefinite period to a temporary one, notwithstanding the protection conferred by the 2009 Measure.

Appointment to another Office – the Rule against Pluralities

Statutory authority is generally required for a person to hold 2 or more ecclesiastical offices in plurality.

S.104 of the 2011 Measure provides that, absent statutory authority, an officeholder

‘on … admission to the [new office] be deemed to vacate the office or offices previously held by him’.

(Pluralism, the unscrupulous accumulation of offices merely to acquire the property and income therefrom, was a grave abuse in the Church for many centuries.)

Halsbury’s Laws offers some clarification of the word ‘admission’ in this context

‘Strictly speaking, admission is merely the bishop’s declaration that he approves the presentee as a fit person … [but] The word is more commonly used to signify generally the actual committal of the cure to the clerk …’ (vol 34, para 628, n1).

In other words, the previous office is not vacated until legal title to the new office is conferred, whether by institution or the grant of a licence. The office is not vacated when the candidate is merely nominated to the new office.

S.104 suggests that an officeholder who is promoted is not required to resign his current office, since vacation is automatic.

The Patronage (Benefices) Measure 1986 permits incumbents to exchange their benefices. Halsbury’s Laws suggests that ‘exchange only takes effect if and when both incumbents are instituted and inducted to the [new] benefices’ (para 725). If this does not happen, the exchange agreement is void and both incumbents continue in their original benefices. Either way, no vacancy is created.

The rule of automatic vacation does not apply to ecclesiastical judges, but the 2018 Measure empowers the House of Bishops to limit the number of judicial offices that may be held by 1 person at the same time (s.5(1)).

Removal

Different removal procedures apply to different categories of officeholder. It must be remembered that

(1) all clerical officeholders are subject to the Clergy Discipline Measure 2003, but

(2) not all clerical officeholders, as yet, have to be on common tenure

(3) no lay ministers are subject to the 2003 Measure and

(4) some lay ministers are on common tenure, while others are not.

Clergy All clerical officeholders, whether on common tenure or not, are liable to removal for

(1) misconduct or

(2) incapability

Misconduct

If the disciplinary tribunal makes a finding of misconduct under the 2003 Measure, it may, subject to appeal, remove the convicted clergyman from office (or revoke his licence) (s.19(1). The bishop does not have this power. Likewise, a convicted bishop or Archbishop may be removed by the Vicar General’s Court, though this must be confirmed by Order-in-Council (s.24(2)).

The bishop may remove a clergyman who is convicted of a serious criminal offence, or who is the subject of an unfavourable finding by a divorce court, or named on a ‘barred list’ (s.30). The disciplinary tribunal is not involved in this – it is based on the findings of secular authorities. The bishop’s penalty is subject to review (not appeal) by the Archbishop.

Removal in these circumstances is unusually formal. The about-to-be-removed officeholder ‘shall be entitled to be present when the penalty is imposed’ (though this may be difficult to arrange if he is in prison). The bishop ‘shall be attended by the registrar’. This formality makes the point that the bishop is acting in a quasi-judicial capacity.

The removal of a bishop or Archbishop following the finding of a secular authority requires consultation with the 2 most senior bishops of the Province (s.31). However, a confirmatory Order-in-Council is not required.

It remains theoretically possible for a bishop or other clerical officeholder to be removed (or ‘deprived’) by the Court of Ecclesiastical Causes Reserved for an offence against doctrine, ritual or ceremonial, under the Ecclesiastical Jurisdiction Measure 1962, s.45 and s.49, though none has been in nearly 60 years.

Incapability

If the capability procedure to which common tenure is subject culminates in a final determination that the officeholder be removed, then the bishop or Archbishop must – not may – give 3 months’ notice of removal, stating the reason (2009 Measure, s.3(6)).

If an incapable bishop is removed, the Archbishop must also declare the bishopric vacant (s.3(8)).

If the Archbishop himself is found incapable, the other Archbishop gives notice, not the Monarch. However, the other Archbishop must then petition for an Order-in-Council to declare the Archbishopric vacant (s.3(7)).

Any incumbents and cathedral dignitaries who are not on common tenure remain subject to the capability procedures provided by the Incumbents (Vacation of Benefices) Measure 1977 and the Church Dignitaries (Retirement) Measure 1949.

Lay Ministers If a lay minister is on common tenure, he can only be removed from office for the same reasons as clergy, i.e misconduct and incapability.

The capability procedure is the same as for clergy. However, a complaint of misconduct will be governed by the canons of the Church of England, not the 2003 Measure (or the 1963 Measure). The complaint is tried by the bishop, who also imposes the penalty, subject to an appeal to the Archbishop. The disciplinary tribunal is not involved.

Nor is it only the procedure which is different. Because lay ministers are subject to the canons, and not to the 2003 Measure, the definition of ‘misconduct’ in s.8 of the 2003 Measure does not automatically apply to them. (Thus there are important limits to the commonality of common tenure!) And the canons make clear that misconduct ‘includ[es] any act or omission relating to matters involving ritual, doctrine or ceremonial’.

If a lay minister is not on common tenure, the bishop can revoke the licence ‘for any cause which appears to him to be good‘, not just for misconduct or incapability, ‘after having given the [lay minister] sufficient opportunity of showing reason to the contrary’. Again, there is an appeal to the Archbishop (canons E6(3) and E8(5)).

The canons provide that a lay minister must have his licence revoked if his name appears on a barred list. The licence may also be revoked for a criminal offence against a child, but the bishop is empowered to waive such a conviction, giving reasons therefor.

Other criminal and matrimonial offences are not specifically referred to in the canons, but they may still constitute misconduct by a lay minister on common tenure, and ‘good cause’ to remove a lay minister who is not.

Judges and Legal Officers The bishop may remove the chancellor if the bishops of the Province collectively resolve that the chancellor is ‘incapable or unfit’ (2018 Measure, s.3(3)). The 2 Archbishops may likewise remove an incapable or unfit Dean of the Arches, upon resolutions by the bishops of both Provinces (s.11). The chancellor may remove his deputy, after consultation with the bishop (s.4).

The bishop may dismiss the registrar, with the consent of the Archbishop (or of the other Archbishop, in the case of a provincial registrar), even if the registrar is not considered incapable or unfit (s.32). The Archbishop may terminate the appointment of the registrar of tribunals, subject to consultation with the President of Tribunals (2003 Measure, s.5(5)).

Parochial Officers The bishop had a very limited power to disqualify churchwardens and PCC members under the Vacation of Benefices Measure 1977, if advised that they contributed to a ‘breakdown in pastoral relations’ (s.10(6)). However, this power was only very rarely used, and the 1977 Measure does not apply to incumbents on common tenure.

Churchwardens and lay PCC members cannot otherwise be removed from office by the bishop or Church court. Their mandate to officiate comes from the parishioners who elected them. (It is true that churchwardens are admitted to office by the ordinary, but this is a formality.) Their terms of office are of relatively brief duration. If found unworthy or incapable, the obvious sanction is to vote them out at the next election.

The basis of eligibility for parochial office is the electoral roll. A churchwarden or lay PCC member is automatically disqualified (therefore effectively removed from office) if his name is removed from the electoral roll, or fails to appear on a new roll (2001 Measure, s.8(1), Church Representation Rules, M15(11)).

Churchwardens and lay PCC members will also be disqualified if they are included in a barred list, or convicted of an offence against a child (rule 46). Again, the bishop has power to waive disqualification for such a conviction.

Because churchwardens and PCC members are ex officio charity trustees, they will be automatically disqualified from office if disqualified by secular authority from officiating as charity trustees (2001 Measure, s.2, cf rule M8(8)). However, disqualification is apparently not automatic for a cathedral officeholder who is ex officio a charity trustee. The bishop must disqualify such an officeholder (2009 Measure, s.3A).

In Defence of the Clergy Discipline Measure 2003: Measure and Management

Ecclesiastical Law Society Working Party, Interim Report (September 2020)

Strong criticisms have recently been made of the disciplinary procedure provided by the 2003 Measure, both by accused clergy and their accusers.  The report cited above seeks to address these.

