Select Committee on Constitutional Affairs Written Evidence

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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