Ecclesiastical law

Tag: Ecclesiastical Law Journal

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.

Two Churches, One Kingdom: England and Scotland

‘The Nations are one because the Churches are two.’  (Macaulay on the Union of England and Scotland)

These words remind us that, whatever other factors led to the Act of Union 1707, the Union was partly in the nature of a religious settlement.  In the previous century, England and Scotland had each tried to impose its own preferred religious system on the other, with disastrous consequences.  While the Act of Union united the secular states of England and Scotland, their respective ecclesiastical states remain strictly separate and independent of each other. 

The most visible constitutional difference between the Churches of England and Scotland is that the former retains an episcopal structure derived from the late mediaeval Catholic Church, while the latter has a presbyterian structure devised in the early modern period.  However, the other important constitutional difference concerns the relationship of the two Churches to the secular state.

The Church of Scotland Act 1921 now defines the boundary between Church and secular state in Scotland.  It asserts the autonomy of the Church in ‘matters spiritual’.  These matters are specified in the ‘Declaratory Articles’ of the Church, which are scheduled to the Act.  According to Article 4 they include ‘all matters of doctrine, worship, government and discipline in the Church, including … [Church] membership and office … and the mode of election of its office-bearers’. Article 4 asserts that the spiritual authority of the Church is ‘subject to no civil authority’, and that the civil authority has no ‘right of interference’ in spiritual matters.

This spiritual autonomy is effected by disapplying or nullifying inconsistent secular laws.  Thus s.1 of the 1921 Act provides that

[1] ‘no limitation of the [Church’s] liberty, rights and powers in matters spiritual … shall be derived from any statute or law … at present in force’

[2] ‘all such statutes and laws insofar as they are inconsistent with the Declaratory Articles are hereby repealed and declared to be of no effect’ and

[3] such laws as are not nullified under [1] are to be ‘construed in conformity … with [the Articles] and in subordination thereto’. 

S.1 is a remarkable provision, requiring that certain secular laws are subordinate to ecclesiastical laws.  The contrast with English ecclesiastical law could hardly be greater.  While English law is concerned to assert the supreme authority of the Monarch over the Church, the 1921 Act and the Declaratory Articles assert the independence of the Church from the Monarch. 

Colin Munro observes that ‘The [1921] Act … [is] a recognition by Parliament of the Church’s constitution, rather than as a conferment of a constitution’ (emphasis supplied).  It recognises ‘a co-ordinate jurisdiction of Church and state, each supreme within its own sphere’.  The Act ‘may be regarded … as … a concordat which allowed that the Church had its own sphere of jurisdiction’ (‘Does Scotland have an Established Church?’, Ecclesiastical Law Journal 1996-7, vol 4, p.639, pp.644).

The Church is described by Article 3 as ‘a national Church representative of the Christian faith of the Scottish people’.  The basis of its authority is explained by Article 4, which states that ‘This Church, as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hand of Church office-bearers, receives [spiritual authority] from Him … and from Him alone’.

Thus, while the Monarch is the head of both the ecclesiastical and the secular state in England, in Scotland she is head of the secular state alone.  Christ is the only head of the Scottish ecclesiastical state.

The governance of the Scottish Church is described in a most helpful modern commentaryThe Constitution and Laws of the Church of Scotland edited by James L Weatherhead(Edinburgh, 1997).

Weatherhead’s account suggests that the Scottish ecclesiastical constitution harks back to the time when all sovereign authority had a judicial character.  It does not recognise the modern principle of the separation of legislative, executive and judicial powers, and barely recognises the distinction between these powers (p.88).

Therefore the Church is governed by ‘a conciliar sytem of superior and inferior courts’ (p.97), namely,

(1)  the General Assembly

(2)  Presbyteries and

(3)  Kirk Sessions. 

The General Assembly can decide cases both at first instance and on appeal, as can a Presbytery.  Kirk Sessions are first instance courts only.  There can be no independent review of a decision of the General Assembly.  As supreme court, the Assembly is the final interpreter of its own legislation (p.75).

