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The Church in Wales and the State: A Juridical Perspective
Published online by Cambridge University Press: 05 January 2009
Abstract
In 1536 Wales (Cymru) and England were formally united by an Act of Union of the English Parliament. At the English Reformation, the established Church of England possessed four dioceses in Wales, part of the Canterbury Province. In 1920 Parliament disestablished the Church of England in Wales. The Welsh Church Act 1914 terminated the royal supremacy and appointment of bishops, the coercive jurisdiction of the church courts, and pre-1920 ecclesiastical law, applicable to the Church of England, ceased to exist as part of public law in Wales. The statute freed the Church in Wales (Yr Eglwys yng Nghymru) to establish its own domestic system of government and law, the latter located in its Constitution, pre-1920 ecclesiastical law (which still applies to the church unless altered by it), elements of the 1603 Canons Ecclesiastical and even pre-Reformation Roman canon law. The Church in Wales is also subject to State law, including that of the National Assembly for Wales. Indeed, civil laws on marriage and burial apply to the church, surviving as vestiges of establishment. Under civil law, the domestic law of the church, a voluntary association, binds its members as a matter of contract enforceable, in prescribed circumstances, in State courts.
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References
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57. ECHR, Art. 9: (1) ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance’; (2) ‘Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’.
58. Human Rights Act 1998, s. 13: ‘If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of conscience, thought and religion, it must have particular regard to the importance of that right’; in this section ‘court’ includes a tribunal.
59. Government of Wales Act 1998, ss. 107, 153(2).
60. Human Rights Act 1998, s. 6: acts include omissions.
61. For direct applicability see, e.g., the Welsh Church (Burial Grounds) Act 1945; for indirect applicability see, e.g., Ecclesiastical Courts Jurisdiction Act 1860.
62. Under the Government of Wales Act 1998, the Assembly is competent to exercise all those ministerial functions, which touch the Church in Wales, including the making of secondary legislation, contained in Acts of Parliament listed in Transfer of Functions Orders, and under Acts passed since devolution. Secondary legislation directly or indirectly affecting the Church in Wales which has already been made under statutory powers will continue to apply to the Church as the law of the Assembly, unless and until altered by it: see, e.g., the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994, SI 1994/1771, made under the Planning (Listed Buildings and Conservation Areas) Act 1990. The Church in Wales is party to the Laws Committee of CYTUN (Churches Together in Wales) a function of which is ‘to review the effect of legislation on faith communities in Wales’ enacted by the National Assembly.
63. See below for the Data Protection Act 1998.
64. Data Protection Act 1998 which gives effect to the requirements of Directive 95/46/EC of the European Parliament.
65. Disability Discrimination Act 1995, s. 19.
66. A Disability Strategy for the Church in Wales, Report of the Standing Committee of Governing Body (April 2002), esp. Appendix III.
67. The Care and Protection of Children: Statement of Policy and Guidance for Implementation, produced by the Panel of Bishops' Representatives on behalf of the Bench of Bishops of the Church in Wales (1997).
68. The State has made provision with respect to the appointment of chaplains, staff pay and conditions of service, worship facilities at hospitals, and record-keeping: see Doe, , The Law of the Church in Wales, pp. 189–91.Google Scholar
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78. These are the so-called vestiges of establishment: see Watkin, , ‘The Vestiges of Establishment’, p. 110.Google Scholar
79. Welsh Church (Temporalities) Act 1919, s. 6.
80. Marriage Act 1949, s. 78(2): ‘Any reference in this Act to the Church of England shall, unless the context otherwise requires, be construed as including a reference to the Church in Wales’.
81. Human Rights Act 1998 and European Convention on Human Rights, Art. 12.
82. Anglican Marriage in England and Wales: A Guide to the Law for Clergy, issued by the Faculty Office of the Archbishop of Canterbury (1999), 6.1.
