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

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

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

There seem to be 3 criticisms

(1)  delays in processing complaints

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

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

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

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

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

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

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

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

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

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

Nevertheless the report makes 2 criticisms of the Measure

(1) the wide ambit of ecclesiastical offences / misconduct

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) attempting conciliation / resolution

(2) dismissing the complaint

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

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

(5) finding misconduct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Easter Offering: Duty and Charity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The End of Canon Law in England

The ‘papal’ character of mediaeval canon law in England was the subject of the famous ‘Stubbs-Maitland’ controversy at the end of the 19th century. 

Bishop Stubbs, reckoned the greatest historian of his day, argued that there was a distinctively English canon law in mediaeval times, notwithstanding the nominal allegiance to Rome.  This thesis is set forth in the Bishop’s contribution to the report of a royal commission on the ecclesiastical courts published in 1883.  It is apparently supported by the case of Kemp v Wickes (1809) 161 English Reports 1320, in which the ecclesiastical court drew a distinction between ‘the ancient general canon law’ and ‘the particular constitutions made in this country to regulate the English Church’ (p.1324). 

However, in his book Roman Canon Law in the Church of England, published in 1898, F.W Maitland denied that mediaeval canon law in England possessed any national character.  He apparently satirised Stubbs’ thesis as maintaining that the Church of England was Protestant before the Reformation and Catholic after it!  By contrast, Maitland asserted that the mediaeval Church was governed by papal law, the law derived from papal courts and councils, which was faithfully applied by the English Church courts.

Maitland’s view prevailed (apparently even Stubbs admitted that he had been wrong), though it has been modified by subsequent commentators such as E.W Kemp and R.H Helmholz, who emphasise the flexibility of mediaeval law and its tolerance of local custom.

The break with Rome was also the break with canon law.  At the Reformation, King Henry VIII ordered that Oxford and Cambridge Universities should cease to teach canon law.  Only civil (Roman) law was to be taught in future.

The ecclesiastical courts and the legal community at Doctors’ Commons survived the Reformation, but the inhabitants of Doctors’ Commons were described as ‘civilians’, because they were doctors of civil law only.  They could not be ‘canonists’, since it was no longer possible to take a degree in canon law.

Maitland lamented the prohibition of canon law.  He described it as ‘the great breach of continuity … No step that Henry took was more momentous.  He cut the very life thread of the old learning’: op.cit, p.92.  That, of course, was the intention.  The prohibition of the study of canon law supports Maitland’s thesis.  The obvious reason for Henry’s suppression of canon law was its papalist character. 

Civil law, by contrast, being the law of the Roman emperors, was much more congenial to the King.  Maitland observed that ‘Henry encouraged and endowed the study of the civil law, and the unhallowed civilian usurped the place of the canonist on the bench [of the ecclesiastical court]’ (p.93).

The House of Lords was emphatic in R v Millis (1844) 8 English Reports 641 that ‘The canon law of Europe does not, and never did, as a body of laws, form part of the law of England’ (p.898, emphasis supplied).

However, despite the historical evidence and legal authority to the contrary, it continues to be widely believed, even by lawyers, that the Church of England is governed by ‘canon law’.  Maitland’s victory over Stubbs may have been somewhat hollow.

The 1947 report The Canon Law of the Church of England is admirable as a historical account of canon law.  Its treatment of English law, by contrast, is rather confused.  The very title of the report betrays the confusion.  The authors of the report failed to appreciate that English law and canon law are two different things, just as English law and Roman law are two different things (or English law and French law).  The Church of England is governed by English law, not by canon law.  To speak of ‘English canon law’ is like speaking of ‘English Roman law’.

Yet the confusion persists into the 21st century.  The year 2013 saw publication of the fourth edition of E Garth Moore’s Introduction to English Canon Law.

Dispensation and Ecclesiastical Law

The Reverend Dr William Adam has recently published an interesting and thought-provoking book, Legal Flexibility and the Mission of the Church.  Dispensation and Economy in Ecclesiastical Law (Ashgate Publishing, Farnham, 2011).  The book should encourage fresh thinking on ‘dispensation’ as a subject of ecclesiastical law.