Despite the judicial character of its constitution, the Church of Scotland has no judges, in the sense of legally-qualified officials empowered to decide cases.  Judges, like bishops, were distrusted as the agents of royal intervention in ecclesiastical affairs.

Thus, when exercising their judicial function, the Church courts resemble grand juries or committees of magistrates.  They are staffed by legally-qualified clerks, procurators and assessors, but these officials, like justices’ clerks, may only give legal advice, not definitive rulings.

The courts are chaired by moderators.  Moderators, like Lord Mayors, are elected and hold office for a year.  A court may delegate a responsibility to a committee or official.

The Monarch sends a representative, the Lord High Commissioner, to meetings of the General Assembly.  His visits are attended with some pomp and circumstance, and he observes the proceedings seated on a throne, as befits his viceregal dignity.  However, the Lord High Commissioner ‘has no authority of any kind over the Assembly’ (p.189).  The throne is strategically placed just outside the Assembly, to emphasise the separation of Church and state.

It is sometimes glibly remarked that the Monarch is an Anglican in England and a Presbyterian in Scotland.  This is not really accurate.  The Monarch is obliged by the (English) Act of Settlement 1700 to ‘join in communion with the Church of England’ (s.3), but there is no equivalent obligation in Scottish law.  As we have seen, the Monarch is not the Head of the Scottish Church.  The only basis for the Monarch’s ‘presbyterianism’ is that she chooses to attend divine service in her local kirk when resident in Scotland.  This follows the practice of Queen Victoria, the first Monarch of the United Kingdom to live in Scotland.  The practice is purely a matter of personal choice or family tradition.  It has no constitutional basis.  However, it may have the political effect of softening the separatist and republican character of the Church of Scotland.  

The Scottish constitution reminds us that the Church of England is not the only established Church of the United Kingdom, and that a Church may be established by law even if the Monarch or other Head of State is not in communion with it.  It shows that ecclesiastical ‘establishment’ is not a uniquely Anglican phenomenon. 

The Quebec Act 1774 shows that ‘establishment’ is not uniquely Protestant either.  S.5 of the 1774 Act provided that, ‘for the more perfect security and ease of [their] minds … his Majesty’s subjects, professing the religion of the Church of Rome of and in the said Province of Quebec, may have, hold, and enjoy, the free exercise of the religion of the Church of Rome, subject to the King’s supremacy … and that the clergy of the said Church may hold, receive and enjoy their accustomed dues and rights, with respect to such persons only as shall profess the said religion’.

Phillimore admitted (perhaps with a hint of regret) that ‘This Act must be holden to recognize the Church of Rome as an, if not the, Established Church of Lower Canada’ (Ecclesiastical Law, 2nd ed 1895, p.1791).  The Quebec Act ensured that Canada remained loyal to the Crown when the American revolution broke out two years later, and never joined the United States.  Canada is now an independent country, of course, but it remains a monarchy within the Royal Commonwealth.  Tragically, the enlightened religious policy followed in Scotland and Canada was never applied to Ireland. 

There may be a certain similarity between the Anglo-Scottish Union and the modern European Union in their treatment of ecclesiastical matters.  Much of the governance of the secular state is now regulated by European law, but the ecclesiastical states of both England and Scotland continue to be regulated exclusively by their own domestic laws.

Conciliation and Clergy Discipline

The Clergy Discipline Measure 2003 provides, at s.12, that if the bishop decides to proceed with a disciplinary complaint against one of his clergy, there are 4 possible courses open to him.  He can

(1)  ‘direct that the matter remain on the record conditionally’, but only with the accused clergyman’s consent.

(2)  attempt to resolve the dispute by a process of conciliation

(3)  impose a penalty, again with the clergyman’s consent

(4)  refer the complaint for ‘formal investigation’, which means turning it over to a disciplinary tribunal for adjudication.

Conciliation (option (2) above) is regulated by s.15 of the 2003 Measure.  The conciliator is appointed by the bishop, but the terms of the conciliation must be agreed by both the clergyman and the complainant.  The bishop must also be satisfied that the conciliator is impartial.

