‘The manner of appointment [of bishops] reflects the delicate balance between the established nature of the Church of England and its autonomous self-governance.’Footnote 1 As with most matters of Church of England ecclesiology and polity, the process of the appointment of bishops in the Church of England is firmly rooted within the reforms of the sixteenth century, but has origins which stretch back to the mediaeval Church. This comment article focuses on the appointment of diocesan bishops in the Church of England.Footnote 2
It is important to begin by stating that episcopacy is fundamental to the way that the Church of England orders and understands itself. The Canons of the Church of England state that ‘The Church of England holds and teaches that from the apostles’ time there have been these three orders in Christ's Church: Bishops, Priests and Deacons.’Footnote 3 As Doe notes, ‘Bishops in the Church of England are involved directly or indirectly in all aspects of ecclesiastical life: pastoral, governmental, doctrinal, liturgical, and proprietorial.’Footnote 4 The office of bishop is not merely functional but rather it is a very way of being: as for deacons and priests, ‘no person can ever be divested of the character of his order’.Footnote 5
HISTORICAL DEVELOPMENT
The Church in England retained bishops by reaching a compromise as set out in the Elizabethan Settlement of 1559 whereby the threefold order of bishops, priests and deacons was preserved.Footnote 6 As Diarmaid MacCulloch has remarked, ‘The Elizabethan Church Settlement created a cuckoo in the nest, a Protestant theological system and a Protestant programme for national salvation sheltering within a largely pre-Reformation Catholic church structure.’Footnote 7 So the Elizabethan Settlement cemented the threefold order of the Church of England: ‘the entire legal framework of the Church of England … is one which protects and enhances the centrality of the episcopal ministry as an instrument of continuity and authority within the church’.Footnote 8 This understanding of episcopacy is seen in the manner in which bishops are appointed.
In the Early Church, bishops were effectively chosen by the popular acclamation of the people and were then ordained by fellow bishops.Footnote 9 By the later Middle Ages the rights of the clergy and people to elect their diocesan bishop had begun to be surrendered into the hands of the chapter of the clergy of the cathedral church. This was an increasing source of tension, however, as both the king and the pope tried to assert their conflicting claims to make such appointments.Footnote 10 The Act in Restraint of Appeals 1532 brought about the rejection of papal authority, and placed the jurisdiction of the spiritual (as well as the temporal) realm firmly in the hands of the king. This naturally had a decisive effect on episcopal appointments. The Appointment of Bishops Act 1533 provides that
All Elections of the Archbishops or Bishops shall be made by the Deans and Chapters, &c. under the King's Licence and Letters missive naming the Person to be chosen; and in Default of such Election the King shall present by his Letters Patent.Footnote 11
The effect of this legislation could not be clearer: it was now for the king to instruct a dean and chapter of the relevant cathedral on whom they should elect as the diocesan bishop; if the relevant dean and chapter failed to comply, the appointment was to proceed in any event under letters patent. It should be noted here that ‘the machinery established by Henry VIII basically continues in all outward appearances to this day’.Footnote 12
APPOINTMENT OF BISHOPS IN THE ANGLICAN COMMUNION
It is useful at this stage to compare the appointment process of the Church of England with that of other churches in the Anglican Communion. Throughout the Anglican Communion, while ‘various models are employed … there are basically, four stages to election: nomination, voting, confirmation, and pronouncement of the result’.Footnote 13 It is argued that, in terms of the appointment of diocesan bishops (and indeed in other areas of church life), there is a set of principles or norms common to each of the churches of the Communion.Footnote 14 So in terms of nomination,
the right to nominate is vested in a wide range of ecclesiastical bodies and persons; in most churches it is enjoyed by a special nominating body, usually a diocesan institution consisting of representatives of the episcopate (other bishops ministering in the diocese), clergy and laity.Footnote 15
Similar shared norms are found in the election of a bishop ‘carried out by an electoral college or other such body which consists of representatives of the episcopate, clergy and laity’.Footnote 16 In relation to the confirmation of election, the shared principle is that ‘the authority to confirm or reject the election of a bishop vests in an archbishop, episcopal assembly or other competent lawful authority’.Footnote 17 In the Church of England this right arises out of statute, and is vested in the archbishop of the province; in The Episcopal Church a majority of both the bishops and the standing committees of the other dioceses in the province must consent to the election.Footnote 18 Finally, the bishop is consecrated, which shall not occur without the prior consent of the candidate,Footnote 19 and must take place ‘in the prescribed liturgical form through the laying on of hands by three validly consecrated bishops’.Footnote 20
So it is certainly the case that the structural system which the Church of England uses to appoint its bishops is broadly shared by other churches of the Anglican Communion. However, the appointments process in the Church of England has come under sustained criticism in recent years, mostly surrounding the perceived role of the State, and also the question over the sense in which bishops are ‘elected’.