‘Dispensation’ may have two meanings relevant to ecclesiastical law:

(1) The received legal definition of ‘dispensation’ is the relaxation of a general rule in a particular case.

(2) However, the word can also refer to a particular legal-constitutional system or regime.

The Reformation statutes made two points about dispensation:

(1) They denied that the Pope had power to grant ‘licences, dispensations, compositions, faculties, grants, rescripts … or any other instruments or writings … for any cause or matter’ within the jurisdiction of England (Ecclesiastical Licences Act 1533, s.2).  Thus the papal jurisdiction to grant dispensations was abolished, but only along with all other papal jurisdiction.

(2) They denied the power of  the Pope and the Church to dispense from any divine law, as revealed in the Bible (cf. Act of Succession 1533, which denied a power to dispense from the ‘prohibited degrees’ of marriage in the Bible).

However, there was nothing in the Reformation statutes which denied that purely human laws might be dispensed from.

In the 17th century, the constitutional debate shifted from the Pope to the Monarch.  The Bill of Rights 1689 deprecated King James II’s practice of ‘assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without the consent of Parliament’.  It affirmed that this ‘pretended power … by regal authority, without the consent of Parliament, is illegal’.  Again, there was no denial that laws might be dispensed from, provided that the power of dispensation was lawfully conferred and not a mere ‘pretended power’.

In the 19th century Phillimore’s Ecclesiastical Law (2nd edition 1895) made only the briefest references to particular dispensations, and did not treat dispensation as a discrete subject of ecclesiastical law.

The foregoing account may suggest that dispensation is not a difficult or controversial issue in ecclesiastical law.  The only relevant principle of ecclesiastical law is that the power of dispensation must be subject to the laws of both God and man.  However, a Church of England report Dispensation in Practice and Theory, published in 1944, prompted a revival of interest in the subject.  E Garth Moore devoted a chapter of his Introduction to English Canon Law (1st edition, OUP, 1967) to ‘Dispensation’.  That chapter survives in the most recent edition of Moore’s work (3rd edition, 1993).  Dr Adam’s book shows that interest in the subject continues into the 21st century.

The 1944 report was written in the wake of Parliament’s rejection of the revised Prayer Book.  This obliged the Church of England to adhere to the Act of Uniformity and Book of Common Prayer of 1662, even though it had long been recognised that the 1662 regime was outdated and unenforceable.

The ecumenical movement was also gathering pace in the mid-20th century.  This raised the question of whether the Eucharist could validly be administered by a non-conformist minister who was not an episcopally ordained priest.  Underlying both the liturgical and the ecumenical issues was the fundamental religious question of what the Eucharist really is.

The Church of England was powerless to prevent Parliament rejecting its revised Prayer Book, but its own legislative process was also somewhat confused.  The Church of England Assembly (Powers) Act 1919 conferred power on the Church Assembly, a nationwide body, to prepare legislative Measures for Parliament, but the two Convocations of Canterbury and York retained their ancient power to legislate by canon.

Thus there were disagreements on worship and doctrine between the various ‘parties’ in the Church, but the constitutional situation of the Church was unacceptable to them all.  As the 1944 report noted disapprovingly, the unfortunate consequence of the constitutional impasse was a general resort to ‘methods of condonation and dissimulation … which are unbecoming in the relations of fathers-in-God with their sons in the Gospel’ (p.159).

The report’s proposed solution to the Church’s difficulties was ‘the revival or extension of the practice of dispensation’ (p.159).  Individual bishops, or the bishops collectively, should be empowered to dispense from obsolescent ecclesiastical laws and inconvenient liturgical rubrics (cf p.160).

The Church’s mid-20th century constitutional difficulties were subsequently resolved, though not until many years after the 1944 report.  The Convocations ceded their ancient power to legislate by canon to the newly-constituted General Synod, pursuant to the Synodical Government Measure 1969.  Since then canons have become, in effect, the secondary legislation of ‘parent’ Measures.  This has produced much greater legislative coherence.

