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The Church in Wales and the State: A Juridical Perspective

Published online by Cambridge University Press:  05 January 2009

Norman Doe
Affiliation:
doe@cardiff.ac.uk

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.

Type
Series on Church and State
Copyright
Copyright © SAGE Publications (Los Angeles, London, New Delhi and Singapore) and The Journal of Anglican Studies Trust 2004

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References

1. See generally Doe, N., The Legal Framework of the Church of England (Oxford: Clarendon Press, 1996), ch. 1.CrossRefGoogle Scholar

2. Most of what follows forms ch. 1 of Doe, N., The Law of the Church in Wales (Cardiff: University of Wales Press, 2002).Google Scholar

3. For historical overviews, see generally Brundage, J.A., Medieval Canon Law (London: Longman, 1995)Google Scholar; see also Green, C.A.H., The Constitution of the Church in Wales (London: Sweet & Maxwell, 1937), ch. 5.Google Scholar

4. See generally Walker, D. (ed.), A History of the Church in Wales (Penarth: Church in Wales Publications for the Historical Society of the Church in Wales, 1976; re-issued 1990).Google Scholar

5. See Roberts, E.P., ‘The Welsh Church, Canon Law and the Welsh Language’, in Doe, N. (ed.), Essays in Canon Law (Cardiff: University of Wales Press, 1992), pp. 151–73Google Scholar; for discussion of Welsh awareness and observance of canon law, and for the contribution of Welsh canonists (such as Johannes Galensis or Walensis, writing 1210–15), see generally Pryce, H., Native Law and the Church in Medieval Wales (Oxford: Clarendon Press, 1993)CrossRefGoogle Scholar; for William Lyndwood, Bishop of St David's, who completed his celebrated Provinciale c. 1433, see Ferme, B.E., Canon Law in Medieval England (Rome: Libreria Ateneo Salesiano, 1996).Google Scholar

6. For a historical overview, see Jones, P., The Governance of the Church in Wales (Cardiff: Greenfach, 2000), pp. 18.Google Scholar

7. It was enacted without the consent of the House of Lords by means of the procedure contained in the Parliament Act 1911, and received royal assent on 18 September 1914.

8. The date was fixed by the Welsh Church (Temporalities) Act 1919, s. 2.

9. Re Clergy Orphan Corporation Trusts [1933] 1 Ch 267 per Farwell J.Google Scholar

10. See Brown, R., ‘The Disestablishment of the Church in Wales’, Ecclesiastical Law Journal (ELJ) 5 (1999), p. 252.CrossRefGoogle Scholar

11. Welsh Church Act 1914, s. 1.

12. See, however, Jones, P., Governance, p. 68Google Scholar, for the argument that ‘all churches in Britain, not just the Church of England, are subject to the royal supremacy’.

13. Welsh Church Act 1914, ss. 1, 2 and 3(5).

14. Welsh Church Act 1914, Part II; see Brown, , ‘The Disestablishment’, pp. 252–54.Google Scholar

15. Welsh Church Act 1914, s. 3(1).

16. See below for definitions of ecclesiastical law.

17. Mackonochie v. Lord Penzance (1881) 6 App Cas 424 at 446 per Lord Blackburn.Google Scholar

18. Welsh Church Act 1914, s. 3(2): As from the date of disestablishment, ‘the then existing ecclesiastical law and the then existing articles, doctrines, rites, rules, discipline, and ordinances of the Church of England shall, with and subject to such modification or alteration, if any, as after the passing of this Act may be duly made therein, according to the constitution and regulations for the time being of the Church in Wales, be binding on the members for the time being of the Church in Wales in the same manner as if they had mutually agreed to be so bound’.

19. Welsh Church Act 1914, s. 13(1).

20. Welsh Church Act 1914, s. 3(4): this provides for a power to alter or modify the pre-1920 ecclesiastical law as embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892, the Ecclesiastical Dilapidations Acts 1871 and 1872, ‘or any other Act of Parliament’; see now Const. XI.47 (discussed below) for the current list of statutes which the church has disapplied since disestablishment.

21. Welsh Church Act 1914, s. 3(3).

22. See Official Report of the Proceedings of the Convention of the Church in Wales (Cardiff: Western Mail, 1917); the basic structures were approved by the Governing Body at its first meeting on 8 January 1918; see generally Brown, R., ‘What of the Church in Wales?’, Ecclesiastical Law Journal 3 (1993), p. 20.CrossRefGoogle Scholar

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25. Thirty-Nine Articles of Religion, Art. 19; the Articles of Religion enjoy authority as an official source of doctrine in the Church in Wales.

26. BCP, p. 692.Google Scholar

27. Can. 28–9–1995: the Church in Wales, in this canon (designed to implement the Porvoo Declaration), indirectly claims these features for itself—the statements appear in the First Schedule to the Porvoo Declaration; see also Can. 27–4–2000 (a canon to implement the Reuilly Agreement).