There seem to be 3 criticisms

(1)  delays in processing complaints

(2)  failure to communicate, i.e provide information, even about the particulars of a complaint and

(3)  lack of support for both accused and accuser.

Such treatment naturally causes distress.  It is, of course, a depressingly familiar feature of litigation and quasi-litigation.

The report observes that reform of clergy discipline has not been very successful in the past.  From 1840 to 2020 ‘a series of statutes and Measures introduced new offences and new [disciplinary] processes … a repeated pattern over 180 years: dissatisfaction with the then current system led to the introduction of a new one, only for that itself to be the subject of criticism not long after it was brought into effect’ (para 10).

Another commentator took an even longer view of history: ‘devising a thoroughly satisfactory system of ecclesiastical courts … [is] a problem which has baffled the best brains of Christendom for more than 1000 years’ (Crockford Prefaces, OUP 1947, p.18).

The Ecclesiastical Jurisdiction Measure 1963 was the principal statute regulating clergy discipline prior to the 2003 Measure.  30 years later, Moore’s Introduction to English Canon Law drily observed that the 1963 Measure ‘swept away a number of tribunals and procedures … The machinery which has gone was complicated and cumbersome.  The machinery which has taken its place is, unfortunately, no less so’ (3rd edition, 1993, pp119-120).

The protection afforded by the cumbersome 1963 Measure applied only to beneficed clergy.  Licensed clergy were at the mercy of their bishops.  Canon C12(5) originally provided that ‘Any bishop may revoke summarily and without further process, any licence … for any cause which shall appear to him to be good and reasonable …’.  The bishop was required to hear the licensee first, and the licensee had a right of appeal to the Archbishop.  However, the bishop did not have to prove misconduct, and the licensee had no right to an independent court or tribunal.

Sir Mark Hedley observed that ‘The Clergy Discipline Measure … whatever its defects … is at least better than what had gone before 2003’ (‘Practical Aspects of the Clergy Discipline Measure’ Lecture, October 2017).  The report does not deny that the 2003 Measure is indeed an improvement on the previous 1963 regime.  It provides a single disciplinary regime for both beneficed and licensed clergy (cf.s.8(2)).  Disputed complaints have to be tried and punished by a tribunal, not by the bishop.  As the report observes, ‘bishop’s disciplinary tribunals are, despite the nomenclature, truly independent bodies over whose decisions … the bishop has no control’ (para 9).

Not only the trial but also the prior investigation of the complaint is independent of the bishop.  It is carried out by the designated officer, a national official.  The holder of that office observed that the designated officer ‘is [not] counsel for the complainant … [but] is independent of the complainant … and the bishop … [like] counsel for the Crown in a criminal trial, [the designated officer] puts the case for the victim but … does not represent the victim, and … acts impartially throughout’ (Adrian Iles, ‘The Clergy Discipline Measure 2003’ (2007) 9 Ecclesiastical Law Journal 10, p.19)

Thus, by improving on its predecessor, the 2003 Measure has rather bucked the trend of the last 180 years (perhaps even the last 1000 years!).  A proposal for changing it should therefore be treated with especial caution.

Nevertheless the report makes 2 criticisms of the Measure

(1) the wide ambit of ecclesiastical offences / misconduct

(2) the absence of a procedure for dealing with minor complaints and grievances, ‘a major error’ (para 7).

In practice, it seems that almost all disciplinary complaints are concerned with the vicar’s behaviour, rather than specific breaches of duty or disobedience.  The Ecclesiastical Jurisdiction Measure 1963 provided an offence of ‘conduct unbecoming the office and work of a clerk in Holy Orders’ (s.14(1)).  The Clergy Discipline Measure broadened this offence to ‘conduct unbecoming or inappropriate … ‘ (s.8(1)).

It may be doubted whether the word ‘inappropriate’ really adds anything much to ‘unbecoming’.  However, the ambit of misconduct is undeniably very wide.  The slightest clerical faux pas could be described as ‘inappropriate conduct’.

Despite the apparent criticism, the report does not propose a narrowing of the ecclesiastical offence.  It wisely rejects a regime of ‘detailed rules and regulations and fleshing out of principles’ of what does or does not constitute inappropriate behaviour (para 42).  Such a regime would be ‘too interventionist in [clergy] personal lives and too restrictive of their practice of ministry’ (para 42).  It would create an undesirable bureaucracy or ‘industry’ of ‘professional expertise’ (para 46).

Hedley pointed out in his lecture that ‘standards of behaviour required of the clergy are necessarily high’.  But it is necessary to distinguish minor, though genuine, grievances about a vicar’s lapses of tact and courtesy from more serious matters.

Therefore, despite its professed caution about legislative reform (‘We are acutely aware of the risk …’ (para 10)), the report proposes 2 quite radical changes to the Clergy Discipline Measure:

(1) a new preliminary stage for assessing complaints when they are first made and

(2) the creation of 2 ‘tracks’ for processing misconduct case – 1 track for ‘lesser’ misconduct, another for ‘serious’ misconduct.

At present, the 2003 Measure provides that a complaint is referred to the registrar for preliminary scrutiny (s.11).  This scrutiny is limited to ‘forming a view as to whether or not …

[1] the [complainant] has a proper interest … and …

[2] there is sufficient substance in the complaint to justify proceeding with it’.

The report proposes that the complaint should instead be referred, not to the registrar, but to an assessor.  The assessor may be ‘a lay person who from their own secular work experience has [appropriate] skills’.  Or the bishop could appoint an archdeacon to be the assessor (para 91).

The assessor’s complaint handling function will be considerably greater in scope than the registrar’s preliminary scrutiny.  The assessor will not merely scrutinise the written complaint, but actually institute an enquiry on the basis of it.  He will speak to both the complainant and the accused clergyman (para 94).  Both parties ‘would be asked to provide the assessor with evidence in support of their respective contentions’ (para 95).

Having completed this enquiry, the assessor will report to the bishop.  The bishop may then proceed as follows

(1) attempting conciliation / resolution

(2) dismissing the complaint

(3) to ‘having concerns about the health of the cleric’

(4) or ‘having concerns about the capability of the cleric’ or

(5) finding misconduct.

Thus the enquiry will not necessarily be limited to the specific complaint.  It extends to the accused clergyman’s health and general capability for office.

(1) is evidently the preferred course.  The assessor will be expected to settle the dispute between the parties, as well as investigate it, if possible (para 98).

However, if misconduct is found (per (5)), the bishop will then have to decide ‘whether it is serious or lesser misconduct, and allocate it to the appropriate ‘track’ (para 111).

Serious cases will continue to be dealt with by reference to a tribunal.  However, lesser misconduct cases that cannot be settled by agreement will be decided by the bishop alone, on the basis of the assessor’s report (para 115).

The report proposes that ‘the bishop should have the power to impose penalties, without consent, penalties falling short of prohibition … principally rebuke and injunction, and might also include conditional deferment’ (para 116).  (At present, conditional deferment is only possible with consent.)  An administrative rather than a judicial procedure.  Inquisitorial not adversarial.  No tribunal and no lawyers.  The report candidly admits that ‘our proposal [is] to keep out lawyers’ (para 118).  However, the penalised clergyman would have a right of review or appeal (para 119).

These proposals are hardly favourable to accused clergy.  The assessor’s enquiry is bound to take longer than the registrar’s scrutiny.  The activism of the assessor’s function may result in additional complaints to the one which prompted the enquiry.  It may even start a bandwagon rolling, positively encouraging parishioners to complain.

Empowering the bishop to impose penalties unilaterally, without consent, is a major reversal of the policy of the Clergy Discipline Measure.  This proposal would repatriate powers from the tribunal to the bishop.  It is a chilling echo of the pre-2003 regime over licensed clergy.

It is true that the bishop could not actually remove an accused clergyman from office.  But an injunction is still an interference with the clergyman’s tenure.  Conditional deferment of a complaint will also prejudice tenure if a subsequent complaint is made.  The clergyman’s career and reputation will be damaged.

Hedley suggested in his lecture that, when processing complaints, ‘the question of threshold needs to be addressed’ i.e the ‘threshold’ from minor to serious misconduct.  It is not clear how a 2 track procedure will identify this threshold, any more than the present 1 track procedure.  As mentioned, the report eschews detailed definitions of misconduct.