APPOINTMENT OF BISHOPS IN THE CHURCH OF ENGLAND
Today, within the Church of England, for someone to be appointed and admitted as a diocesan bishop, there is basically a four- (or five-)stage process: nomination, election, confirmation of election, consecration (if the relevant bishop is not already in episcopal orders) and homage to the sovereign.Footnote 21 It is argued that the key stage in this process is the nomination stage and this is considered further below; suffice to say that a diocesan Vacancy in See Committee meetsFootnote 22 and their findings are then sent to the Crown Nominations Commission. Since 2007 the convention has been that the prime minister chooses the first name submitted by the Crown Nominations Commission, the second name only being offered in case the first-choice candidate, for whatever reason, is unable to take up the post.Footnote 23
The relevant bishop is then ‘elected’ using the process already outlined under The Appointment of Bishops Act 1533: the Crown issues to the college of canons of the cathedral a licence (a congé d'elire) to proceed to elect a bishop and a letter missive naming the person to be elected.Footnote 24 It should be noted that it is now the college of canons (rather than the dean and chapter) which is bound to do this.Footnote 25
Once the election has taken place, the result is communicated to the relevant archbishop by the monarch, who commands him to confirm the election in a formal legal process known as a ‘confirmation of election’. The rationale for the election being confirmed is that, while the election of a new bishop is a matter for the diocese (hence his or her election by the college of canons of the relevant cathedral), it is also a matter for the wider Church. Consequently, ‘since at least the fourth century it has been a fundamental principle that confirmation of an episcopal election by the metropolitan on behalf of the wider Church is necessary’.Footnote 26 This is enshrined in law in The Appointment of Bishops Act 1533, section 4, and also in the Canons: ‘The archbishop is, within his province, the principal minister and to him belongs the right of confirming the election of every person to a bishopric’.Footnote 27
From the moment of confirmation the new bishop can license and institute clergy and appoint them to benefices, and can exercise discipline. However, he or she cannot confirm or ordain until he or she has been consecrated as a bishop: the consecration must be done by at least three bishops, and at least one must be the archbishop of the province (or a bishop appointed to act on his behalf).Footnote 28 The final stage in the process – which takes place after confirmation of election (and consecration if applicable) – is that the new bishop pays homage to the sovereign. In contrast to the oath of allegiance made at the confirmation, the act of homage is an acknowledgement of tenure, and relates to the secular possessions of the see. Unlike the spiritualities of the see, which are held by the dean and chapter of the cathedral in a vacancy, the temporalities (under the common law principle that they are ecclesiastical property), revert to the Crown during a vacancy in see (today they are vested in the Church Commissioners), and the right for the new bishop to sue for such temporalities following the confirmation of election and upon homage arises under statute.Footnote 29
Following homage the bishop holds both temporal and spiritual jurisdiction. The ceremony of enthronement has no legal significance, although it provides a ceremonial and symbolic opportunity for the new bishop to enter his or her new domain and to address his or her flock for the first time.Footnote 30
The role of the Crown
It is crucial to understand that the Church of England appoints diocesan bishops as it does because it is an established church. The Appointment of Bishops Act 1533 left no doubt that control over all episcopal appointments resided in the hands of the king. The king received absolute power not least because of the coercive powers that could be used if the chapter did not elect, or the archbishop did not consecrate, the king's nominee: failure to do so placed the defaulting chapter or archbishop subject to the penalties of the fourteenth-century statute of praemunire.Footnote 31
However, from as early as Henry VIII's reign, such episcopal appointments were not taken without advice, and Edward VI relied heavily on his court of advisers in his appointment of bishops and otherwise.Footnote 32 Evidence of the sovereign asking for advice in episcopal appointments continues throughout the sixteenth and seventeenth centuries.Footnote 33 Today the sovereign's right under statute to instruct the dean and chapter to elect her nominee is exercised by the prime minister: this became the settled position with the arrival of King George I, who had no knowledge of either the English language or the English Church.Footnote 34 From this point onwards, the prime minister of the day became the complete initiator of the process by which bishops were appointed and, while Church opinion was courted (at the highest level) and latterly the prime minister's secretary of appointments became increasingly involved in the process, it was for the prime minister to make the decision and have the final say irrespective of the views of the Church.Footnote 35 The prime minister then sent the name of the nominee to the monarch.Footnote 36