The Worship and Doctrine Measure 1974 finally gave the Church almost complete control of its liturgy.  The 1974 Measure did indeed provide a new dispensation.  Likewise the Ecumenical Relations Measure 1988 and canons B43 and B44 constituted a new dispensation with regard to ecumenical worship and ministry.

The 1944 report contains a learned account of the historical development of the practice of dispensation in the Church.  However, the report is of very limited assistance to the study of ecclesiastical law, and not only because the ecclesiastical law has changed so much since it was written.  With the exception of Mr Justice Vaisey, its authors seem to have been historians and theologians rather than lawyers. Moreover, the primary subject of the report is the worship and doctrine of the Church, not its law.

The report may also have confused the two legal meanings of dispensation described above.  It argued for an episcopal power of dispensation, but it was really seeking a new dispensation, or regime, of public worship.

Even if the report did not confuse these two meanings, it did not really address the legal difficulty.  The Church’s need in the mid-20th century was for a new regime to regulate its worship and doctrine, i.e a dispensation in sense (2) above.  The power of dispensation in sense (1) was invoked in order to free the Church from laws which were outdated but which unfortunately could not be abolished.  However, dispensation in sense (1) requires legal authority just as much as dispensation in sense (2).  The power of dispensation must itself be conferred by law.  The same constitutional difficulty which precluded the introduction of a new dispensation (2) also precluded the exercise of a power of dispensation (1).

In the case of Martin v Mackonochie (1868) 2 Law Reports Privy Council 365, the Privy Council categorically denied that bishops had power to dispense from the 1662 regime: ‘In the performance of the services, rites and ceremonies ordered by the Prayer Book, the directions contained in it must be strictly observed: no omission and no addition can be permitted’ (pp.382-3).

There is another source of confusion in the 1944 report.  The historical evidence suggests that ‘dispensation’ in the early Church was the process of reconciling heretical and schismatic groups who had left the Church, and Christians who had renounced their faith through fear of persecution (Adam, p.10).  The authors of the 1944 report may have understood ‘dispensation’ in this sense, or something like it, as a process of reconciling the various different parties (Anglo-Catholic, Low Church etc) within the contemporary Church of England.  However, the received legal definition of dispensation, as the relaxation of a general rule in a particular case, bears no resemblance to this idea of reconciliation.

Mark Hill correctly observes that ‘Though well developed in Roman Catholic canon law, no explicit doctrine of [dispensation] is discernible in the laws of the Church of England’ (Ecclesiastical Law, 3rd edition, OUP, 2007).  Adam’s book contains a useful chapter on the Roman Catholic law concerning dispensation.

English ecclesiastical law does contain provision for dispensation.  This is helpfully described in Adam’s book.  The revised canons, and other ecclesiastical legislation, confer power to dispense from a number of general rules concerning the Church’s ministry.  Most of these general rules, and the power to dispense therefrom, are probably derived from mediaeval canon law.

The power of dispensation is generally reserved to Archbishops and bishops.  For example, the Archbishop of Canterbury may dispense from the minimum canonical age for ordination (canons C3(6) and (7)).  Bishops may dispense their clergy from the obligation of residing on benefice (canon C25(2)), though residence will in future be governed by the terms of service regulations and ‘common tenure’.  Bishops may also dispense from the general rule forbidding clergy to engage in secular employment (canon C28).

However, there is little or no ecclesiastical law concerning the exercise of a power of dispensation, the criteria according to which a dispensation should be granted or refused.  Decisions granting or refusing a dispensation are not published.  This affords little scope for legal commentary on ecclesiastical dispensation.

A marriage licence is often described as a ‘dispensation’ from banns.  This may be inaccurate.  It is true that a licence dispenses with the need for banns.  However, dispensation in the legal sense is dispensation from a law, not a need.  A common licence is an alternative to banns, rather than a dispensation from them.

