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Tag: Synodical Government Measure 1969

The Diocesan Board of Finance: Constitution, Custody and Management

The property of an English diocese may be divided into 4 categories

(1) parochial (i.e parish property)

(2) benefice

(3) episcopal and

(4) cathedral.

The Diocesan Board of Finance (henceforward ‘DBF’) is only concerned with (1) and (2).  (3) is now the responsibility of the Church Commissioners (cf Episcopal Endowments and Stipends Measure 1943).  (4) is the responsibility of the Cathedral Corporation, though subject to some oversight by the Church Commissioners.

Constitution

The Diocesan Boards of Finance Measure 1925 requires every diocese to have a DBF.  However, the 1925 Measure did not invent DBFs.  They have probably existed since Victorian times.  Introducing the Measure to the House of Commons, Lord Hugh Cecil observed that ‘There are [already], all over England, diocesan boards of finance, and it is desired by this Measure to bring them all under one form’ i.e constituted as companies (Hansard vol 189, 16th December 1925).

The DBF must be incorporated as a company under the Companies Acts. This is in contrast to the parochial church council, which is a statutory body corporate, but not a company. Other ecclesiastical committees, if required to be incorporated, are statutory corporations, not companies.

Why are DBFs different?  The evident policy of the 1925 Measure was to permit local flexibility and discretion.  Thus the Measure provides that the DBF’s constitution may ‘confer … such further powers on the [DBF] as the diocesan synod … may think necessary or expedient in view of the requirements of the diocese’ (s.1(2)(c)). A Church of England report observed that ‘the diocesan synod has considerable discretion as to the constitution of its DBF … DBF constitutions … show a wide variety of provisions governing membership of a DBF and … [its] directors’ (DBFs: Conflicts of Interest, para 1).

The DBF’s title may cause confusion.  A DBF is called a board, but it is constituted as a company.  There is, of course, an important legal distinction between a company and its board of directors.

The bishop must be a member of the DBF (though not necessarily its chairman). A majority of the DBF’s members must be

(1) elected, either by the diocesan synod or by the deanery synods of the diocese

(2) members of the diocesan synod (membership of a deanery synod will not suffice) and

(3) laymen (or laywomen).

The DBF, then, is constituted by the diocesan synod, and is accountable to it.  The 1925 Measure provides that the DBF ‘shall in the exercise of its powers and duties comply with such directions as may be given to [it] by the diocesan synod’ (s.3(1)).

S.19 of the Dioceses, Pastoral and Mission Measure 2007 suggests that it is possible for 2 or more DBFs to discharge their functions jointly, or delegate their functions to each other.  It is also possible for 2 or more dioceses to create a single, interdiocesan DBF.  Such interdiocesan arrangements concerning ‘any body corporate or unincorporate or committee … other than a diocesan synod or bishop’s council’ (s.19(1)) require the authority of a statutory scheme made by the bishops concerned, with the approval of their respective diocesan synods, and of the Charities Commission.

The 1925 Measure does not mention the Church Commissioners (or Ecclesiastical Commissioners as they were then known).  However, as the DBF’s responsibilities have broadened since 1925, so it has become subject to the oversight of the Church Commissioners, as well as the local synod.

Thus the Church Property Measure 2018 obliges DBFs to provide information required by the Church Commissioners on any matter concerning its functions under that Measure.  And the DBF must ‘have regard’ to any advice tendered by the Commissioners concerning those functions (s.40).

Function

The DBF has broad powers ‘to hold real and personal property for purposes connected with the Church of England’, and ‘to transact business in connection with the Church of England and the diocese …’ (1925 Measure, s.1(2)).  In practice, the DBF’s principal responsibility today is the maintenance of ministry in the diocese, and hence to acquire sufficient property and income to achieve this.  Also to meet its own office expenses, and certain other diocesan expenses. However, it is argued that parochial and benefice property are the nucleus of the DBF’s function.

Parish property ((1) above) may be subdivided into

(1) property regulated by the Parochial Church Councils (Powers) Measure 1956.  This includes ‘property … applicable to purposes connected with [the] powers, duties or liabilities’ of the parochial church council (‘the PCC’) (s.4(3)).  Also property acquired property acquired by the PCC ‘for any ecclesiastical purpose affecting the parish’, or for ‘educational schemes’ (s.5(1)).  Such property is likely to consist principally of a church hall and parish funds.

(2) property regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.  This is property ‘held on [specific] charitable trusts, established for ecclesiastical purposes’, of which trusts the incumbent and churchwardens are ex officio trustees (s.2), e.g trusts for the provision of religious education.

Benefice property ((2) above) comprises

(1) the church and churchyard

(2) the parsonage (i.e the official residence of the incumbent)

(3) other official residences and

(4) glebe, which provided the incumbent’s income.

(Tithe and tithe rentcharge have now been abolished.)

Some dealings will affect all species of parochial and benefice property.  Parishes and benefices, and hence their property, are regularly subject to reorganisation under statutory powers now contained in the Mission and Pastoral Measure 2011.  The DBF is required to hold a pastoral account, for the income and expenses of a reorganisation (2011 Measure, ss.93 and 94).  A reorganisation proposal is required to consider ‘the financial implications for the diocese’ (s.3(2)), but (perhaps surprisingly) the DBF is not required to be consulted about a reorganisation, except where this involves the closure of a church (s.21(7)).

Parochial and benefice property may also be subject to a sharing agreement, made with other Christian denominations under the Sharing of Church Buildings Act 1969.  The 1969 Act provides that the DBF must be a party to such an agreement (s.1(3)), so will be able to influence its terms and performance.

The DBF has a general power to buy or otherwise acquire, and to grant, land and buildings for use as a church or other place of worship, or as a churchyard, church hall and parsonage (Church Property Measure 2018, s.28).  The 2018 Measure also provides for the grant of land to the DBF for such uses (ss.29-31).

(1)  The Parish

The PCC may not acquire, sell or otherwise deal with land (other than short leases) or trust property without the DBF’s consent.  To ensure that this rule is observed, such land or trust property must be transferred to, or become vested in, the DBF as legal owner (1956 Measure, s.6).  Nevertheless, the PCC remains responsible for all liabilities and outgoings relating to the property (s.6(4)).  A similar rule applies to trust property regulated by the 1964 Measure.

These rules reflect the distinction found in trust law between (1) custody and (2) management.  The DBF is custodian of parish property, while the parochial authorities are its managers.

Minor dealings with parish property below a certain specified value will not require the DBF’s consent (1956 Measure, s.6(4A), 1964 Measure, s.5A).

Parish accounts must be laid before the DBF annually (1956 Measure, s.8(4)).

The DBF has custody of parochial land and trust property, but it has no charge over parish funds (e.g bank deposits and ‘personal’ investments that are not subject to a specific trust).  However, it has long been the practice (again, perhaps since Victorian times) for parishes to make an annual contribution to diocesan expenses.  This is known as the parish share or quota.  It is possible to see, proudly displayed on a church noticeboard, a ‘certificate’, signed by the grateful bishop, and ‘presented in recognition and appreciation of your [parish] share’.

The Synodical Government Measure 1969 makes an oblique reference to the practice: ‘the diocesan synod [may] delegate to the deanery synods … the determination of parochial shares’ (s.5(4)).  Thus, unlike most charitable giving, the parish does not simply decide what it wants to donate. The local synod assesses what it should pay.

Roman Catholic law empowers the bishop to impose a ‘moderate tax’ (tributum) on parishes ‘proportionate to their income … for diocesan needs’ (Code of Canon Law 1983, canon 1263).  This taxing power apparently originated in the cathedraticum, a payment made ‘as a sign of … subjection to … episcopal authority’ (The Code of Canon Law.  A Text and Commentary, eds Coriden, Green and Heintschel, New York 1985, p.866).  Perhaps the Anglican parish quota / share was inspired by this Catholic custom.  However, though the quota / share assessment may resemble a charge or tax, payment of it is purely voluntary.  The wording of the 1969 Measure does not empower the synod to enforce payment of its assessment, and there is no other statutory provision for enforcement.

Parish property, including trust property, can be appropriated (i.e converted) into glebe, but the PCC or trustees, and the Charities Commission, must consent to this (s.19(3)).

Where a joint PCC of 2 or more parishes is either created or dissolved, the DBF resolves any question that may arise concerning the property, rights, liabilities or functions of the PCCs concerned (Church Representation Rules, as amended by the Church Representation and Ministers Measure 2019).

If there is a dispute over an entry on the parish electoral roll, or over the outcome of a synodical election, the DBF may be liable to meet the legal expenses of resolving the dispute (ibid).

(2) Church and Churchyard

The DBF has less direct responsibility for churches (and churchyards) than any other parochial or benefice property.  It is neither custodian nor manager.  The incumbent and churchwardens have custody of the church and its contents, while the care of the church is now the financial responsibility of the PCC.  Dealings with the parish church are subject to the oversight of the archdeacon and the ecclesiastical courts (under the faculty jurisdiction).  Any grants or loans made by the DBF are discretionary.

The statute law follows the common law rule of ownership.  Thus land acquired by the DBF for use as a church or churchyard automatically vests in the incumbent (2018 Measure, s.32).