28. Can. 28–9–1995.

29. Constitution, Prefatory Note.

30. See, e.g., New Zealand, Constitution and Canons (1995)Google Scholar, Preamble: ‘the Church is the body of which Christ is the head’; ‘the Church (a) is One because it is one body, under one head, Jesus Christ; (b) is Holy because the Holy Spirit dwells in its members and guides it in mission; (c) is Catholic because it seeks to proclaim the whole faith to all people to the end of time and (d) is Apostolic because it professes the faith of the apostles and is sent to carry Christ's mission to all the world’.

31. Lambeth Conference 1930, Resolution 49; for the Church in Wales, , ‘The Anglican Communion is a family of Churches within the Catholic Church of Christ, maintaining apostolic doctrine and order and in full communion with one another and with the See of Canterbury’ (BCP, p. 692).Google Scholar

32. Doe, N., Canon Law in the Anglican Communion (Oxford: Oxford University Press, 1998), p. 9.CrossRefGoogle Scholar

33. For discussion of the national role of the Church in Wales, see Jones, H., ‘The Church in Wales: A Church for the Welsh Nation’, Law and Justice 149 (2002), pp. 134–44.Google Scholar

34. ACC-4, 1979: a province is ‘a self-governing Church composed of several dioceses operating under a common Constitution and having one supreme legislative body’. See Jones, , Governance, p. 31Google Scholar: the province of the Church in Wales was neither created by the Welsh Church Act 1914, nor by the Constitution, but by a declaration of the Archbishop of Canterbury, Randall Davidson, on 10 February 1920, ‘the last act of English ecclesiastical law to bind the Church in Wales’.

35. The dioceses existing at disestablishment were St David's, Llandaff, St Asaph, and Bangor; the creation of two new dioceses followed: Monmouth (1921) and Swansea, and Brecon, (1923).Google Scholar

36. Const., Prefatory Note.

37. See Re Barnes, Simpson v. Barnes (1922) [1930] 2 Ch 80Google Scholar and Re Schoales, Schoales v. Schoales [1930] 2 Ch 75Google Scholar. See also Free Church of Scotland (General Assembly) v. Lord Overtoun [1904] AC 515Google Scholar, in which the House of Lords defines a church as an associated body of Christian believers, having a common interpretation of its source of belief, and acknowledging its collective belief thereby establishing their membership of it; for a discussion of this case, see Jones, , Governance, pp. 4449.Google Scholar

38. Representative Body of the Church in Wales v. Tithe Redemption Commission and Others [1944] 1 All ER 710 at p. 711Google Scholar: Viscount Simon speaks of ‘the disestablishment and partial disendowment of the Church in Wales’ and of ‘the Representative Body which represented the disestablished Church’; see also p. 718, per Lord Porter, who speaks of the ‘disestablished Church of Wales’; see also Wallbank and Wallbank v. PCC of Aston Cantlow and Wilmote with Billesley (2001) CA Case No: A3/20000/0644.Google Scholar

39. See generally Watkin, T.G., ‘Disestablishment, Self-determination and the Constitutional Development of the Church in Wales’Google Scholar, in Doe, (ed.), Essays in Canon Law, pp. 2548.Google Scholar

40. Re MacManaway [1951] AC 161 at p. 165Google Scholar, arguendo: ‘the Welsh Church Act, 1914, did not disestablish the Welsh Church, but only disestablished the Church of England in so far as it then existed in Wales’.

41. Welsh Church Act 1914, long title; see, however, s. 1: ‘the Church of England, so far as it extends to and exists in Wales and Monmouthshire (in this Act referred to as the Church in Wales), shall cease to be established by law’.

42. See, e.g., AG (Victoria) ex rel Black v. Commonwealth (1981) 146 CLR 559Google Scholar; and Doe, , The Legal Framework, pp. 89.Google Scholar

43. Powell v. Representative Body of the Church in Wales [1957] 1 All ER 400 at p. 403Google Scholarper Wynn-Parry J: the object of the 1914 statute was ‘to re-establish the Church in Wales on a contractual basis’. Through the Welsh Church Act 1914 (being the formal legal parent of the Church in Wales), the State provides the church with a statutory contract (consisting initially of pre-1920 ecclesiastical law), and with the statutory power to make its own constitution and regulations; the statute also provides for the power to alter and modify Acts of Parliament which formed part of the statutory contract provided for the Church by the State (ss. 3(4), 13).