It is not easy to see how the conciliation option fits into the scheme of clergy discipline.  Indeed it is arguable that conciliation has no real place in the Clergy Discipline Measure.  It may be an appropriate means of resolving private disagreements.  However, if applied to the public order and professional discipline of the Church then it blurs the important distinction between right and wrong.  An accused clergyman has either misconducted himself or he has not.  If he has misconducted himself then he should be penalised, or at least warned.  But if he has not misconducted himself then he should not be troubled further.  Disagreement and discipline are two different subjects.  Disagreements are private, civil matters.  Discipline is a public, quasi-criminal matter.

In an article for the Ecclesiastical Law Journal jauntily entitled ‘A Canter’ through the disciplinary procedure, Adrian Iles, a barrister with responsibility for administering the 2003 Measure, suggested that conciliation ‘may be particularly useful where there has been a pastoral breakdown in relations between the parties …’ (January 2007, p.16).  However, when he wrote this, the Incumbents (Vacation of Benefices) Measure 1977 already provided a procedure for resolving a breakdown in pastoral relations, albeit only for incumbents, not other clergy.  The 1977 Measure was passed in the wake of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 , when the Rev Mr Bland was cleared of any serious misconduct even though his behaviour had clearly alienated his parishioners.

The 1977 Measure does not apply to the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009.  However, the 2009 regime provides for a ‘capability procedure’, similar to that operated in most secular employment (see Terms of Service Regulations, regulation 31).  The capability procedure is arguably the appropriate forum to address personal or pastoral difficulties between clergy and their colleagues or parishioners.

Mr Iles has recently contributed a second article to the Ecclesiastical Law Journal, to commemorate the 10th birthday of the Clergy Discipline Measure (January 2014, p.3).  This article further illustrates the confusion over the role of conciliation in disciplinary proceedings.  While giving a generally positive account of how the Measure has worked in practice, Iles regrets that ‘the most disappointing aspect of the Clergy Discipline Measure … has been the relatively rare use of conciliation to resolve complaints’ (p.6).  Apparently only 6 cases have been resolved by conciliation.

However, the article itself reveals the reason for this, even if the learned author seems unaware of it.  It states firmly that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters … Bishops are encouraged … to take a fairly robust approach at the preliminary scrutiny stage and to be alert to the possibility of resolving a complaint … by non-disciplinary means outside the Clergy Discipline Measure where appropriate’ (p.5).

‘Disagreements and grievances’ do indeed fall outside the scope of the Clergy Discipline Measure, because the function of the Measure is to correct and penalise misconduct, not to settle disputes.  Hence complaints which indicate no more than a disagreement are rightly rejected at the preliminary stage.  Only allegations of misconduct go forward to the second stage of the procedure, as provided by s.12.

This renders the conciliation option superfluous under the present structure of the 2003 regime.  The option is provided only at stage 2 of the disciplinary procedure, but matters suitable for conciliation will already have been dismissed at stage 1.  If conciliation has any place in the Clergy Discipline Measure, its proper place is at the preliminary scrutiny stage, not at stage 2.  A disagreement or grievance that does not amount to misconduct should be dismissed at the preliminary stage, but it may be appropriate to recommend an attempt to resolve it by conciliation.

Holy Orders: Validity and Legality

Sacrament and Non-Sacrament

The distinction between the validity and the legality of holy orders was explained by Pope Leo XIII in Apostolicae Curae (1896):

‘If … a person has seriously and correctly used the due matter and form [of a sacrament], he is … presumed to have intended to do what the Church does … a sacrament is truly a sacrament, even if it is conferred through the ministry of a heretic, or of one who is not himself baptised, provided the catholic rite is used’ (para 33).

As is well known, the Pope concluded, in Apostolicae Curae, that the Church of England’s orders did not satisfy this test.  The essential reason was that the ‘form’ or rite of ordination contained in the 1662 Ordinal and its predecessors is not adequately worded to confer Catholic priesthood.  In the original Ordinal of 1549, the words of ordination were only ‘Receive the Holy Ghost’, without any reference to priesthood.  The clarifying words ‘Receive the Holy Ghost for the office and work of a priest‘ were not added until 1662, which was too late to repair the original defect.  Moreover the Ordinal does not clearly express, indeed it positively denies, the Catholic understanding of priesthood, in particular of the priest as  ‘sacrificer’, the minister of the Eucharistic sacrifice.

