Conditional Baptism and Canon Law

Nearly 11 years ago a certain blogger asked to be received into the Catholic Church.  The priest requested sight of a certificate of baptism.  This document was produced after a quick search of the family scrapbook.  It was dated in 1967, when the candidate was still a baby, and signed by a vicar now long dead.  The priest studied it briefly, made a note and handed it back.  That was all.  The certificate of a dead Anglican minister, unsupported by any other evidence, was accepted as proof that the candidate had received a valid Catholic baptism.

The fundamental importance of baptism to the Catholic Church can hardly be overstated.  The Code of Canon Law 1983 asserts that baptism is the ‘gateway’ (ianua), not only to the other sacraments, but to Heaven itself.  ‘Baptism … is necessary for salvation, either by actual reception or at least by desire’ (canon 849).  If salvation itself is at stake, how can the certificate of a non-Catholic minister be sufficient proof that a baptism is valid? 

Baptism, like the other sacraments, was ‘instituted by Christ the Lord and entrusted to the [Catholic] Church’ (canon 840).  As the Divinely appointed trustee of the sacraments, ‘only the supreme authority in the Church [i.e the Pope, with or without the College of Bishops] can approve or define what is needed for their validity’ (canon 841).

As baptism is necessary for salvation it may have to be administered in extremis, when the candidate is in imminent danger of death – or indeed, where the minister is in danger of death, e.g in a war zone.  Canon 871 provides that ‘if aborted foetuses are alive, they are to be baptised, if this is possible’.  This in turn demands that, in a case of necessity, any person may administer the sacrament, not just an ordained or licensed minister (canon 861(2)).  Even an unbaptised person, let alone a non-Catholic minister, can validly baptise.

Baptism cannot be repeated (canon 845(1) and canon 849).  However, canon 845(2) provides that ‘If after diligent enquiry a prudent doubt remains as to whether [baptisms] have been conferred at all, or conferred validly, they are to be conferred conditionally’.

This wording makes clear that, notwithstanding the fundamental importance of baptism, clergy may not conditionally baptise pro maiori cautela i.e from an abundance of caution or ‘just in case’.  There must be an investigation and a reasonable doubt.

Canon 845(2) does not mention the obvious possibility that investigation may reveal, not a reasonable doubt, but rather a certainty that what happened was not a valid baptism.  In such a case, of course, the candidate must be baptised absolutely, not conditionally.

The either / or wording of canon 845(2), ‘conferred at all, or conferred validly’, is potentially confusing.  A commentary suggests that ‘2 types of doubt may arise, about

[1] the fact of baptism and

[2] [its] validity’

(A New Commentary on the Code of Canon Law, eds Beal, Coriden and Green (2000), p.1057).

Does this mean that a purely theological doubt [2] may remain even if all relevant facts [1] are known with certainty?  If yes, then canon 845(2) is hard to reconcile with canon 841 (quoted above), which asserts the Church’s God-given jurisdiction to ‘approve or define what is needed for … validity’.  The Church cannot turn a doubtful fact into a certainty.  (Infallibility is not omniscience!)  However, if all the facts are known, it is argued that there is no room for doubt, and therefore no scope for conditional baptism.  There is either a valid baptism or there is not.  The Church is not merely entitled but bound to decide the question.  Otherwise, it is arguably failing in its God-given function. (A judge cannot refuse to decide a case that is within his jurisdiction.)

The canon law of conditional baptism was settled long before audio-visual records were possible.  Even in 1983 audio-visual records of baptism would have been very unusual.  Audio-visual records are capable of supplying a higher degree of factual certainty than written records and imperfect memories.  Therefore they reduce the scope for conditional baptism.

The 1983 Code contains safeguards of the validity of baptism.  Canon 846(1) provides that ‘the liturgical books … are to be faithfully followed in the celebration of the sacraments … no one may on a personal initiative add to or omit or alter anything in those books’.  Baptism must normally be administered in church, not elsewhere (canon 857(1) and canons 859 and 860).  Emergencies must be properly prepared for: ‘pastors … are to be diligent in ensuring that [lay] faithful are taught the correct way to baptise’ (canon 861(2)).

Baptism in non-Catholic Churches presents 3 difficulties

(1) the aforementioned canonical safeguards cannot apply to such baptisms.  As canon 11 points out ‘merely ecclesiastical laws bind [only] those who were baptised in the Catholic Church or received into it’.

(2) non-Catholic Churches do not accept the Pope’s authority to define valid baptism and

(3) the Reformed Churches do not hold the Catholic belief in the necessity of baptism (even though they may permit individual clergy and lay members to do so).

Martin Luther preached justification sole fide, i.e by faith alone.  If carried to its logical extreme, this doctrine would render baptism superfluous, or at least deny the validity of infant baptism, requiring that baptism should only be administered when the candidate is old enough to make a personal act of faith.

The English law of baptism is a compromise between the Lutheran and Catholic teachings.  Article 11 makes a respectful bow to the Father of the Reformation: ‘that we are justified by faith only is a most wholesome doctrine, and very full of comfort …’.  Thus clergy are at liberty to believe, and publicly preach, the Lutheran doctrine.

However, in practice, Anglican clergy are required to apply Catholic teaching on baptism, whatever their individual beliefs.  Article 27 accepts that ‘the baptism of young children is … to be retained … as most agreeable with the institution of Christ’.  (From 1549 to 1662 there was no adult baptism rite in England.)  Canon B22 imposes a duty to baptise babies, as did canons 68 and 69 of 1603.  The Book of Common Prayer and the modern canons both provide for emergency baptism (‘when need shall compel’), and for conditional baptism in doubtful cases.

Baptism outside the Catholic Church has been subject of various papal pronouncements over the centuries, but the original Code of Canon Law, promulgated in 1917, made no specific reference to it.  The subject was revisited by the Second Vatican Council in its decree Unitatis Redintegratio (‘the restoration of unity’) (1964).  This resulted in a new canon of the 1983 Code, canon 869(2), which provides that

‘Those baptised in a non-Catholic ecclesial community are not to be baptised conditionally unless there is a serious reason for doubting the validity of their baptism, on the ground of

[1] matter [i.e the application of water]

[2] the form of the words used .. or of

[3] the intention of the adult being baptised [not babies, obviously], or that of the baptising minister’.

‘Ecclesial community’, i.e Churchlike community, is a reference to the western Reformed Churches. They are so described because, despite the resemblance, they are regarded as ‘not Churches in the proper sense’ (Dominus Iesus, Congregation for the Doctrine of the Faith (2000), para 17).  The Eastern Orthodox Churches, by contrast, are accepted as proper Churches. Thus there is no equivalent of canon 869(2) in the 1990 Code of Canons of the Eastern Churches.

It could be argued that canon 869(2) is unnecessary, since it adds nothing of substance to canon 845(2) on conditional baptism.  It certainly does not introduce a presumption of validity in favour of non-Catholic baptism.  It merely repudiates a presumption of doubt.  Before Unitatis Redintegratio there was apparently a widespread practice of conditionally baptising Protestant converts without investigation, pro maiori cautela (cf New Commentary, p.1058). Canon 869(2) in effect reinforces canon 845(2).