The only marriage licence which may properly be regarded as a dispensation is the Archbishop of Canterbury’s special licence.  The law requires that all Church of England marriages must be solemnised only in an authorised church or chapel, and within the ‘canonical hours’.  The special licence dispenses from this general rule by allowing marriage to be solemnised at any convenient time and place (Marriage Act 1949, s.79(6)).

Canon C14 provides that the officiating Archbishop may ‘dispense’ with the oath of canonical obedience when consecrating a bishop who is to minister outside the Church of England.  Again, this is to dispense with an oath, not a law.  The law, or rule, of canonical obedience applies only to bishops within the Archbishop’s jurisdiction.  If a new bishop is not within the Archbishop’s jurisdiction in the first place, no relaxation of the law is required in his favour, but there is a need to dispense with the oath.

The Constitutional Doctrine of the 39 Articles

The Universal Church

Article 19 refers to the visible Church of Christ, and thereby affirms that the Church may be identified on earth, as well as in Heaven.  Article 26 makes another reference to the visible Church, and states that it contains evil elements as well as good.  In the 1662 Ordinal, the Church is described as the Spouse and Body of Christ.

The visible Church is described only as

‘a congregation of faithful men, in the which the pure Word of God is preached, and the Sacraments be duly ministered according to Christ’s ordinance’ (Article 19). 

Thus the defining characteristic of the Church is a true ministry of Word and Sacrament.  The Church is thereby a ‘witness and keeper of holy writ’ (Article 20).

In connection with this ministry of Word and Sacrament, Article 20 asserts that

‘The Church hath

[1] power [from God] to decree Rites or Ceremonies, and

[2] authority [from God] in Controversies of Faith’.

In a commentary on the 39 Articles, E.J Bicknell draws attention to the different choice of words in Article 20, ‘power to decree’ (statuendi jus) and ‘authority’ (auctoritas).  He suggests that the Church’s ‘power’ over rites and ceremonies (i.e worship) is legislative in character, whereas its ‘authority’ over controversies of faith (i.e doctrine) is judicial in character.

The legislator may change the law, as circumstances demand.  The judge may only declare what the law already is.  Thus new forms of worship may be introduced by the Church, but not new doctrines.  The Church can only declare or clarify existing doctrine (3rd edition 1955, pp.249-53).

Article 34 implies a principle of subsidiarity by affirming that ‘particular or national Churches’ may ‘ordain, change and abolish, ceremonies or rites of the Church ordained only by man’s authority’.  This is a reference to worship, not doctrine.

In discharging its ministry of Word and Sacrament, the Church is not protected from error.  The intercessory prayer in the 1662 Holy Communion service asks ‘that all they that do confess thy holy Name, may agree in the truth of thy holy Word’.  The errors of the late mediaeval Church were, of course, the justification for the Reformation.

Article 20 provides that ‘it is not lawful for the Church to ordain anything that is contrary to God’s Word written’, but it is clearly possible for particular Churches to do so.  The Churches of Jerusalem, Alexandria, Antioch and Rome have erred (Article 19), and so also have General Councils of the Church (Article 21).

Article 23 provides that the ministers of Word and Sacrament in the Church must be ‘chosen and called to this work by men who have publick authority given unto them in the Congregation’.

Bicknell points out that the word ‘called’ is rendered cooptati in the Latin text.  From this he concludes that Article 23 requires that those with the power to choose and call new ministers must themselves be ministers of Word and Sacrament, as distinct from secular officials (p.321).

A Local Episcopate

However, Article 23 does not suggest that a particular rite (laying on of hands etc) is necessary to constitute lawful ministers.  Nor does it refer to episcopal ordination.  The Word and Sacraments come from God, as does the duty to administer them.  However, the ministers are chosen and constituted as such by the Church.  Moreover, the precise structure of the ministry is determined by the Church, and this ministry does not have to be episcopal in character.

The 1662 Ordinal emphasises the local character of the episcopal ministry in England.  The Preface to the Ordinal states that the threefold ministry of bishops, priests and deacons has existed ‘from the Apostles’ time’.  The purpose of the Ordinal is ‘that these orders may be continued and reverently used and esteemed in the Church of England’.

