Ecclesiastical law and the Church in Wales
The overview below was written by Professor Thomas Watkin.
In England, the Church of England is established by law. This means that its law – its ecclesiastical law − is part of the law of the land, part of the law of the jurisdiction of England and Wales. The ecclesiastical law of the Church of England is to be found in a variety of sources including Acts of Parliament, Ecclesiastical Measures formally enacted by Parliament, and Canons made by the General Synod of the Church of England. It is administered by a system of ecclesiastical courts.
Until 1920, the territory of the established Church of England included Wales, and its ecclesiastical law was therefore law in Wales. In Wales at that time, the Church of England consisted of four territorial dioceses, each with a diocesan bishop. On 31 March 1920, the Church of England was disestablished within Wales by virtue of the Welsh Church Act 1914. The four Welsh dioceses formed themselves into a new autonomous province within the Anglican Communion and elected the first Archbishop of Wales. Two further dioceses were shortly afterwards created by reorganizing the territorial arrangements.
From the date of disestablishment, the ecclesiastical law of the Church of England ceased to exist as law in Wales, defined for these purposes as the territorial area of the Welsh dioceses. Ecclesiastical courts ceased to exercise any jurisdiction in Wales. Any jurisdiction exercisable by any ecclesiastical person within Wales also ceased, and ecclesiastical corporations aggregate, such as cathedrals, and ecclesiastical corporations sole, such as bishops, were dissolved – that is such bodies or persons no longer enjoyed a corporate identity as legal persons in Wales.
The disestablished Church in Wales was left to make its own arrangements with regard to its future government and administration. For the future, it would simply be an unincorporated association of its members. It would enjoy no special legal privileges but would be similar to the other religious denominations, such as the Methodists and Roman Catholics. The terms of the pre-existing ecclesiastical law would, from disestablishment, become binding upon its members as though they had agreed to be contractually bound by them, and they were free to alter those terms as they saw fit. The members – the archbishop, bishops, clergy and laity of the Church in Wales – adopted a Constitution setting down the rules for the government of the province, which Constitution is binding upon the members as, in effect, the contractual terms of their membership. It is not part of the law of the land, but the internal law of the Church in Wales. Although referred to as the canon law of the Church in Wales, it is not ecclesiastical law in the sense in which that term is used in England.
The dissolution of ecclesiastical corporations within Wales meant that new arrangements were required for the ownership of Church property, including the church buildings, churchyards, vicarages, etc., of the disestablished Church. The members were empowered to appoint representatives to hold property for their purposes, and these representatives were incorporated by Royal Charter as the Representative Body of the Church in Wales, a charitable trustee corporation in which the property and contractual rights of the Church in Wales are vested.
The Constitution adopted by the members provides for a Governing Body, consisting of the bishops and representatives of the clergy and people, with authority to govern the Church in Wales and to pass canons and other rules and regulations for the good government of the Church. Provision is also made in the Constitution for governance at diocesan, deanery and parish levels, and for the election of the archbishop and bishops, and the making of other clerical appointments. Welsh bishops no longer sit in the House of Lords. The Constitution also provides for a system of courts and tribunals to enforce its provisions, but these are not part of the judicial structure of the state as are those of the Church of England. They therefore have no coercive jurisdiction over the members and no jurisdiction whatsoever over non-members.
Sources of law applicable specifically to the Church in Wales
The Welsh Church Act 1914, the Welsh Church (Temporalities) Act 1919 and the Welsh Church (Burial Grounds) Act 1945 are collectively referred to as the Welsh Church Acts. The Marriage (Wales and Monmouthshire) Act 1962, the Marriage (Wales) Act 1986 and the Marriage (Wales) Act 2010 are part of the larger set of statutes relating to the law of marriage in England and Wales known collectively as the Marriage Acts.
Vestiges of establishment
There are two areas of the law of England and Wales where the Church in Wales continues to be affected by the consequences of having been formerly part of the established Church of England. These relate to marriages and burials.
Marriage law
Prior to disestablishment, the law of England and Wales regarded marriage ceremonies as being of two kinds: those conducted according to the rites of the established Church of England following ecclesiastical preliminaries, and civil ceremonies conducted following secular preliminaries. Marriages solemnized in places of worship belonging to denominations other than the Church of England were regarded as civil in nature.
It was intended that the Welsh Church Act 1914, which disestablished the Church in Wales, would provide that upon disestablishment marriages solemnized in the Church in Wales should, like those of the other denominations, be conducted following secular preliminaries; Church in Wales churches becoming registered buildings and its clergy either becoming persons authorised to register marriages or having to conduct the ceremony in the presence of a registrar.
