LEGISLATIVE COMMITTEE OF THE GENERAL SYNOD:
COMMENTS AND EXPLANATIONS ON THE VACANCIES IN SUFFRAGAN SEES AND
OTHER ECCLESIASTICAL OFFICES MEASURE AND THE CROWN BENEFICES (PARISH
REPRESENTATIVES) MEASURE
INTRODUCTION
1. The Legislative Committee of the General Synod,
to which two Measures entitled respectively the Vacancies in Suffragan
Sees and Other Ecclesiastical Offices Measure and the Crown Benefices
(Parish Representatives) Measure have been referred, has the honour
to submit those Measures to the Ecclesiastical Committee with
these Comments and Explanations.
Background to the two Measures
2. In May 2007 the General Synod received, from a
group established at its request in 2005 and chaired by Sir Joseph
Pilling, a report entitled Talent and Calling - A review
of the law and practice regarding appointments to the offices
of suffragan bishop, dean, archdeacon and residentiary canon
(GS 1650) ('The Pilling Report'). That report contained a number
of recommendations relating to the appointment of suffragan bishops
and other appointments made by the Crown.
3. Shortly before the Pilling Report was due to be
debated by the Synod the Government published its green paper,
The Governance of Britain (Cm 7170) which contained a wide
range of proposals for constitutional change. These included
the proposal that the Prime Minister should no longer exercise
choice in recommending appointments to senior ecclesiastical posts.
The Church would in future be asked to forward one name which
the Prime Minister would convey to Her Majesty in relation to
diocesan bishop appointments. The Government also committed itself
to discussing with the Church how changes could be made in relation
to cathedral, parish and other Crown appointments so that the
Prime Minister no longer played an active role in the selection
of individual candidates.
4. On 9 July 2007 the Synod debated the Pilling Report.
Noting the proposals contained in The Governance of Britain
that touched on some of the same subject matter, the Synod passed
a resolution welcoming the prospect of the Church achieving 'the
decisive voice in the appointment of bishops' (for which the Synod
had voted in 1974), endorsed the recommendations contained in
the Pilling Report and invited the Archbishops to oversee the
necessary consequential discussions with the Government and to
report back in February 2008.
5. In October 2007 the Archbishops issued a consultation
paper setting out their thoughts on a possible way forward in
the light of the Synod's resolution of 9 July and inviting comments
from around the Church. In January 2008 the Archbishops published
their report to the Synod following on from that consultation
(GS 1680). In it they made a number of recommendations.
6. These included recommendations that legislation
should be introduced to -
| (a) | replace the requirement in the Suffragan Bishops Act 1534 for two names to be presented to the Sovereign with a requirement to submit one name;
|
| (b) | change the position as regards the Crown's right to appoint in cases where the patronage is not normally in its gift but falls to be exercised by it because either (i) the patronage belongs to a diocesan see which is vacant at the material time or (ii) the previous holder of the vacant office (or the holder of the office to whom the relevant patronage belongs) has been appointed a diocesan bishop;
|
| (c) | extend to Crown benefices the normal rights of veto enjoyed by the two parish representatives under the Patronage (Benefices) Measure 1986.
|
7. In February 2008 the Synod approved the recommendations
contained in the Archbishops' report, including the recommendations
referred to above.
Appointment of suffragan bishops
8. The particular background with regard to recommendation
(a) is as follows. Use was made of the Suffragan Bishops Act
1534 to appoint suffragan bishops during the sixteenth and early
seventeenth centuries but it then fell into desuetude until Gladstone
revived the practice of appointing suffragan bishops in the latter
half of the nineteenth century. Although the Act requires the
names of two candidates to be presented to the Sovereign, for
more than a hundred years the invariable practice has been for
the Prime Minister to advise the Sovereign to appoint the first
of the two names. In the light of the Government's indication
that it wished only one name to be submitted for appointments
to archbishoprics and other diocesan sees, the view was taken
that it would be curious if, following that change, it continued
to be necessary to submit two names for suffragan vacancies.