But the procedure (as proposed) would certainly alter the threshold.  Under the 2003 Measure, serious misconduct is any misconduct that would attract any penalty.  Minor misconduct is conduct that would not attract a penalty.

According to the report’s penalties-based definition, ‘serious misconduct’ is misconduct that would justify a prohibition or loss of office.  ‘Minor misconduct’ is misconduct that may justify either a less serious penalty or no penalty.  There are 2 possible consequences of this definition

(1) an allegation of serious misconduct will be treated as if it was minor misconduct, with the accused being denied the protection currently provided by the 2003 Measure to defend the allegation and / or

(2) minor misconduct will be dealt with more severely than it is at present.

Admittedly the boundary between serious and minor misconduct is not absolute under the 2003 Measure.  The mildest penalty available to a tribunal is a rebuke.  The report Under Authority (1996), whose proposals formed the basis of the 2003 Measure, acknowledged that ‘a prosecution that leads only to a rebuke is probably a prosecution which should not have been brought’ (p.98).  However, it is certainly the policy of the Measure that any alleged misconduct that would attract a penalty more serious than rebuke should be dealt with by the tribunal.

Such proposals to reform the Clergy Discipline Measure are undesirable in themselves.  It is further argued that reform of the Measure is not necessary to distinguish between serious and minor cases.  Common sense and experience should suffice to determine whether a complaint is concerned with the vicar’s shortage of interpersonal skills or with something more serious.

Iles notes that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters, and the [Clergy] Discipline Commission urges bishops to dismiss them, along with complaints alleging acts or omissions amounting to minor misconduct.  Bishops are encouraged to take a fairly robust approach … and to be alert to the possibility of resolving a complaint … by non-disciplinary means … where appropriate’ (‘The Clergy Discipline Measure 2003: A Progress Report’ Ecclesiastical Law Journal, January 2014, p.5.).  An eminently sensible policy.

There is nothing in the 2003 Measure to prevent the bishop from taking advice from others, in addition to the registrar, on what to do with a complaint.  Nor does the Measure prevent the bishops collectively from agreeing a common approach.

When disposing of a minor complaint, the bishop does not need statutory powers to rebuke a tactless incumbent, or to suggest, and facilitate, conciliation.  (Conciliation is, by definition, consensual, requiring the acquiescence of both parties to the dispute.)

A minor complaint may indeed give rise to concerns about a clergyman’s general capability, including his health.  But the report itself admits (para 105) that a statutory capability procedure already exists, under the Terms of Service Measure 2009 and the rules made thereunder.  The 2009 regime also provides for regular performance appraisal of clergy (‘ministerial development review’) and for continuing education.

It is likely that the silence of the 2003 Measure concerning minor misconduct was based on the assumption that this would be dealt with by what became the Terms of Service Measure 2009.  Serious misconduct to be dealt with by the 2003 Measure.  Minor misconduct by the 2009 Measure.

It is further argued that the Clergy Discipline Measure per se is not to blame for the current criticisms of the disciplinary procedure.  There is nothing in the 2003 Measure that necessitates delay or prevents communication with, and support for, the parties to a disciplinary case.  Reforming or repealing the Measure would therefore not cure these shortcomings.

The Measure actually includes provisions that are intended to avoid delay.  It prescribes time limits of 28 days for processing complaints, though allowing for extensions (ss11 and 12).  A busy registrar is expressly empowered to delegate ‘any or all of his functions [of preliminary scrutiny] to such person as he may delegate’ (s.11(6)).

The 2003 Measure makes provision for disciplinary cases that also involve the secular authorities – the police, the courts, ‘safeguarding’ authorities.  These authorities may well take a very long time to process a case, and this will inevitably place an accused person under great strain.  But of course secular procedures are outwith the scope of any ecclesiastical legislation.

So what should the Church do to address the admitted criticisms of its own procedures?  (The report evidently accepts that the criticisms are justified.)

It is argued that the correct response is, not legislative reform, but administrative or managerial reform.  It may be embarrassing to say so, but responsibility for the admitted shortcomings lies, not with the Clergy Discipline Measure per se, but with the persons whose duty it is to administer the Measure.  The solution therefore lies in the management of such persons.  This requires a company doctor, not a legislative draftsman.

The report obliquely refers to the difficulty.  It remarks, somewhat feebly, that ‘the current capability procedures [under the 2009 Measure] … are not well understood and appear to be rarely used’ (para 105).  The answer to that problem is effective managerial action to ensure that the procedures do become well understood and properly used, not to legislate for yet more procedures.

The report itself is interesting to read and provides welcome food for thought (after many hungry months for this blog).  But still, its conclusions are, with respect, on the wrong track.

Smells and Bells: Services and Ceremonies

The Abolition of the 1662 Regime

When studying ecclesiastical law for the first time, it comes as a surprise to learn that liturgical practices now widespread, even universal, in the Church of England, practices with which the student has been familiar since early childhood, were once considered illegal.  The reasons for this are discussed in 2 posts, on the Ornaments Rubric and the Lincoln Judgment, filed below.

Some liturgical practices have been accepted more readily than others.  The burning of incense has probably been the most consistently controversial practice.  (That and the ringing of a bell during the Prayer of Consecration in the Communion Service.)  ‘Smells and bells’ continued to inspire mild resentment until relatively recently, and were identified with a small clique of Anglo-Catholic ritualists.

In the case of Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, Sir Robert Phillimore, the Dean of the Arches, found that incense ‘is not directly ordered in any Prayer Book, canon, injunction, formulary or visitation article of the Church of England since the Reformation’ (p.215).  He therefore concluded, with obvious reluctance, that ‘although … it be an ancient, innocent and pleasing custom, I am constrained to pronounce that the use of it … is illegal’.

There is actually nothing Christian or ‘catholic’ about incense.  It is an inheritance from pagan antiquity (which may be a good reason for opposing its use in church services).  But the aesthetic charms which seduced Sir Robert have evidently prevailed at last.  Incense now seems to be uncontroversial and widely used in cathedrals and churches throughout England, by Archbishops and bishops as well as lesser clergy, its use no longer confined to a small clique.

Are the liturgical practices forbidden in Victorian times now legal?  Surely they must be, or they would not be so widespread?  But it still behoves ecclesiastical lawyers to explain how they are lawful, even if nobody else is interested.  General acceptance per se does not prove legality.

The full title of the Book of Common Prayer is ‘The Book of Common Prayer and Administration of the Sacraments, and other Rites and Ceremonies of the Church according to the Use of the Church of England’.  In Martin v Mackonochie, Phillimore defined rites as ‘services expressed in words’ and ceremonies as ‘gestures or acts’ (pp.135-6).  On this definition the burning of incense is a liturgical action, therefore a ceremony.

The Preface of the Book of the Common Prayer concerning ceremonies is subtitled ‘Why Some be Abolished, and Some Retained‘.  This was the basis of the Victorian case law.  All ceremonies not retained in the Prayer Book (either expressly or at least by necessary implication) had been abolished, including incense.  Their use was therefore illegal.

The authority for the Prayer Book, including the Preface, came from the Act of Uniformity 1662. just as previous versions of the Prayer Book, from 1549 onwards, depended on earlier Acts of Uniformity.

The Act of Uniformity was repealed by the Worship and Doctrine Measure 1974.  Schedule 2 of the Measure says of the 1662 Act ‘Extent of Repeal … The whole Act except ss.10 and 15′ (which sections provide that only episcopally ordained clergy may be appointed to benefices and officiate at Holy Communion, and that preachers or ‘lecturers’ must be licensed).

S.1 of the Worship and Doctrine Measure empowers the General Synod ‘to make provision by canon with respect to worship’, and that ‘any such canon shall have effect notwithstanding anything inconsistent therewith … in … the rubrics of the Book of Common Prayer’.

S.5(2) of the 1974 Measure expressly includes the prefaces of the Prayer Book within its definition of ‘rubrics’.  The only 1662 rubric which continued to have the force of law after 1974 was that concerning the publication of banns of matrimony (s.1(1)(b)).