This wording indicates that the basis of the threefold ministry is historical only, and that its retention is a matter of choice by the Church of England, under the terms of Article 34, not in obedience to any divine command.

The Ordinal, like Article 23, indicates the tension between the local, ‘particular’ Church and the universal Church.  The candidate is required to be called by God to the ministry, and is ordained to ‘the Church of God’, not to the Church of England.  However, the human response to the divine calling is determined by ‘the due order of this realm’.  This further indicates the authority of the local Church to settle the structure of its ministry, while affirming the divine origin of that ministry.

The 1662 Prayer Book also indicates the local character of the episcopate.  In the Litany, there is a prayer for ‘the holy Church universal’.  This is followed by prayers for the Monarch and the royal family, which are in turn followed by prayers for the bishops and other clergy, Parliament and government, and the judiciary.

Thus the sequence of the Litany is

Church – Monarchy – Clergy – Parliament and government – judiciary. 

The intercessory prayer in the communion service follows the same sequence.

It is clear from this sequence that the bishops and clergy referred to are those of the Church of England only.  No prayers are offered for any universal episcopal ministry, because no such ministry is recognised.  The bishops and clergy are prayed for in the context of the state only.  It is the state and the nation as a whole, not just its clergy, that are seen as a constituent part of the universal Church.

Modern liturgies, by contrast, imply a universal episcopal ministry, which presumably includes the Roman Catholic and Orthodox Churches but excludes most Protestant Churches.  Thus the 1662 liturgy has been discreetly rewritten.  The modern sequence is now

Church – bishops and clergy – Monarchy, Parliament etc. 

The episcopal ministry is identified with the universal Church, no longer with the local state Church only.

In the early modern period, the Church of England could hardly assert otherwise than that episcopal ministry is local, not universal.  During the Reformation era, most Protestant countries, England’s allies and co-religionists, had abolished the historic episcopate and were distinctly hostile towards it, associating it with popery and error.  Many English Protestants shared this hostility.  Some of the 39 Articles were derived from the Lutheran Confession of Augsburg.

A Federation of Godly Princes

Article 23 raises the question of ‘publick authority’, the power of governance in the Church.  This power is distinct from the ministry of Word and Sacrament.  Article 37 affirms that the power of governance vests in the secular ruler.  The power is ‘that … prerogative which we see to have been given always to all godly princes in holy Scriptures by God himself’.

Canon 2 of 1603 enlarges upon this statement, asserting that

‘the King’s Majesty hath … the same authority in causes ecclesiastical that the godly kings had among the Jews and Christian emperors of the Primitive Church …’.

Article 37 distinguishes between the power of governance and the ministry of Word and Sacrament.  Both come from God, but they are distinct.  Thus the secular ruler does not ex officio participate in the ministry.

Article 34 distinguishes between the universal Church and ‘particular or national’ Churches, of which the Church of England is one.  It does not affirm the right of particular Churches unilaterally to determine ‘controversies of faith’, only rites and ceremonies.  Article 37 is clear that the secular ruler’s jurisdiction over his own particular Church is not subject to any foreign jurisdiction, including that of the Bishop of Rome.

Article 21 also alludes to the distinction between the universal and the particular Churches.  It provides that General (i.e ecumenical, worldwide) Councils of the Church may be convened to determine religious questions, just as they had been during the later Roman Empire and the middle ages, but only at ‘the commandment and will of princes’.

It is possible to discern an early form of international law here: 

(1) There is one universal Church and one ministry of Word and Sacrament.  However, the universal Church comprises a number of particular or national Churches, each ruled by its own ‘godly prince’, an ecclesial United Nations. 

(2) There is only one ministry, which may or may not be episcopal in character, but the structure of the ministry within each particular Church is a matter for that Church only. 

(3) Each godly prince and particular Church has a jurisdiction independent of the others.  However, a General Council may be called with the agreement of the godly princes, as a forum for resolving controversies of faith.