However, Unitatis Redintegratio is careful to state that ‘[those] who believe in Christ and have been truly baptised [as distinct from falsely baptised] are in communion with the Catholic Church, even though this communion is imperfect’ (para 3).  Also that ‘whenever the sacrament of baptism is duly administered as Our Lord instituted it … a man becomes truly incorporated into … Christ’ (para 22). Protestant baptisms must still satisfy the Catholic conditions for validity.

The practical approach to non-Catholic baptism is now governed by the Directory for the Application of Principles and Norms on Ecumenism 1993 (‘the Ecumenical Directory’), issued by the Pontifical Council for Promoting Christian Unity. 

Local Churches should engage in dialogue with ‘ecumenical partners’ concerning ‘both the [doctrinal] significance and valid [liturgical] celebration of baptism’, and attempt to reach agreement concerning these matters (paras 93 and 94).  Ecumenical agreement will eliminate, or at least reduce, uncertainty about baptism. Local Churches should also develop procedures for deciding doubtful cases.

Investigation of non-Catholic baptism will obviously begin with the official baptism rite of the particular ecclesial community (para 95).  If the rite is sufficient to confer Catholic baptism, 2 presumptions will arise in favour of baptism in that community,

(1) that the baptising minister correctly followed the official rite and

(2) had the requisite intention to baptise: ‘insufficient faith concerning baptism never of itself makes baptism invalid’.  Even an unbaptised atheist can still intend to baptise. Intention depends on what the minister says and does, not on what he believes.

This is why the certificate referred to earlier was accepted as proof of baptism.  The baptism rite in the Book of Common Prayer satisfies the conditions for validity, and it can be safely presumed that vicars in the 1960s would have followed it scrupulously.

All presumptions are rebuttable, however.  Non-Catholic ministers who conscientiously observe the discipline of their own Church can validly baptise without accepting Catholic doctrine on baptism. But, the risk cannot be excluded that they will fail to observe discipline, either from sloppiness or from ideological motives.

The principal ideological threat to common baptism in the West now seems to come from so-called ‘inclusiveness’.  In 2008, the Congregation for the Doctrine of the Faith (‘the CDF’) held that a baptism in which the Trinity were invoked by the names ‘Creator, Redeemer and Sustainer’ (to avoid male references) was invalid. 

In 2014, the Ecclesiastical Law Journal reported a practice of ‘open communion’ in the American Episcopal Church: ‘priests in ever-increasing numbers are inviting all to the table’ (i.e the altar), in defiance of the rule that only baptised persons may be admitted to holy communion (James D Prendergast, pp32-46).  Baptism is no longer the gateway to the other sacraments, let alone to Heaven, but merely to a Church school or a Church job.

Clergy who admit unbaptised persons to holy communion demonstrate that they place a low value on baptism.  And if they break the rules of their own Church concerning holy communion, they cannot be trusted to keep its rules concerning baptism. 

The Catholic Archdiocese of Philadelphia now instructs its clergy that ‘baptised non-Catholics who are to be received into the full communion of the Catholic Church, even those who provide you with a certificate of baptism, are to be conditionally baptised …’ (website accessed today).  The indiscipline of the Reformed Churches forces the Catholic Church to return to its pre-Vatican II practice of presuming that non-Catholic baptism is doubtful.

However, what the CDF calls ‘the ancient temptation to substitute for the [baptism] formula handed down by Tradition other texts judged more suitable’ is regrettably not confined to the Reformed Churches.  In 2020, the CDF considered a case where a Catholic minister, again motivated by a desire to be ‘inclusive’, baptised an infant with the words ‘We baptise you …’.  The ‘We’ referred to the assembled family, godparents and friends.  (The error was only discovered because an audio-visual record was made of the ceremony.)

The CDF held, with papal approval, that the alteration of this single word rendered the baptism invalid, even though the erring minister had expressed an intention to baptise, and had invoked the Trinity by their correct Names.

Canon 849 provides that baptism ‘is validly conferred only by a washing of true water with the proper form of words’.  The minister had not used the proper form of words.  He was clearly in breach of his duty under canon 846(1). The CDF concluded that, by the using the word ‘We’, he intended to baptise qua representative of the Church community, not qua minister of Christ.  This intention was defective, and therefore fatal to validity.

Judith Hahn, a Catholic theologian, related that the CDF’s decision met with a ‘critical reception’ from her colleagues (‘Invalid Baptismal Formulas’, Ecclesiastical Law Journal (2021)).  She suggested that the formula ‘I baptise you’ may not be as ‘Traditional’ as the CDF thought, having only been introduced in the middle ages.  She also pointed out that the Eastern Orthodox Church uses a different formula from the Latin Church, ‘Be baptised’, and yet this has always been accepted as valid.

Moreover, the Eastern equivalent of canon 849 is differently worded. It does not require ‘the proper form of words’, but rather ‘the invocation of the Name of God the Father, Son and Holy Spirit …’ (canon 675(1) of the 1990 Code), which the minister in this case had done. (Does this mean that the impugned baptism would have been valid if performed in an Eastern Church rather than in the Latin Church?)

If baptism is a matter of necessity and the basis of all Christian communion, and requires the agency of uninstructed lay ministers and of non-Catholic ministers, the conditions for its valid administration should arguably be kept to an absolute minimum (which is not to excuse indiscipline).

This narrative indicates that common baptism is fragile.  It cannot be taken for granted.  Like freedom, the price of common baptism is eternal vigilance.  The function of canon law is to safeguard the validity of baptism, both inside the Catholic Church and, as far as possible, outside it as well.

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)).

The Double Meaning in LGBT Ideology

‘in the womb of the Blessed Virgin, of her substance … 2 whole and perfect Natures, that is to say, the Godhead and Manhood, were joined together in 1 Person, never to be divided, whereof is one Christ …’ (Article 2, ‘Of the Word or Son of God, which was made very Man’)

Is the Church of England at last about to surrender to LGBT ideology? The Church Times has reported that ‘the bishops acknowledge that simply to restate the existing ban on same-sex blessings or marriage in church is not an option’. Accordingly ‘formal proposals will be presented to the General Synod in February 2023’, not long now (reported 2nd November 2022). Several bishops are already flying white flags.

The surrender has already been given on the other side of the Severn. Last year the Church in Wales amended its Constitution to authorise the liturgical blessing of same-sex relationships. Now the present author’s beloved parish church – almost a second home since childhood, and a constant place of refreshment, light and peace – is awaiting the imminent arrival of a new incumbent who, according to the official announcement, ‘lives with his partner Jim’, and proudly advertises this arrangement by wearing a wedding ring. (Website accessed today.)

It is no use being nostalgic, of course. Political activism is not an option. Nor does ecclesiastical law help much. The purpose of this blogpost is merely to

(1) examine the seemingly unstoppable phenomenon of LGBT ideology and

(2) ask what, if any, intellectual response to it is now possible.