These defects necessarily mean that nobody who uses the Church of England rite can intend to ordain a Catholic priest.  He therefore cannot be ‘presumed to have intended to do what the Church does’.  If he had intended to ordain a Catholic priest he would have used a different rite.

However, Pope Leo did not hold that Anglican orders are invalid because the Church of England left the Catholic Church at the Reformation.  On the contrary, orders may be validly conferred outside the Catholic Church.

This conclusion was reaffirmed in the case of Archbishop Marcel Lefebvre, who was excommunicated in 1988 for ordaining bishops in breach of canon law.  Lefebvre’s ordinations were said to be valid but unlawful.

It must always be remembered that the distinction between the validity and legality of holy orders depends on the Roman Catholic doctrine that orders are a sacrament.  The Code of Canon Law 1983 makes clear that orders are one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840, reiterated in canon 1008).

English ecclesiastical law, by contrast, is clear that orders are not a sacrament as the 1983 Code understands this.  Article 25 states that baptism and ‘the supper of the Lord’ are the only two sacraments ‘ordained of Christ our Lord in the Gospel’.  The other five Catholic sacraments, including orders, ‘are not to be counted for sacraments of the Gospel … for that they have not any visible sign or ceremony ordained of God’. 

This means that the ‘valid but unlawful’ distinction of Roman Catholic law cannot be applied to English ecclesiastical law.  If a particular rite is not sacrament instituted by God, then it cannot be both valid and unlawful.  It can only be lawful or unlawful.  Its validity depends upon its lawfulness, because, lacking divine authority, it can have no other basis but human authority.  To be valid, a rite that is not a sacrament must possess an authority conferred or recognised by human law.

Article 23 strongly emphasises the importance of legality in ministry: ‘It is not lawful for any man to take upon him [ministerial] office … before he be lawfully called, and sent to execute the same … by men who have publick authority given unto them in the Congregation’.  There is no reference to any particular rite of ordination as the condition of a valid ministry.

Article 26 states that those with ‘authority in the ministration of the Word and Sacraments … do not the same in their own name but in Christ’s, and do minister by His commission and authority …’.

This suggests that human authority within the Church is an extension of Christ’s authority.  Ministers lawfully ordained by the Church are ordained by Christ.  The divine authority to exercise the ministry of Word and Sacrament is mediated through human authority.  However, the precise form of the ordination is not relevant, so long as it is conferred lawfully.

The form or rite of ordination is regulated by Article 34, which confirms that

‘Every particular or national Church hath authority to ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.

Thus the 1662 ordination rite, and modern alternatives thereto, are indeed ‘rites of the Church ordained only by man’s authority’.

However, the Roman Catholic distinction between validity and legality has sometimes echoed within the Church of England in the modern controversy over female ordination.  ‘Traditionalists’ may suggest that, while Lefebvre’s ordinations were valid but unlawful, Anglican ordinations by or of women are lawful but invalid!  This is yet another example of the confusion which results from treating English ecclesiastical law as if it were part of canon law.

Legality and Illegality

In a recent article for the Ecclesiastical Law Journal, the Reverend Dr William Adam discusses the legal consequences arising from the appointment of a woman as diocesan bishop in the Church of Ireland (vol 16(2), May 2014, p.187).  Women may not, as yet, be ordained as bishops in the Church of England, and parishes enjoy a statutory right to veto the appointment of a female incumbent.  However, there is no English law to prevent male priests ordained by the Irish woman bishop from officiating anywhere in the Church of England.  The parish veto applies only to women priests, not to male priests ordained by a woman bishop.  Moreover, clergy from the Church of Ireland who wish to officiate in England are not subject to the Overseas and Other Clergy Measure 1967, and so do not require special permission from the two Archbishops.  (The 1967 Measure applies only to Anglican Churches outside the British Isles, not to the Anglican Churches in Wales, Ireland and Scotland.)    