However, the Ecclesiastical Fees (Amendment) Measure 2011 provided that fees (traditionally known as ‘surplice fees’) that were formerly payable to the incumbent (eg for weddings and funerals) should in future be paid to the DBF.  This was a sensible reform, as the DBF is now responsible for clergy remuneration, and incumbents should not be paid twice for the same work (a fortiori they should not be paid for work done by other clergy who deputise for them).  These fees are the only statutory, compulsory income that the DBF receives.

An agreement between a PCC and a lay rector to compound the latter’s liability to repair the chancel (i.e get rid of the liability in return for a lump sum payment) requires the DBF’s approval (Ecclesiastical Dilapidations Measure 1923, s.52).

Every diocese must establish a fund to meet the cost of inspecting churches (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.45(2)).  The DBF is the obvious body to hold and administer this fund, though this is not explicitly provided for.  The DBF must also meet the expenses of the diocesan advisory committee, which advises on the care of churches (s.37(10)).  If the bishop or archdeacon intervenes in faculty proceedings, the DBF is responsible for their legal expenses, provided it has been consulted in advance (s.60(4-6)).

The DBF has little direct responsibility for a functioning parish church, but considerable responsibility for a church which has been closed, i.e made redundant, under the Mission and Pastoral Measure 2011.

The precise terms of the DBF’s involvement with a closed church will depend on the particular statutory scheme of closure.  However, the DBF is usually responsible for the contents of a closed church, pending their disposal (s.76).  The ownership and management of a closed church may be transferred to the DBF pending sale, or on a permanent basis, perhaps for commercial use and profit (s.63).  If no further use can be found for a closed church, the DBF may be entrusted with the melancholy task of demolishing it (s.58(2)).

(3)  Parsonages

Parsonages, like churches and churchyards, vest in the incumbent, not the DBF.  As with a church, any parsonage acquired by the DBF will automatically vest in the incumbent (2018 Measure, s.32).  Thus the DBF, qua DBF, is neither custodian nor manager of parsonages.

The Repair of Benefice Buildings Measure 1972 requires every diocesan synod to appoint a parsonages board to manage parsonages (s.1).  (Parsonages boards were formerly known as dilapidations boards, but the 1972 Measure abolished this depressing title.)  The diocesan synod has the right to designate the DBF itself as the parsonages board.  If the DBF is designated as parsonages board, it must delegate its managerial functions under the 1972 Measure to a special committee (or committees).

As the parsonage vests in the incumbent, and not the DBF, the DBF has no power to sell a parsonage.  However, the surplus proceeds of any sale belong to the DBF (Church Property Measure 2018, s.13(1)).

Also, if the DBF is opinion that a parsonage house or land ‘is not required [for] the incumbent’s … convenient occupation’, it may request that the property be transferred to itself, and held as glebe (Church Property Measure 2018, s.8).  If the Commissioners and the bishop agree, the bishop may then order the transfer of the parsonage to the DBF, even if the incumbent objects, without the need for any further conveyance (s.8).

As a general rule, parsonage land cannot now be leased.  If not required for the incumbent’s residence, it must be transferred to the DBF as glebe. However, during a vacancy in the benefice, the DBF may agree to the benefice sequestrators leasing the parsonage.  Any profit left over when the benefice is filled must be paid to the DBF (s.37(1)).

There may also be some old leases of parsonage land, granted by incumbents before the Endowments and Glebe Measure 1976 took effect.  The incumbent remains the nominal landlord of such a lease.  However, the DBF effectively manages the lease.  It is entitled to information from the incumbent or sequestrators concerning leased parsonage land (s.6).  The rent must be paid to the DBF (s.7), and is treated as the DBF’s income, not the incumbent’s.  For its part, the DBF, not the incumbent, meets all the costs of the landlord’s obligations and liabilities.

(4)  Other Official Residences

Non-incumbent parochial clergy (assistant curates, team vicars etc) do not own their official residences.  If a curate’s house is supplied by the PCC, or by a parochial trust, it will vest in the DBF as custodian, under the 1956 or 1964 Measures discussed earlier.

An official residence may also be acquired and held by the DBF in its own right.  The Diocesan Boards of Finance Measure 1925, as amended, provides that the DBF may not alter or dispose of a team minister’s residence without informing and consulting that minister (s.3(2)).

The Ecclesiastical Offices (Terms of Service) Measure 2009 provides that the parsonages board, not the DBF, is ‘housing provider’ for all non-incumbent diocesan officeholders who are entitled to housing as part of their ‘common tenure’ (s.4(7)).  As housing provider, the parsonages board now has similar responsibility for managing other official residences as it has for parsonages (cf Terms of Service Regulations 2011, reg 12).

As mentioned, the DBF may also be the parsonages board.  If it is not, the parsonages board has an independent power to hold property (1972 Measure, s.1(5)).  However, the common tenure regime does not require the parsonages board to be the legal owner of the housing that it provides.  ‘Housing provider‘ does not necessarily mean ‘housing owner‘.  It should be possible for a parsonages board to provide and manage a residence that is legally owned by the DBF.

(4)  Glebe

The most significant extension of the DBF’s functions since 1925 occurred when the Endowments and Glebe Measure 1976 transferred all benefice glebe to the DBF (by s.15).  Hitherto the glebe had vested in the individual incumbents and been managed from London by the Church Commissioners.

The effect of the 1976 Measure was to convert benefice glebe into diocesan glebe, making it the investment property of the entire diocese.  The DBF’s function was ‘to hold, manage and deal with the diocesan glebe land for the benefit of the diocesan stipends fund‘, i.e clergy remuneration.

The Church Property Measure 2018 makes a distinction between 2 types of glebe

(1) historic glebe, which vested in the DBF under s.15 of the Endowments and Glebe Measure 1976 and

(2) glebe held under the 2018 Measure or its predecessors, or under a reorganisation scheme (s.48(6)), i.e property acquired by the DBF after the 1976 Measure came into force.

The parish share, discussed above, is income.  The glebe, by contrast, is capital, a portfolio of capital assets.  The DBF’s functions concerning glebe are different from those concerning parish property.  While the DBF has custody of parish property, it is required ‘to hold, manage and deal with the diocesan glebe land for the benefit of the Diocesan Stipends Fund’ (s.16(1)).  The DBF both owns and manages the glebe.

To this end the DBF must have a scheme for the management of glebe land (s.17).  In managing and dealing with glebe, the DBF is itself subject to the oversight of the Church Commissioners.  Any changes to a management scheme require the Commissioners’ consent (s.17).  The Commissioners may even suspend a scheme if it is not being complied with, or not achieving ‘efficient management’ (s.18(1)), effectively putting the DBF into ‘special measures’.  The DBF is also required to report to the Commissioners on ‘such matters as the Commissioners specify’, and transactions concerning glebe (s.16(2)).

Some dealings with glebe (sale, lease, mortgage) may require the consent of the Commissioners.  However, consent is not required if the dealing is an arm’s-length commercial transaction and the DBF is advised by a qualified surveyor (s.21).  The same rules apply to the purchase of land by the DBF (s.28).  The relevant PCC and clergy must be notified of a proposed dealing (s.22).  Disposal proceeds must be allocated to the stipends fund.  The DBF must keep appropriate accounts (s.26(5) and (6)).

The DBF is empowered to require an incumbent or benefice sequestrators to provide information and documents concerning historic glebe ((1) above) in their area, and may even take them to court if they neglect to comply (s.16(4) and (5)).

Any dispute between the DBF and an incumbent or sequestrators concerning the historic glebe ‘or rights … to which the land was subject or of which it had the benefit’ is decided by the Commissioners.

Although the ownership and management of glebe was transferred to the DBF by the 1976 Measure, the Commissioners continued to hold the diocesan stipends fund for many years thereafter.  Not until the Miscellaneous Provisions Measure 2000 were the funds transferred to the DBFs (s.1(1)).  The funds are regulated by the Diocesan Stipends Fund 1953, as amended.

As well as stipends, the DBF is responsible for certain compensation payments to clergy for loss of office.  Compensation for officeholders who are made redundant as a result of pastoral reorganisation is regulated by Schedule 4 of the Mission and Pastoral Measure 2011.  An incumbent who is removed under the Vacation of Benefices Measure 1977 (though this hardly ever happens) is also entitled to compensation.

An officeholder who is dismissed for incapability under the ‘common tenure’ regime can bring a claim of unfair dismissal in the (secular) Employment Tribunal.  The DBF is respondent to such a claim and hence liable for any compensation awarded (Terms of Service Regulations 2011, reg 33).

The DBF also has an increasing responsibility for clergy pensions (and those of lay ministers).  The Pensions Measure 1997 provided that, while the Commissioners continue to be responsible for pension contributions in respect of pre-1997 service, the DBF is required to contribute to the post-1997 pension fund held by the central Pensions Board (Pensions Measure 2018, ss.9 and 10).

As part of its pension responsibilities, the DBF must appoint a widows and dependants committee, and a special officer to represent the interests of widows and dependants (2018 Measure, s.51).