The Failure of Pan-Anglicanism

The only significant attempt to halt the advance of LGBT ideology in the present century was a policy that may conveniently be labelled ‘Pan-Anglicanism’, which sought a closer integration of the member Churches of the Anglican Communion. The idea was to oppose, or at least balance, Western LGBT ideology with the cultural values of non-Western Churches which were strongly resistant to it.

The Lambeth Conference of 1998 passed a robust resolution ‘rejecting homosexual practice as incompatible with Scripture … the legitimising or blessing of same sex unions [and] ordaining those involved in same gender unions’. However, such resolutions have no authority other than the personal opinion of the bishops who vote for them.

The then Archbishop of Canterbury therefore appointed a high-powered commission, which was tasked with seeking ‘the highest degree of communion that may be possible’ within the Anglican Communion (mandate). One of the members of the commission was Professor Norman Doe, the leading commentator on ecclesiastical law.

The commission proposed a pan-Anglican Covenant, to be ratified by the member Churches, in order to ‘make explicit and forceful the loyalty and bonds of affection’ (118) (i.e an application of tough love!). The Covenant was to be the means of strengthening the Anglican inheritance on the dubious basis that the member Churches enjoyed only a limited autonomy, rather than absolute independence of each other.

Professor Doe was rewarded for his services with a Lambeth doctorate in civil law (DCL). However, the Anglican Communion Covenant itself got nowhere. The LGBT lobby, of course, saw the threat that it represented to them, and resisted it articulately and successfully. There was also a general reluctance among member Churches to compromise their independence.

Pan-Anglican opposition to LGBT ideology forced the postponement of the Lambeth Conference that was due to take place in 2018. The coronavirus situation necessitated a further postponement. The Conference finally met this year, 2022. However, Professor Doe, the erstwhile Apostle of Pan-Anglicanism, failed to persuade even his fellow legal advisers to agree on a definition of marriage. The latest edition of Principles of Canon Law Common to the Churches of the Anglican Communion (2022) lamely admits that ‘it has not been possible to discern a common principle of canon law on who may marry whom’ (p.97)

The last vestige of Pan-Anglican policy now seems to consist of trying to persuade non-Western Churches that, in English law, a civil partnership agreement is something completely different from a marriage contract. Just 3 weeks ago, the present Successor of St. Augustine authorised a response to criticisms of his new Cathedral Dean, which referred to ‘international confusion about the nature of … civil partnerships … civil partnerships are not recognised as marriage’ (Anglican Communion News Service, 21st October 2022). Wedding rings notwithstanding.

This is disingenuous, to say the least. There is no substantive difference between civil partnership and marriage. The only difference concerns the terminology and formalities involved. It is argued that the intention of Parliament in passing the Civil Partnership Act was to create a same-sex marriage contract, but not to call it marriage, because of a political calculation that public opinion was not yet ready (this was nearly 20 years ago now) to accept same-sex marriage in terms.

Jacqueline Humphries provides a most helpful analysis of this issue in ‘The Civil Partnership Act, Same-Sex Marriage and the Church of England’ (Ecclesiastical Law Journal, January 2006). As she says ‘It is clear that, culturally, civil partnerships are being seen as gay marriage’. Indeed they are. Public perception accords with parliamentary intention. Pace the Archbishop, there is no ‘international confusion’ on this point.

The Trojan Horse of Traditionalism

Anglican tradition should not be difficult to identify. It is found in the 3 historic formularies of the Church of England – the Book of Common Prayer, the Ordinal and the 39 Articles of Religion. These date from the 16th and 17th centuries, the early modern period.

Anglo-Catholic ritualism, by contrast, originated centuries later, in Victorian times. It is romantic and aesthetic, driven by devotional practices and devotional materials that are pleasing to the heart, with elaborate ceremonial, ornate decoration and rich colours to please the eye, fine music to delight the ear, fragrant incense to pleasure the nose.

There is nothing inherently wrong with any of these things, of course. The heart and the senses do have their rightful place in religion and in worship. Anglo-Catholic ritualism has probably done much to improve the quality of Anglican worship.

However, there is an ever-present danger of exaggeration. The heart and the senses must not become divorced from authority and reason. Religion that ignores authority and reason, and that exists only in the romantic imagination and the senses is, frankly, bad religion (if it can be called religion at all).

Ritualism has never had an easy relationship with authority. Its refusal to comply with the 1662 regime of public worship has, of course, provided a rich source of material for the study of ecclesiastical law.

Another, hidden, source of tension with authority was the undeniable presence within ritualism of a homosexual culture (or sub-culture). Resistance to the liturgical regime of the historic formularies was accompanied by a latent resistance to the moral regime that they imposed.

It is ironic, therefore, that Anglo-Catholic ritualism came to be seen as ‘traditionalist’. There are 2 reasons for this

(1) its (unsuccessful, and now largely abandoned) resistance to female ordination and

(2) its (apparently successful) resistance to liberal Biblical exegesis. Academic theologians might deny the Virgin Birth, but pilgrimages to Walsingham kept increasing.

A commentator once lightly characterised ritualism as ‘hairsplitting and hypocrisy’. However, in the present century the hypocrisy has been absolved and redeemed by ideology. The gay culture in ritualism is no longer half-hidden behind clouds of incense. Its latent resistance to traditional morality has become overt. It now asserts a contrary, LGBT morality.

Ritualism has therefore been something of a Trojan Horse to tradition. Anglican tradition repudiates Catholic teaching on the eucharist, but affirms Catholic teaching on marriage. (The Prayer Book marriage service is the most Catholic part of the formularies, being taken almost verbatim from the mediaeval Sarum rite.) Anglo-Catholic ritualism affects devout adherence to Catholic teaching on the Eucharist, while repudiating Catholic teaching on marriage. It thereby repudiates both Anglican tradition and Catholic teaching. Under the influence of LGBT ideology, the divorce of romantic ritualism from authority (and from reason) has become absolute.

Traditionalists who oppose LGBT ideology – perhaps of a certain age now – face the uncomfortable reality that the momentum for the ideology has come largely from their own side. (Certainly more than from heterosexual liberal exegetes!) There have been individual secessions to the Roman Catholic Church, and to breakaway Anglican Churches. Otherwise the only course for traditionalists is to follow the Archbishop of Canterbury in pretending that civil partnership is substantively different from same-sex ‘marriage’.

Scripture, Tradition and Reason

Biblical literalism seems to offer the only intellectual resistance to LGBT ideology at present. It may have enthusiastic and articulate adherents. But it is a blunt instrument, and also a rather weak one. It is, frankly, simple-minded. When read in isolation, the Bible is notoriously capable of meaning almost anything. One passage of Scripture can always be opposed by another. It can be plausibly explained away. A harsh-sounding Scriptural reference can be attractively countered by a pleasant-sounding abstraction.