Citing an opinion of the Legal Advisory Commission published in 2004, Adam points out that the 1967 Measure refers to recognition of the orders of Churches rather than orders conferred by individual bishops.  Canon C1, which was promulgated about the same time as the 1967 Measure, confirms that to be a ‘priest’ in English law, one must have been ordained in the Church of England, ‘or ha[ve] had formerly episcopal consecration or ordination in some Church whose orders are recognised and accepted by the Church of England’.

These modern authorities are entirely consistent with the requirements of the 39 Articles that any valid ministry must have lawful authority.  All the authorities point to the conclusion that there could never be an Anglican equivalent of the late Archbishop Lefebvre.  If a ‘rogue’ bishop purported to ordain priests without any authority other than his own episcopal orders, such ordinations would be invalid.  This is because they would contravene the fundamental principle of Article 23, that those who administer and receive ordination both require ‘publick authority given unto them in the Congregation’.   They could not be valid just because the rogue bishop used an authorised ordination rite, or that he intended to do what the Church does.  

It must be admitted, however, that there is little case law on irregular ordinations, and this is inconclusive.  In Bishop of Natal v Gladstone (1866) Law Reports Equity 1, the Bishop sued the trustees of the Colonial Bishoprics Fund (of whom Gladstone was one) for payment of his stipend, which they had withheld.

The Bishop had been consecrated by the Archbishop of Canterbury and sent to Natal, South Africa, under the authority of letters patent of the Crown.  The problem was that the letters patent were issued without the authority either of the Westminster Parliament or of the South African colonial legislature.

The Fund had been set up to pay the stipends of colonial bishops.  However, the trustees argued that, because the letters patent did not have statutory authority, either in Britain or South Africa, the Bishop’s appointment was a nullity.  He was not really the Bishop of Natal and so any payment to him out of the Fund would be in breach of the trust.

The Court held that the Bishop was a bishop of the Church of England, because he had been consecrated by the Archbishop on the mandate of the Crown.  The Crown did not require statutory authority to order the consecration of a new bishop.  It had power to do so under the Royal Prerogative.

This case tends to support the view that the validity of an ordination in English law is dependent on its lawfulness.  As the court said, if the Archbishop had consecrated the Bishop without the royal mandate, the consecration would have been unlawful, and the Bishop would certainly not have been a bishop of the Church of England.  However, the court specifically declined to speculate as to ‘what his peculiar status in the Catholic Church of Christ might be’ (p.47).

In Bishop of St. Albans v Fillingham (1906) Probate 163, the ecclesiastical court disciplined the Rev Mr Fillingham after he purported to ordain a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  The court held that such action was ‘an usurpation … of powers which belong to the Christian society itself and … an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  This dictum echoes Article 23.  However, Mr Fillingham was not a bishop, only a priest.  The charge against him was ‘purporting to ordain a priest without himself being a bishop’ (p.176).

The case of Macmanaway (1951) Appeal Cases 161 concerned a priest of the Church of Ireland who got himself elected to Parliament.  However, the law then in force provided that any person ‘having been ordained to the office of priest or deacon’ was ipso facto disqualified from election to Parliament.

The Privy Council confirmed that the Rev Mr Macmanaway was indeed disqualified.  It was not relevant that he belonged to a disestablished Church rather than to the Church of England: ‘any ordination that can properly be described as episcopal is a valid admission of a person to the order of priest or deacon … whether within or without the Church of England’ (p.173).

This dictum may support the view that an episcopal ordination may be valid even if unlawful, just so long as it is recognisably episcopal.  However, it must be remembered that Mr Macmanaway’s priestly orders were not questioned in the case.  It was not suggested that he had not been ordained, or that his ordination had contravened either English law or the constitution of the Church of Ireland.  The only issue was whether the legal prohibition on priests and deacons being elected to Parliament applied only to Church of England ordinations, or to ordinations in other episcopal Churches.