The Crockford Preface 1987: Thirty Years On

The Preface excited remarkable interest and controversy.  By a longstanding custom, its author was anonymous.  However, even in those pre-internet days, anonymity was difficult to maintain in the face of relentless media attention.  The then Archbishop of York, Dr John Habgood, publicly condemned the ‘sourness and vindictiveness’ of the Preface, and the ‘scurrilous charges’ that it supposedly made.  Unnerved by the storm of controversy, and threatened with exposure, the author took his own life.

He was subsequently identified as the Reverend Dr Gareth Bennett (1929-1987), Oxford don and priest of the Church of England.  His Preface is 40 pages long.  It was republished in a posthumous collection of his work, To The Church of England (1988, at pp.189-228), edited by Geoffrey Rowell, a sympathetic colleague.  (Bishop Rowell himself died, of natural causes, earlier this year.)

At about the same time, Archbishop Habgood published a more measured assessment of the Preface, in Confessions of a Conservative Liberal (1988, at pp.82-91).  However, the tragic denouement of the controversy damaged his reputation, and may even have cost him the succession to St. Augustine’s Chair when it became vacant 3 years later.

Dr Bennett saw his task as the provision of ‘an informed and critical account of the state of the Anglican Communion and the Church of England in particular’ (p.189).  Hence the need for anonymity.  Anonymity made possible ‘the scrutiny of a writer who is given complete independence’ (p.190).

His essential criticism of ecclesiastical governance was that it fails to enable adequate consultation.  Improved consultation will improve the quality of ecclesiastical governance, by making it more cohesive and inclusive.

The Preface identifies 3 specific failures of consultation, within:

(1)  the Anglican Communion

(2)  the synods of the Church of England and

(3)  the Crown Appointments Commission (now called the Crown Nominations Commission), which nominates diocesan bishops to the Crown.  It was this that caused all the controversy.

(1) The Anglican Communion

The Preface begins with a survey of the fragmented state of the Anglican Communion.  Anglicanism began in England, of course, and the word ‘Anglican’ really means ‘English’.  The Church ‘followed the flag’ as the British Empire spread across the globe.

Bennett observed that ‘The Englishness of the Communion is not what it was … with the spread of American influence and the natural desire of African and Asian dioceses to break with their colonial past and develop their own indigenous styles’.  The Book of Common Prayer and its derivatives have fallen into ‘virtual disuse’ (p.197), and the new liturgies ‘have distinct doctrinal differences from each other’ (p.198).  This prompts the rhetorical question: ‘without its English style what does keep the Communion together?’ (p.197).

Another fragmenting force is the rejection of classical High Anglican theology, which found the Church’s authority in the Bible as this was interpreted in the life and practice of the Early Church (p.191).  Theologians now suggest that the authorities of the Early Church are too obscure, happened too long ago, and in too different circumstances, to guide the modern Church (cf p.200).  Modern man is therefore condemned ‘[to] live amid the ruins of past doctrinal and ecclesiastical systems, looking to the Scriptures only for themes and apprehensions which may inform [him] … ‘ (pp.200-1).

The existing pan-Anglican consultative bodies are not capable of arresting this process of fragmentation.  The Archbishop of Canterbury is no more than ‘an honoured guest’ outside England.  The Primates’ Meeting ‘lack[s] the authority to make major recommendations’ (p.203).  The ordination of women (still a novelty at that time) has undermined the unifying collegial function of the bishops: ‘the episcopal ministry … the focus of unity, has become a focus for Anglican disunity’ (p.199).

Bennett therefore argued for ‘a reconstituted [Anglican] Consultative Council … to meet more frequently, have an adequate secretariat and the assistance of theologians and experts … there will have to be some self-denying ordinance by which the provinces agree that certain matters should not be decided locally but only after a common mind has been established among the Churches’ (pp.203-4).  Thus Churches with very different cultural values would be forced to listen to each other.

This, of course, anticipated the conclusions of the Windsor Report of 2004, which fell flat.  Its proposal for a pan-Anglican ‘Council of Advice’ and an ‘Anglican Communion Covenant’ is really a more elaborate version of Bennett’s proposal.

Archbishop Habgood generously described the analysis of the Anglican Communion as the ‘best part’ of the Preface (p.87), though he did not endorse Bennett’s proposal.  The failure of the Windsor Report may have vindicated him on this point.  Instead, the Archbishop founded his hope for the Communion on a pan-Anglican ‘doctrine commission’ that had recently been established, but this body (if it still exists) has not been conspicuously successful either.

(2) Synodical Government

Bennett was not the first to point out that the House of Laity of the General Synod is not very representative of its constituency.  Ordinary churchgoers cannot elect its members, they can only elect those who do.  The House of Clergy is more representative, but even there the representative quality is diminished by the large number of ex officio members.

However, his most important point was that the General Synod has very little control of ecclesiastical governance.  He observed that, though the House of Commons can vote the government out of office, ‘the General Synod, by contrast, finds itself faced with a government of the Church which is almost wholly independent of it’ (p.212).

The bishops are not accountable to the General Synod in the way that ministers of the secular state are accountable to Parliament.  Ministers have to answer parliamentary questions and give evidence to select committees concerning the exercise of their responsibilities.  There is no equivalent scrutiny of bishops.

It is true that ecclesiastical legislation (Measures, canons and subordinate legislation) requires the Synod’s approval, but there is not much of this, and it is mostly uncontroversial.  Hence ‘most of the debates … are … on reports from various boards or committees … motions … whether passed or amended, lead to no action at all’ (p.212).

The General Synod’s constitution confirms its freedom (of which it takes full advantage) ‘to consider and express [its members’] opinion on any other matters of religious or public interest’ (Synodical Government Measure 1969, sch2(6)(b)).  But what does this have to do with the governance of the Church?

Synodical government is a misnomer if the synods do not govern the Church.  There is a well-known axiom that the Church of England is ‘episcopally led and synodically governed’.  However, Bennett argues that there is little connection between the two: ‘nothing the Synod does has much effect on [the bishops], the administration of their diocese or the work of the leadership group within it’ (p.212).

This explains ‘the irritation which many bishops feel at having to spend so much time at Synod meetings, and their desultory contribution to its debates’ (p.212).  And who can blame the bishops for being bored by the General Synod, if its proceedings have so little relevance to their work?

Although Bennett does not make this point, English bishops differ from their Roman Catholic counterparts as well as their secular counterparts in their lack of accountability.  Canon 399(1) of the Code of Canon Law 1983 obliges every bishop ‘to present a report to the Supreme Pontiff every 5 years concerning the state of [his] diocese … according to a [standard] form … determined by the Apostolic See’.  This form may resemble the articles of enquiry on a visitation.

The bishop presents the report personally on his obligatory ad limina visit to Rome (canon 400(1)).  (Apparently, when the bishop appears before the Pope, a map of his diocese is hung up in the papal library, for the Holy Father’s ease of reference.)  The bishop receives ‘feedback’, not only from the Pope personally, but also from the various departments of the Roman Curia.

Perhaps if English bishops were required to report regularly, and individually, on their leadership of their dioceses to the General Synod (or the constituent convocations) episcopal leadership and synodical government might become more closely linked.  Episcopal interest in synodical proceedings would certainly revive!

Besides the General Synod there are the diocesan synods, but these also lack much constitutional equipment to scrutinise episcopal leadership.  The bishop is required ‘to consult with the diocesan synod on matters of general concern and importance’ (1969 Measure, s.4).  However, the synod can merely ‘advise the bishop on any matters on which he may consult the synod’.

The Archbishop has an ancient power to visit the bishops and dioceses of his province, to the end ‘that means may be taken thereby for the supply of such things as are lacking and the correction of such things as are amiss’ (canon G5(1)).  Archiepiscopal visitations have been held in recent years, but only to particular dioceses or churches, in order ‘to correct and supply the defects of other bishops’ (canon C17(1)).  In other words, an archiepiscopal visitation is not a regular, routine review but only occurs when something goes seriously wrong and the local bishop cannot cope.

Every diocesan bishop is now required to submit to a procedure known as ministerial development review, once every 2 years.  This review is organised by the Archbishop, who must also organise one for himself (Terms of Service Regulations 2009, reg 18(2)).  However, the General Synod is not involved in this, and the review’s conclusions are kept confidential.  The requirement was introduced to demonstrate the bishop’s equality (or ‘common tenure’ as it is called) with other ecclesiastical officeholders, who are also required to undergo ministerial development review, not his accountability to Church members.

(3)  The Crown Appointments Commission

After criticising inadequate consultation between the bishops and the synods, Bennett controversially proceeded to criticise the consultation process for the nomination of new bishops.

He complained of ‘a virtual exclusion of Anglo-Catholics from episcopal office and a serious under-representation of Evangelicals’ (p.221).  He also noted ‘the personal connection of so many appointed with the Archbishop of Canterbury himself’.

Dr Bennett was of the Anglo-Catholic party himself.  Moreover, despite a brilliant academic career (including a starred First from Cambridge), ecclesiastical preferment had eluded him.  He had to endure the agony of being passed over in favour of men of inferior ability, whose churchmanship was totally at variance with his own.  He was therefore vulnerable (as he would surely have realised) to the reproach that his criticism of episcopal appointments was, as Archbishop Habgood carefully explained, ‘an outburst from a disappointed cleric’ (p.83).

