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Religion, Doctrine and Ecclesiastical Courts

Published online by Cambridge University Press:  11 August 2011

Alexander McGregor
Alexander McGregor
Affiliation:
Deputy Legal Adviser to the Archbishops' Council and the General Synod Deputy Chancellor, Diocese of Oxford
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Extract

In recent years the application of, and discussion about, the faculty jurisdiction has come to focus largely on those aspects of the jurisdiction concerned with the making of changes to listed buildings. This Journal has recently carried two full-scale articles that have helpfully described, from a legal perspective and a practical one, respectively, the operation of the faculty jurisdiction within the context of listed buildings and the ecclesiastical exemption.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 13 , Issue 3 , September 2011 , pp. 333 - 341
Copyright
Copyright © Ecclesiastical Law Society 2011

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References

1 That is, the exemption from listed building and conservation area consent provided for by the Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (England) Order 2010 (SI 2010/1176).

2 (2009) 11 Ecc LJ 266–283Google Scholar.

3 [1995] Fam 1.

4 (2010) 12 Ecc LJ 345–354Google Scholar.

5 (2011) 13 Ecc LJ 244Google Scholar.

6 (2011) 13 Ecc LJ 245Google Scholar.

7 Mynors, ‘Ecclesiastical buildings’, p 281.

8 Ecclesiastical Jurisdiction Measure 1963, s 13(1).

9 See Halsbury's Laws of England, vol 14, para 1275.

10 Ecclesiastical Jurisdiction Measure 1963, s 1(1).

11 Ibid, s 2(2).

12 Ibid, s 2(5) and schedule 1, part 1.

13 Currently, at least three ecclesiastical judges are clerks in holy orders who will have taken the Declaration of Assent in its full form at their ordination.

14 Canon G 2.3.

15 The same religious qualifications, oaths and declarations are required of a person appointed to be Dean of the Arches and Auditor, deputy Dean of the Arches and Auditor or deputy chancellor of a diocese: Ecclesiastical Jurisdiction Measure 1963, ss 3(3), (6) and 4(2); Canon G 2.2 and 2.3 and Canon G 3.3 and 3.4.

16 See Canon C 15.1.

17 See Halsbury's Laws of England, vol 14, para 1264.

18 [1983] 1 WLR 364.

19 That causes of faculty may involve dealing with matters of doctrine is expressly recognised by the statutory framework concerned with the jurisdiction of the ecclesiastical appellate courts. An appeal against the decision of a consistory court in a faculty case lies to the Court of Arches or the Chancery Court of York only where the cause of faculty is not one ‘involving matter of doctrine, ritual or ceremonial’: Ecclesiastical Jurisdiction Measure 1963, s 7(1)(b). Where the cause of faculty does involve such a matter, any appeal lies to the Court of Ecclesiastical Causes Reserved (ibid, s 10(1)). For the purpose of determining to which court an appeal lies, the chancellor is under a duty to certify on the application of the party desiring to appeal whether or not a question of doctrine, ritual or ceremonial is involved (ibid, s 10(3)).

20 [1991] Fam 1, followed by Re St George's, Deal [1991] Fam 6.

21 Re St Stephen, Wallbrook [1987] Fam 146.

22 See Re St Thomas, Pennywell [1995] Fam 50.

23 [2009] Fam 38.

24 [2002] Fam 299.

25 The rubrics in the Book of Common Prayer no longer have statutory force since the repeal, by the Church of England (Worship and Doctrine) Measure 1974, of the relevant provisions of the Act of Uniformity 1662, but if the purpose of a rubric is to clarify general Church order and is of substantial importance, or its purpose is to set out dogma, it must be followed, irrespective of whether the rite being used is from the Prayer Book or from Common Worship. See Re St Thomas, Pennywell [1995] Fam 50 at 67.

26 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 16(2).

27 Ibid, s 16(3). Section 16(4) makes provisions as to the costs and expenses incurred by such a person.

28 [1995] Fam 254.

29 In making appointments to the Diocesan Advisory Committee, the Bishop's Council must ensure that the persons appointed have, between them, inter alia, knowledge of the history, development and use of church buildings and knowledge of Church of England liturgy and worship (Care of Churches and Ecclesiastical Jurisdiction Measure 1991, schedule 1, para 5).

30 Faculty Jurisdiction Rules 2000 (SI 2000/2047), rule 25. In Re Blagdon Cemetery, the Court of Arches was assisted by a paper on the theology of burial by the Right Reverend Christopher Hill. An extended version of that paper was reproduced in this Journal: Hill, C, ‘A note on the theology of burial in relation to some contemporary questions’, (2004) 7 Ecc LJ 447–451Google Scholar.

31 (2011) 13 Ecc LJ 243Google Scholar.

32 See the discussion of the effect of the rubric after the consecration in the Book of Common Prayer directing that the sacrament shall be received ‘all meekly kneeling’ in Bursell, R, Liturgy, Order and the Law (Oxford, 1996), pp 50–51Google Scholar.

33 (2011) 13 Ecc LJ 122Google Scholar.

34 (2011) 13 Ecc LJ 121Google Scholar.

35 (2009) 11 Ecc LJ 361Google Scholar.

36 (2010) 12 Ecc LJ 126Google Scholar.