Commentaries on ecclesiastical law do not explain the effect of the 1974 Measure with anything like sufficient clarity.  The reader may be left with the impression that the 1974 Measure merely amended the 1662 regime, rather than replaced it.  The suggestion persists that the rubrics and prefaces of the Book of Common Prayer continue to have the force of law, and that the cases thereon are, or at least may be, still ‘good law’ (i.e current law).  (The confused cogitations of Chancellor Bursell QC, the leading commentator on the subject, are discussed in other posts, filed below in this category.)

Yet, subject to the narrow exceptions just mentioned, the 1662 regime of public worship is no more.  It has ceased to be.  The voluminous case law concerning liturgical ceremonies can therefore no longer be good law.  It may be true that the case law forms an important part of the context of the modern post-1974 law, explaining why and how the new law came to be what it is.  So it may still be relevant to the study of ecclesiastical law.  Nevertheless it is no longer part of the law itself.

The 1974 Regime

The repeal of the 1662 regime could not, of course, have the effect of reviving or reinstating the mediaeval liturgical practices abolished at the Reformation.  However, it does mean that liturgical practices not retained or referred to in the Book of Common Prayer are prima facie permitted, no longer forbidden – subject, of course, to the canons made by the General Synod under s.1 of the Worship and Doctrine Measure.

Public worship is now governed principally by canons B1 to B5 of the revised canons (‘the liturgical canons’), which were promulged under the authority of s.1.

Although the 1974 Measure provides greater diversity of worship than the 1662 regime, it is far from being a liturgical free-for-all.  Canon B1 is entitled ‘Conformity of Worship‘, and contains the strict injunction that ‘Every minister shall use only the forms of service authorised by this canon’ (B1(2)).

However, there are 2 exceptions to this rule, at canon B5

(1) an officiating minister may introduce ‘variations which are not of substantial importance’ into an official service and

(2) an incumbent (not just any officiating minister) may use or permit ‘forms of service considered suitable by him’, but only ‘on occasions for which no provision is made in [the official services]’.

The 1974 Measure specifically authorised the General Synod to allow these exceptions (s.1(5)).  However, the discretionary powers in canon B5 are not unfettered, but subject to the ‘pastoral guidance, advice or directions’ of the bishop (B5(4)).

If an official service contains a rubric or direction expressly permitting the use of incense (or some other ceremony considered illegal under the 1662 regime) then this ceremony will obviously be lawful for use in that service.  The legal position will be equally clear if an official service positively provides that incense shall not be used at the service.  But what if (as seems to be the case in practice) official forms of service are silent about such ceremonies?

To answer this question it is first necessary to answer another question: what is a ‘form of service’?

The Worship and Doctrine Measure defines a form of service as ‘any order, service, prayer, rite or ceremony’ (s.5(2)).  This reference to rites and ceremonies echoes the language of 1662.

The revised canons at first gave no definition of ‘form of service’.  Then in 1994, 20 years after the Worship and Doctrine Measure was passed, the liturgical canons were amended.  Canon B1(3) now provides that

‘form of service shall be construed as including

(i)   the prayers known as collects

(ii)  the lessons designated in any Table of Lessons

(iii) any other matter to be used as part of a service

(iv) any Table of Rules for regulating a service

(v)  any [approved] Table of Holy Days …’.

Thus the explicit reference to ceremonies in the 1974 Measure does not appear in the liturgical canons, either in canon B1(3) or elsewhere.  (The phrase ‘rites and ceremonies’ does appear in canon B3(1), but only as part of the definition of a church building, not in relation to a form of service.)

It is hard to believe that this omission was accidental.  There may have been a deliberate policy of silence on the subject, to avoid reviving old disputes, or from fear that the 1974 regime would prove just as ineffectual at regulating ceremonies as its predecessor.

However, although canon B1(3) does not expressly refer to ‘ceremonies’, it does define ‘form of service’ as ‘any other matter to be used as part of a service’.  Is this wording broad enough to include ceremonies?  Chancellor Bursell considered that the reference to ‘forms of service’ in the liturgical canons does indeed include ceremonies, and that therefore ceremonies are regulated by canons B1 to B5 (cf St John’s, Chopwell (1995) 3 Weekly Law Reports 606, p.611 and p.615).

If Bursell is right about this (and he may be) then prima facie the position will be similar to that which obtained in Victorian times.  Ceremonies will be just as illegal now as they were then, unless they are clearly permitted by the rubrics of an official service.

But now, of course, there are the 2 exceptions to the general rule that only official forms of service may be used.  The burning of incense and other ceremonies will be lawful if

(1) they can be accommodated within the canon B5 discretions, and

(2) the bishop is prepared to accept them.

However, the language of canon B5 may not be very apt to permit the use of incense and other ritualistic practices.  Exception (2) refers to forms of service for special occasions, not to ordinary Sunday and weekday worship.  Exception (1) clearly does apply to ordinary worship.  However, the word ‘variations’ suggests that the exception concerns the alteration of the liturgical text, its structure and wording.  It does not refer to the addition of ceremonies that are not referred to in that text.

Many years before the 1974 Measure was passed, the report The Canon Law of the Church of England (1947) proposed a draft canon which would have permitted ‘deviations (whether by way of addition, omission, alternative use or otherwise)’ from Prayer Book services (p.113), but this proposal was not followed.

In the view of the long and bitter controversy over ritualism, it may be hard to argue that ritualistic practices are ‘not of substantial importance’.  Clearly they were very important both to the ritualists and their Low Church opponents.  In the 19th century a few ritualist clergy were even prepared to go to prison rather than conform to the 1662 regime.  It is also unclear why a ceremony should be permitted if it is ‘not of substantial importance’, but forbidden if it is of substantial importance.

A Policy of Silence

It is therefore argued that, contrary to Bursell’s view, canons B1 to B5 do not attempt any general regulation of liturgical ceremonies.  The Worship and Doctrine Measure certainly empowers the General Synod to regulate ceremonies, but the General Synod has (thus far) not chosen to exercise the power.

This is the obvious explanation for the lack of explicit reference to ceremonies in the liturgical canons.  The enigmatic reference in canon B1(3) to ‘any other matter to be used as part of a service’ should be understood as a reference to the written texts of services, not to ceremonies.

If it is accepted that canons B1 to B5 do not refer to ceremonies in general, this avoids an overly strict, neo-Victorian interpretation of the principle of liturgical conformity.  It also avoids the awkwardness of accommodating ceremonies within the language of the canon B5 exceptions.

The principle of conformity means that

(1) clergy must only use official forms of service, not services devised by themselves, or services ‘borrowed’ from other sources, except for a special occasion for which no official form is provided, and

(2) when using an official form of service, the officiating minister must respect the structure and wording of the text, and not take liberties, except to the limited extent permitted by canon B5(1).

However, the liturgical canons do not forbid, or even restrict, ceremonial actions performed during official services, so long as such actions do not conflict with the structure and text of the service.

There may be an analogy between ceremonies and music. Music is obviously an important part of worship, but it has not been suggested that canons B1 to B5 regulate music.  Music is  regulated by canon B20.  Canon B20 entrusts the control of liturgical music to the officiating minister, though the minister is required to ‘pay due heed’ to the organist or choirmaster, and also to ensure that the music is ‘appropriate … to the solemn act of worship’, and ‘to banish all irreverence’.

It is argued that an officiating minister has a similar control of liturgical ceremonies as of music.  It may be anomalous that music is specifically regulated by the revised canons while ceremonies are not.  However, music has proved much less controversial in the past than ceremony, and is therefore easier to regulate.

The silence of the revised canons concerning ceremonies is consistent with a sensible policy of tolerance and avoiding controversy.  Moreover, the silence does not mean that ceremonies are entirely at the whim of the individual vicar.  There are 3 legal restrictions on ceremonies

(1) as mentioned earlier, a ceremony will be unlawful if used during a form of service which positively forbids it.  A vicar who performed such a forbidden ceremony, and ignored the bishop’s warning to desist, would be guilty of an ecclesiastical offence of disobedience under the Clergy Discipline Measure 2003, s.8.

(2) a ceremony which conflicts with the Church’s doctrine will be unlawful, even if it is not positively forbidden by official forms of service.  The Ecclesiastical Jurisdiction Measure, s.10(1), continues to provide for disciplinary action to be taken in respect of offences against doctrine, though no such action has ever been taken.