Bennett concluded that ‘An Archbishop should have an influence on appointments [but] it is clearly unacceptable that so many are the protégés of one man and reflect his own ecclesiastical outlook’ (p.222).  This was represented by Habgood, and the media, as an ‘attack’ on the Archbishop of Canterbury.

Archbishop Habgood justified his harsh words about the Preface by invoking the imperative of confidentiality.  ‘The [Crown Appointments] Commission can only do its work properly if its members feel free to discuss the lives and characters of [candidates] with total frankness, and if those who provide information can be similarly satisfied that nothing will be disclosed outside the actual meeting itself’ (p.84).

From this he concluded that a commentator who ‘claimed to write knowledgeably about the Commission … must either be abusing confidence … or … speculating on the basis of gossip’.  Either way, the Preface was dishonest.  The Archbishop concluded confidently ‘I believe [my criticism] is irrefutable’ (p.84).

It may not be.  Does confidentiality mean that knowledgeable, and fair, writing about the Commission is actually impossible?  Is the Commission’s work so confidential as to place it above and beyond all criticism?

Of course, the deliberations of the Crown Appointments Commission must be kept confidential, for the reasons identified by Archbishop Habgood.  However, the constitution, procedure and membership of the Commission are not, and should not be, confidential.  They are open to public comment and scrutiny.  And although the deliberations of the Commission are confidential, the outcome of those deliberations (i.e the appointments made as a result of them) is not.

It is not acceptable for a commentator to betray confidences, or make stuff up, and Dr Bennett did neither.  But it is acceptable to draw inferences from what is known of the constitution, procedure, membership (including the churchmanship and personalities of the members) and outcomes of the Commission.  Indeed any worthwhile commentary must draw such inferences, or it will add nothing to the known facts.  Dr Bennett did not betray confidences, nor did he lie.  He merely drew inferences from what was publicly known.

The Crown Appointments Commission is served by 2 appointments secretaries: ‘great power rests with the secretaries [because] they compile the list of candidates’ (p.219).  The Commission is chaired by the Archbishops, and ‘it is usually not difficult for a chairman to steer enough of [a committee’s] votes in the right direction’ (p.221).  The churchmanship of the Archbishops, and of the other Commission members, is known.  If no Anglo-Catholic bishops were appointed then the inference is that either no Anglo-Catholic candidates were shortlisted, or a majority of the Commission voted against them.

Of course, inferences can be mistaken.  Perhaps the bishops approved by the Commission were not mostly former colleagues and protégés of the Archbishop of Canterbury.  (That mistake, at least, should have been easy to correct.) Or perhaps they were simply the best men for the job, and their connection to the Archbishop and lack of Anglo-Catholicism a pure coincidence.  Or perhaps lots of Anglo-Catholics were offered bishoprics but turned them down.

Mistaken inferences may well be irritating to those in confidential possession of the true facts.  But they are not dishonest.  Archbishop Habgood’s criticism of ‘scurrilous charges’ was itself rather scurrilous.

A subsequent nomination of the Crown Appointments Commission suggests that there was some force in Bennett’s criticism.  And it was made when Archbishop Habgood was still in office, and still co-chairman of the Commission.  A candidate for one of the leading sees had a criminal conviction for indecency.  Yet this rather salient fact was not known to the representative members, who then approved the candidate’s nomination in ignorance of his past.  (Perhaps this could not happen nowadays, on account of the rigorous ‘safeguarding’ requirements.)

 

Cathedral Governance: A Constitutional Monstrosity

Kathleen Edwards, The English Secular Cathedrals in the Middle Ages (Manchester University Press, 2nd edition 1967)

This is a most helpful commentary on the confused subject of cathedral governance.  It explains the cause of the confusion, and also demonstrates how little the subject has changed since the middle ages.

The constitution of a cathedral church ought to be a simple thing.  Everyone knows that a cathedral is so called because it contains the cathedra, the official seat of the bishop.  The bishop’s relationship to the cathedral is analogous to that of an incumbent to a parish church.  The bishop is the incumbent of the diocese.  The cathedral is the bishop’s church, the church from which he officiates as bishop.  It is therefore the parish church, or ‘mother church’, of the whole diocese.  The proper function of any other cathedral clergy is to assist the bishop with his official duties, just as the curate assists the vicar.

But of course the constitution of an English cathedral is not nearly so simple.  Edwards relates that ‘the [mediaeval] bishop was more and more drawn away from his cathedral city, both on affairs of state and through … looking after a large diocese.  During his long absences there began to develop some sort of home government among the cathedral clergy’ (p.98).

Thus the cathedral chapter obtained a degree of autonomy from the bishop.  The absent bishop’s place at the head of the chapter was taken by the dean (cf.p.137).

Edwards quotes a graphic and prescient early warning against this separation of bishop and chapter, dating from 1313: ‘the bishop and the chapter … make one body, of which body the bishop is the head and the chapter are the members.  Therefore to argue that the dean is another head is to argue two heads in one body, which is like a monster, and prejudicial to the bishop’ (quoted, p.97).  Needless to say, this powerful argument was not accepted at the time, or subsequently.

However, the mediaeval separation of bishop and chapter makes the point that the bishop’s position is not precisely analogous to that of a parochial incumbent.  The bishop has a power of governance which incumbents do not share.  He is the principal ordinary of the diocese, and also has some responsibility for secular governance, through membership of the House of Lords (canon C18(2) and (8)).

In the old days, such responsibilities necessitated lengthy absences from the cathedral, but the cathedral still had to function without the bishop.  So perhaps the chapter had to have some autonomy then.  Of course, modern transport and communications should make it possible for the bishop to govern both the diocese and the secular state without prolonged absence from the cathedral.  (And bishops usually live right next door to their cathedrals.)  However, these improvements have not, as yet, led to the constitutional reunion of bishop and chapter.

The cathedra is always situated in the choir area of the cathedral.  It is generally an ornate and imposing structure, as befits the ‘principal seat and dignity in the cathedral’ (Cathedrals Measure 1999, s.6(1)).  It is often regally described as the bishop’s throne, an allusion to the power of governance.  However, Edwards points out that cathedra also means a professorial teaching chair (p.177).  Thus the cathedra symbolises not only the bishop’s governance, but also his pastoral function of teaching and guiding.

Moreover, the bishop did not exercise the power of governance in the choir.  The choir was a place of worship, where the Divine office was celebrated.  Governance was done in the chapter house.  (The consistory court would meet in the chapter house.)

The separation of bishop and chapter did not affect the bishop’s liturgical position in the choir.  The bishop continued to enjoy an undisputed precedence at all services at which he was present, and to exercise his pastoral ministry of preaching, ordaining and confirming.

However, the chapter house, as the seat of governance, became the subject of competing claims by the bishop and the chapter.  These claims were settled by the constitution of the particular cathedral.

In the middle ages, the chapter had two functions:

(1) governing body of the cathedral (as it still is) and

(2) bishop’s council, which he consulted about the governance of the diocese.

In other words, the original function of the chapter was to assist the bishop’s governance of both the cathedral and the diocese.

Cathedral constitutions could vary widely.  At Chartres Cathedral, apparently, ‘the bishop was not allowed to enter the chapter house on any pretext’ (p.106).  York Minster ‘denied to its bishop all statutory right to sit in chapter’.  However, most cathedral constitutions gave their bishop some say in the governance of his cathedral.

The competing claims of bishop and chapter were generally resolved as follows:

(1) the bishop had no right to attend ordinary meetings of the chapter, because he was not a member of the chapter

(2) however, the bishop could attend chapter meetings on a visitation, i.e an inquiry into the governance of the cathedral, if he had a constitutional right of visitation in the first place.  Bishops generally did have the right to inquire into the governance of their cathedrals, but the right might be limited in various ways, e.g to particular times or occasions.

(3) the bishop could also convene and preside over the chapter qua bishop’s council, in order to consult it about the governance of the diocese, rather than the cathedral.

Today, of course, the cathedral chapter has no responsibility for the governance of the diocese.  The bishop’s council is now a committee of the diocesan synod, which is completely different from the chapter (Synodical Government Measure 1969, schedule 3.28).

Thus the constitutional separation of bishop and chapter eventually resulted in the constitutional separation of the cathedral from the rest of the diocese.  Yet this separation is hardly consistent with the cathedral’s role as the ‘mother church’ of the diocese.

Nothing illustrates the confused state of cathedral governance so starkly as the position of archdeacons therein.  The function of archdeacons is to assist the bishop’s governance of the diocese within their respective archdeaconries (canon C22(2) and (4)).  But archdeacons, qua archdeacons, have no responsibility for the cathedral.

Edwards notes that ‘The place of archdeacons in secular cathedrals in the middle ages was peculiar … their chief work was in their archdeaconries outside the cathedral precincts’ (p.243).  She suggests that ‘in most mediaeval cathedral churches archdeacons had come to be regarded as the bishop’s official guests, to be treated with the honour due to guests’ (p.249).