Reforming the process
So the point remained that it was the Crown not the Church which appointed the bishops of the established church, and this was a legal power exercisable under statute. Disquiet gradually grew within the Church as to its lack of involvement in the process of making such senior appointments, and in 1974 the General Synod of the Church of England carried a motion that ‘the decisive voice in the appointment of diocesan bishops should be that of the Church’.Footnote 37 In 1976 the Prime Minister, James Callaghan, stated that, as ‘The archbishops and some of the bishops sit by right in the House of Lords … their nomination must remain a matter for the Prime Minister's concern.’ However, he proposed that, while
Bishops and archbishops would continue to be appointed by The Queen … to assess a vacancy and possible candidates for it, a small committee should be set up by the Church … The committee would draw up a list of names, which might be given in order of preference.Footnote 38
The result of this was that, following consultation, the Crown Appointments Commission (now the Crown Nominations Commission (hereafter ‘CNC’)) was born. The CNC consists of the two archbishops (as chairman and vice-chairman), six members of the General Synod (three clerical and three lay) elected for a five-year period, six members of the Vacancy in See Committee of the diocese in question (at least three must be lay people) and the two appointments secretaries (in a non-voting capacity).Footnote 39 The CNC meets on two occasions, on the second of which it votes on the shortlisted names to produce two for submission to the crown.Footnote 40
It is telling that Callaghan also stated that under the new regime ‘the Prime Minister would retain a real element of choice’ and that, while the Church would gain a greater say in its choice of leaders, the new arrangements ‘at the same time would preserve the constitutional essentials of the established Church’.Footnote 41 Although there was often the assumption that, if the two names were sent to the prime minster in order of preference, the prime minister would pick the first name, this was not necessarily the case. No constitutional convention was established whereby the prime minister accepted and recommended the first name submitted in all cases. If the prime minister could not accept either name the matter went back to the Commission for further names to be submitted.Footnote 42
What is clear is that, despite the fact that the Church had gained much more influence in the process, the Crown retained a significant role in that it could choose between two candidates and also had the power of veto.
Gordon Brown's reforms
This remained the case until very recently. In July 2007 Gordon Brown's government published a green paper, The Governance of Britain, which dealt with limiting the powers of the Executive in many aspects of the national life and making it more accountable. The paper states that, while ‘the Government reaffirms its commitment to the position of the Church of England by law established’ and ‘The Queen should continue to be advised on the exercise of her powers of appointment by one of her Ministers, which usually means the Prime Minister’,
the Government believes in principle that the Prime Minister should not play an active role in the selection of individual candidates. Therefore, the Prime Minister should not use the royal prerogative to exercise choice in recommending appointments of senior ecclesiastical posts, including diocesan bishops, to The Queen.Footnote 43
In order to reflect this, the paper goes on to say that ‘for diocesan bishoprics the Prime Minister proposes that from now on he should ask the Crown Nominations Commission to put only one name to him, a recommendation he would then convey to The Queen’.Footnote 44 This went out to consultation and in 2008 the General Synod approved the archbishops’ proposals for altering the procedure so that the prime minister no longer exercises any choice in the matter.Footnote 45
This is now the settled position:
since 2007 the agreed convention in relation to episcopal appointments has been that the Prime Minister commends the name preferred by the Commission to The Queen. The second name is identified in case, for whatever reason, there is a change of circumstances which means that the appointment of the CNC's recommended candidate cannot proceed.Footnote 46
This therefore in a sense completes the process begun in 1976 with the establishment of what is now the CNC; State involvement in the appointment of diocesan bishops would effectively become a question of formalities (election, confirmation, etc) only.