Tradition can offer no resistance, and not only because of the treachery of its false friend, ritualism. Its thought and language come from a different age, of course. The sublime English prose of the Prayer Book is still widely appreciated, but modern Anglicanism is very ignorant of its own tradition. There seems to be almost no systematic study of the historic formularies (perhaps even less than of ecclesiastical law). The historic formularies are treated as just that – of historical interest only.

As mentioned, Anglican tradition is, in part, inherited from the Catholic Church, with which the Church of England shares the Sacrament of Baptism and the historic episcopate. Can ecumenical dialogue do anything to save the situation?

The record here is not encouraging. In the 20th century, several explicit papal warnings against female ordination were ignored. In 2009 the then Pope established Anglican Ordinariates (in this country and overseas) as a bridge across the Tiber, but to little effect. Ecumenists (and their superiors) now seem positively to avoid controversial subjects. The late Father Edward Yarnold SJ, a shrewd observer of Anglican-Roman Catholic interactions, noted that they suffer from ‘the danger inherent in bilateral dialogues, that the ecumenical left hand may not know, or may ignore, what the right is doing’ (Anglican Orders (1996), p.70).

So reason alone is left. It has its own limitations, of course. But it can penetrate further than Biblical literalism and traditionalism. The latter can only address the effects or symptoms of the LGBT ideology (e.g same-sex marriage or transgenderism). Reason can address the ideology itself. It can explain

(1) what the ideology is and

(2) why it is not compatible with the Christian religion.

What is LGBT Ideology?

It is important to begin an analysis of LGBT ideology by admitting that IT IS PARTLY TRUE. (It is another weakness of Biblical literalism that it can appear to deny that there is any truth in the ideology.)

But if LGBT ideology is partly true, reason dictates that it is partly false.

LGBT ideology consists essentially of the assertion of rights – LGBT rights, gay rights. What does this mean, exactly? It is argued that the assertion of ‘LGBT rights’ or ‘gay rights’ is ambiguous. It carries a double meaning, as follows:

(1) it could mean simply that persons of particular sexual orientation, or gender orientation, have exactly the same rights as all other persons have. Equal rights with everybody else. Equal rights of reputation, privacy, freedom of association and freedom of expression.

If that was the only meaning of ‘LGBT / gay rights’ there would be no difficulty. It is, of course, true.

The problem is that this is not the only meaning of LGBT / gay rights. There is a second, quite different meaning

(2) that a sexual orientation or gender orientation is itself a source of rights, that it is productive of rights. That a sexual orientation or gender orientation, of itself, confers rights on the person who experiences it.

The rights purportedly conferred by sexual or gender orientation include the right to ‘marry’ a person of the same sex, the right to engage in genital activity with such person, and the right to choose or change one’s gender.

This second meaning of LGBT / gay rights (2) is certainly not true. The false rights asserted by (2) must therefore be distinguished from the genuine rights asserted by (1).

Thus LGBT ideology does indeed contain an element of truth (1). But, unfortunately, behind the element of truth, there is a lie (2). It is this lie that separates the ideology from the Christian religion.

It is possible to identify a certain structure to LGBT ideology. The element of truth in it (1) is used to protect and conceal the falsehood (2). The lie at the heart of the ideology is concealed by a protective veneer of truth. This means, of course, that it is difficult to oppose (2) without appearing to oppose (1).

It is also possible to see a resemblance between LGBT ideology and romantic ritualism. The LGBT assertion of sexual or gender orientation as a source of rights is in harmony with the tendency of ritualism to assert the sovereignty of the heart and the senses.

Why is LGBT ideology not compatible with the Christian religion?

Biblical and traditionalist approaches to the phenomenon of LGBT, by addressing only its symptoms or effects, are largely concerned to explain only what is wrong with it. This inevitably fixes them with an unattractively negative, judgmental character.

What is right or wrong is ultimately determined by what is true or false. By addressing the LGBT ideology itself, not just its effects, reason can explain what is true and false, not merely what is right or wrong.

Morality is undeniably concerned with (right and wrong) behaviour, but it is much more than that. Christian morality is the doctrine of Man himself. Just as Christianity has a particular belief about God, so it has a particular belief about Man.

Our analysis has indicated 2 objectionable characteristics of LGBT ideology

(1) it contains a lie and

(2) it misuses truth by using it to conceal or protect the lie.

Any lie must be incompatible with true religion. Christian witness is like witness in court – to the truth, the whole truth and nothing but the truth. It is not about half-truth, nor about negotiating some kind of bargain between truth and falsehood.

Does the lie in LGBT ideology matter much? It engages the God-given constitution of Man himself. It denies the constitution of the human person as male and female. It denies the constitution of marriage as a bodily union or ‘one flesh’ (see blogpost ‘The Constitution of Marriage: Consensus-Copula’). It denies the God-given nature of both gender and marriage. If gender and marriage are determined only by individual orientation, they cease to be God-given and become man-made instead.

By engaging the God-given constitution of Man, LGBT ideology also engages Man’s relationship with God. God not only created Man in His own image, He Himself became Man.

This is powerfully and beautifully expressed by Article 2, quoted above. Jesus was, and is, both God and Man. To follow Jesus is therefore to accept the truth about both, not just about the one or the other. God and Man cannot be divorced from each other. They stand or fall together. It is no good asserting the truth of the Virgin Birth while denying the truth about marriage.

It follows from this that an individual who patterns his lifestyle on LGBT ideology, or who appears to do so, is not an appropriate person to teach the Christian religion, or lead a Christian community. And a vicar who does not tell the truth about Man cannot tell the truth about God.

A Decade of the Faculty Jurisdiction

One of the reasons for starting this blog 10 years ago was to address 2 confusions concerning the faculty jurisdiction:

(1) exaggerated reverence for the sanctity of ecclesiastical property and

(2) failure to appreciate that the faculty jurisdiction, though exercised by judges and courts, is actually an executive or administrative function, not a judicial one.

(1) originated in a misunderstanding of the legal effect of consecration upon land (see ‘Consecrated Land: Status and Use’, filed under category ‘Consecration’). It was encouraged by a fear of losing the precious exemption from secular listed building control. It resulted in the rule that changes to a listed church should be permitted only on grounds of necessity (see ‘The Necessity of the Ecclesiastical Exemption’, filed under ‘Faculties’). This test of ‘necessity’ was actually stricter than that required for secular listed building consent.

(2) arose from confusing the ecclesiastical offices of chancellor and vicar-general, which are generally held by the same person. Judicial functions (now virtually all abolished) are exercised by the chancellor. The vicar-general, as his title implies, exercises administrative functions, including the faculty jurisdiction, as the deputy or representative of the bishop (see ‘The Chancellor, the Official-Principal and the Vicar-General’, filed under ‘Ecclesiastical Jurisdiction’).

A few months after this blog started, in the case of St. Alkmund, Duffield (2012), the Court of the Arches abandoned the exaggerated test of ‘necessity’. Nothing to do with this blog, of course. It was all due to the persuasive powers of Mr Alexander McGregor, barrister and amicus curiae in the case, who, ‘unprompted by any member of this Court … invited the Court to … revisit [the necessity test]’ (para 82).