Yet archdeacons can be ex officio members of the chapter, even though the bishop, whose diocesan governance they assist and whose church the cathedral is, cannot.  The Cathedrals Measure 1999 further provides that archdeacons, and suffragan bishops too, must be ex officio members of the college of canons established by the Measure for every cathedral (s.5(2)).  But the diocesan bishop is still excluded from ex officio membership of the college.  Not monstrous, perhaps, but all rather absurd.

The Cathedrals Measure 1999, and the bishop’s status as visitor of the cathedral, are discussed in separate posts, filed below.

The Proposed Enabling Measure: A Complex Process of Simplification

‘A New Enabling Measure’ (General Synod Paper 2018, January 2016)

This paper indicates four major proposals for the reform of ecclesiastical legislation.  Three proposals concern existing legislation, as follows:

(1) the consolidation of various pieces of legislation on the same subject into one comprehensive, or ‘consolidated’, Measure. Four consolidation Measures are proposed affecting (1) the Church Representation Rules (2) pensions (3) ecclesiastical jurisdiction and (4) Church property (para 49).

(2) the repeal of obsolete or redundant legislation, by way of a Repeals Measure.  The redundant legislation has been identified as such by the Legal Office (para 50).

(3) the simplification of legislation that is considered ‘over-prescriptive’, by means of special orders approved by the General Synod.  This programme of legislative simplification will be effected by the Enabling Measure referred to in the paper’s title (para 51).

The final proposal concerns future legislation:

(4)  the most important ecclesiastical legislation will continue to be in the form of Measures made under the Church of England (Assembly) Powers Act 1919.  However, Measures are likely to be much shorter in future, and concerned only with ‘important matters of principle and policy’ (para 52).  Matters of detail arising from new Measures will be dealt with by secondary legislation, made under the authority of Measures.  This secondary legislation can then be made or amended by the Church without engaging the 1919 procedure.

This is all quite reasonable.  However, the proposed Enabling Measure (3), as presently described, is very confused.

The cause of the confusion is that the proposed Measure does not specifically identify the legislation that is proposed for simplification.  No explanation is given for this non-specific approach, nor is it easy to think of one.  The Enabling Measure, like the Consolidation and Repeals Measures, is concerned with legislation that has already been made, not with legislation that may be made in the future.  Future legislation will be dealt with by proposal (4).  (Para 54 confirms this.)

It should therefore be possible to identify and schedule the specific legislation to the Enabling Measure.  If it is possible to identify redundant legislation (2), why is it not possible to identify over-prescriptive legislation?

Identifying over-prescriptive legislation would not prejudice the General Synod’s position.  If the Measure identifies a particular piece of legislation as eligible for simplification the General Synod would still decide the precise terms of the simplification order after the Measure has been approved.  It could also decide that a piece of legislation may not be appropriate for simplification after all, and refuse to make an order in respect of it.

Instead of identifying the legislation to which it will apply, the Enabling Measure merely identifies legislation to which it will not apply.  Seven well known ecclesiastical statutes (only seven) are expressly excluded, including the 1919 Act and the Worship and Doctrine Measure 1974 (para 26).  The Enabling Measure itself will also be immune from simplification (though sorely in need of it!).  A simplification order may not alter the purposes for which the income of the Church Commissioners’ general fund is applicable (para 29).

There are other, vaguer limitations, described as ‘pre-conditions’.  A simplification order should inter alia be ‘proportionate’.  It should strike a fair balance between ‘the public interest, the interests of the Church of England as a whole and the interests of any person adversely affected’.  It should not remove any ‘necessary protection’, or prevent the exercise of any right or freedom ‘which [its possessor] mght reasonably expect to continue to exercise’.  It should not be of ‘constitutional significance’ (para 22), or alter the relationship between Church and state (para 23).

The Enabling Measure prescribes an onerous procedure for making orders in respect of the legislation that it fails to specify.  Given that the whole purpose of the Measure is simplification, the complex order-making procedure reads amusingly like something out of Yes Minister.  It fully vindicates the Ecclesiastical Law Society’s warning that ‘The problem of ‘too much’ law is to be addressed by creating more’ (Response, July 2015).

Thus the important business of ‘the removal or reduction of burdens’ (para 17), defined as ‘financial cost … administrative inconvenience … an obstacle to efficiency’ is to be supervised by … a brand new committee!  The Legislative Reform Scrutiny Committee will be a committee of the General Synod, though it will include members of the Archbishops’ Council (para 34).  Also ‘more detailed provision as to the committee’s membership would be contained in the standing orders of the General Synod’.

The Archbishops’ Council will prepare draft simplification orders and submit them to the Legislative Reform Scrutiny Committee.  Before it does this, however, the Council must invite representations on a proposed order from members of the General Synod and ‘other persons and bodies who might reasonably be considered to have an interest’ (para 32).

When the draft order is at last submitted to the Legislative Reform Scrutiny Committee, that committee will prepare a report on it to the General Synod (para 36).  Standing orders will ‘specify any matters which the committee [is] required to consider and report on’, but presumably the report is needed for assurance that the draft order satisfies the various constitutional criteria stated in the Measure and referred to above.

The new committee will therefore resemble the Ecclesiastical Committee of Parliament.  Its functions of scrutinising and reporting on simplification orders are analagous to those of the Ecclesiastical Committee concerning Measures.  Like the Ecclesiastical Committee, the Legislative Reform Scrutiny Committee will be chaired by a senior judge (though an ecclesiastical one rather than a secular one) (para 34).  However, unlike the Ecclesiastical Committee, the new committee will be able to amend the legislation that it considers (para 37).

The 1919 Act requires the Ecclesiastical Committee to consider a Measure and make a report to Parliament on ‘the nature and legal effect of the Measure and its [the Committee’s] views as to the expediency thereof, especially with relation to the constitutional rights of all … subjects’ (s.3(3)).  Yet it will hardly be able to do this effectively in relation to the Enabling Measure, because the Measure declines to identify the legislation to which it will apply.  The Legislative Reform Scrutiny Committee will therefore exercise the Ecclesiastical Committee’s function instead.  Thus the constitutional function of the Ecclesiastical Committee is frustrated, and two committees are required to do the work of one.  Sir Humphrey would be proud!

If, however, the Enabling Measure did specify the legislation to which it applies there would be no need of a new scrutiny committee, because the Ecclesiastical Committee would be able to scrutinise effectively.  As well as being inconsistent with the Ecclesiastical Committee’s function, the proposed order-making procedure is arguably inconsistent with the legislative function of the General Synod ‘to consider matters concerning the Church of England’ (Article 6(a), Synodical Government Measure 1969, sch2), and with the function of the Archbishops’ Council ‘to co-ordinate, promote, aid and further the work and mission of the Church of England’ (National Institutions Measure 1998, s.1(1)).  Striking balances between the public interest and the Church’s interest, policing Church-state relations and determining ‘constitutional significance’ (paras 22-23) are not pertinent to either of these ecclesiastical institutions.

The Church of England should be free to simplify its own administration, provided that simplification will not materially affect the rights, interests and functions of third parties, i.e private individuals, the general public and secular bodies, both private and public.  Any simplification that affects only the rights, interests and functions of ecclesiastical officials and institutions (clergy, parochial church councils, diocesan committees and officers) should be a matter for the Church itself to decide.

We therefore respectfully submit to Sir Humphrey that the simplification of ecclesiastical legislation may well be a sensible reform in principle, but that the proposed Measure requires amendment as follows:

(1) ecclesiastical legislation considered eligible for simplification should be specifically identified and scheduled to the Measure and

(2) the Measure should provide that simplification orders may not materially affect the rights, interests and functions of third parties.

The Ecclesiastical Committee will then be able to scrutinise the Measure effectively, and the General Synod will be able to make the simplification orders without the need for any new committee or special consultation procedures and reports.  If a particular simplification order were to impinge upon third parties in breach of the Measure then that order could be ‘quashed’ by the High Court in judicial review proceedings.

The proposed Measure suffers from two further difficulties:

(1) its title.  The word ‘enabling’ evokes the 1919 Act, which is widely known as the ‘Enabling Act’.  It implies constitutional reform and ecclesiastical autonomy.  Yet the Measure serves only the modest aim of simplifying ecclesiastical administration.  As mentioned, it is not supposed to affect the relationship of Church and state.

(2) a continuing fixation with the Legislative and Regulatory Reform Act 2006.  The Ecclesiastical Law Society’s sartorial criticism of the proposed Measure as an ”off the peg’ solution … borrow[ed] from [the 2006 Act]’ (Response, para 3.2, July 2015) has been answered with an assurance that the Measure will be ‘specifically tailored to the particular context of the Church’ (para 16).  However, it is argued that the 2006 Act cannot be applied to the Church of England, even in a ‘tailored’ form, for reasons discussed in the post ‘Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice’, which is filed below.

Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?

‘it would not be appropriate conduct for someone in Holy Orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives’  (House of Bishops’ Pastoral Guidance)

‘Disciplinary proceedings under this Measure may be instituted against any [ordained minister] alleging … conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders’ (Clergy Discipline Measure 2003, s.8(1)).