An international Church governed by a federation of godly princes was plausible in the early modern, pre-secular era, and not only to Protestants.  The association of the Church of Rome with the Churches of Jerusalem, Alexandria and Antioch in Article 19 may have reflected an expectation that the former would soon go the way of the latter three.  The reformers may have envisaged a new federation of Churches, perhaps with Calvin’s Geneva as the new Rome.  Catholic princes did not go so far as to repudiate all papal authority, but they too asserted a jurisdiction over their own particular Churches.

Of course, this internationalist ecclesiology has not survived in the modern secular era.  The papacy did not come to an end, the godly princes did.  Modern international law has been drained of any religious content beyond certain ethical norms and ‘human rights’.

The English monarchy was not abolished, of course, and to this day the Monarch remains Supreme Governor of the Church.  Nevertheless, although the Church of England remains ‘established by law’, the English state has otherwise become thoroughly secularised.  The royal supremacy is now justified on political, not religious, grounds.  The wording of the modern Canon concerning the royal supremacy is worded ‘We acknowledge’, not ‘We believe’ (Canon A7).

Even this Canon only applies in England.  The Churches of Ireland and Wales were disestablished in 1869 and 1920 respectively.  As the British Empire progressively disintegrated, the Anglican Churches in the former colonies were re-constituted on an autonomous, voluntary basis.  Thus the Anglican Communion emerged.

The Modern Difficulty

Secularisation and disestablishment have therefore deprived the Anglican Church of the doctrine of governance provided in its presecular formularies.  The royal supremacy is not even mentioned in modern commentaries on Church of England doctrine.  Yet it would be surprising to find a commentary on Roman Catholic doctrine which did not discuss papal supremacy.

Indeed the Anglican Church may be unique among Christian communities in having no clear religious claim of authority.  The Roman Catholic and Orthodox Churches have the Pope and Patriarchs with their claim to be successors of the Apostles.  The Church of Scotland has its God-given presbyterian structure.  Methodists and Baptists have their congregations with the promise of the Lord’s Presence ‘where two or three are gathered together in My Name’.  However, the Anglican Church no longer has its federation of godly princes.

In the 19th century, the tractarians responded to this difficulty by developing a doctrine of Apostolic Succession similar to that of the Roman and Orthodox Churches.  This doctrine became fashionable in the 1830s and 1840s and attracted judicial notice.  It was briefly referred to in the case of R v Millis (1844) 8 English Reports 841 at p.916, and probably influenced the court’s conclusion on ‘holy orders’ in Attorney-General v Glasgow College (1846) 63 English Reports 908.

The effect of the new tractarian doctrine was brilliantly described by Hensley Henson:

‘Episcopacy which, under Elizabeth [I], had been justified as a political necessity, was, under Victoria, exalted as a religious principle.  National establishment which, under the one Queen, had been urged as religiously indispensable, declined, under the other Queen, into a temporary expedient’ (The Church of England, Cambridge University Press, 1939, p.253).

As Hensley Henson implied, and as our analysis has shown, the first difficulty with the tractarian-inspired doctrine of a universal episcopate descended from the Apostles is that it is incompatible with the constitutional doctrine contained in the 39 Articles.  However, it is also hard to reconcile with the present structure of synodical government. 

It is true that modern synodical government in the Church of England (probably in most other Anglican Churches too) scrupulously respects the distinctness and the primacy of the episcopal order, and the bishop’s traditional functions of pastoral oversight and discipline within the diocese.  This reflects the tractarian influence. 

Nevertheless, English bishops do not have Apostolic authority as the Roman Catholic and Orthodox Churches understand this.  They have no power unilaterally to legislate for their Church.  On the contrary, their power is defined and limited by their Church’s constitution.  They officiate within their particular Church, rather than over it. 

Thus any ‘Apostolic’ authority vests in the Church as a whole, not in the bishops alone.  The most that can be said is that the bishops have the largest single share of this authority.