The Court briefly alluded to the powerful criticisms of the test made by 2 very senior judges of the Court of Ecclesiastical Causes Reserved in St. Stephen Wallbrook (1987) 2 All England Reports 578, but did not explain why it had waited a quarter of a century to address these.

As a result of Duffield, dealings with listed churches now require a balance to be struck between

(1) their impact on the building (pejoratively described as ‘harm’ to the building) and

(2) the benefit that will accrue therefrom

Thus ‘the more serious the harm, the greater will be the … benefit needed to justify a faculty’ (87).

This new, and more realistic, balancing exercise is similar to the original test formulated by Lord Penzance, Dean of the Arches, in Peek v Trower (1881) 7 Probate Division 21: ‘the burden is cast upon [the petitioner] to shew that [the proposed dealing] will make things better than they are’ (p.27), though laying greater emphasis on the claims of conservation.

Duffield was concerned with buildings, not movable chattels. St Lawrence Wootton (2014) concerned the sale, to a private buyer, of an armet, ‘a type of helmet, worn by knights and men-at-arms during the 15th and 16th centuries’ (1), (therefore not an item particular to a church).

The Court of the Arches refused a faculty. The only reason given for the sale was to raise money. That might be a good enough reason if there was a financial emergency, but the parish was actually quite prosperous. Absent emergency, fundraising alone was not a sufficient justification for the sale.

The Court made valid observations about the importance of conserving heritage, and the need to treat parochial pleas of poverty and expense with a degree of caution. However, the decision was hardly satisfactory. The armet had been removed from the church as long as 40 years ago, for security reasons, and deposited in a museum. There was no possibility of it ever returning to the church. It was not even on public display in the museum, but locked away in a storeroom (albeit ‘viewable by arrangement’ (2)).

If we apply the Duffield test to this case, it is hard to see how the sale of the armet could possibly have caused any harm, whether to the armet itself, to the church, or to national or local heritage. And sale would have yielded a benefit, in the form of a sum of money which could have been put to good ecclesiastical use. As the Court itself observed, refusing a faculty was effectively penalising the parish for ‘the commendable strength of their financial position’ (93).

The decision in St Lawrence Wootton has unfortunate echoes of St John’s, Chelsea (1962) 2 All England Reports 850, when a lucrative commercial development of land that had been vacant for 2 decades was refused, even though there was no hope of restoring it to ecclesiastical use, just because the land had once been consecrated.

The Duffield guidance has clarified the relationship between the faculty jurisdiction and property. What has been done over the last decade to clarify the difference between administrative and judicial function (confusion (2) above)?

Chancellor Bursell unfortunately succeeded in exacerbating confusion with a flawed thesis on ‘precedent’, which failed to appreciate the fundamental distinction between binding precedent and mere guidance. (See ‘Alsager v Blagdon: Binding and Guiding’, and ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed under ‘Faculties’). This caused an unnecessary addition to the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, at s.14A.

There are at least 3 practical differences between the judicial function and the faculty jurisdiction, which should inform the conduct of faculty proceedings:

(1) the judicial function is the determination, or vindication, of rights. A faculty, by contrast, is a permission to do something to which there is no right.

(2) judicial proceedings are almost always contested. Faculty proceedings are almost always unopposed.

(3) the judicial function (i.e trying a claim of injustice) is generally concerned with the past, which must be proved by evidence. The faculty jurisdiction is concerned with the future, ‘making things better than they are’ as Lord Penzance put it, but the future is incapable of proof. (See ‘St Mary’s Churchyard, White Waltham’, filed under ‘Faculties’.)

These differences arguably demand a different practical approach to faculties:

(1) a more pro-active, even inquisitorial, investigation by the decision-taker, as there will be no party opponent to draw attention to omitted evidence, or cross-examine witnesses. But also

(2) an emphasis on substance rather than form. Nobody is on trial, and nobody’s rights are at stake. All relevant facts must be found, and parishioners and other interested parties properly informed, and given opportunity to make representations. However, this should not require an elaborate procedure.

A lecture entitled ‘Do we still need the Faculty System?’ (Ecclesiastical Law Journal, September 2020), by the late Dean of the Arches and Auditor, Charles George QC, did much to clarify confusion (2). (Though, like the Duffield guidance, this has been a long time coming.) The deliberate choice of the word ‘system‘, rather than ‘jurisdiction’, acknowledges the administrative character of faculty proceedings. The lecture also drew attention to some interesting points:

(1) the latest edition of the faculty rules, which Dean George promoted, refers to ‘the chancellor’ rather than ‘the court’ (though ‘vicar-general’ would have been an even better reference, for the reasons stated earlier)

(2) ‘the members of the Court of Arches have never, during my term of office, worn robes or wigs (what is good enough for the Supreme Court is good enough for us)’ [!]. Wigs and gowns are, of course, outward and visible signs of the judicial function.

(3) the faculty jurisdiction / system over cathedrals is exercised by committees, not courts (see the preceding blogpost). Dean George suggested that the diocesan jurisdiction could be exercised likewise, by the diocesan advisory committee rather than the chancellor.

A powerful suggestion, to which we would have assented at the time it was originally made. But perhaps the experience of recent years should give us pause. The armet in St Lawrence Wootton would presumably now be denounced as ‘colonialist’ (if, of course, the denouncers were made aware of what an armet actually is). The conservatism and self-importance of ecclesiastical courts and judges – wigs and all – are easily mocked. But they may foster one very precious quality – independence: a refusal to be carried along by the fads and fashions of the present moment, or to be hustled by powerful and articulate interest groups. Diocesan and cathedral committees are less formal and pretentious, but may they also be less resistant to political pressure?

The faculty jurisdiction now faces a new and greater test of necessity – of the protection of ecclesiastical heritage from abuse, which is its constitutional function. The recent decision of an ecclesiastical judge in the well known case of Jesus College, Cambridge offers a small hope.

Safeguarding and Suspension: The Case of the Bishop of Lincoln

Safeguarding and Clergy Discipline Measure 2016

The Archbishop of Canterbury has recently announced that

‘[1] Following information provided by the police, I have suspended the Bishop of Lincoln …

[2] If these matters [i.e the ‘information’] are found to be proven … the Bishop would present a significant risk of harm by not adequately safeguarding children and vulnerable people …

[3] there has been no allegation that [the] Bishop … has committed abuse …’.

The police, for their part, announced that ‘investigation into non-recent sexual abuses … resulted in 3 men being convicted’.  However, ‘phase 2 of the investigation is continuing, into wider safeguarding issues and management decisions within the [Lincoln] Diocese …’.  This wording suggests that ‘phase 2’ is not investigation of an actual or alleged crime, but a police audit of the diocesan safeguarding regime, which may, or may not, produce evidence of some crime.

According to his entry in Who’s Who, the Bishop was appointed in 2011 (not all that long ago), and held no other office in the Lincoln Diocese prior to 2011.  He is said to be ‘bewildered’ by his suspension, but has obediently promised to ‘fully cooperate’.