(3) all ceremonies are subject to the requirement of reverence.  The revised canons repeatedly insist that public worship must be performed ‘reverently’ (canons B10, B11(1), B13(1), B14(1)).  Reverence may be a matter of cultural value judgement to some extent.  But a vicar who introduced some ceremonial action that was considered so grossly inappropriate (an example will not be attempted) as to contravene the requirement of reverence would also be liable to disciplinary action for disobedience under the Clergy Discipline Measure.

Holy Communion: Consecration and Consumption

The English law of Holy Communion may be conveniently studied under 3 headings

(1) Who may administer Holy Communion

(2) to whom and

(3) how, when and where?

However, to understand the relevant law, it is important not to confuse the Communion with the Eucharist.

Who?

Canon B12(1) of the revised canons provides that ‘No person shall consecrate and administer the Holy Sacrament … unless he shall been ordained priest by episcopal ordination’.  This echoes s.10 of the Act of Uniformity 1662 (now repealed).  The words ‘consecrate and administer’ may mean that the priest must not only consecrate the bread and wine, but must also control and preside over the whole Communion Service, including the distribution of the consecrated elements to the communicants.

The Prayer Book (Further Provisions) Measure 1968 permitted authorised laypeople to assist the priest by distributing Holy Communion to communicants.  This lay assistance is now regulated by canon B12(3) and the Admission to Holy Communion Regulations 2015.

Canon B44 allows that a minister of a non-episcopal Church may celebrate Holy Communion in a Church of England church where a local ecumenical partnership has been established ((1)(f)).  This provision makes clear that episcopal ordination is, as Paul Avis described it, merely the ‘house rule’ of the Church of England, a rule of discipline, not religious belief.  Article 19 confirms that one particular ministerial structure is not essential in the Church, just so long as ‘the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’.  However, canon B44 requires that the Anglican faithful be warned of the officiating minister’s lack of episcopal ordination (cf 4(3)(a)(b)).

To Whom?

Baptism alone does not qualify a person to receive Holy Communion.  Reception requires

(1) commitment to Baptism

(2) instruction in the faith and

(3) repentance.

The Book of Common Prayer 1662 required that communicants should be ‘[episcopally] confirmed … or … ready and desirous to be so confirmed’ (rubric).  Confirmation candidates ‘being now come to the years of discretion, and having learned what their godfathers and godmothers promised for them in Baptism … with their own mouth and consent … ratify and confirm the same; and also promise that … they will evermore endeavour themselves faithfully to observe such things …’.

Confirmation is therefore

(1) confirmation by the candidate of his baptismal promises and

(2) the assurance of Divine Grace to support the candidate’s commitment to these promises ‘that he may continue Thine for ever; and daily increase in the Holy Spirit more and more …’.

There is no reference to Holy Communion in the 1662 Confirmation rite itself, only in the rubric.  Confirmation is concerned with Baptism rather than Holy Communion.  The phrase ‘ready and desirous’ makes clear that Confirmation is not essential to Holy Communion.  (In the old days, bishops were often absent from their dioceses, indeed never even visited them, so a candidate might have to wait a long time to be confirmed.)

Canon B27(3), again echoing the 1662 rubrics, provides that ‘The minister shall present none to the bishop [for Confirmation] but such as are come to the years of discretion and can say the Creed, the Lord’s Prayer and the Ten Commandments, and can also render an account of their faith according to the … Catechism’.  Canon B27(2) requires the minister to use his best endeavour to instruct [Confirmation candidates] in the Christian faith and life’.

The modern canon B15A, which now regulates admission to Holy Communion, repeats the 1662 rubric about Confirmation, but allows that other persons may receive Holy Communion too, viz

(1) (b)  baptized persons who are communicant members of other Churches which subscribe to the doctrine of the Holy Trinity, and who are in good standing in their own Church

(c)  any other baptized persons authorized to be admitted under regulations of the General Synod; and

(d)  any baptized person in immediate danger of death.

Thus practising Christians from Churches which lack episcopal ministry and Confirmation may now be admitted to the Anglican Sacrament.  This rule, like canon B44, is consistent with Article 19.  It is also consistent with Article 25, which teaches that Confirmation is not a Sacrament ‘ordained of Christ our Lord in the Gospel’.  ‘Good standing’ is not defined, but suggests an assumption that such persons will have received sufficient instruction in their own Churches.

The Admission of Baptised Children to Holy Communion Regulations 2006 were made under the authority of Canon B15A(1)(c) above.  Young children who are not confirmed, or even ready to be confirmed, may now receive Holy Communion.  However, this is subject to the bishop’s discretion.  Regulation 5 provides that ‘the bishop must first satisfy himself … that the [child’s] parish … has made adequate provision for preparation and continuing nurture in the Christian life and will encourage any child admitted to Holy Communion … to be confirmed at the appropriate time’.  So commitment and instruction are still required.

Although canon B15A may have lowered the bar to Holy Communion somewhat, canon B15(2) requires that ‘The minister shall teach the people … that they come to this Holy Sacrament with such preparation as is required by the Book of Common Prayer’.

The 1662 Prayer Book does indeed insist on careful preparation to receive the Sacrament.  Prospective communicants are sternly exhorted ‘to consider the dignity of that holy mystery, and the great peril of the unworthy receiving thereof; and so to search and examine your own consciences … and that not lightly …’.

The minister must also invite a penitent prospective communicant ‘who … cannot quiet his own conscience … [to] come to me, or to some other … minister … and open his grief; that … he may receive the benefit of absolution …’.  Private confession and absolution are therefore at the option of the penitent, a concession to human weakness, not an obligation.

The Prayer Book rubric indicates that the invitation in the Communion Service to ‘make your humble confession to Almighty God, meekly kneeling upon your knees’ is specifically addressed ‘to them that come to receive the Holy Communion’, not to any other persons present.

Cathedral clergy are expected to set an example to everybody else, both fellow clergy and laypeople, by receiving the Sacrament ‘every Sunday at the least’ (canon B13(2)).  The lay faithful are expected to receive ‘regularly, and especially at … Christmas, Easter and Whitsun’ (canon B15(1)).  This rule follows the canons of 1603, which enjoined reception of the Sacrament ‘oftentimes’ (canon 21) and ‘at least thrice in a year’ (canon 23).

The bishop has power (virtually never used) to order the exclusion of ‘notorious offenders’ from Holy Communion (canon B16).  This power is discussed in a separate post, filed below.

How, When and Where?

The provision of bread and wine for Holy Communion is governed by canon B17.  The bread may be leavened or unleavened.  The vestments to be worn are prescribed by canon B8(2) and (3).  The ‘table of the Lord’ (i.e the altar) must be covered with ‘a fair white linen cloth’ (canon F2(2)).  The provision and cleaning of communion vessels and linen are dealt with by canons F3 and F4 respectively.

All incumbents, or ‘priests having a cure of souls’, must ‘celebrate, or cause to be celebrated, the Holy Communion on all Sundays and other greater Feast Days and on Ash Wednesday’ (canon C24(2)).  Canon B14 confirms that Holy Communion should be celebrated ‘at least’ on those days in parish churches.  However, canon B14A permits some variation of this general rule.  In cathedrals, Holy Communion should be celebrated ‘as often as may be convenient’ (canon B13(1)), which is usually every day.

Holy Communion must normally be administered in a consecrated or licensed place of worship.  It can be administered in any place where there is a sick person who cannot go to church.  Other venues require the bishop’s permission (canon B40).  Holy Communion may be administered in a private chapel, but ‘seldom upon Sundays and other greater Feast Days, so that the residents … may resort to their parish church and there attend divine service’ (canon B41).  This rule stresses the communal character of the Sacrament.

The Eucharist and the Communion

This survey indicates that the sole purpose of Holy Communion in English law is the reception of the consecrated bread and wine by the  communicants.  The terminology used (Communion, Lord’s Supper) also carries this implication.  The Sacrament is never described as the Eucharist.