The tractarians themselves came to appreciate the difficulty of reconciling their doctrine with the ecclesiastical system.  Some, though not all, became Roman Catholics.  The most famous of them, Blessed John Henry Newman, later taunted his former co-religionists’ confusion over ecclesiastical governance:

‘In some points you prefer Rome, in others Greece, in others England, in others Scotland: and of that preference your own private judgment is the ultimate sanction’ (Anglican Difficulties and Other Writings, selected by W.S Lilly 1882, p.297).

It is interesting to compare the modern English constitution with the constitutional provisions of the 39 Articles.  In recent decades, and despite vociferous opposition, the secular constitution has been radically altered to confer considerable legislative, executive and judicial power on overseas institutions, such as the European Court of Human Rights and the various institutions of the European Union.  These constitutional changes were inspired by internationalism.  As discussed, the 39 Articles were also inspired by internationalism, albeit of a religious, not secular, character. 

Yet the modern ecclesiastical constitution of England, in contrast to its secular constitution and despite the constitutional provisions of its own formularies, remains resolutely insular in character.  For all its warm ecumenical expressions, the modern Church of England does not acknowledge any ecclesiastical jurisdiction outside itself.

Ecclesia and Ecclesiastical Law

Modern commentators on ecclesiastical law seem to have very little to say on the relationship between the Church’s law and its constitutional doctrine or ‘ecclesiology’.  

The second edition of Phillimore’s Ecclesiastical Law (1895) is nearly 2,000 pages long, but part one, which refers to the constitutional identity of the Church, is a mere 17 pages.  It indicates the tensions and contradictions that emerged in the 19th century.  A modern definition is offered of the Church as ‘a society instituted for the worship of God’ (p.1), but reference is also made to the earlier theocratic definition of the Church as the ‘ecclesiastical state and persons’ and ‘the spiritualty’ (p.2).

E Garth Moore’s Introduction to English Canon Law (3rd edition 1993, eds Timothy Briden and Brian Hanson) merely observed that ‘If modern England in practice approximates more nearly to the American concept [of religion], ancient England approximated more nearly to the Jewish one’ (p.12).

Professor Norman Doe acknowledged, correctly, that ‘much work still needs to be done on the theological and pastoral roots of ecclesiastical regulation’ (The Legal Framework of the Church of England 1996, Clarendon Press, Oxford, p.3).

Mark Hill declined to discuss the Church of England’s religious identity, holding that ‘The meaning, effect and future of establishment is a complex matter of history, ecclesiology, sociology and politics, which is beyond the scope of this book’ (Ecclesiastical Law, 2nd edition 2001, OUP, p.8)

‘Ecclesiology’ is a theological term, which was probably first used in England by the tractarians.  Any theological term is apt to discourage legal analysis of the subject referred to.  Hooker, of course, used the term ‘Ecclesiastical Polity’, which may be more congenial to legal discussion. 

The lawyers of the early modern period felt no embarrassment about discussing ecclesiology / ecclesiastical polity.  The religious doctrine of royal supremacy owes much to English common law.  Canon lawyers seem to have no difficulty with the Roman Catholic ‘ecclesiology’.

The subject described by the tractarians and by the modern Roman Catholic Church as ‘ecclesiology’, and described by Hooker as ‘ecclesiastical polity’, is one and the same.  It is the subject of what the Church is. 

It is argued that an advanced, systematic study of ecclesiastical law is not possible without discussion of this subject.  Any textbook on contract law begins with a discussion of what a contract is.  It discusses the elements of a contract, offer, acceptance, consideration, the intention to create legal relations.  Likewise a commentary on criminal law begins with the elements of a crime, actus reus and mens rea. 

Any worthwhile discussion of ecclesiastical law must therefore begin in the same way, with discussion of what ecclesia, the Church, is.  If theological terminology causes embarrassment, it need not be used.  Ecclesiastical lawyers should not be afraid to develop their own, legal terminology (such as that used in the title of this paper).  Without its defining subject, ecclesia, ecclesiastical law is little more than a quaint assortment of legal anachronisms and curiosities.