The Lord Bishop is also a Cardiff canonist, i.e a graduate of the degree in ‘canon law’ (which might be more accurately described as ‘ecclesiastical governance’) awarded by Cardiff University and magisterially taught by Professor Norman Doe.  (A distinction shared with the author of this blog, who is, however, unacquainted with the Bishop.)  The subject of the Bishop’s thesis was ‘The Parson’s Freehold in the Church of England: legal fiction and psychological reality’ (Ecclesiastical Law Journal 2003, p.376).

The 2016 Measure cited above was passed in response to distressing cases of ‘non-recent’ sexual abuse by clergy.  It made significant amendments to the Clergy Discipline Measure 2003.

The words ‘suspend’ or ‘suspension’ occur no fewer than 97 times in this relatively short Measure, including the headings of 5 of its 12 sections.  (The Suspension and Clergy Discipline Measure?!)  Perhaps the Bishop should not have been  bewildered by the treatment that he has received.

S.37 of the Clergy Discipline Measure, as amended by the 2016 Measure, now provides that the Archbishop may (not must) suspend a bishop (with the concurrence of 2 other senior bishops), if satisfied ‘on the basis of information provided by a local authority or the police‘, (not from other informants) that the bishop presents ‘a significant risk of harm‘.  Thus it is the Archbishop who must be satisfied that there is a significant risk, not the police or the local authority.  S.36 of the Measure makes similar provision for lesser clergy.

S.1(2A) defines ‘significant risk of harm’ as a significant risk that the Bishop (or other officeholder) may

(a) harm a child

(b) cause a child to be harmed

(c) put a child at risk of harm

(d) attempt to harm a child

(e) incite another person to harm a child.

(This definition comes from the Safeguarding Vulnerable Groups Act 2006.)

On their wording, (a), (d) and (e) require risk of some positive harmful act by the suspended person.  (b) can include risk of a negligent omission which causes actual harm.  The Archbishop’s statement makes clear that the ‘risk’ alleged against the Bishop does not fall within the scope of (a), (b), (d) or (e).

So the suspension can only be justified (if at all) on ground (c).  Clearly ground (c) is much broader than the others.  There must be a huge number of acts or omissions that are potentially capable of risking harm.

Ground (c) therefore requires

(1) a risk of harm and

(2) an act or omission that puts the child at that risk.

To put is defined in the dictionary as ‘move [child] so that it comes into some situation’.  The act or omission must be one that moves the child into a position of risk.

If a hypothetical bishop were to appoint a vicar whom he knew possessed child-harming tendencies, that could indeed put the children of the vicar’s parish at risk of harm.  However, it may be difficult to decide when the link between (1) the risk of harm and (2) the bishop’s act or omission is so tenuous and remote, or speculative, that it does not fall within ground (c).

For example, there may be information in diocesan records about a vicar who transferred out of the diocese some time ago.  A new bishop is appointed, is made aware of the information, but takes no action.  He has never been responsible for the oversight and discipline of the vicar.  The vicar may indeed constitute a risk to children in his new diocese.  But it could be argued that the children were ‘put’ at risk by those who managed the vicar’s transfer, not by the bishop who was only appointed after this happened.

The allegation against the Bishop of Lincoln, of ‘not adequately safeguarding children’, is vague, and much wider than the statutory ground of suspension ‘put[ting] a child or vulnerable adult at risk of harm’.  (Particulars of the allegation are not being disclosed.)  Not every failure of safeguarding procedure will amount to putting a child at risk.

It should also be remembered that suspension speaks to the future, not the past.  It is concerned to protect children from being harmed, not to punish past harm.  A past safeguarding failure will not always establish a significant risk of future harm, if failure is acknowledged and lessons learned.

As its title implies, the 2016 Measure is concerned with (1) the safeguarding of children etc and (2) clergy discipline.  These 2 functions are distinct.  Clergy discipline is particular to the Church.  Safeguarding children is a duty that the Church shares with the secular state.

The power of suspension engaged in this case is concerned with safeguarding (1), not with clergy discipline (2).  As mentioned, it may only be exercised on the relation of the secular authorities, not by the Church of its own motion.  It is an emergency, interim power.  Its purpose is to assist the secular state to fulfill its duty to protect children.  If the feared risk of harm to children proves substantial, it is the responsibility of the secular authorities to take further legal action, under the secular law, to ensure that the children are safeguarded.

Clergy Discipline is addressed elsewhere in the 2016 Measure.  S.5(1) of the Measure introduced a new and specific safeguarding duty.  This provides that bishops and other clergy ‘must have due regard to guidance issued by the House of Bishops on matters relating to … safeguarding’.  S.8(1)(aa) of the 2003 Measure (as amended by the 2016 Measure) now provides that failure to have ‘due regard’ to this guidance now constitutes misconduct.

The Church of England’s internet website refers to no fewer than 18 statements of guidance: 3 ‘policy statements’, 13 ‘practice guidances’, plus ‘Q and As’, and 2 items of ‘joint practice guidance agreed with the Methodist Church’.  It warns that ‘All the policy and practice guidance on this page has been approved by the House of Bishops [under s.5(1)] and must … be followed’.  It suggests that ‘due regard’ to the guidance means that the subject ‘is required to follow it unless there are cogent reasons for not doing so’.

The specific safeguarding duty is recent.  It cannot be imposed retrospectively.  However, there has always been a disciplinary offence under the 2003 Measure of ‘neglect or inefficiency in the performance of the duties of … office‘ (s.8(1)).  At least one case brought under the 2003 Measure indicates that disciplinary tribunals are willing to interpret ‘duties of office’ to include a common law duty to take care (or something resembling it), as well as duties specifically prescribed by ecclesiastical law.  (See ‘Armstrong v Robinson: The Cares of Office‘, filed below in this category.)

The Bishop has not (not yet, anyway) been charged with failure to comply with the s.5(1) duty, or with any breach of clergy discipline.  Any disciplinary proceedings would be subject to the 1 year limitation period, as provided by s.9(1) of the 2003 Measure.

(Websites accessed 18th May 2019.)

The Coronation Oath: Right and Rite

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are 2 possible consequences:

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

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

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

Alsager v Blagdon: Binding and Guiding

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

Blagdon Cemetery (2002) 4 All England Reports 482

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

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

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

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

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

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

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

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

This makes clear that guidance from the provincial court is

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

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

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

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

The 2 tests are briefly stated.  The Blagdon guidance commended

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

The earlier guidance in Alsager had suggested that

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

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

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

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

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

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

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

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

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

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

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

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

The Clerical Declaration of Assent

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

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

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

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

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

‘I, A.B …

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

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

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

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

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

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

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

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

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

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

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

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

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

The Case of Archbishop Abbot

W Adam, ‘The Curious Incident of the Homicidal Archbishop: The Dispensation Granted to Archbishop George Abbot, 1621’ (September 2015) 17 Ecclesiastical Law Journal, p.306.