83. Anglican Marriage in England and Wales, 6.1.
84. See, e.g. Matrimonial Causes Act 1965, s. 8.
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86. Argar v. Holdsworth (1758) 2 Lee 515.Google Scholar
87. Matrimonial Causes Act 1965, s. 8. The church now has in place guidance as to the marriage of divorced persons: the decision is a matter of conscience for the cleric concerned.
88. See generally Doe, , The Law of the Church in Wales, pp. 257–58.Google Scholar
89. Canons Ecclesiastical 1603/4, Can. 68.
90. Parishioners are defined as: persons normally residing in the parish; persons dying in the parish; ex-parishioners and non-parishioners for whom family graves or vaults are desired to be opened and whose close relatives have been buried in the churchyard; and persons on the (the church's) electoral roll of the parish at the date of death: Burial Grounds Rules, Second Schedule.
91. Burial Grounds Rules, Second Schedule, Notes, and Welsh Church (Burial Grounds) Act 1945, s. 4.
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94. Prison Act 1952, s. 7(1), (3) and (4); s. 53(4): references in the statute to the Church of England must be construed as including references to the Church in Wales.
95. Prison Act 1952, s.9.
96. Prison Rules 1999, SI 1999/728.
97. The domestic law of the church sometimes distinguishes between the ‘received’ ecclesiastical law, and the ‘enacted’ ecclesiastical law, the received being that which was inherited at disestablishment, and the enacted that which has since been made by the church; see, e.g., the Scheme of the Cathedral Church of Llandaff, II.1; see also below.
98. The Constitution most commonly consists of fundamental declarations and principles: see, e.g., the Church of the Province of Southern Africa, Constitution and Canons (1994)Google Scholar. Others simply have a code of canons: see, e.g., Scottish Episcopal Church, Code of Canons (1996)Google Scholar. The canons of the Church of Ireland are incorporated in the Constitution (The Constitution of the Church of Ireland, Ch. IX). The law of the Church of England includes Measures (enacted by General Synod and approved by Parliament), and canons (made by General Synod and assented to by the Monarch).
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101. Const., I.1(1)(a)-(d); the English and Welsh versions of the Constitution have ‘equal validity’ (I.1(2)), though, for ‘the purpose of interpretation and for the resolution of any ambiguity, the English version shall be the definitive text’ (I.1(3)).
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103. Const., II.43; see also II.33(1): the Governing Body may make constitutions and regulations for ‘the general management and good government of the Church’; this is declaratory of the Welsh Church Act 1914, s.13(1).
104. Const., I.1 (a) and (b).
105. See Wallbank and Wallbank v. PCC of Aston Cantlow (2001)Google Scholar unreported, per Sedley LJ: ‘The term canon law is properly applied to the law made by the churches for the regulation of legal matters within their competence’.
106. Const. II.42(2).
107. Const. I.1(1)(d); the terms are not defined, and the constitution seems to provide no procedure for their creation, alteration or repeal. See, e.g., the Hardship Regulations, made by the Governing Body to alleviate hardship arising from the promulgation of the canon enabling women to be ordained as priests.
108. See, e.g., Rules made under the Welsh Church (Burial Grounds) Act 1945, s. 4(2).
109. See, e.g., Regulations (relating to payments to incapacitated incumbents) made under Can. 21–4–82 as amended by the Incapacitated Incumbents (Amendment) Canon 1985 (they are found in the First Schedule to the canon).
110. See Chancel Repair Regulations: these regulations also describe the provisions in them as ‘rules’; r. 11: ‘Nothing in these rules shall affect the provisions of Chapter III of the Constitution’.
111. Jones, , Governance, p. 54Google Scholar: the argument is based on s. 3(2), Welsh Church Act 1914: see above n. 18.
112. The following instruments are not explicitly listed in Const. I.1(1) (for which see above).
113. The six Cathedral Schemes are included in Volume II of the Constitution.
114. The Maintenance of Ministry Scheme, consisting of ‘Regulations prescribed by the Representative Body’, is included in Volume II of the Constitution.