9. The policy, adopted by the Synod, of removing
the requirement for two names was also made against the background
of more developed and transparent procedures for selecting suffragan
bishops that have resulted from the Pilling Report. The new selection
process involves interviews and a greater degree of openness.
The Synod took the view that the law should be brought more closely
into line with the reality of where the choice is exercised.
It also saw a clear advantage in the law regarding the appointment
of suffragans not being out of line with the new arrangements
for the nomination of diocesan bishops (which now involve just
one name being forwarded to the Prime Minister).
Exercise by the Crown of patronage not normally in
its gift
10. There are two types of situation covered by recommendation
(b) referred to above. The first relates to the position during
the vacancy of a diocesan see. Where a diocesan see is vacant,
the patronage that belongs to the see - and which would normally
be exercisable by the diocesan bishop - is exercisable by the
Crown instead. The patronage exercisable by the Crown in these
circumstances is known as the Crown's sede vacante patronage.
The Crown's right arises because during a vacancy in a diocesan
see the Crown is the Guardian of the Temporalities of the see,
the rights of patronage belonging to the see being among those
temporalities. (In fact, as a result of legislation dating from
1943[1] which provided
for the making of schemes vesting the endowments and other property
of diocesan sees in the Church Commissioners, the rights of patronage
belonging to such a see are now the only temporalities that remain.)
11. There is, however, a well-developed practice
whereby the Crown allows the relevant suffragan or 'acting' bishop
in a diocese where the see is vacant to make the choice as to
how the sede vacante patronage should be exercised. Once
the suffragan or 'acting' bishop has identified the priest whom
he wishes to be presented to a vacant benefice or other office,
the Crown is informed of the identity of the priest in question
and the necessary paperwork is prepared in the Cabinet Office
and the Crown Office. The Crown's role in relation to the exercise
of its sede vacante patronage has therefore become purely
formal, the decisions being taken in the diocese.
12. In approving recommendation (b), the Synod took
the view that there should be greater transparency in the process
involved in the exercise of the Crown's sede vacante patronage
so that it was clear where the real choice was actually made.
It therefore agreed that legislation should be introduced which
would provide for the statutory delegation by the Crown of its
sede vacante patronage to a suffragan or 'acting' bishop
in a diocese where the see was vacant. That would effectively
put on a statutory footing the existing practice referred to above
and would remove the need for the purely formal involvement of
the Cabinet Office and the Crown Office in producing the necessary
paperwork (including Letters Patent) to give effect to the appointment.
Instead the suffragan or 'acting' bishop would be able to execute
a document presenting a priest to a vacant benefice or other office
on behalf of the Crown.
13. The second situation addressed by recommendation
(b) is that whereby the Crown (by virtue of the Royal Prerogative)
has the right to present to a benefice or other office which is
not normally in its gift because the previous holder of that benefice
or office - or the holder of an office to whom the relevant patronage
belongs - has been appointed a diocesan bishop. Where a priest
is appointed a diocesan bishop all his existing preferment is
automatically vacated by what is known as 'cession'. The Crown's
rights to exercise patronage in the circumstances just described
are therefore referred to as the Crown's rights in relation to
(or upon) cession. In fact such circumstances arise only rarely
as most diocesan bishops are, when appointed, translated from
other sees (most commonly suffragan sees) rather than being appointed
directly from among archdeacons or members of cathedral chapters
or from parochial ministry.
14. The Pilling Group considered the question of
the Crown's rights in relation to cession. It noted that instances
were relatively rare, only two recent cases being identified.
In its report it said that it was "unable to think of any
good reason" for the Crown retaining the right to appoint
in either of these circumstances which it regarded as an "unnecessary
and unhelpful" anomaly.[2]
The report concluded, "[w]e therefore recommend (as the
Howick Commission did in 1964) that the Crown's right to appoint
to an office vacated by the office-holder becoming a diocesan
bishop be abolished, and that instead the appointment should be
made by the person or body who would otherwise have made it."
15. The Archbishops' Report to the General Synod
proposed implementing that recommendation. The Synod endorsed
the Archbishops' proposal.