This article, just published, is an important contribution to the study of ecclesiastical law, in particular its relationship with canon law.  As the learned author points out, the case of Archbishop Abbot, though well known to history, is virtually unknown to ecclesiastical law.  This scholarly legal account of the case is therefore especially welcome.

In 1621, when Archbishop of Canterbury, Abbot accidentally killed a gamekeeper while out hunting.  This caused a flutter in ecclesiastical circles for a specific legal reason.  Mediaeval canon law provided that, if an ordained minister unlawfully killed someone, he was ipso facto (i.e automatically and immediately) inhibited from officiating as such.  Any official function performed by the minister while inhibited was therefore prima facie illegal or ‘irregular’.  This rule survives in modern Roman Catholic law (see canons 1041.4 and 1044.1.3 of the Code of Canon Law 1983).

One of the principal functions of an Archbishop is, of course, the consecration (ordination) of new bishops.  Four bishops-elect (including William Laud, Abbot’s successor as Archbishop of Canterbury) objected to being consecrated by Abbot, fearing that their consecrations would be irregular, and therefore ineffective to constitute them as Church of England bishops, on account of the mediaeval canon.

Abbot argued, with some justification, that the canon did not apply to his case.  The inquest into the gamekeeper’s death had exonerated him.  It found that the accident was caused by the gamekeeper’s own misadventure.  However, Adam’s account indicates that Abbot, like the four bishops-elect, accepted that the mediaeval canon still had the force of law, notwithstanding the break with Rome nearly a century earlier.

If (God forbid) a modern Archbishop were to be involved in such a terrible accident, any disciplinary consequences would be regulated by the Clergy Discipline Measure 2003.  However, there was no statutory regime concerning the discipline of bishops and Archbishops in the 17th century.  The canons of 1603 are also silent on the subject.

The effect of the mediaeval canon was that an ordained minister who was guilty of homicide was automatically inhibited unless and until his ecclesiastical superior granted a dispensation, thus restoring him to the exercise of his orders.  The Pope was the Archbishop of Canterbury’s superior before the Reformation.  Thus a mediaeval Archbishop in Abbot’s predicament would have applied to the Pope for a dispensation.

The papal jurisdiction was, of course, abolished at the Reformation.  The Ecclesiastical Licences Act 1533 provided that the Pope’s power to grant dispensations should in future be exercised by … the Archbishop of Canterbury! (s.3).  The Archbishop could hardly grant a dispensation to himself.  King James I settled the matter by appointing a commission of bishops and directing them to grant ‘a precautionary and excessive dispensation’ to Archbishop Abbot ‘concerning all irregularity and taint of irregularity, if perchance you have incurred any’.  Adam’s erudite article includes an English translation of the full Latin text of the dispensation.

As Adam points out, this dispensation could not plausibly have been authorised by the 1533 Act.  That Act regulated dispensations granted by the Archbishop, not to him.  The Act does empower the Monarch to commission other bishops to grant dispensations, but only if the Archbishop wrongfully refuses to grant them (s.11).

But if, contrary to the view of the protagonists in Abbot’s case, the mediaeval canon no longer had the force of law then no dispensation was necessary.  Adam refers to the Reformation legislation, which provided that mediaeval canons might continue in force, provided that they ‘be not contrary nor repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King’s prerogative royal’ (Submission of the Clergy Act 1533, s.7).

The purpose of the mediaeval canon, ridding the Church of homicidal clergy, is obviously just and reasonable.  Of course a priest or bishop (or Archbishop) who culpably causes a person’s death should be inhibited from officiating – but how?  The rule of ipso facto irregularity was extremely hurtful to the royal prerogative when applied to the Archbishop of Canterbury.  English law jealously guarded the Monarch’s right to appoint bishops.  The Archbishop of Canterbury is, of course, the senior bishop, the Primate of All England.  Not only that, the Monarch requires the Archbishop to consecrate his episcopal appointees.  The Archbishop is therefore the source of holy orders throughout the province.

If the rule of ipso facto irregularity applied to Archbishops and bishops, this would not deny the Monarch’s right to appoint them, but it could still cause grave difficulties.  The Monarch might appoint an Archbishop or bishop, but the mediaeval canon could render the appointee incapable of officiating as such.  The Archbishop might be incapable of consecrating the Monarch’s chosen bishops.  The lawfulness of consecrations performed by the Archbishop might be put in doubt.  This in turn might impugn the ordinations of priests by the bishops who had been consecrated by the Archbishop.  The regularity of the entire ordained ministry might be undermined.

It is hard to accept that a rule of mediaeval canon law would be allowed to survive the Reformation, when it had such potentially devastating consequences for the reformed Church.  If the rule remained in force, one would at least expect the law to confer a clear power on the Monarch (not just on bishops) to dispense from any irregularity in the exercise of the Archbishop’s function.  There is no such power.

The silence of the canons of 1603 on the discipline of Archbishops also suggests that this was regarded as a matter for the Monarch’s jurisdiction.

Adam does not reach any definite conclusion on the legal force of the mediaeval canon.  However, it is argued here that the canon did not survive the Reformation.  The dispensation was granted to humour a few tender episcopal consciences.  E Garth Moore relates that King James I ‘thought the whole matter ridiculous’ (Introduction to English Canon Law, 3rd edition 1993, p.135).  Even if Abbot had been held responsible for the gamekeeper’s death, his ability to officiate as Archbishop of Canterbury, and to consecrate new bishops lawfully, would have continued unless and until King James inhibited him from doing so.

Constitutions Without Faith: The Good, the Bad and the Weak

Ecclesiastical law is the law which regulates the administration of the Christian religion.  It is a manifestation of the state’s acceptance both of (1) the Christian religion and (2) its own duty to administer that religion to its subjects.

Modern secular states, of course, tend to distance themselves from religion, regarding it as a private matter.  Yet it is easier to reject religion as the source and object of political authority than to decide on what ideology, ‘values’ or religion-substitute to put in its place.

In his famous work Introduction to the Study of the Laws of the Constitution (1885), Albert Venn Dicey identified certain conventions of the British Constitution, which he defined as ‘a body … of constitutional or political ethics’ (10th edition, 1959, p.417).  The genius of these conventions is that they bridge the gap between a legal structure that was settled in the (Christian) middle ages and the political concept of government that developed in the (secular) modern era after 1688. The theocratic mediaeval structure was left in place, but the principle of popular sovereignty was discreetly substituted for that of divine law.  God was not explicitly rejected by the Diceyan constitution, but He was tactfully eased out, or ‘kicked upstairs’, rather like a long-serving principal who is liked and respected by his colleagues but is nevertheless judged to have outlasted his usefulness.

Dicey’s conventions were based on the premise that the British Constitution is unwritten.  Moreover, when he wrote, popular sovereignty was not very democratic by present-day standards.  It was exercised by a small and relatively homogeneous electorate consisting only of men of property.  Less privileged men were excluded from the electorate, along with all women.