115. Const. II.34 and 35.
116. BCP, p. v.Google Scholar
117. See, e.g., Const. VI.17(1),(2); cathedral schemes too preserve the customs of cathedrals if they are not inconsistent with the terms of those schemes and, sometimes, under cathedral schemes, cathedral clergy are obliged ‘faithfully to observe all the Customs of the cathedral’. See also Ridsdale v. Clifton (1876) 1 PD 316 at p. 331Google Scholar: ‘Usage, for a long series of years, in ecclesiastical custom especially, is entitled to the greatest respect; it has every presumption in its favour; but it cannot prevail against positive law, though, where doubt exists, it might turn the balance’.
118. With the exception of rights to prison chaplains, marriage, burial: see above.
119. See, e.g., Scheme for the Cathedral Church of St Davids, II.1: the governance of the cathedral is ‘subject always to the ecclesiastical law received or enacted by the Governing Body of the Church in Wales’.
120. Welsh Church Act 1914, s. 3(2); see also above.
121. Const. XI.47 lists the following disapplied statutes: the Clergy Ordination Act 1804; the Church Discipline Act 1840; the Ecclesiastical Commissioners Act 1840; the Clerical Subscription Act 1865; the Clerical Disabilities Act 1870; the Colonial Clergy Act 1874; the Public Worship Regulation Act 1874; the Sales of Glebe Lands Act 1888; the Clergy Discipline Act 1892; the Benefices Act 1898; the Pluralities Acts and the Incumbents Resignation Acts.
122. Const. XI.47. Moreover, it does not apply if in conflict with anything contained ‘in any special contract as to glebe [land] between the Representative Body and an Incumbent’ (Const. XI.47).
123. Const. XI.47.
124. The point is well made in Jones, , Governance, pp. 29–30.Google Scholar
125. While canon law is commonly understood as the law which churches create for themselves (see n. 126 below), ecclesiastical law is understood as the law of the State applicable to churches. As will be apparent from the discussions in this article, however, these definitions may not readily be applied to the Church in Wales. See also Denning, A.T., ‘The Meaning of “Ecclesiastical Law”’, LQR 60 (1944), p. 235Google Scholar; in the House of Lords in Representative Body of the Church in Wales v. Tithe Redemption Commission [1944] 1 All ER 710 at p. 720Google Scholar, Lord Simonds considered, for the purpose of that case, that it was not ‘necessary to determine the exact scope of that “ecclesiastical law of the Church in Wales” which by sect. 3 of the Act is to cease to exist as law’.
126. AG v. Dean and Chapter of Ripon Cathedral [1945] Ch 239Google Scholar; this was cited in Wallbank and Wallbank v. PCC of Aston Cantlow (2001)Google Scholar unreported Court of Appeal case per Sedley LJ: ‘Ecclesiastical law is a portmanteau term which embraces not only the canon law but both secular legislation and common law relating to the church’.
127. Mackonochie v. Lord Penzance (1881) 6 AC 424 at p. 446Google Scholarper Lord Blackburn; see also R v. Millis (1844) 10 Cl & Fin 534 at p. 678Google Scholar: ‘the general canon law’, which is ‘no doubt the basis’ of ecclesiastical law, has been ‘modified and altered from time to time by the ecclesiastical constitutions of our archbishops and bishops, and by the legislature of the realm, and…has been known from early times by the distinguished title of the King's Ecclesiastical Law’.
128. Representative Body of the Church in Wales v. Tithe Commission [1944] 1 All ER 710 at p. 713Google Scholar: Viscount Simon distinguishes ecclesiastical law from ‘the common custom of England’ (i.e. the common law); compare Evers v. Owen's Case (1627) Godb 431: ‘There is a common law ecclesiastical, as well as our common law, jus commune ecclesiasticum, as well as jus commune laicum’.