In Anglican parlance the words ‘Eucharist’ and ‘Communion’ are often used interchangeably, but they are distinct liturgical rites. The word Eucharist means Thanksgiving.  The Eucharistic Prayer is the prayer of thanksgiving which includes the Words of Institution by which the bread and wine are consecrated.  The Communion rite comes later.  Thus, in English law, the purpose of the Eucharist is the Communion which follows it.

Canon 21 of 1603 suggests that some contemporary clergy failed to appreciate the connection between Eucharist and Communion.  It ordered that ‘no bread or wine … shall be used; but first the Words of Institution shall be rehearsed, when the said bread and wine be present upon the Communion-table’.  Evidently the bread and wine were sometimes administered without being consecrated first.

The modern canon B12 affirms that Eucharist and Communion, though distinct, are inseparable, by requiring the officiating priest always to receive Holy Communion himself.

The English and Roman Catholic laws concerning the administration of Holy Communion are on similar lines (though they are far from  identical).  However, there is virtually no English law concerning the Eucharist.  This is the great difference between the two laws.  The Roman Catholic law concerning Holy Communion is but a part of its law concerning the Eucharist: see the Code of Canon Law 1983, canons 897 to 958, entitled ‘The Most Holy Eucharist’.  In English law, it is the other way around.  The law concerning the Eucharist (such as it is) is part of the law of Holy Communion.

In the Church of England, canon B6 enjoins ‘attendance at Divine Service‘ every Sunday, but not specifically attendance at Holy Communion.  Attendance at Morning or Evening Prayer will do just as well.  For a long time in England, weekly attendance at Holy Communion was impossible for most people, because the Sacrament was only celebrated once a month (‘Sacrament Sunday’).

In the Roman Catholic Church, by contrast, the faithful are obliged to attend the Eucharist (Mass) every Sunday and on other important Holy Days (1983 Code, canon 1247).  Attendance at another act of worship will not fulfill this obligation.  However, the obligation to receive Holy Communion is limited to just once a year (canon 920.1).  The severe Eucharistic fast from midnight, without even a glass of water, which was only modified as recently as the 1950s, made frequent communion difficult.  (Sometimes Catholics would receive Communion at an early service before attending the Eucharist.)

The 1662 rubrics made clear that ‘there shall be no celebration of the Lord’s Supper, except there be convenient number to communicate with the priest … 4 communicants (or 3 at the least)’ are the absolute minimum required.

This requirement does not appear in the modern canons of the Church of England.  However, canon C24(2) makes clear that the duty to ‘celebrate, or cause to be celebrated’ the Holy Communion is owed to parishioner-communicants.  Priests without a cure of souls have no duty to celebrate the Eucharist / Holy Communion, nor indeed any right to do so.

This is another difference from the Roman Catholic law, which states that ‘priests [i.e all priests] are … earnestly invited to offer the Eucharistic Sacrifice daily …’ (1983 Code, canon 276(1)).

The English legal emphasis on reception of Holy Communion has its basis in religious belief, of course.  The 1662 Catechism teaches that ‘the Lord hath commanded [the Sacrament] to be received‘.  Hence the emphasis on relatively frequent Communion.  Also that ‘The Body and Blood of Christ … are verily and indeed taken and received by the faithful in the Lord’s Supper’.

Article 25 affirms that ‘in such only as worthily receive the [Sacraments] they have a whole effect or operation’.  Article 28 draws the Catechism and Article 25 together: ‘to such as rightly, worthily, and with faith, receive the same, the Bread … is a partaking of the Body of Christ; and likewise the Cup … is a partaking of the Blood of Christ’.  It adds that ‘The Body of Christ is … eaten only after an heavenly and spiritual manner.  And the mean whereby the Body of Christ is received and eaten in the Supper is faith’.

2 actions are therefore required for a communicant to receive the Body and Blood of Christ

(1) consecration of the bread and wine and

(2) worthy and faithful consumption thereof

The teaching in Article 29 is critical: ‘The wicked, and such as be void of a lively faith, although they do carnally and visibly press with their teeth … the Sacrament of the Body and Blood of Christ: yet in no wise are they partakers of Christ: but rather, to their condemnation, do eat and drink the sign or Sacrament of so great a thing’.

This makes clear that the effect of consecration is that the bread and wine have ceased to be ordinary food.  They are now a sign and Sacrament of the Body and Blood of Christ.  Any irreverent use of them will incur Divine condemnation.  (Hence the great importance of instruction and repentance prior to Communion.)  However, they are not the Body and Blood of Christ per se.  

This in turn means that, while irreverent use incurs condemnation, it is also wrong to venerate or worship the consecrated bread and wine, since they are a mere sign and Sacrament.  The communicant receives the Body and Blood of Christ only by worthy consumption.

This teaching on the Eucharist is in contrast to that of the Roman Catholic Church, which holds that

(1) consecration alone does constitute the bread and wine as the Body and Blood of Christ.  ‘In [the Eucharist] Christ the Lord, through the ministry of the priest … [is] substantially present under the appearance of bread and wine’ (1983 Code, canon 899.1).

(2) reception of communion is not the only purpose of consecration.  Canon 901 affirms that ‘A priest is entitled to offer Mass for anyone, living or dead’.  Indeed bishops and pastors must apply the Eucharist pro populo, i.e for the people of their dioceses and parishes, every Sunday and Holy Day of obligation (canons 388(1) and 534(1)).

The 39 Articles oppose 2 purposes of the Eucharist affirmed by the Roman Catholic Church

(1) application of the Eucharist for a metaphysical purpose, known as an intention.  Article 31 strongly condemns ‘Masses in the which it was commonly said that the Priest did offer Christ for the quick and the dead, to have remission of pain or guilt’ as ‘blasphemous fables and dangerous deceits’.

(2) worship of the consecrated elements.  Article 28 provides that ‘the Sacrament of the Lord’s Supper was not by Christ’s ordinance reserved, carried about, lifted up or worshipped’.  Article 25 observes that ‘The Sacraments were not ordained of Christ to be gazed upon, or to be carried about, but that we should duly use them’.

It will be noted that the condemnation of (1) is much stronger than (2) in the Articles.  Purported applications of the Eucharist other than for Communion are dangerous and blasphemous.  However, the Prayer Book rubric warns that ‘the sacramental [i.e consecrated] bread and wine remain still in their very natural substances, and therefore may not be adored (for that were idolatry …)’.

The ceremonial of modern Communion Services is very similar to that of the modern Catholic Mass.  This may obscure the difference of Eucharistic action.  Canon B8 permits the ‘customary vestments’, i.e the Catholic Eucharistic vestments, but also makes clear that ‘the vesture worn by the minister … is not to be understood as implying any doctrines other than those now contained in the [historic] formularies’.

Intention

In the case of Bourne v Keane (1919) Appeal Cases 815, Lord Chancellor Birkenhead suggested that the application of the Eucharist for a metaphysical intention is the essential difference between the Catholic Mass and the Communion Service (cf p.837).  (Nothing to do with ‘smells and bells’ ritualism.)  Bl John Henry Newman (a Catholic convert, of course) suggested that ‘the doctrine of intention … viewed in all its parts, constitute[s] a new religion’ (Loss and Gain, 1848).

The belief that the Eucharist can be applied for a metaphysical purpose derives in turn from the belief that the Eucharist is a sacrifice (not just a sacrament) ‘in which the Sacrifice of the Cross is for ever perpetuated’ (1983 Code, canon 897).  This is discussed in another post ‘In Persona Christi: Eucharistic Sacrifices’, filed below.

As every schoolboy knows, the Protestant reformers complained (with some justice no doubt) that the metaphysical ministrations of the mediaeval Church, including Mass intentions, were exploited for material gain.  (The sale of indulgences etc.)

Modern Roman Catholic law addresses this concern by seeking to prevent ‘even the semblance of trafficking or trading’ in Eucharistic applications / intentions.  Multiple Masses are not allowed (canons 905, 953).  A priest should not celebrate the Eucharist without a congregation of at least 1 person (an altar-server), though solitary celebration is permitted for ‘a good and reasonable cause’.

