Evidence submitted by Dr Augur Pearce,
Lecturer in Law, Cardiff Law School
1. I submit the following considerations
in response to an official invitation dated 9 January 2004. My
current interest is more scholarly than personal, since I am not
resident in England and there is no Crown patronage in Wales.
I had in any event ceased to conform to the Church of England
and joined the United Reformed Church before I moved to Wales
twelve months ago. I do, however, still feel a concern that any
religious structure closely integrated into the process of lawmaking,
or which retains buildings and endowments dating from a period
of government subvention and compulsory public levies, should
be as broad and representative in its appeal as possible.
2. Naturally, I presently hold no office
such as that of an English churchwarden or parochial church councillor;
but in former years, I was a member (and briefly Vice-Chairman)
of a parochial church council, and also a deputy Diocesan Registrar.
I am now an academic lawyer with a particular specialism in both
historical development and current operation of the English religious
constitution, elements of which formed the subject of my own doctoral
research in Cambridge. My post at Cardiff University is that of
Lecturer in Ecclesiastical and Public Law.
3. I believe the existing system of patronage
to be one of the distinctive positive characteristics of the Church
of England. This is the church of all English people, particularly
those who consider themselves Christian, but not merely those
who prefer the forms of service prescribed by canon or who find
personal episcopacy a satisfactory vehicle of oversight. Prior
to the passing of the Patronage (Benefices) Measure 1986, this
genuinely national character of the Church was underlined by the
fact that any person could exercise patronage (apart from those
who owned a religious allegiance incompatible with the very concept
of national churches). Today it is still possible for any person
succeeding to an advowson to decide, at least, who shall present.
The Church of England has never shared the exclusivity of the
Church of Scotland (see the Church Act 1567 (Scotland), s 6) and
the Scots resistance to patronage has no place within it.
4. Patronage also secures a desirable dispersion
of authority within the national church, being a counterbalance
to the Fu-hrerprinzip which personal episcopacy, at its worst,
can embody (comparable with "prime-ministerial" as opposed
to Cabinet government). A normal patron is not appointed by the
bishop and not accountable to him. The 1986 Measure has encroached
significantly upon a patron's rights so that either the bishop
or the archbishop must now consent to their exercise; but even
so the patron has an opportunity to bring fresh ideas to the appointment
process, and to work against any trend toward the creation of
a monochrome diocesan clergy. A patron who is well-informed and
takes his position seriously is also often preferable to a system
of straight congregational "call", since one of the
significant roles of a parish minister is to work with, but not
be one of, his congregation; to lead and encourage, but also sometimes
to present an alternative view.
5. The livings in the gift of the colleges
of the ancient universities are probably the best examples of
how patronage can work. Other corporate patrons, and many private
patrons, also take great care over their responsibilities. I have
no direct experience of being in a parish whose living lay in
the gift of the Crown, but I understand that both successive monarchs
and successive Lord Chancellors have been known as concerned and
well-informed patrons.
6. In the case of Crown livings, however,
the 1986 Measure has had a less drastic effect than elsewhere.
There is no requirement that the monarch, the Duke of Cornwall,
the First Lord of the Treasury or the Lord Chancellor declare
themselves Conformists; nor do any of them require to secure the
bishop's agreement before a presentation is made. The government
consultation paper states that the Lord Chancellor has hitherto
worked "within the spirit of the [1986] legislation";
but the freedom not to do so is important.
7. One of the weightiest reasons not to
give a veto over ministerial appointments to parochial church
representatives, as the Measure does, is the need to counter popular
prejudice. The same need applies to bishops and indeed patrons,
of course, but it is in parochial church council opinion that
one of the most glaring instances of bias has been noted—namely
against potential presentees who are unmarried. Livings where
the patron knows from the start that he is not bound by a local
veto are a channel whereby good single candidates can prove themselves
in ministry.
8. The main reason not to give a veto to
diocesan bishops (even if archbishops support them) is the desirability
of replicating in every region of England the variety of opinion,
churchmanship and style that typifies English Christianity as
a whole. This has already been mentioned in relation to patrons
generally, but is especially relevant to the Crown, whose representatives
have less reason to defer too readily to episcopal preferences.
9. My conclusion on the Committee's first
two issues is therefore as follows:
— Private and corporate (ie non-episcopal)
patronage generally is very important to the existing variety
of the English parochial landscape. Crown patronage is a good
example (though not the only good example) of such patronage,
and its exemption from mandatory compliance with the 1986 Measure
requirements gives it a unique and vital potential. Any transfer
that would lead to the loss or narrowing of this exemption should
be avoided.
10. So far I have spoken of "Crown",
rather than "Lord Chancellor", patronage. The latter
is one form of Crown patronage, but despite the long history of
its separation from "First Lord patronage", the same
principles must really apply to both. The dividing-line depends
upon a yearly value recorded in the King's Books, a Tudor record
of the value of benefice endowment at a given date. This record
has long been so antiquated as to make the distinction arbitrary;
and since such endowments have been centralised by a succession
of measures the notion of a benefice having financial "value"
is today laughable. One can still hold some livings to be more
"important" than others, but there are no agreed criteria
for such a distinction and the Lord Chancellor's livings would
not necessarily be ranked today as the less important.
11. If the accident of history had resulted
in the Lord Chancellor possessing these advowsons for centuries
in his own right, it might be pedantic now to try and go behind
it. But they remain the Queen's advowsons; and even if the formal
stages of the exercise of patronage are different, the major part
of the practical side, in the involvement of the Assistant Ecclesiastical
Secretary, is undifferentiated. The accident of history, therefore,
has only created a distinction in how the Queen's patronage is
exercised; it is very much less radical now to abolish that distinction
than to use it as a basis for depriving the Queen of her patronage
altogether.