Although the Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church, it does not forbid clergy from entering into same sex marriages.  However, the House of Bishops of the General Synod has just issued a robust statement entitled ‘Pastoral Guidance on Same Sex Marriage’, affirming that ‘the Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged’.  The statement was published, appropriately enough, on St. Valentine’s Day, 14th February 2014 (accessed on the Church of England’s internet website the following day).

The statement does not explicitly threaten disciplinary action against clergy who take advantage of the 2013 Act to enter into same sex marriages.  However, the assertion quoted above, that to do so ‘would not be appropriate conduct’, may contain a broad hint (reinforced by being printed in bold text on the internet).  The words ‘appropriate conduct’ echo s.8(1) of the Clergy Discipline Measure 2003, also quoted above.

Of course, the House of Bishops is not able to decide authoritatively if making a same sex marriage constitutes misconduct under the 2003 Measure.  The Measure confers that power on the disciplinary tribunals constituted by the Measure, and on the higher ecclesiastical courts (cf s.17 and s.20).  The House can only express the collective or majority opinion of its members.  Nor is the House even in a position, collectively, to institute disciplinary action against clergy.  That is the individual responsibility of each diocesan bishop (cf. s.12).

Criminality and Immorality

As the accompanying Code of Practice points outs, the Clergy Discipline Measure provides no further definition of ‘unbecoming or inappropriate’ conduct (para 28).  However, the legislative history of s.8(1) may give some indication of its intended scope.

In the presecular era there was probably little distinction between law and morality.  Behaviour considered immoral was generally also illegal, at least if done in public.  The 1662 Ordinal (and its predecessors) give opportunity to object to the ordination of a deacon or priest on the ground of a ‘notable crime‘.  Writing in the early 18th century, John Ayliffe suggested that ‘All the causes of deprivation [of clergy] may be reduced to these three heads … want of capacity, contempt [of the ecclesiastical court] and crimes‘ (cited in Combe v De la Bere (1881) 6 Probate Division 157 at 163).

Clergy lifestyles were regulated by canon 75 of 1603.  Canon 75 provides that clergy ‘shall not give themselves to any base or servile labour, or to drinking or riot, spending their time idly … playing at dice, cards or tables, or any other unlawful games’.  Canon 109 deprecates ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life’, whether by clergy or laity.  In the early modern period, the ecclesiastical courts were known affectionately as ‘the bawdy courts’, because they exercised criminal jurisdiction in respect of such behaviours.

In the late 19th century ecclesiastical law was amended to take account of the growing divergence between secular law and Christian morality, in order to preserve clergy discipline.  The Clergy Discipline Act 1892 was passed ‘for better enforcing discipline in the case of crimes and other offences against morality committed by clergymen’ (recital).  It provided that clergy were liable to ecclesiastical discipline for ‘an immoral act, immoral conduct or immoral habit’ (s.2).  It further provided that these forms of immorality ‘shall include such acts, conduct and habits as are proscribed by [canons 75 and 109]’: ‘shall include’ suggests that immoral behaviour is not limited to that suggested by canons 75 and 109.

Then the Ecclesiastical Jurisdiction Measure 1963 provided an ecclesiastical offence of ‘conduct unbecoming the office and work of a clerk in holy orders’ (s.14).  ‘Unbecoming’ may be a rather broader term than ‘immoral’.  The Clergy Discipline Measure 2003 seems to broaden the scope of clergy discipline still further, with its phrase ‘conduct unbecoming or inappropriate’, in s.8(1).

Is the wording of s.8(1) broad enough to discipline a clergyman for entering into a same sex marriage?  The purpose of the 2003 Measure was to provide a disciplinary regime for clergy similar to that of secular professions such as doctors or lawyers.  The old terminology which suggested that the ecclesiastical courts exercise a ‘criminal’ jurisdiction over clergy was dropped.  The standard of proof of misconduct was also lowered from the high criminal standard to the civil standard (s.18(3)).  Nevertheless, the Clergy Discipline Measure is still penal, or quasi-criminal, in character.  This means that s.8(1) must be interpreted restrictively or narrowly.

Homosexual acts may be capable of constituting misconduct under s.8(1).  This is clear both from the plain wording of s.8(1) and its legislative history.  However, it does not follow from this that entering into a same sex marriage would contravene s.8(1).  Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal.  The law has permitted or tolerated homosexual acts for many years now.  However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates.  It is a status that is positively conferred by law.

It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

Doctrine and Discipline

Such an argument is also contradicted by the Court of the Arches’ decision in Banister v Thompson (1908) Probate 362.  The decision, like the House of Bishops’ pastoral guidance, concerned a marriage that was valid in English law but contrary to the Church’s teaching, in that case marriage to a deceased wife’s sister.  Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had made such a marriage.  When disciplined for this, he relied on the ecclesiastical jurisdiction to refuse the Sacrament to an ‘open and notorious evil liver’.

The Court did not deny that Mr Banister’s marriage contradicted the Church’s teaching.  It even admitted the difficulty: ‘the recent Act [legalising marriage to a deceased wife’s sister] seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.389).

Nevertheless, the Court firmly rejected Canon Thompson’s defence and upheld Mr Banister’s right to receive Holy Communion.  It was ‘impossible to say that these persons [Mr and Mrs Banister], lawfully married … can … be so described [as open and notorious evil livers] merely because they are living together as man and wife’ (p.390).  The Church’s teaching per se was not sufficient to justify the legal sanction.

It is true that the facts of Banister v Thompson were different from those addressed by the House of Bishops.  The case concerned a lay parishioner’s right to the Sacrament, not a clergyman’s tenure of office.  However, it makes the point that the law cannot very well condemn someone for making a lawful marriage, even if the marriage contradicts the Church’s teaching.  The accusation ‘conduct unbecoming or inappropriate’ is couched in milder language than that of ‘open and notorious evil liver’, but the potential consequences (removal from office, prohibition for life from officiating as a clergyman) are still severe.

The House of Bishops’ statement suggests that ‘The effect of the Marriage (Same Sex Couples) Act 2013 … [is that] there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer’ (para 9).  Banister v Thompson, which is now more than 100 years old, reminds us that this is not the case.  The 2013 Act has undoubtedly widened the ‘divergence’ between Church and state concerning marriage.  However, the divergence  began at least as early as 1857.  By permitting the dissolution of the marriage contract by divorce, and remarriage after divorce, the Divorce and Matrimonial Causes Act 1857 effectively denied the Church’s teaching that the marriage contract, once validly made, is indissoluble except by the death of one of the spouses.

Ecclesiastical law responded to the divergence by imposing disciplinary penalties on clergy who became involved in divorce proceedings.  Today the Clergy Discipline Measure makes clear that clergy who are divorced or separated for adultery or unreasonable behaviour are liable to penalties (ss.30 and 31).  Clergy are also required to disclose divorce and separation orders involving them (s.34).

However, there is still no law to forbid a clergyman who has been divorced from marrying again, even though his former spouse is still alive, or from marrying a divorced person.  There is a general rule that a person who has been divorced and remarried etc may not be ordained, but still nothing to prevent a divorced person who has already been ordained from remarrying.  Even the general rule forbidding ordination is no longer absolute.  A bishop may now obtain a faculty from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)

Thus, if a clergyman is to be disciplined for making a same sex marriage, the court may want to know why such a marriage constitutes ‘inappropriate conduct’ under s.8(1) of the Clergy Discipline Measure, when a second marriage following divorce apparently does not.

For these reasons it is suggested that s.8(1), despite its broad wording, is still not broad enough to discipline clergy for making a same sex marriage that is lawful under English law.

This conclusion does not deny the force of the House of Bishops’ statement qua pastoral guidance.  As the statement says, ‘[clergy] getting married to someone of the same sex would … clearly be at variance with the teaching of the Church of England’ (para 26).  The teaching is found in Canon B30 and in the Book of Common Prayer, which are cited in the statement.

Thus for clergy to make same sex marriages is indeed unbecoming and inappropriate in the context of Canon B30 and the Prayer Book.  However, the disciplinary offence of ‘conduct unbecoming or inappropriate’ must be understood in the context of the Clergy Discipline Measure, and not (at least not directly) in the context of Canon B30 and the Prayer Book.  The Clergy Discipline Measure itself must be understood in the context of English law, of which it is a part.

Discipline and Pastoral Care

The case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 makes clear that disciplinary proceedings should not be used as a device for resolving a pastoral difficulty, however genuine and serious.  The Rev Mr Bland was found guilty of various ecclesiastical offences and sentenced to be deprived of his benefice.  His cantankerous behaviour had alienated the parishioners to such an extent that his Sunday services were attended only by his housekeeper.  The chancellor therefore held that ‘it is my duty to pass sentence pro salute animarum, for the good of souls, which includes both [Mr Bland] and the souls of [his parishioners] … the convicted clerk and the cures where he was working [should] part company now for ever’ (p.1021).

However, the Court of the Arches strongly disapproved this decision, as based on ‘a wholly wrong approach’.  It held that ‘The paramount consideration in selecting the appropriate sentence for an [ecclesiastical] offence … should be the gravity of the offence.  Censure of deprivation … should never be pronounced in respect of an offence which does not merit such censure merely because it is highly desirable to part an incumbent from his parish and there is no other administrative method of removing him from his benefice’ (p.1021-22).