Apart from Apostolicae Curae and the Lefebvre case, there seems to be little Roman Catholic jurisprudence concerning the validity or legality of ordinations.  The Catholic Church has an annulment procedure for ordination (canons 1708-12), just as it has for marriage but, unlike the marriage annulment procedure, it is rarely used (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.1019).

Law and Religious Doctrine

‘the courts should not merely be religiously neutral: they should not enter into matters of religious doctrine at all.’

Editorial, Ecclesiastical Law Journal, vol 12, no.3, September 2010, p.264

This statement, coming as it does from the editor of a legal journal dedicated to ecclesiastical law, is frankly shocking, even if the ‘courts’ referred to are the secular courts only, rather than the ecclesiastical courts.

The function of the courts concerning Acts of Parliament and other legislation, also contracts, wills and trusts, is always the same.  It is to give effect to the intention of those who made them, i.e legislators, contracting parties, testators, founders or settlors.

It therefore follows that if a statute, contract or trust imports a religious doctrine into its provisions, the court may be obliged to examine that doctrine, in order to give effect to the statute, contract or trust.  Such examination will not involve any judgment of whether the doctrine is true or false (the courts have always recognised that they must be ‘neutral’ on this question), but it will involve a judgment about the intention of those who made the statute, contract or trust.

The Human Rights Act 1998 recognises the subject’s qualified right ‘to manifest his religion or belief in worship, teaching, practice and observance’ (schedule 1.1, Article 9).  The courts are required to protect this right against public authorities who would infringe it (ss.6 to 8).  It is hard to see how they can do this without first ascertaining the religious belief that is the subject of the right.  If the subject’s religious belief is not properly understood, there is no way of knowing whether or not the public authority has infringed the subject’s right.

Questions of religious belief may be factually complex.  However, courts routinely assess highly complex evidence.  Every day of the week judges with no medical qualifications assess medical evidence in personal injury and clinical negligence cases.  They assess evidence concerning construction engineering, intellectual property and foreign law.  It is a wholly unwarranted suggestion that religious doctrine is somehow uniquely difficult and impenetrable.

Modern Church trusts have been deliberately worded to avoid references to religious doctrine, in order to avoid a repetition of the famous (or infamous) Free Church case, which is discussed separately.  However, this does not justify the dogmatic assertion in the editorial.  Of course, the court must not imply a religious doctrine into a trust when this was not the settlor’s intention.  That would be incompatible with its function of giving effect to the settlor’s intention.  But that does not justify an a priori rule that the court will never investigate a religious doctrine in any circumstances. 

It must be acknowledged that strongly held religious beliefs have sometimes prompted very weak legal claims.  The obiter dicta emphasizing the limits of the court’s doctrinal responsibilities may reflect an understandable judicial impatience with such claims.

However, weak claims motivated by religious belief should still be treated exactly the same as other weak claims.  An evidentially weak claim (as distinct from an evidentially complex claim) will fail the standard of proof.  If a claim  is very badly formulated or discloses no reasonable cause of action, it can be struck out.  If a provision in a contract or trust is so vague or obscure that it is impossible to ascertain the intention behind it then it will fail for uncertainty.

Custom in English Ecclesiastical Law

Some cases in the old ecclesiastical courts concerned disputes between clergy over the right to officiate in a particular church or chapel, and the right to receive the fees due for such official duties.  With no detailed statutory regulation of pastoral organisation and fees, such disputes could be difficult to decide, and often required an investigation of local custom.

Questions of custom tended to arise from disputes over money.  An incumbent would plead a local custom in order to extract a fee from a parishioner.  An impoverished curate would claim a customary right against the local incumbent in order to eke out a living from fees.

The case of Line v Harris (1752) 161 English Reports 54 concerned a dispute over which clerk was the lawful minister of a particular place of worship.  The Court of the Arches had first to decide whether the place was a parish church or a chapel.

Having reviewed the evidence, the Court concluded that the place was a chapel of ease.  This being the case, ‘as the vicar … had the cure of souls throughout the parish he might officiate in the chapel himself, as it appeared he did three times a year to preserve his title, and of common right the vicar had the nomination of the curate’ (p.58).