COMMENT
It is argued that this position, whereby the Church rather than the State effectively controls the appointment of bishops, is consistent with the law as demonstrated by questions of justiciability. For example, in Blake v Associated Newspapers Footnote 47 the defendant in a defamation hearing argued for a stay in proceedings on the basis that ‘that questions of the validity or otherwise of Holy Orders were a doctrinal issue and thus not justiciable by the court’. The stay was granted on the basis that ‘many of the issues [fell] within the territory which the courts, by self-denying ordinance, will not enter’ and to answer these questions ‘would involve a detailed and painstaking examination of questions of doctrine, theology and ecclesiology combining an assessment of history and a full understanding of contemporary and emergent theology and ecumenism’.Footnote 48
This reluctance to adjudicate on matters of religious belief and the internal workings of a religious organisation is not new, although the courts will interfere if, for example, civil or human rights are being trespassed by such an organisation.Footnote 49 It thus seems to be the case that the separation of the State from the appointment of bishops seems to be both the will of the Church and consistent with current legal norms. However, two significant constitutional questions remain regarding the current position.
Constitutional questions
The first question relates to the fact that the prime minister's advice is completely followed by the monarch in relation to episcopal, and other, appointments (and has been since the time of George I). This, of course, is the very nature of a constitutional monarchy, where ‘we find a set of conventions which limit the discretion of the sovereign so that his or her public acts are in reality those of ministers’.Footnote 50 This is therefore the case with episcopal and other Church appointments: the conventional duty to follow ministerial advice applies to the exercise of prerogative power.Footnote 51
However, Doe argues that the right to appoint bishops is in fact derived from statute, rather than the exercise of prerogative power.Footnote 52 It is generally accepted that prerogative powers exist insofar as Parliament has not abolished or curtailed them by statute;Footnote 53 in Attorney-General v De Keysers’ Royal Hotel Ltd Footnote 54 the court held that prerogative is placed in abeyance whenever legislation overlaps with it. This would therefore suggest that the appointment of bishops by the sovereign is a statutory power and that since 1533 any equivalent prerogative power has been displaced. As appointments by the sovereign are blind it would appear that the sovereign's discretion under statute (rather than prerogative) has been fettered, which is illegal under the principles of administrative law: as Doe notes ‘each case must be examined on its own merits and any rules or policies developed, which anticipate decisions and which render the holder of the discretion unable to exercise that discretion, are illegal’.Footnote 55
This is clearly a complex question. Suffice it to say that, as has been noted, the prime minister has exercised the sovereign's statutory right on his or her behalf since at least the reign of George I and it is telling that it has not been raised in any of the recent reports. The most recent reform whereby the prime minister is bound to pick the first name seems to harden this problem: the sovereign's right to appoint a diocesan bishop has for all practical purposes disappeared.
The second constitutional issue is that the changes brought about by Gordon Brown were clearly a change of convention in this area, from a position where the prime minister still controlled the appointments process (whereby he or she had the choice of two names and the option to ask for more), to the convention whereby the prime minister is only offered one name to commend to the sovereign. The only legislation which was required in this area was to remove the requirement in the Suffragan Bishops Act 1534 that two names needed to be submitted to the sovereign.Footnote 56 As there is no such requirement in the Appointment of Bishops Act 1533 no legislation was required, and the convention was merely changed overnight.
There is a question whether to change a convention in such a way is lawful. In brief, it is generally accepted that conventions are ‘unlike legal rules because they are not the product of a legislative or of a judicial process’,Footnote 57 and that they are ‘the result of gradual hardening of usage over a period of years or generations’.Footnote 58 However, this is not the first time that there have been attempts to declare new constitutional conventions: for example, the Salisbury Convention, whereby it was agreed that the House of Lords would no longer oppose Government Bills at third reading if found in the Government's manifesto, was essentially declared overnight.Footnote 59 Ultimately Gordon Brown's changing of this convention, and others such as requiring parliamentary consent to deploy Her Majesty's forces in armed conflict, are all examples of a form of ‘declaratory’ conventions taking hold. It is arguable that, as conventions are always emerging and dissolving, it is sometimes questionable whether a convention has been broken or merely changed.Footnote 60
The point with both this and the question of the fettering of the sovereign's statutory discretion is that, while the process may be constitutionally and legally questionable, who, if anyone, would be able to bring a claim on the basis that the sovereign's discretion had been fettered or the convention had been breached? In the case of the latter, it is generally accepted that conventions only exist in the political realm and therefore cannot be enforced by the courts. Controversially, however, Trevor Allan argues that ‘legal doctrine and political principle are interdependent and intertwined’, and ‘conventions, like Acts of Parliament, are sources of law and capable of being enforced by the courts’.Footnote 61 Although this is very much a minority view, it is not inconceivable that a challenge could be mounted over the appointment of a bishop where a breach of convention was cited. However, as noted above, the courts are reluctant to engage in matters pertaining to the Church of England.