Two interesting contributions to the debate on constitutional authority (among many others, no doubt) have been published recently in legal journals.  The first is entitled ‘The Good Constitution’ (2012) 71 Cambridge Law Journal 357, by John Laws, better known as Lord Justice Laws, one of the more overtly secularist of Her Majesty’s judges (though he sits, somewhat incongruously, on the editorial board of the Ecclesiastical Law Journal).  His Lordship’s thesis on the relationship of the state to religious truth in the case of McFarlane v Relate Avon (2010) Industrial Relations Law Reports 872 is discussed in a blogpost entitled ‘Ecclesiastical Law and Equality’ which is filed below.

According to Laws, the object of the ‘Good Constitution’ is the common good, or ‘benefit of the people’ (p.568).  This in turn demands 2 ‘moralities’:

(1) the autonomy of every individual.  This is the ‘morality of law’, and is primarily the concern of the courts.

(2) the interests of the people as a whole.  This is the ‘morality of government’, and the concern of the legislature and the executive (p.572).

The Good Constitution is pluralist.  It must allow for ‘difference and disputation’ (p.568).  Democracy is justified on the basis that it serves ‘the imperative of pluralism’.  Democracy ‘is a means and not an end [because] it tends to promote pluralism and to disable would-be tyrants’.

The modern British Constitution, as analysed by Dicey, is based on the supremacy of Parliament.  Parliament is the legal sovereign of the nation, the electorate is the political sovereign.  In Laws’ view, the principle of Parliamentary supremacy has not (yet) been abandoned, but it is slowly yielding to a principle of constitutional supremacy, similar to that which obtains in the USA.  Constitutional supremacy means that certain fundamental rights are determined by the courts.  Hence ‘the British system [is] at an intermediate stage’ (p.570).

It is argued that this thesis misunderstands the relationship between pluralism and democracy.  Why is it ‘imperative’ for there to be difference and disputation in a society?  Democracy and pluralism are only possible if society agrees about more than it disagrees about.  Democracy will not succeed in a society which is fundamentally divided.  The history of Northern Ireland makes this point.

It could even be argued that the British Constitution is at a stage of fragmentation, rather than at an intermediate stage.  Parliamentary sovereignty was based on agreement as to fundamental rights.  Recent constitutional changes (e.g those concerning the right to marry and ‘equality’) may indicate that political consensus about rights has broken down.

There may also be a false dichotomy in Laws’ thesis between individual autonomy and public interest, and the functions of law and politics.  The work of politics does involve striking a balance between different ‘autonomies’, but so also does much legal process.  Most human rights are qualified rights only, not absolute.  A balancing exercise is therefore required to determine if rights have been infringed.  The most that can be said is that the courts apply a different balancing exercise from that of politics.

The Lord Justice’s thesis is strongly secularist.  It deprecates ‘the suggestion that the public good inheres in a single set of ideas that can be conclusively ascertained … [This suggestion] takes wing only as an article of faith, secular or religious’ (p.568).  A single set of ideas is dangerous.  It ‘offers … a spurious justification for suppression and arbitrary rule’.  Faith is tyranny.  The Good Constitution is therefore the opposite of the God Constitution.  The God Constitution is the Bad Constitution.

However, it is argued that democracy requires faith of some sort.  This is because democracy only works if there is general acceptance of certain values by the democratic community.  The Christian religion is the source of these values.  Democracy must therefore be faith-based.  A democracy cannot function within a plurality of values that are incompatible with each other.  Far from disabling tyranny, a plurality of incompatible values gives tyranny its opportunity.  Democracy becomes a charade, merely the tyranny of the majority over the minority (or indeed vice versa – the tyranny of a well-organised and articulate elite over the less privileged and less articulate majority).

It is true, of course, that a healthy democracy involves ‘difference and disputation’.  However, disagreements concern only the precise application of shared values in particular circumstances.  Democracy is an end, not a means.  It involves the expression and application of shared values.  The justification for a democracy is that the values of the democratic community are better than the values of a tyrant.  If democratic values are not better than those of a tyrant then democracy loses its raison d’etre.

The question of individual autonomy illustrates the difficulty with ‘pluralism’.  It is not possible to ascertain individual autonomy without making a faith-based or value-based judgement on what an individual is.

This may explain the recent controversies between secularism and traditional Christianity in which Lord Justice Laws has played such a distinguished role.  The problem is not human rights per se.  Everyone agrees that a human being has rights, but they no longer agree about what a human being is.

While this may not have been the author’s intention, ‘The Constitutional Imagination’ by Martin Loughlin (2015) 78 Modern Law Review 1 helpfully identifies the difficulties with the Lord Justice’s faith in a faith-less constitution whose subjects are somehow united only by being in perpetual disagreement with each other.  When juxtaposed with Laws’ ‘The Good Constitution’, Loughlin’s work might have been better entitled The Weak Constitution.

The governance of the state by written constitution is a modern invention, a creature of the Enlightenment.  The USA produced the first written constitution in the late 18th century.

The intellectual inspiration for modern constitution-making came from Hobbes, Locke and Rousseau.  Locke was the principal inspiration for the American constitution.  Rousseau inspired the post-1789 governance of France.

Locke argued that government was based on a social contract, according to which the people delegate the power of governance, for the better protection of their natural rights.  Certain natural rights of individuals are thereby relinquished for the sake of the common good.  This is the philosophy of the minimalist state.

Rousseau, by contrast, was the prophet of equality.  His social contract does not protect natural rights, but replaces natural inequality with political equality.  All people must be acknowledged as equal, but they also all have a duty to promote the greatest good of all.

Loughlin’s account indicates the innate weakness of modern written constitutions.  They have no basis in custom, history, nationality or religious belief, only in abstract philosophical values.  They are test-tube constitutions.

The abstract quality of constitutional rights also makes for a difficult relationship with the law: ‘there can rarely be a correct answer in law to any important constitutional question’ (p.15).

Indeed most written constitutions have not been very successful.  France has had no fewer than 12 constitutions since 1789!  The adoption of constitutions by totalitarian dictatorships has also undermined their credibility.  The success of the American constitution is ‘thoroughly exceptional’ (p.17).  (And it should be remembered that the American constitution was not successful enough to prevent a terrible civil war.  The American civil war also reinforces the point about the inadequacy of law to determine constitutional questions.  The civil war was fought, in part, over different interpretations of the American constitution.)

Constitutions face two challenges today:

(1) ever bigger government and

(2) ever increasing social diversity.

Nowadays government is expected to intervene more and more in society, in response to the political demands that are made on it for expenditure and regulation.  Increased social diversity (of race, language, religion, lifestyle etc) in turn creates a diversity of new political demands.

Political demands are represented as human rights, but there is little assertion of corresponding duties.  Thus human rights have become (1) politicised and (2) ever more difficult to reconcile with each other.  This gives rise to the danger of social and political fragmentation.

Early constitutions had a utopian character.  They asserted only a small number of fundamental rights.  They were concerned with the emancipation or improvement of humanity.

Modern constitutions, by contrast, are subject to much greater conflicting ideological pressures.  They must needs be concerned not with emancipation, but rather with integration, to hold state and society together.  Yet integration is hard to reconcile with individual freedom.