However, the Court acknowledged that this rule was not of universal application: ‘though of common right the nomination of the curate of a chapel of ease is in the [incumbent] … by custom or composition it might be in other persons’.

In Patten v Castleman (1753) 161 English Reports 74 and 143, the Rev Mr Castleman sued Mr and Mrs Patten for a marriage fee, even though they had not been married in his church or by him.  He claimed that he was entitled to the fee by custom, as Mrs Patten was one of his parishioners.

The Court observed that ‘If … no law has established a fee for actual marriage, it can be demandable only by custom.  If the custom is denied, a prohibition will go to try it at common law and it must be immemorial [thus very difficult to prove] … but if the custom is admitted then the spiritual court may proceed’.

Mr Castleman’s claim was rejected: ‘Clearly by common law this custom is not proved, for it is not sufficiently proved even by the ecclesiastical law, which requires a usage for 40 years’.  Moreover, ‘[even] if it had been proved, the custom would be unreasonable, for no ecclesiastical law warrants … a fee where no service is done’.  In the earlier case of Burdeaux v Lancaster (circa 1699) 88 English Reports 1242, a vicar claimed a customary fee for a baptism which he had not performed, again unsuccessfully.

The attitude of the ecclesiastical and secular courts to local customs was discussed by Rupert Bursell in ‘What is the Place of Custom in English Canon Law?’ (Ecclesiastical Law Journal, January 1989).

Bursell’s account makes clear that the ecclesiastical courts were readier to accept local custom than the secular courts.  Mediaeval canon law required a relatively short period of duration for a custom to become legally enforceable.  The period varied from 30 or 40 years (as in Patten v Castleman) to as little as 10 years.  Common law was much stricter, prepared to enforce a custom only if it had existed from time immemorial.

Canon law was even prepared to accept custom contra legem, that is, custom which positively contravened a written law.  Custom contra legem, by contrast, was anathema to English law.  Thus custom could never contradict statute law, but if there was no statute, the courts were prepared to give legal effect to a custom, though there was always a tension between the secular and ecclesiastical courts as to the period of time required to establish a legal custom.

After reviewing the case law, Bursell concluded that ‘the ecclesiastical courts continued to apply the canonical principles as to custom’ long after the Reformation (p.17).  Moreover, the secular courts acquiesced in this to some extent, because ‘a prohibition would not necessarily be issued’ when the ecclesiastical court enforced a custom of short duration, despite the much stricter common law test of custom.

Bursell’s account is interesting as a historical study, but ecclesiastical custom qua law is now almost non-existent.  The detailed modern statute law leaves little scope for custom.

It is true that the 19th century pastoral legislation did not entirely remove disputes over customary fees.  In Archdeacon of Exeter v Green (1913) Probate 21, the Archdeacon claimed that an ancient fee known as a procuration or proxy was legally due from each incumbent during his visitation.  One of the incumbents, the Rev Mr Green, disputed the Archdeacon’s claim.  The consistory court supported the archdeacon.  The judgment is interesting to read, but procurations along with other ancient fees were subsequently abolished by the Ecclesiastical Jurisdiction Measure 1963, s.82(3).

The appointment of churchwardens is one aspect of modern ecclesiastical law where custom is still important.  The Churchwardens Measure 2001 provides that, as a general rule, both churchwardens should be elected by the parishioners.  It seems that the incumbent may join in the election but does not have a special casting vote (s.5(6)).

However, the 2001 Measure permits existing customs in particular parishes (s.11(2)).  Thus if the incumbent customarily exercises his canonical right to appoint one churchwarden, the Measure permits this mode of election to continue.  Likewise, the Measure permits a custom in a particular parish of electing one churchwarden only, or three or more.

The test of a custom under the 2001 Measure is fairly stringent by the standards of ecclesiastical law.  To be valid the custom must have originated before 1925 (s.13(1)).  Parishioners may vote to abolish a custom, but abolition requires the consent of any one with a customary right to appoint a churchwarden, other than the incumbent (s.12).  The 2001 Measure is also subject to contrary provision in any local Act of Parliament or statutory scheme affecting a particular parish (s.11(1)).