Of course, the Bland case was not concerned with the Church’s teaching.  However, it was concerned with the relationship between ecclesiastical discipline and pastoral care.  Clergy who enter into same sex marriages create a pastoral problem, for the reason identified by the House of Bishops.  They may not drive their parishioners from the Church as the Rev Mr Bland apparently did, but they still cause the Church’s teaching on marriage to be misrepresented or obscured (cf Pastoral Guidance, para 24).

The Court of the Arches’ dictum in Bland, emphasising that an ecclesiastical penalty must be determined according to the gravity of the offence, reinforces its decision in Banister v Thompson.  How can a lawful marriage be regarded as a ‘grave offence’, or indeed as any offence?

The obvious legal solution to the pastoral difficulty is to amend the law, and so bring clergy discipline into alignment with the Church’s teaching.  This would require new legislation making it a specific ecclesiastical offence for clergy to enter into same sex marriages.

Any amendment of the Clergy Discipline Measure to include such an offence would, of course, require the approval of Parliament, which might not be forthcoming in the present climate of opinion.  However, the General Synod has a common law power to legislate by canon, inherited from the Convocations, which does not require parliamentary approval (see Synodical Government Measure 1969).

It has been suggested that canons made under this common law power are not binding upon lay people, but there is no doubt that they are capable of binding the clergy.  The Marriage (Same Sex Couples) Act 2013 also confirms that ‘No Canon of the Church of England is contrary to s.3 of the Submission of the Clergy Act 1533 [ie. no Canon is contrary to the secular law] … by virtue of its making provision about marriage being the union of one man with one woman’ (s.1(3)).  The phrase ‘provision about marriage’, not being limited to the Church’s teaching on marriage, would seem to be broad enough to encompass a new disciplinary canon forbidding clergy to enter into same sex marriages.

Disestablishment, Disendowment and Dismemberment

From the early 12th century until 31st March 1920, a period of about 800 years, the Church in Wales comprised four dioceses (Llandaff, St. Davids, Bangor and St. Asaph) of the Province of Canterbury in the Church of England.

The Welsh Church Act 1914 had a twofold purpose:

(1) disestablishment of the Church in Wales and

(2) disendowment of some of its property in favour of secular local authorities and University of Wales.

Opponents of the Welsh Church Act argued that it had a third consequence for the Church in Wales 

(3) dismemberment, the enforced constitutional separation of the four Welsh dioceses from the rest of the Province of Canterbury, and hence from the Church of England.

The Welsh Church Act was substantially modelled on the Irish Church Act 1869, which disestablished the Anglican Church of Ireland.  However, the Church of Ireland, unlike the Church in Wales, had never been an integral part of either of the two English Provinces.  Ireland always had its own ecclesiastical Provinces.  So although the Church of Ireland had been disestablished, it had not been dismembered.

There is no provision of the 1914 Act that in terms requires the constitutional separation of the English and Welsh Churches, or that the Church in Wales be reconstituted as a separate ecclesiastical province.  S.13(1) of the Act enabled the members of the Church in Wales to make rules for its constitutional self-government but this freedom per se did not require them to leave the Church of England.  At most, it only permitted them to do so.  

The 1914 Act actually envisaged a continuing constitutional link between the Welsh dioceses and the Church of England.  S.3(3) provided that

‘The … constitution … of the Church in Wales may … if the Archbishop of Canterbury consents, [provide] for appeals from [Welsh ecclesiastical courts] being heard and determined by the provincial court of the Archbishop [i.e the Court of the Arches] …’.

However, another provision of the Act, s.3(5), did intervene directly in the constitutional relationship between the Welsh and English Churches.  It provided that

‘As from the date of disestablishment the bishops and clergy of the Church in Wales shall cease to be members of or be represented in the Houses of Convocation of the Province of Canterbury’.

This provision was very controversial in 1914.  Opponents of Disestablishment suggested that it was unprecedented, and that Parliament had never before intervened directly in the membership and procedure of the Convocations, even at the Reformation.  (See the first report of the select committee of the House of Lords on matters affecting the Church in Wales.)

The justification offered for s.3(5) was that it was ‘impossible … to allow the Welsh dioceses to retain their present position in the Convocation of Canterbury because this would create a ‘free’ Church governed and ruled by an Established Church … the remaining English portion of the Province of Canterbury …’ (House of Commons Official Record 1914, volume 61, columns 1805-6).  If the Church in Wales was to become self-governing on the same terms as the Methodist or Baptist Churches, it could not continue to be subject to the legislative acts of the Canterbury Convocation.  Without s.3(5) the primary purpose of the 1914 Act, Disestablishment, would be frustrated.

The 1914 Act was, of course, passed before the Church of England Assembly (Powers) Act 1919.  At that time, the National Assembly and the various ‘conferences’ of the Church of England still existed on a voluntary basis only.  Supporters of Disestablishment argued that any difficulty caused by s.3(5) could be resolved if the English and Welsh bishops and clergy and any lay representatives simply met and deliberated in such a voluntary assembly:

‘After this Bill is passed the Archbishop [of Canterbury] may summon the identical persons to … the identical meeting and … transact identically the same business … They [the Welsh and English bishops and clergy] may do all the business which is now done in Convocation but it will not be Convocation.  That is the sole difference.’ (column 1908).

This suggestion anticipated the settlement created by the 1919 Act, under which the Church Assembly and the Convocations transacted ecclesiastical business, as it were, side by side.  This power-sharing arrangement proved administratively complex and confusing and was brought to an end by the Synodical Government Measure 1969.  Of course, the Archbishop of Canterbury continues to ‘summon’ (or rather, invite) the bishops of the Church in Wales to the Lambeth Conference, another assembly that exists only on a voluntary basis.

However, after the Welsh Church Act became law, the Welsh bishops and the then Archbishop of Canterbury, Randall Davidson, evidently concluded that the practical difficulties of the disestablished Welsh dioceses remaining within the Province of Canterbury were too great.  It was therefore reluctantly agreed that they would have to leave and form a separate ecclesiastical province.

This decision was recorded in a message from the Archbishop of Canterbury ‘To all Christian people pertaining to the Church in Wales’ dated 1st April 1920, the day after Disestablishment (also April Fool’s Day).  1st April was the date of Dismemberment but the proceedings necessary to effect Dismemberment were taken before Disestablishment.

The Welsh bishops were bound to the Archbishop by their oath of canonical obedience to him.  It was the submission of the Welsh bishops to the primatial jurisdiction of Canterbury, and their oath of obedience to the Archbishop, that had originally effected the incorporation of the Welsh Church into the Canterbury Province in the early 12th century.  Therefore in January 1920 the Bishop of St. Asaph (the senior Welsh bishop at the time), acting in accordance with a resolution of the Governing Body of the Church in Wales, formally requested the Archbishop ‘to take such steps as may be necessary to constitute the four Dioceses of Wales into an ecclesiastical province’.

The Archbishop responded by sending letters to the four diocesan bishops in which he stated that he regarded them as being ‘released from any obligation under which you lie by reason of the Oath of due obedience to the See of Canterbury …’ after Disestablishment.  Then on 10th February 1920 the Archbishop declared, in Convocation, that the Welsh dioceses should be ‘separate from the Province of Canterbury and (they so desiring) a distinct ecclesiastical Province’.

Thus it was the Archbishop of Canterbury, Randall Davidson, who created the ecclesiastical Province of Wales.  The Province was not created either by the Welsh Church Act, or by any other Act of Parliament, or by the constitution of the Church in Wales.  There is no provision in the constitution stating that ‘There shall be a Province of Wales’, or that ‘There shall be an Archbishop of Wales’.  The Archbishop of Canterbury’s declaration creating the new Province may have been the last act of English ecclesiastical law to bind the Church in Wales.

The Bishop of St. Asaph, Alfred George Edwards, became the first Archbishop of Wales (though he remained Bishop of St. Asaph as well).  He was not chosen by the Archbishop of Canterbury but elected by the Governing Body (apparently ‘by acclamation’).  However, Randall Davidson presided at the subsequent enthronement ceremony.  Not only that, he also kindly donated a wooden replica of St. Augustine’s Chair for the new Archbishop to be enthroned on.  The replica is always kept in the diocesan cathedral of the incumbent Archbishop (currently Llandaff Cathedral).  It is a visible reminder that the Archbishop of Canterbury created the Province of Wales.

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.

Church Membership: Religion and Representation

Church Representation Rules 1(2) and 54(1) (Synodical Government Measure 1969, schedule 3).

Lay participation in synodical government has always been subject to a religious qualification.  The qualification differs according to the degree of participation.  A distinction is drawn between

(1) a parish elector (a layperson whose name is on the electoral roll of a parish) and

(2) a lay member of a parochial church council (‘PCC’) or synod.

The present religious qualifications are stated in Rules 1(2) (for electors) and 54(1) (for PCC and synod members) of the Church Representation Rules.  The present Rules date from a statutory instrument of 1994 (no 3118(1)).