12. My conclusion on the Committee's third
issue (part I) and fourth issue is therefore as follows:
— The preferable government option
is for the distinction between Crown livings to be abolished,
and for all Crown parochial patronage to be exercised on the advice
of the First Lord of the Treasury.
— Of the government's three options,
transfer of the Lord Chancellor's patronage role to another minister
is the second-best. The retention of Civil Service expertise may
weigh in favour of the Department for Constitutional Affairs;
but the office of Chancellor of the Duchy of Lancaster has an
historic involvement with patronage which the newly-created office
does not. (I am uncertain without further research whether the
patronage of Her Majesty as Duke is at present still exercised
on the Duchy Chancellor's or the national Chancellor's advice.
It certainly used to be the former; and if that is still the case
then a transfer of all patronage to the Duchy Office would serve
to reunite virtually all royal patronage in one department.)
— The government's use of the term
"the Church" to mean the episcopal hierarchy, the General
Synod or organs of one or the other is regrettable. The Church
of England is wider than the officers of public worship or the
aggregate of the church electoral rolls. Parish ministers, like
churchwardens, are officers of their parishes and serve the whole
body of parishioners. Royal appointments are made by "the
Church" no less than episcopal ones.
— The reasons for not transferring
yet more patronage to diocesan bishops should hopefully be clear
from what has already been said (paras 4 and 8 above). New patronage
boards, if created by or under General Synod Measure, are likely
to replicate the narrow rather than the wider understanding of
what the Church of England is, would operate under strong episcopal
influence and are thus an unsatisfactory solution. There is, however,
no institution that both (a) represents the whole Church of England
in the broad sense and (b) takes sufficient interest in matters
narrowly ecclesiastical to discharge this function; which is the
reason why the Church Assembly was necessary in the first place.
An attempt by Parliament itself to create such an institution
would be the best option under the head of "transfer to the
Church"; but I doubt there would be the political will to
undertake this far from simple task.
— There are further reasons of principle
for not transferring Crown patronage to "the Church"
as the consultation paper intended that term. Despite the less
drastic effect of the 1986 Measure upon it, Crown patronage is
essentially the same legal phenomenon as the patronage of private
individuals. While many elements of the Queen's involvement with
the national religious provision derive from her unique position
as head of state in a Christian nation—"Supreme Governor
of this realm, as well in all spiritual and ecclesiastical things
or causes, as temporal" , patronage is not one of these elements,
but rather a species of property which she holds in the same way
as subjects hold theirs. In many cases she holds it as successor
in title to a subject or corporation of subjects (eg to the abbot
and convent of a mediæval monastic house). This is underlined
by the fact that the Duke of Cornwall's patronage is also potentially
at issue in this context.
— A decision to divest the Queen of
her parochial patronage rights, however it were perceived, would
therefore not be in fact "a step towards disestablishment
of the Church', since it would not encroach upon any aspect of
the ecclesiastical supremacy enjoyed by the monarch as such, either
in or out of parliament. But it would send a negative message
about private patronage generally, of a type that parliament,
in the interest of the national church's breadth and variety,
should be most reluctant to send.
— It would also send a negative message
about royal patronage at other levels. Again, whatever the practical
differences, Crown parochial patronage is essentially the same
legal phenomenon as Crown patronage of archdeaconries, canonries,
deaneries and episcopal sees. The latter rests upon the basis
that the Queen's predecessors "founded" the cathedral
churches and the sees based upon them, even though in most cases
this is recognised to be a legal fiction. This basis is essentially
the same as that on which the patrons of rectories operate—being
the heirs or successors, albeit often by purchase, of the landowners
who are taken to have "founded" the parish churches
by providing sites, buildings or endowments.
13. In answer to the Committee's third issue
(Part II):
— Instead of dealing separately with
Lord Chancellor patronage and prolonging the now random distinction
between Crown livings, it might make sense for all Crown patronage
to be handled in the same way, even if there were no transfer
to the First Lord. The important thing is that whoever makes the
decision should still advise or represent Her Majesty or the Duke
of Cornwall, and so benefit from the exemption from the full requirements
of the 1986 Measure.
— There is already flexibility in the
Lord Chancellor (Tenure of Office and Ecclesiastical Functions)
Act for patronage advice to Her Majesty in the event of the Lord
Chancellor being a Roman Catholic. The relevant adviser is simply
designated by Order in Council. No doubt this would follow the
First Lord's advice, and a fresh Order would be made if the adviser
lost ministerial rank or adhered to the Church of Rome.
— It would be possible for this Act's
mechanism to be extended to all Crown patronage (or, at least
to begin with, all Crown parochial patronage) including that now
exercised on the First Lord's advice. By providing for the First
Lord to advise or exercise patronage rights himself, whenever
no adviser was appointed by Order in Council, the option would
remain open for a First Lord who wished to exercise ecclesiastical
patronage personally to do so. (It is suggested that the disqualification
of Roman Catholics from advising in this context be retained—and
extended to the First Lord—in line with other legal provisions
intended to preserve England's religious autonomy; but that the
disqualification of Jews be relaxed, since Jews have no particular
reason to oppose the organisation of Christianity on a national
basis.)
— This submission has of course been
largely concerned with the formal and the legal. Except in para
5 it has not dwelt much on the processes of consultation, the
advice of diocesan bishops and so forth which make up the real
appointments procedure. There is no reason why these should greatly
change—whichever officer advises Her Majesty or acts in
her name can be, and should be, served by the same experienced
officials and open to consultation to the same extent as at present.
Dr Augur Pearce
University Lecturer in Law and Tutor for Law &
Languages Admissions
Cardiff Law School
13 January 2004
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