Nevertheless the payment of a stipend or offering for a Eucharistic intention is not only lawful, but positively encouraged.  Such offerings ‘contribute to the good of the Church’ (canon 946).  ‘Any priest … may accept an offering to apply the Mass for a specific intention’ (canon 945(1)).  He may not demand a larger sum than that prescribed by local law, but may still accept ‘an offering voluntarily made’, even if it exceeds the local rate (canon 952(1)).  Intentions, and the offerings therefor, must be recorded (canons 955, 958).  The bishop must see to it that all Mass obligations are fulfilled (canon 957).

In Bourne v Keane, the House of Lords ecumenically held (by a majority) that a fund for the saying of Roman Catholic Masses was a valid and lawful trust in English law.  The Lord Chancellor traced the dichotomy between the mediaeval Mass and the reformed Communion Service to the ‘Protestant’ Prayer Book of 1552.  The first, ‘Catholic’ Prayer Book of 1549 did not make a complete break between the two, because ‘the name Mass was retained [in that Book]’ (p.836).

The 1552 Book was unambiguous, however.  There could be ‘no doubt that this [1552] service was a Communion Service pure and simple, and that Mass had disappeared … from the Book of Common Prayer’ (p.837).

The Elizabethan Act of Uniformity 1559 completed the work of 1552.  ‘[Its] effect was to render the celebration of Mass illegal’.  By a later Elizabethan statute ‘the saying or singing of Masses was expressly declared to be a criminal offence’ (p.838).  (A crime punished by death in some cases.)  The result of the 16th century legislation, of course, was that Mass trusts could not be lawful, because ‘such trusts were pernicious and dangerous to the state’ (p.846).

Mass was not decriminalised till the first Roman Catholic Relief Act 1778.  Then at last the Relief Act of 1829 was passed, as a result of which ‘the Roman Catholic religion was recognised as one which could be practised without any penal consequences or breach of the law’ (p.852).  Thus the law forbidding Mass trusts ‘perished as a consequence of [the Relief Acts]’ (p.857).

In the modern Church of England, ‘catholic’ vicars apply, or purport to apply, the Eucharist for particular intentions, and publicise this in parish newsletters etc, notwithstanding Article 31.  It could be argued that this constitutes a ‘reserved’ offence against doctrine under s.14(1) of the Ecclesiastical Jurisdiction Measure 1963: ‘maintaining doctrines repugnant to the 39 Articles’ (Halsbury’s Laws, vol 14, para 1354).

However, no prosecution for any reserved offence has ever been brought since 1963.  Mass intentions are evidently uncontroversial nowadays, no longer considered blasphemous and dangerous.

It would be a different case if a vicar considered the authorised Eucharistic Prayers inadequate vehicles for his intentions, and used a Roman Catholic prayer instead.  This would constitute misconduct rather than a doctrinal offence, cognisable under the Clergy Discipline Measure 2003, ‘doing [an] act in contravention of the laws ecclesiastical’ (s.8(1)(a)).  (It would also infringe the Catholic Church’s copyright).  Canon B1(2) is clear that ‘Every minister shall use only the forms of service authorised …’.  All clergy are required to make a Declaration ‘[to] use only the forms of service which are authorised or allowed by canon’ (canon C15.1(1)).  But again, there is no legally reported case of a vicar being disciplined for using the Roman rite.

A vicar who accepted or solicited payments for his intentions should also be liable to discipline, since he has no right to such payments, and his intentions are not recognised by law.  Any trust fund similar to that in Bourne v Keane, but for Anglican Eucharistic intentions instead, would arguably fail for the same reasons.

Reservation

It is argued that Article 28 need not preclude custody of the Sacrament where there is an unavoidable delay between consecration and communion, for example to bring the Sacrament to the sick, or to a congregation which lacks a priest.  Christ did not ordain the practice of reservation, but neither did He positively forbid it.  Nor, on its plain wording, does Article 28.  As discussed earlier, the religious difficulty is not reservation per se, but the danger that it may encourage ‘idolatrous’ adoration or worship of the Sacrament.

It is true, however, that the Book of Common Prayer allows no scope for reservation.  The post-Communion rubric provides that leftover consecrated elements ‘shall not be carried out of the church, but the priest and such other of the communicants as he shall then call unto him shall, immediately after the Blessing, reverently eat and drink the same’.

It has been suggested that this rubric was aimed at preventing, not superstitious veneration, but profane consumption, i.e as part of the vicar’s Sunday lunch.  The 1552 Prayer Book had sacrilegiously provided that ‘if any of the bread or wine remain [whether consecrated or unconsecrated], the curate [the vicar] shall have it to his own use’.  (See Moore’s Introduction to English Canon Law, ed T Briden, 4th ed 2013, p.93).  But the 1662 rubric still provides no authority for reservation.

The 1662 Prayer Book provides a special service for ‘Communion of the Sick’, but this clearly requires the priest to consecrate the bread and wine ‘[at] a convenient place in the sick man’s house’, and to receive the Sacrament himself.  It does not authorise him to bring pre-consecrated bread and wine.

In 1899 the 2 Archbishops jointly opined that reservation was unlawful, even for sick Communion.  The combination of

(1) Article 28

(2) the Prayer Book’s requirement of immediate consumption and

(3) lack of any evidence that reservation was practised after the Reformation

all pointed to this conclusion.

The Revised Prayer Book of 1927 proposed that, ‘to secure that any sick person in his last hour may not lack the benefit of the … Sacrament, … the priest, if the Bishop shall so permit, may … reserve so much of the consecrated bread and wine as is needed for the purpose’.  The 1927 rubrics were careful to make clear that the Sacrament ‘shall be reserved only for the Communion of the Sick … and … for no other purpose whatever’, i.e not for adoration.

A supporter of the Revised Prayer Book made the reasonable point that ‘at the present time the whole [Communion] service has to be read [to the sick person] and that the priest has to communicate himself.  No one can think it right that a priest should be forced to communicate 30 or 40 times a week’ (House of Commons Official Record, volume 218, column 1222).

However, Parliament was unmoved by the difficulty and rejected the Revised Book.  Protestant prejudice against reservation was apparently a major cause of this.

For their part, the ecclesiastical courts held that a tabernacle (a receptacle in which the Sacrament is reserved) was forbidden by the famous Ornaments Rubric.  In St. Mary, Tyne Dock (1954) Probate 369, the Chancellor correctly held that ‘If [a tabernacle] is not [authorised by the Ornaments Rubric] then the bishop’s sanction cannot save it, for the consent of the bishop cannot render an illegal church ornament legal’ (p.371).

In Lapford Church (1954) Probate 416, the Chancellor suggested that the Ornaments Rubric could be circumnavigated by reserving the Sacrament in an aumbry (a receptacle discreetly cut into the church wall, less showy than a tabernacle, and less suggestive of adoration).  He explained that ‘for a long time now, an aumbry has been treated as not constituting an ornament at all, but as part of the furnishings of the church’, and therefore permissible.

The Lapford case actually concerned the introduction of a tabernacle, not an aumbry, so the Chancellor refused a faculty.  However, the Court of the Arches granted the faculty on appeal, confidently asserting that its ratio decidendi was ‘common sense’: (1955) Probate 205, at p.214.  The Court accepted that ‘All the deviations and additions contained in the [Revised Prayer] Book remained, strictly speaking, illegal’ (p.213), but also observed, no doubt correctly, that ‘the [1662] law as it stood was evidently too rigid … the power of enforcing compliance with the law rested with the bishops’ (p.213-14).

So, if the bishops declined to enforce the law on their clergy on account of its rigidity, and indeed positively approved unlawful practices, then this was nothing to do with the ecclesiastical courts.  On the contrary

‘The duty of a diocesan chancellor … is ancillary.  He is not responsible for reservation: but if he finds that reservation is in fact practised with the sanction of the bishop … it is his duty to see that the provision [illegally] made for keeping the consecrated bread and wine is both safe and seemly’ (p.214).

On this view, the protection of the illegally reserved Sacrament is more important than adhering to the law.  Casuistry rather than common sense.

The modern canon regulating sick Communion, canon B37(2), is ambiguous.  It provides that, if a sick or housebound person ‘is desirous of receiving the most comfortable Sacrament … the priest … shall … visit him, and … reverently minister the same’.  This wording, of course, allows scope for holding an entire Communion Service where the sick person is, or administering pre-consecrated bread and wine.