The original qualifications were first stated in the Rules for the Representation of the Laity 1(1) and 2(1) (Church of England Assembly (Powers) Act 1919, Schedule 1).  They were rather exclusive in character.  An elector had to be

(1) a baptised member of the Church of England or of another Anglican Church and

(2) not a member of any other religious body not in communion with the Church of England.

Thus the religious qualification was based on communion, and communion meant membership of the Anglican Church.  This had the effect of excluding Protestant non-conformists from participation in synodical government.

A PCC or synod member had to be a communicant member of the Church of England / Anglican Church, not just a baptised member, and thus eligible to be admitted to the Anglican Eucharist.

Within the Church of England / Anglican Church, admission to the Eucharist was conditional upon episcopal confirmation.  The rubric of the Book of Common Prayer provided that a communicant had to be either confirmed, or at least ‘ready and desirous’ to be confirmed, as well as baptised. 

Thus the two degrees of participation in synodical government followed the two degrees of communion in the Church.  An elector had to be ‘in communion’ to the extent of being a baptised member of the Church of England, but was not required to be confirmed.  However, a PCC or synod member, who participated in synodical government to a higher degree than a mere elector,  had to be confirmed or at least ‘ready and desirous’, and so eligible for the full communion of the Eucharist.

In the era of post-war ecumenism, the concept of communion was re-examined.  The result was a greater emphasis on baptism as a sacrament common to all Christian communities.  All baptised persons are ‘in communion’ to some extent. 

It was also thought that, if baptism is the basis of communion, then admission to the full communion of the Eucharist should not, or not always, be conditional upon episcopal confirmation.  This view is consistent with Article 25, which specifically denies that confirmation is a sacrament.  Canon 60 of 1603 describes confirmation as a ‘custom’, though also as a ‘holy action’.

The Admission to Holy Communion Measure 1972 empowered the General Synod to permit baptised members of non-episcopal Churches to be admitted to the Eucharist.  Canon B15A, which was promulged under the authority of the 1972 Measure, confers a right to be admitted to Holy Communion on all ‘baptised persons who are communicant members of other Churches which subscribe to the doctrine of the Holy Trinity, and who are in good standing in their own Church’.

The religious qualifications for lay participation in synodical government were revised in accordance with Canon B15A.  The Church Representation Rules were revised by a statutory instrument of 1973 (no.1865).  That instrument noted that ‘The requirement that [an elector] is not a member of any religious body which is not in communion with the Church of England is abolished’.

Rule 54(1) provides that a PCC or synod member must still be a communicant in the Church of England.  However, the definition of a communicant now includes a person who receives Holy Communion in accordance with Canon B15A, as well as a person who has been confirmed.

Rule 1(2) lacks the clarity and simplicity of Rule 54(1).  It provides that an elector must be

‘(a) a [baptised] member of the Church of England or of a Church in communion therewith resident in the parish; or

(b) to be such a member and, not being resident in the parish, to have habitually attended public worship in the parish … or

(c) to be a member in good standing of a Church which subscribes to the doctrine of the Holy Trinity (not being a Church in communion with the Church of England) and also prepared to declare himself to be a member of the Church of England having habitually attended public worship in the parish …’.

A note to the present Church Representation Rules states that ‘The only Churches at present in communion with the Church of England are other Anglican Churches and certain foreign Churches’.  Thus Protestant non-conformist Churches are still not regarded as being in communion with the Church of England, modern ecumenism notwithstanding.

The wording of Rule 1(2) is convoluted, and may also create an unnecessary ecumenical difficulty.  All baptised individuals may be  members of the Church of England, even though also members of non-episcopal Churches.  They may be in full communion with the Church of England by baptism and sharing in the Eucharist.  However, their Churches are still not in communion with the Church of England.

This does not make much sense of the concept of communion.  It may introduce a false distinction between Church membership and communion.  Surely Church membership is communion?

Rule 1(2) also contains a strange distinction between Church of England ‘members’ and members of other Churches.  A member of the Church of England is entitled to enrolment as an elector on the basis of residence alone, whereas a member of another Church must be an habitual attender of worship.

It is hard to see the justification for this distinction.  All baptised and resident persons in the parish are parishioners.  The parish church is the parish church of them all.  A distinction between residents and non-residents of the parish may be justified.  However, if baptised persons from outside the parish choose to worship in the parish church, it is also hard to see why any distinction should be drawn as between them.

The effect of Canon B15A is that Church membership is now relevant only to the question of episcopal confirmation.  Rule 54(1) makes clear that, if one has not been confirmed, one must be a member of another Christian Church in order to qualify for membership of a PCC or synod.

However, references to Church membership have no proper place in Rule 1(2), because parish electors do not (and never did) have to be confirmed or participate in the Eucharist.  It is therefore argued that such references should be removed.  Rule 1(2) should be read in conjunction with Rule 54(1), not in isolation from it.  It will then become clear that the three relevant qualifications for enrolment as a parish elector are

(1) baptism

(2) residence in the parish and / or

(3) regular attendance at worship.

The Revised Canons

For the purposes of legal study and analysis, the revised canons may be divided into 5 categories:

(1) regulations made under statutory power conferred by a ‘parent’ Measure, in effect secondary legislation

(2) regulations made under the ancient legislative power of the Convocations, recognised by common law and now vested in the General Synod (Synodical Government Measure 1969, s.1 and schedule 1)

(3) declarations or summaries of, or references to, statute and common law already in force

(4) mere exhortation, advice and guidance

(5) doctrinal statements

In the first edition of the revised canons, published in 1969, the canons comprised only categories (2) to (5).  Category (1) canons were not introduced until the 1970s. 

A single canon may fall into more than one category, and different provisions of the same canon may fall into different categories.  Categories (3) to (5) are not proper legislation at all.  The difference between categories (2) and (3) is often unclear.  A particular canon may be introducing a new rule for the very first time, or merely restating an old rule.

The 1969 canons resemble a legal ‘handbook’, a guide to the relevant law for those involved in the ministry of Word and Sacrament.  The 1969 edition was the fruit of the 1947 report The Canon Law of the Church of England.  The draft canons appended to the 1947 report cite statutes, legal commentaries and case law for their authority.  This suggests that the intention was to declare or clarify existing law, rather than make new law.

Category (4) canons may have derived from category (3).  They originated at a time when people were legally obliged to attend their parish church, and to pay for its repair through church rates.  Such obligations are, of course, no longer enforceable.  Hence they have been recast as guidance for churchgoers, particularly those involved in parochial administration.  Many of the canons in section F (‘Things appertaining to Churches’) take the form of guidance.

The ‘parent’ Measures in category (1) of the revised canons were passed between 1972 and 1993, a period of approximately 20 years:

(1) Admission to Holy Communion Measure 1972

(2) Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s.9(2), though inserted much later by the Clergy (Ordination) Measure 1990, s.1

(3) Deaconesses and Lay Ministry Measure 1972

(4) Deacons (Ordination of Women) Measure 1986

(5) Ecumenical Relations Measure 1988

(6) Legal Aid and Miscellaneous Provisions Measure 1988

(7) Miscellaneous Provisions Measure 1976

(8) Priests (Ordination of Women) Measure 1993

(9) Worship and Doctrine Measure 1974

The Admission to Holy Communion Measure provides that ‘the rubric … shall not prevent the General Synod from making provision by canon and regulations …’.  The wording of the other ‘parent’ Measures is that ‘It shall be lawful for the General Synod to make provision by canon …’.

Whatever their benefit to the Church, the post-1969 canons have spoiled the character of the 1969 canons as a coherent, unified code or handbook of law for those involved in ministry.  Their subject-matter is the same as that of the 1969 canons, but their character is different.  They are the secondary legislation of different parent statutes, so do not sit comfortably with a single unified code.  Nor were they introduced simply to clarify existing law.  Rather, their purpose was to reform the Church’s ministry of Word and Sacrament.  This required the authority of primary legislation.

The Worship and Doctrine Measure 1974 was central to the policy of reform.  That Measure and the canons promulged under its authority (canons B1-5) form a code of law in their own right, regulating the public worship of the Church following the abolition of the 1662 regime.

The other post-1969 legislation is a response to the sociological changes that have occurred since 1662.  The right of baptised non-Anglicans to receive Holy Communion is confirmed (Admission to Holy Communion Measure).  Joint worship and ministry is permitted between the Church of England and non-conformist Churches under the Ecumenical Relations Measure 1988.  The 1988 Measure and the canons promulged thereunder (B43-44) constitute a code of ecumenical law, similar to the 1974 code of liturgical law.

Lay ministers are given a considerable responsibility for ministry (Deaconesses and Lay Ministers Measure 1972).  Women may be ordained (1986 and 1993 Measures).  Divorced persons may also be ordained (amended 1964 Measure).  Formalities of admission to office that are deemed anachronistic may be abolished (1976 Measure).

The doctrinal canons of category (5) are not secondary legislation, but they now depend for their legal force on the definition of doctrine now contained in the Worship and Doctrine Measure 1974, s.5(1).

Canons are amended from time to time to take account of changes in the statute law, but such amendments do not constitute secondary legislation.

It is nearly 20 years now since the canons were last used as a form of secondary legislation (the 1993 Measure).  The next use of canons as secondary legislation is likely to be the ordination of women to the episcopate.