129. Kemp v. Wickes (1809) 3 Phillim 264 at p. 276Google Scholarper Sir John Nicholl: ‘The law of the Church of England and its history are to be deduced from the ancient general canon law, from the particular constitutions made in this country to regulate the English church, from our own canons, from the rubric, and from any acts of parliament that may have been passed on the subject; and the whole may be illustrated also by the writings of eminent persons’.
130. See, e.g., the Sacrament Act 1547.
131. See, e.g., Argar v. Holdsworth (1758) 2 Lee 515Google Scholar (concerning the right to marry in the parish church). However, the courts of the Church in Wales ‘are not bound by any decision of the English Courts in relation to matters of faith, discipline or ceremonial’ (Const. XI.47).
132. For the difficulties in determining which of these canons continue to apply, and the effect of non-usage or desuetude, see Cameron, G.K., ‘The Church in Wales, the Canons of 1604 and the Doctrine of Custom’, LLM Dissertation, University of Wales, Cardiff, 1997Google Scholar. For historical antecedents to the Canons Ecclesiastical 1603, see Bray, G., The Historic Anglican Canons: 1529–1947 (London: Boydell Press, 1998).Google Scholar
133. Submission of the Clergy Act 1533, s. 3; R v. Millis (1844) 10 Cl & Fin 534Google Scholar; Bishop of Exeter v. Marshall (1868) LR 3 HL 17 at pp. 53–56Google Scholar: according to a ‘rule of practice’, to be operative as custom, it must have been ‘continued and uniformly recognised and acted upon by the bishops of the Anglican Church since the Reformation’; Bryant v. Foot (1867) LR 2 QB 161Google Scholar: custom must have operated from time immemorial.
134. See Doe, N., ‘The Principles of Canon Law: A Focus of Legal Unity in Anglican-Roman Catholic Relations’, Ecclesiastical Law Journal 5 (1999), pp. 221–40CrossRefGoogle Scholar; some Anglican churches refer to these in their constitutions and canons: see, e.g., the Province of Southern Africa, Constitution and Canons (1994), Can. 50Google Scholar: ‘if any question should arise as to the interpretation of the Canons or Laws of this Church, or of any part thereof, the interpretation shall be governed by the general principles of Canon Law thereto applicable’; see also the Code of Canon Law (1983)Google Scholar of the Roman Catholic Church (c. 19).
135. See Kemp v. Wickes (1809) 3 Phillim 264 at p. 276Google Scholarper SirNicholl, John: ecclesiastical law may be ‘illustrated also by the writings of eminent persons’Google Scholar; see, e.g., Phillimore, R., The Ecclesiastical Law of the Church of England (2 vols.; London: Sweet & Maxwell, 2nd edn, 1895).Google Scholar
136. Rudolf Sohm (1841–1917), for example, saw a fundamental antithesis between law and the church as a community bound together by love: for Sohm, 's Kirchenrecht (1892)Google Scholar see Dulles, A.V., Models of the Church (Dublin: Gill and Macmillan, 1976)Google Scholar; compare Harnack, Adolf's response in The Constitution and Law of the Church in the First Two Centuries (trans. Pogson, F.L.; London: Williams and Norgate, 1910)Google Scholar. For a critical appraisal of modern Welsh Church law, see Lewis, A.T., ‘The Case for Constitutional Renewal in the Church in Wales’, in Doe (ed.), Essays in Canon Law, pp. 175–89.Google Scholar
137. Const., Prefatory Note.
138. Const., Prefatory Note.
139. Const. I.2.
140. Const. I.1(1).
141. Const. II.42(2): promulgation canons are ‘binding on all the members’ of the church.
142. Const. XI.47: pre-1920 ecclesiastical law ‘shall be binding on the members (including any body of members) of the Church in Wales’.
143. Const. IV.33.
144. See, e.g. Const. VI.22(3)(c): a parochial church council must implement any provision made by the Diocesan Conference.