44. See Watkin, T.G., ‘The Vestiges of Establishment: The Ecclesiastical and Canon Law of the Church in Wales’, Ecclesiastical Law Journal 2 (1990), pp. 110–15.CrossRefGoogle Scholar

45. Prison Act 1952, ss. 7 and 54. See generally, Doe, , The Law of the Church in Wales, chs. 7 and 11.Google Scholar

46. See generally Hill, M., Ecclesiastical Law (Oxford: Oxford University Press, 2nd edn, 2001).Google Scholar

47. For the concept of quasi-establishment, see Ogilvie, M.H., ‘What Is a Church by Law Established?’, Osgoode Hall Law Journal 28 (1990), pp. 179215.Google Scholar

48. Forbes v. Eden (1867) LR 1 Sc & Div 568.Google Scholar

49. Powell v. Representative Body of the Church in Wales [1957] 1 All ER 400 at p. 403Google Scholar; for criticism of the applicability of the contract idea, see Jones, , Governance, pp. 5152Google Scholar: this suggests that ‘the notion of the Church in Wales as based on a contract…is flawed …because a church exists on the basis of shared religious belief’, not contract; ‘It would be better to speak of the governance of the Church in Wales as based on consensus rather than contract’.

50. R v. The Dean and Chapter of St Paul's Cathedral and the Church in Wales, ex parte Williamson (1998) 5 ELJ 129 per Sedley J.Google Scholar

51. R v. The Provincial Court of the Church in Wales, ex parte Reverend Clifford Williams (1999) 5 ELJ 217 per Latham J.Google Scholar

52. Re Clergy Orphan Corporation Trusts [1933] 1 Ch 267Google Scholarper Farwell J: the Church in Wales is organized ‘as a matter of agreement between those persons who are members of that body’.

53. R v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann [1992] WLR 1036Google Scholar: for State court intervention, the test is that of ‘government interest’: ‘to attract the court's supervisory jurisdiction there must not be merely a public but potentially governmental interest in the decision making power in question’.

54. See Baker v. Jones and Others [1954] 2 All ER 553Google Scholar; R v. Jockey Club, ex parte RAM Racecourses Ltd (1991) 3 Admin LR 265.Google Scholar

55. The Representative Body, for example, is incorporated by royal charter; and the Governing Body is recognized as an ‘appropriate authority’ for the purposes of the Sharing of Church Buildings Act 1969 (Sched. 2).

56. Government of Wales Act 1998, s. 114. The assembly is under a duty to make a scheme setting out how it proposes ‘to promote the interests of relevant voluntary organisations’. Whether the Church in Wales is a voluntary organization, and therefore eligible for membership of a scheme, would be for the Assembly to decide. The scheme must specify how the Assembly proposes to consult relevant voluntary organizations about the exercise of its functions affecting, or of concern to, those organizations. Provision exists to keep the scheme under review, to remake and revise it, and to publish it. The Assembly must consult such organizations as it considers appropriate before making, remaking or revising the scheme.

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

69. Schools Standards and Framework Act 1998, s. 69; see Doe, , The Law of the Church in Wales, pp. 219–21.Google Scholar

70. Sharing of Church Buildings Act 1969.

71. Ecclesiastical Courts Jurisdiction Act 1860: this makes it a crime to disturb acts of public worship.

72. Currently, clergy are not classified as employees, and so have no recourse to the civil industrial tribunals in cases of unfair or unlawful dismissal. For recent government proposals, however, see Calvert, S. and Hart, C., ‘EU Employment Law and Religious Organisations’, Law and Justice 148 (2002), pp. 420.Google Scholar

73. Welsh Church Act 1914, s. 3(3).

74. See, e.g., for clergy, Const. VII.66: clergy undertake ‘to accept, submit to, and carry out any sentence…of any Court or the Tribunal of the Church in Wales’.

75. For example, they must be satisfied about their competence under church law to determine a matter; they must not exceed their jurisdiction; they must not determine a matter in accordance with rules which are contrary to the common law. See, respectively, R v. Twiss (1869) LR 4 407Google Scholar; Blunt v. Harwood (1838) 8 Ad & E1 610Google Scholar; Tey v. Cox (1613) 2 Brownl 35.Google Scholar

76. R v. Provincial Court of the Church in Wales, ex parte Reverend Clifford Williams (1998) CO/2880'98Google Scholar. Disciplinary matters are now dealt with by a new Disciplinary Tribunal (with appeal to the Provincial Court).

77. Forbes v. Eden (1867) LR 1 Sc & Div 568Google Scholar; indeed, the Welsh Church Act 1914, s. 3(2) domestic church law ‘shall be capable of being enforced in the temporal courts in relation to any property’ held on behalf of the church.

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.

85. Davis v. Black (1841) 1 QB 900.Google Scholar

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.

92. See, e.g., Kerr [1894] P 284.Google Scholar

93. Welsh Church (Burial Grounds) Act 1945, s. 4: as to notice, fees and services.

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).

99. See Doe, , The Law of the Church in Wales, pp. 1820.Google Scholar

100. See above for the Welsh Church Act 1914, s. 13.

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)).

102. See R v. Dean and Chapter of St Paul's Cathedral and the Church in Wales, ex parte Williamson (1998) 5Google ScholarEcclesiastical Law Journal (1998) 129.Google Scholar

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. 2930.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. 5356Google 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. 93103.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. 6988.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