The law as friend

Robert Van Der Weyer considers the possibility that a free province could be created for traditionalists no matter what General Synod has or has not decided

When the idea of a new province in England for traditionalist Anglo-Catholics and Evangelicals emerged a few years ago, it was assumed that only

General Synod could institute it by means of legislation. In fact, this is legally incorrect, and contrary to historic precedent. Traditionalists have the right to form their own province without reference to General Synod; and this seems the moment to exercise that right.

English ecclesiastical law contains no definition of either a province or a diocese. But Halsbury’s Laws of England, an authoritative commentary, defines a province as ‘the circuit of an archbishop’s jurisdiction’ [vol. 14, para. 428], and a diocese as ‘the circuit of a bishop’s jurisdiction’ [vol. 14, para. 454]. Thus a diocese is a voluntary association of congregations that choose to put themselves under the oversight of a particular bishop; and a province is an association of one or more dioceses placing themselves under an archbishop.

The voluntary nature

The voluntary nature of dioceses, and by implication provinces, was confirmed in 1841 by the Bishops in Foreign Countries Act (still in force), which gives permission for such ‘Protestant congregations as may be desirous of placing themselves under [a bishop’s] authority’ [s2]. Thus the thirty-six Anglican provinces outside England formed not because the convocations of Canterbury and York passed laws allowing them to do so, but because congregations chose to form them. Once created, a province can devise its own constitution and laws.

As more and more provinces were formed, the Lambeth Conference of 1930 wondered in what sense they remained Anglican. Resolution 48 asserted that the characteristic feature of Anglicanism is to ‘uphold and propagate the Catholic and Apostolic faith and order as they are generally set forth in the Book of Common Prayer.’ Resolution 49 added that the provinces of the Anglican Communion are bound together ‘not by a central legislative or executive authority, but by a mutual loyalty sustained through the common counsel of the bishops in conference.’

Thus any group of congregations committed to the catholic and apostolic faith, and which worship within the BCP tradition, can become an Anglican province. It would also need at least three bishops in order to consecrate new bishops.

The 1841 Act

Of course, until recently every Anglican province contained within itself all the Anglican congregations in a particular geographical area. But the 1841 Act allowed the principle of congregation choosing their bishop regardless of territory; so by implication one congregation could choose one bishop, and a neighbouring congregation another. After the consecration of Gene Robinson a growing number of congregations in America took advantage of this Anglican

right of choice. Two years ago those congregations formed the Anglican Church in North America (ACNA), a new Anglican province which about 80% of Anglicans worldwide now formally recognize.

No doubt clergy and laypeople in England tempted to follow ACNA’s example would worry about buildings and money – and would shudder at the prospect of becoming embroiled in the kind of legal battles taking place in America. In fact, the legal situation in England is entirely different.

In the USA the dioceses hold legal title to the church buildings, and thus have the power to force out ACNA congregations. In England the local incumbent and P CC are trustees of their church, and hence have a legal obligation to use the church in accordance with the intention of the beneficiaries. That intention was for the church to provide a place for Christian worship in the English tradition.

Historic rights

A congregation within a new English province would be likely to stick more closely to the beneficiaries’ intention than many of the liberal congregations in the provinces of Canterbury and York. So there could be no question of its continuing right to use its building.

If the relevant diocese within Canterbury or York province wished to retain some continuing use of the building, it could enter a sharing agreement with the new province congregation, of the type envisaged in the Sharing of Church Buildings Act 1969.

The situation regarding parsonages is more blurred, mainly because of the involvement of the Church Commissioners. Moreover, parsonages have financial value, whereas churches do not – indeed, most churches are financial liabilities. However, in my view the law would favour the new province incumbent retaining his parsonage.

Church Commissioners

When it comes to money, new province congregations would in the main be better off, in some cases considerably so. The Church Commissioners investments are now mainly tied up in paying clergy pensions; and stipendiary priests joining the new province would, as a matter of secular law, retain their existing pension rights.

New province congregations would be free from paying the quota. Instead they would presumably revert to the historic Anglican tradition of paying their clergy directly – albeit by means of a payroll service that the province would probably provide.

While I am enthusiastic about the Ordinariate, I would hugely welcome the creation of a new province in England, particularly one that included Evangelicals as well as AngloCatholics; and I suspect that many conservative rural congregations, of the type to which I have ministered for the past three decades, would also join. ND

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