145. See Doe, N., ‘Ecclesiastical Quasi-legislation’, in Doe, N., Hill, M. and Ombres, R. (eds.), English Canon Law (Cardiff: University of Wales Press, 1998), pp. 93–103.Google Scholar
146. See, e.g. Const. VI.21: ‘Any dispute arising out of this section, or otherwise connected with the inventory, shall be referred to the Archdeacon, whose decision shall be final’.
147. Const. VII.66; the effect of the declaration has been recognized in civil law: R v. Provincial Court of the Church in Wales, ex parte Williams (1999) 5 ELJ 217.Google Scholar
148. Const. VII.66.
149. Const. VI.18.
150. Const. VI.3.
151. That is, the duty on clergy to comply with the lawful directions of their bishop.
152. See Doe, N., ‘A Facilitative Canon Law: The Problem of Sanctions and Forgiveness’, in Doe (ed.), Essays in Canon Law, pp. 69–88.Google Scholar
153. Const. XI.39(3).
154. Const. IV.18.
155. Const. X.17, 20.
156. See Doe, , Canon Law in the Anglican Communion, ch. 3.Google Scholar
157. Welsh Church Act 1914, s. 3(2); see also Welsh Church Commissioners v. Representative Body of the Church in Wales and Tithe Redemption Commission [1940] 3 All ER 1 at p. 6Google Scholar: with regard to a property matter, Greene MR speaks of the ‘quasi-contractual obligation enforceable in the temporal courts’.
158. Long v. Bishop of Cape Town (1863) 1 Moo NS 411Google Scholar; see also Davies v. Presbyterian Church of Wales [1986] 1 WLR 323Google Scholar (per Lord Templeman): ‘The church is thus an unincorporated body of persons who agree to bear witness to the same religious faith and to practise the same doctrinal principles by means of the organisation and in the manner set forth in the constitutional deed’.
159. However, the Welsh Church (Burial Grounds) Act 1945 Rules, made by the Representative Body in pursuance of s. 4(2) of the 1945 Act, as State approved secondary legislation, have status in the public law of the State and are enforceable as such.
160. Welsh Church Act 1914, s. 3(2): the pre-1920 ecclesiastical law with modifications and alterations effected after the passing of the Act, duly made according to the constitution and regulations of the church, ‘shall be capable of being enforced in the temporal courts in relation to any property which by virtue of this Act is held on behalf of the said Church or any members thereof, in the same manner and to the same extent as if such property had been expressly assured upon trust to be held on behalf of persons who should be so bound’.
161. Davies v. Presbyterian Church of Wales [1986] 1 WLR 323 at p. 329.Google Scholar
162. See the Scottish case of Rt Revd Dilworth v. (First) Lovat Highland Estates and (Second) Trustees for St Benedict's Abbey, Fort Augustus (1999) unreported: in addition, the courts may intervene when non-compliance with domestic church law results in loss of reputation or some other civil wrong; see also generally Buckley v. Cahal Daly [1990] NIJB 8.
163. Forbes v. Eden (1867) LR 1 Sc & Div 568.Google Scholar
164. Const., Prefatory Note: especially ‘regarding such matters as the ownership and management of property, the solemnisation of marriage and rights of burial in its churchyards’.
165. In R v. Dean and Chapter of St Paul's Cathedral and the Church in Wales, ex parte Williamson (1998) 5 ELJ 129Google Scholar: a challenge, to the decision of the Church in Wales to ordain women as priests, was dismissed on the basis that the applicant, a vexatious litigant under the Supreme Court Act 1981, s. 42, lacked locus standi.
166. Human Rights Act 1998, s. 13; see also Cumper, P., ‘The Protection of Religious Rights under Section 13 of the Human Rights Act 1998’, Public Law (2000), p. 254.Google Scholar
167. Human Rights Act 1998, s. 6.
168. See Jones, , ‘The Church in Wales’, p. 134.Google Scholar