The 1662 regime of public worship was finally brought to an end by the Worship and Doctrine Measure 1974.  The Ornaments Rubric and the rubric requiring immediate consumption ceased to have the force of law.  Meanwhile reservation has ceased to be controversial, and now seems to be practised universally.  It is impossible to imagine Parliament objecting to it today.  And with the 1662 regime gone, the General Synod can legislate by canon, which does not require Parliamentary approval.

Yet reservation is still unregulated by ecclesiastical law.  No Measure or canon provides for it.  It remains a matter for the discretion of the ecclesiastical courts and bishops on a case by case basis.

There are a number of possible explanations for this.  Perhaps there is concern that any legislative recognition of reservation would contradict the Church’s doctrine, or appear to do so.  The practice should therefore be managed on an informal, unwritten basis (like remarriage after divorce).

There may be a mistaken belief that the Ornaments Rubric still is part of the law, notwithstanding the Worship and Doctrine Measure.  In St Thomas, Pennywell (1995) Family 30, Chancellor Bursell seemed to labour under this misapprehension.  He granted a faculty for a ‘Sacrament house’, not on the basis that the Ornaments Rubric was no longer law, but on the basis that the law no longer interpreted the Rubric with its previous rigour.  (This case is discussed in ‘Liturgy and the Faculty Jurisdiction’, filed below, under category ‘Liturgy and the Law’).

Or maybe the Church is simply content leave the practice of reservation to the ecclesiastical courts.  Certainly this does not seem to have caused any significant practical difficulty since 1974.  However, it is arguable that care and custody of ‘the sign or Sacrament of so great a thing’ demand formal legal recognition and regulation.

The Easter Offering: Duty and Charity

‘[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

Unprecedented Confusion: A Tribute to Chancellor Bursell

Re Sam Tai Chan (2016) Durham Consistory Court, Chancellor Bursell QC

The erudite and informative Law and Religion UK blog (to which this blog is ever indebted for both information and inspiration) has helpfully drawn attention to this recent faculty case.  The judgment appears on the website of the Ecclesiastical Law Association (accessed 12th September 2016).

The Worshipful Chancellor Bursell QC’s singular contribution to the public understanding of ecclesiastical law has been discussed in other posts (e.g ‘The Rubrics of the Book of Common Prayer’, and ‘Liturgy and the Faculty Jurisdiction’, filed under category ‘Liturgy and Law’).  This case is another egregious example of it.

The Chancellor permitted a Chinese lady to exhume the body of her late husband for reburial elsewhere.  She, at least, has reason to be grateful to him, though other less fortunate petitioners for exhumation may not have.

When deciding exhumation cases, consistory courts have for many years followed guidance given by the Court of the Arches in the case of Blagdon Cemetery (2002) 4 All England Reports 482, without any apparent difficulty or controversy.  The guidance was given because guidance given by the Chancery Court in the earlier case of Christ Church, Alsager (1998) 3 Weekly Law Reports 1394 was considered unsatisfactory.

The Chancery Court is the Archbishop of York‘s provincial court (Ecclesiastical Jurisdiction Measure 1963, s.1(2)(a)).  It is therefore the principal court of the northern province, the Province of York.  The Durham Consistory Court, over which Chancellor Bursell presides, is also in the northern province.  The Court of the Arches, of course, is in the Province of Canterbury, the southern province.

It was for this reason that the Worshipful Chancellor found it necessary to disturb the tranquil operation of the post-Blagdon faculty jurisdiction.  He acknowledged that his intervention might prove ‘inconvenient’ (cf para 12).  But the exhumation case raised ‘the question … as to how rules of precedent apply within the two provinces’ (para 8).

After a lengthy discussion of the subject of judicial precedent in the ecclesiastical courts, he concluded that ‘in so far as the northern province (sic) the Alsager test [i.e the guidance given by the Chancery Court in the Alsager case] still prevails’ (para 22).  Canterbury and York are separate provinces, and they remain separate ecclesiastical jurisdictions.  The Court of the Arches has no superiority over the Chancery Court.  This means that northern consistory courts are not ‘bound’ by the Blagdon guidance, only southern ones.  On the contrary, the northern courts are bound to follow the Alsager guidance.

The Chancellor modestly forbore to mention that he was himself a member of the Chancery Court that decided Alsager, and was therefore a co-author of the unsatisfactory guidance.  He seemed to resent the Court of the Arches’ criticism of the guidance (cf para 22)  (Which is understandable, of course).  He also had a dig at some fellow northern chancellors who meekly followed the Blagdon guidance instead of adhering to the Northern Precedent (paras 13 and 14).

It is argued that the Chancellor misunderstood the doctrine of judicial precedent.  A precedent is what the court decides, not what it says, in the particular case.  Stare decisis, not stare dictis.

What, exactly, did the Court of the Arches decide in Blagdon?  The Court granted an exhumation faculty because the consistory court, which had refused exhumation, ‘did not address this [case] specifically in terms of the bringing together of parents and child in a family grave … the exercise of the [consistory court’s] discretion was flawed in so far as it was based on an erroneous evaluation of the facts in this respect, and … in the way [it] treated the lapse of time as determinative’ (para 39).

The consistory court in Blagdon had refused exhumation because it was following, or trying to follow, the Alsager guidance.  The guidance had confused the chancellor and led him into error.  The Court of the Arches therefore issued its own guidance.

Thus the only discernible ‘precedents’ in Blagdon are that

(1) a long lapse of time between a burial and an exhumation request should not be determinative of an exhumation petition, and

(2) a discretionary decision should be set aside if based on an erroneous evaluation of facts.

The guidance given in Blagdon had nothing to do with the Court’s decision on the particular case.  The decision was merely the occasion for issuing the guidance.  The guidance was issued to assist consistory courts to avoid erroneous decisions, and hence avoid the need for future appeals.

Thus the Blagdon guidance did not engage the doctrine of judicial precedent.  The guidance is just that – guidance.  It does not ‘bind’ the consistory courts of either province.  It merely seeks to assist them to avoid errors and appeals.  Guidance is not binding precedent.

Chancellor Bursell was therefore not obliged to follow the Blagdon guidance, if he did not want to.  (Whether he was wise not to do so is quite another matter, of course.)  He was free to follow his own guidance in Alsager.  Indeed a chancellor in the southern province could choose to follow the Alsager guidance and ignore the Blagdon guidance.  Or a chancellor could choose to ignore both.

Bursell’s judgment reveals a second misunderstanding about precedent.  The doctrine of judicial precedent does not apply to the grant or refusal of faculties at all, because this is not a judicial function, even though it is exercised by courts and judges.  The grant or refusal of faculties (which are licences or permissions) is an administrative or pastoral function, not a judicial one.  It is an administrative discretion.  (See post ‘Doing Justice to Faculties’, filed below).  Administrative discretion should be exercised fairly and consistently.  Clear guidance will assist this.

It is true that Bursell is far from being alone in these confusions.  The doctrine of judicial precedent is widely misunderstood.  Court judgments are often read and interpreted as if they were legislation.  And ecclesiastical judges seem unable to grasp that the faculty jurisdiction is administrative, not judicial (just as they cannot grasp that ecclesiastical courts are governed by English law and not ‘canon law’).

However, Bursell’s judgment is of poor quality, even apart from its basic confusions.  It strongly suggests that Bursell used the case merely as a convenient peg on which to hang his flawed thesis on judicial precedent.  The facts of the case and the reasons for the granting the faculty are not adequately stated.

The Chinese lady’s husband died in 1978, but the Chancellor did not require an explanation of why exhumation was not sought until nearly 40 years later.  Lapse of time may not be determinative of an exhumation case, but it is still relevant to the case.  The lady sought exhumation because the original burial was ‘a mistake by virtue of mis-information’ (para 5), but the mistake and the mis-information are not described.

Moreover, the Chancellor did not grant the faculty on the basis of a mistake, but because ‘the different ethnic approach to burial within the Chinese Christian Church provides a good and proper reason for exhumation’ (para 27), but again this ‘ethnic approach’ is not described.  Yet non-Chinese Christians whose petitions for exhumation are refused might be interested to know what it is.