Crown benefices - appointment of lay representatives
16. Parochial appointments are governed by the Patronage
(Benefices) Measure 1986. That Measure gave parochial church
councils the right to appoint two lay representatives whose approval
has to be obtained by the patron before making an offer to a particular
priest to present him to a benefice. That provision applies in
cases where the patron is the bishop, a private individual, a
patronage society or other body of trustees, or an institution
(such as an Oxbridge college). It does not, however, apply where
the patronage of a benefice is exercisable by the Crown on the
advice of the Prime Minister or by the Lord Chancellor (acting
in the name of the Crown), or by the Duchy of Lancaster or the
Duchy of Cornwall. (These benefices are referred to collectively
in the 1986 Measure as 'Crown benefices'). Crown benefices make
up about 8% of parochial appointments.
17. In their report to the General Synod, the Archbishops
expressed the view that continuing to exempt Crown benefices from
the provisions which allow the appointment of lay representatives
"would be difficult to justify given the principles set out
in the Green Paper [sc. The Governance of Britain]".
Their report also noted that in the consultation the Archbishops
had conducted there had been "a wide measure of agreement"
that the 1986 Measure should be amended to give parish representatives
in Crown benefices the same rights that apply in all other benefices.
Accordingly, the Archbishops recommended that legislation should
be introduced to extend to Crown benefices the normal rights of
parish representatives in the appointment process. The General
Synod endorsed that recommendation.
Consultation with the Crown etc.
18. Prior to the introduction of the two Measures
the Ministry of Justice was consulted as to what was proposed.
The department indicated on behalf of the Crown that it was content
with the content of the draft Measures.
19. The two Royal Duchies were also consulted about
what was proposed in so far as it related to them (in their case
only the Crown Benefices (Parish Representatives) Measure). Both
Duchies stated that they were content with the content of the
legislation.
20. Immediately prior to the First Consideration
stage in the General Synod, The Queen's consent was signified
to the two draft Measures. In respect of the Crown Benefices
(Parish Representatives) Measure, the Prince of Wales's consent
was signified.
Proceedings in the General Synod
21. Both Measures were introduced into the Synod
for First Consideration in July 2008. They were received positively
by the Synod and committed to a Revision Committee. They received
detailed scrutiny from the Revision Committee and then from the
Synod at the Revision Stage in February 2009. The process of
revision resulted in a small number of amendments being made to
both Measures but these were all of a technical or drafting nature
and did not result in any alteration to the policy of either Measure.
22. A small number of further technical, drafting
amendments were made to both Measures at the Final Drafting stage
which was taken at the July 2009 group of sessions of the Synod.
The Final Approval stage immediately followed when both Measures
received overwhelming majorities in all three Houses.
23. The voting on each of the Measures at the end
of the Final Approval stage was as follows -
The Vacancies in Suffragan Sees and Other Ecclesiastical
Offices Measure
| In favour
| Against |
| Bishops | 19
| 0 |
| Clergy | 115
| 0 |
| Laity | 125
| 2 |
The Crown Benefices (Parish Representatives) Measure
| In favour
| Against |
| Bishops | 20
| 0 |
| Clergy | 119
| 0 |
| Laity | 125
| 1 |
THE PROVISIONS OF THE MEASURE AND THE MAIN ISSUES
CONSIDERED BY THE GENERAL SYNOD
The Vacancies in Suffragan Sees and Other Ecclesiastical
Offices Measure
SECTION 1 - AMENDMENT OF SUFFRAGAN BISHOPS ACT 1534
24. Section 1 modifies the effect of section 1 of
the Suffragan Bishops Act 1534 so that the requirement there for
two persons to be presented to Her Majesty for appointment to
a suffragan see is to be read as if it required only one person
to be presented. Other references in section 1 of the 1534 Act
to the two persons are to be read as if they referred to the one
person so presented.
25. The effect of section 1 is, therefore, that when
a diocesan bishop wishes to petition Her Majesty to appoint a
suffragan bishop for his diocese he will no longer need to put
forward a second name in addition to the name of the candidate
he wishes to be appointed.