The de facto election of bishops
The final criticism of the current appointments process is the question of the election of bishops in the Church of England. As noted above, ‘it is a general principle of Anglican canon law that candidates for admission to the office of diocesan bishop must be elected to that office’.Footnote 62 However, it is often said that bishops in the Church of England are not elected at all, for the ‘election’ of a diocesan bishop takes place under statute and is a formality: the college of canons has no choice but to elect the sovereign's nominee. Nevertheless, it is arguable that today the nomination stage provides the equivalent of election. Until relatively recently there was little participation by the Church in nominations for bishops: while the prime minister may have consulted it was his or her sole choice as to which name to submit to the sovereign.
It can be argued that the CNC effectively ‘elects’ the new bishop. Although this is officially still the ‘nomination’ stage of the process, the CNC considers the views of the Vacancy in See Committee, agrees the role profile, matches it against possible candidates (provided by the appointment secretaries from their own lists and from suggestions sent in to them), interviews the candidates and then, crucially, votes.Footnote 63 In that sense the CNC acts as an electoral college: members of the diocese are elected on to it from the members of the Vacancy in See Committee, where they sit alongside elected clerical and lay members of the General Synod and the two archbishops. The Commission votes for candidates on behalf of the diocese and the wider Church.
This process has been questioned: there has been a suggestion that diocesan representatives on the CNC should be elected from the diocesan synod rather than the Vacancy in See CommitteeFootnote 64 and, as diocesan bishops serve in the legislature, there is a question as to whether an effectively unelected body should appoint people to such posts.Footnote 65 In addition, while the new process enables lay involvement there is still no general opportunity for the wider Church to object to a candidate.Footnote 66
It is thus argued that bishops in the Church of England are elected, and are elected in a similar way to the process in certain other churches in the Anglican Communion: that is, through an electoral college. This can particularly be seen to be the case since the reforms of 2007–2008 mean that it is the CNC (not the prime minister) who effectively have the final say on the candidate to be nominated. However, owing to the historical development of the appointment of bishops, it is at the nomination rather than the election stage that the effective election takes place.
CONCLUSION
The process of the appointment of bishops in the Church of England has developed significantly in the twentieth and twenty-first centuries, while retaining the recognisable structure of nomination, election, confirmation, consecration and homage which dates back to at least 1533. Although the Crown has always been advised and has canvassed views (which reached a significant level with the establishment of Vacancy in See Committees in 1965), the shift in the effective appointment of bishops began in 1976 with the creation of the Crown Appointments Commission. The move to giving internal Church-appointed bodies control over appointments was effectively completed by the Brown reforms of 2007–2008, where the convention was declared that the prime minister would only choose the first name submitted by the commission.
This can be seen to be consistent with the development of law in this area. The principle of non-interference by the judiciary into matters of doctrine developed partly as societal norms have changed: as the country has become more multi-faith and also secular, so the courts have increasingly felt unable to adjudicate in religious disputes (including those of the established Church). Similarly, disquiet grew over State control of the appointment of bishops for two main reasons: the sovereign might receive advice from a prime minister who was not a committed Christian (never mind a communicant member of the Church of England), and there was no guarantee of consultation with the wider Church and whether resulting advice would be followed.Footnote 67
What can be seen in the appointment of bishops is the continuance of a long-term process of disengagement by the State from the Church, though this disengagement is not the same as disestablishment, which has not been questioned in this regard.Footnote 68 For, as mentioned, the State still retains a formal role in the process: the procedure of election and confirmation under the 1533 Act, and homage to the monarch, continues to this day. If nothing else, this symbolically retains the fact that, because of the nature of the Church of England, which is by law established, the appointment of a bishop is an important moment for the life of the entire nation and not just for the Church. But the fact remains that it is now the Church, not the State, which decides on its diocesan bishops, with the CNC effectively acting as an electoral college. While there are constitutional issues surrounding this, the development (or declaration?) of the convention in this regard therefore brings the Church of England's process much closer to that of other churches within the Anglican Communion.
