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Welsh Church Courts and the Rule of Law

Published online by Cambridge University Press:  31 July 2008

Thomas Glyn Watkin
Thomas Glyn Watkin
Affiliation:
Reader in Law, University of Wales, Cardiff Sometime Legal Assistant to the Governing Body of the Church in Wales
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‘As from the date of disestablishment ecclesiastical courts and persons in Wales and Monmouthshire shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law.’

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 5 , Issue 27 , July 2000 , pp. 460 - 469
Copyright
Copyright © Ecclesiastical Law Society 2000

References

1 This was the date of disestablishment provided by the Welsh Church (Temporalities) Act 1919. s 2. The implementation of the provisions of the 1914 Act had been delayed owing to the First World War.

2 See the Constitution of the Church in Wales, chapter XI: section 2–5: also VI. 7.

3 See Constitution. XI. 6–15.

4 This means they must either reside in Wales or be on the electoral roll of a Welsh parish or, in the case of clerics, hold or have held an ecclesiastical office or licence from a Welsh Bishop: chapter II. sections 10 and 11.

5 For details of this proposal and a criticism of it. see Wakin, T.G.. ‘Governing Body of the Church in Wales: Recent Legislation’ (1997) 4 Ecc LJ 761.Google Scholar This proposal has since been abandoned. See minute 99/11 of the Governing Body meeting of April 1999.

6 See Constitution. XI. 18–28.

7 For the most recent examination of the application of the principle that no one should be a judge in their own cause, see R v Bow Street Metropolitan Stipendiary Magistrate, ex pane Parte Ugarte [1999] 2 WLR 272.Google Scholar

8 See Constitution. XI. 32.

9 See Constitution. XI 33.

10 In relation to appeals to the Supreme Court, the Rules of Court provide that the directions of the Registrar of the Provincial Court are to be followed. Nothing is said of the court's first instance competence: see Rules of the Courts of the Church in Wales: Rules of the Provincial Court: 1 Rules Applicable Generally, rule 37.

11 Chancellor Leolin Price QC brought this to the attention of the Ecclesiastical Law Society in his contribution to a round table discussion on ecclesiastical courts at the Cardiff conference in 1991, producing a spirited rejoinder from the then President of the Provincial Court. Chancellor Bruce Griffiths QC. See generally. Masding, J.. ‘Conference at Cardiff’ (1991) 2 Ecc U 246 at 247.Google Scholar

12 Based on Magna Carta. cl 39.

13 See Jackson, R. M.. The Machinery of Justice in England (5th edn) (Cambridge. 1967). p 117 and n 2.Google Scholar

14 See 99 HL Deb. 5. ss 381–418.

15 This was the Remarriage after Divorce Bill. For details of its discussion and defeat, see Watkin, T. G.. ‘Governing Body of the Church in Wales: Recent Legislation’ (1996) 4 Ecc LJ 600.Google Scholar

16 See Marriage and Divorce: A Statement by the Bench of Bishops of the Church in Wales (02 1998).Google Scholar

17 One way out of the impasse would have been to bring a complaint against the Archbishop first to be tried in the Supreme Court, the result of which would be, in fact if not in law, decisive of the verdict against his brother bishops.

18 See Constitution, II. 65.

19 See for instance the Report of the Standing Committee. September 1998: p 9: para 29. As the Welsh bishops are not corporations sole, the case was technically between the Right Reverend Barry Morgan and the Reverend Clifford Williams. The provincial bodies had no interest other than in providing the judicial mechanisms for its resolution. However, it was agreed that they should pay the costs of both parties with regard to their litigation before the Church courts.

20 The Cure of Souls: The Calling, Life anil Practice of the Clergy: The Report of a Working Party set up in 1995 by the Archbishop of Wales. The Report contradicted the Church in Wales' teaching and discipline on the marriage of the unbaptised, despite the fact that the legality of that position had been upheld by both the Faculty Office of the Archbishop of Canterbury and the Office of the Registrar General. The Report was issued to clergy by the Bench of Bishops and never offered to the Governing Body for discussion or debate.

21 For details see Watkin, T.G.. ‘Governing Body of the Church in Wales: Recent Legislation’ (1998) 5 Ecc LJ 125.Google Scholar

22 The Constitution. 11. 48; 50–51. provides that the Chairman is to rule on such matters. Such a wide discretion on such important issues is completely unacceptable in a constitutionally governed body.

23 See Constitution. VII. 66.

24 This was proposed in the Cure of Souls (see note 21 above), and is currently before the Governing Body in the form of the Bill to Establish a Disciplinary Tribunal of the Church in Wales which had its first reading in April 1999.