26. No amendments were proposed to this section either
in the Revision Committee or in full Synod at the Revision Stage
and none was made.
SECTION 2 - APPOINTMENTS BY THE CROWN DURING CERTAIN
VACANCIES
27. Section 2 provides for the delegation to a suffragan
or other bishop (the "relevant bishop") of the Crown's
right, when there is a vacancy in see, to appoint to offices normally
in the patronage of a diocesan bishop (i.e. it provides for delegation
of the exercise of the Crown's sede vacante patronage).
28. The delegation is automatic unless the Crown
gives notice to the contrary in relation to a particular vacancy
in see.
29. The section makes detailed provision for indentifying
the "relevant bishop". Where a diocese has a standing
scheme of delegation of episcopal functions (for example, on an
area basis to suffragan bishops), the suffragan or assistant bishop
who would, but for the vacancy in see, have exercised the patronage
in question will be the "relevant bishop". Where there
is no such person - because there is not such a delegation in
operation in relation to the diocese (or the relevant part of
the diocese) - the "relevant bishop" will be the bishop
to whom episcopal functions (including the function of giving
institution to benefices) has been delegated in connection with
the vacancy in see. Once a new diocesan has been appointed following
a vacancy in see, the "relevant bishop" is the new diocesan.
Matters raised before the Revision Committee and
the General Synod
30. The Revision Committee received a submission
proposing that it would give greater transparency if the Crown's
rights in relation to vacancies in see were either abolished or
transferred outright to the "relevant bishop". The
Revision Committee was advised that the effect of adopting that
proposal would be that the Crown would lose its position as Guardian
of the Temporalities (a position which flows from the Sovereign's
position as Patron and Protector of the Church). This was because
the rights of patronage belonging to a see are the only temporalities
of sees that remain (see paragraph 9 above). If the Crown's rights
in relation to the patronage belonging to vacant sees were to
be abolished or transferred outright then there would no longer
be any temporalities for it to protect.
31. Irrespective of any merit such a development
might in principle be thought to have, the Committee doubted that
this was a change which should be made in a Measure intended to
give effect to such narrow policy objectives. The Committee was
advised, furthermore, that such a change would have significant
wider implications. When a diocesan bishop has been elected,
confirmed and consecrated, he sues for the temporalities of his
see out of the Sovereign's hands by doing homage. If the Crown's
position as Guardian of the Temporalities were to cease because
there were no surviving temporalities, that would remove the basis
for new bishops doing homage.
32. The Committee took into account the clear intention
of The Governance of Britain - as well as of the Archbishops'
own recommendations to the Synod - that the changes proposed in
relation to Crown appointments in the Church of England should
not result in any fundamental alteration in the relationship between
the Crown and the Church (a policy position which had been confirmed
in correspondence from the Ministry of Justice).
33. The Committee accordingly concluded that the
Measure should not be amended so as to abolish the Crown's sede
vacante rights of patronage.
34. The Revision Committee was advised of the need
for some amendment to the definition of "relevant bishop"
in section 2(4)(a). The proposed amendments were of a purely
technical, drafting nature and were agreed by the Committee.
35. No amendments were proposed at the Revision Stage
in full Synod. Some further drafting amendments (again of a purely
technical nature) were made to the definition of "relevant
bishop" at the Final Drafting stage.
36. Section 3 abolishes to the Crown's right to present
to a vacant ecclesiastical office that is not normally in its
gift in circumstances where the previous holder of the office
- or the holder of an office to whom the relevant patronage belongs
- has been appointed a diocesan bishop. (For further details
about this right see paragraph 12 above.)
37. No amendments were proposed to this section either
in the Revision Committee or in full Synod at the Revision Stage
and none was made.
SECTION 4 - CITATION, COMMENCEMENT AND EXTENT
38. Section 4 provides for the citation, commencement
and territorial extent of the Measure.
39. No amendments were proposed to this section either
in the Revision Committee or in full Synod at the Revision Stage
and none was made.
1 Episcopal Endowments and Stipends Measure 1943. Back
2
Paragraph 8.8.6. Back
| 