These provisions of the Welsh Church Act 1914 were repealed before they became operative. Instead, the Welsh Church (Temporalities) Act 1919 provided that disestablishment was not to affect the law relating to marriage in Wales. This means that the disestablished Church in Wales has continued to solemnize marriages in accordance with the law of the land as it applies to the established Church of England. This has not proved entirely straightforward, for the Church of England is able to amend that law, but such amendments are of no effect in Wales, while the Church in Wales is unable to make amendments to the law relating to the solemnization of marriages. The result has been that, from time to time, divergences have occurred between the law of marriages in England and that operating in Wales. The only way in which the Church in Wales is able to remedy such divergences is by promoting a private bill in the United Kingdom parliament. The Marriage (Wales and Monmouthshire) Act 1962, the Marriage (Wales) Act 1986 and the Marriage (Wales) Act 2010 were private bills promoted in this way. The solemnization of marriages is not a devolved subject.
It is worth noting in this context that those parts of the law of marriage which operate in England but not in Wales are routinely expressed as not extending to Wales. It would appear therefore that the dogmatic distinction between extent and application is contradicted in the Marriage Acts, which are part of the secular law of England and Wales.
Burial law
At the time of disestablishment, it had been firmly upheld that persons usually resident or happening to die within ecclesiastical parishes were entitled to be buried in the parish churchyard or burial ground regardless of whether they were adherents of the Church of England. It was not intended that disestablishment should affect any such right to burial. This would mean that the disestablished Church in Wales would have to respect public rights of burial within its churchyards and burial grounds in the same manner as was obligatory upon the established Church of England.
The Welsh Church Act 1914 provided that whenever the incumbent of a parish in Wales, that is the rector or the vicar, died or retired or moved to another parish, any churchyard or burial ground should automatically be transferred into the ownership of the local authority. This transfer was postponed until there was a change of incumbent because, under the pre-disestablishment law, the freehold in the churchyard was vested in the incumbent. After such transfers, the parishioners would automatically enjoy rights of way across the churchyard to attend church, with similar easements to allow for the church to be repaired and maintained. Many churchyards in Wales passed into the hands of local authorities in the decades following disestablishment.
The division of ownership which resulted from this arrangement proved to be extremely inconvenient. The end result was the passing of the Welsh Church (Burial Grounds) Act 1945, which put an end to such automatic transfers and allowed the Church to reclaim churchyards which had already been transferred. Churchyards and burial grounds retransferred would be held on trust by the Representative Body of the Church (which is responsible for looking after its assets), as would those churchyards which had remained in church ownership. Some, but not all, of the churchyards which had passed into local authority control were reclaimed.
Under the provisions of the Welsh Church (Burial Grounds) Act 1945 Act, the Church in Wales is empowered to make Rules (the Welsh Church (Burial Grounds) Act Rules) regarding public rights of burial and the charges to be made. To ensure that members of the public who are not members of the Church are not unfairly discriminated against, the Rules had to be approved initially by the Secretary of State, and later, following devolution, by the National Assembly for Wales and then the Welsh Ministers. The Church also makes Regulations regarding the proper upkeep of its churchyards and burial grounds and the kinds of memorial which may be introduced into them.
The provisions of these Rules and Regulations may be different from similar provisions made by local authorities regarding their municipal cemeteries and crematoria. The variance is often a cause of confusion to the public, particularly given that some churchyards continue to belong to local authorities while others are the property of the Church in Wales. In some instances, there are churchyards and burial grounds which are partly owned and therefore governed by the local authority and partly owned and governed by the Church in Wales.
When a churchyard or burial ground is full, so that no more burials can take place, there is a difference between the legal position in Wales and that in England. In England, closed churchyards and burial grounds can be passed by the Church into the hands of local authorities for upkeep and maintenance. This reflects the fact that it is the public right of burial which usually causes churchyards to become full and having to be closed. The public right of burial in churchyards relieves the local authority of having to provide burial space, thus making it fair for them to have to take over the care of closed burial grounds. In Wales, however, even though the public right of burial continues despite disestablishment with the same result, the Church in Wales has no right to require a local authority to assume responsibility for the care and upkeep of its closed churchyards.
Burial and cremation are devolved subjects under the Government of Wales Act 2006.
Faculty procedure
Centuries before secular governments introduced planning procedures and controls to protect the built environment, the Church required approval from the diocesan bishop for any change to the fabric or furnishings of its ecclesiastical buildings. This approval was given in the form of a faculty. The faculty would be granted after a hearing before the Chancellor, the judge in the bishop’s court. The process for obtaining a faculty from the Chancellor became known as faculty procedure, and the rules regarding faculty procedure set out the circumstances in which a faculty was required, circumstances such as emergency repairs where work could commence ahead of a faculty being granted, and what constituted minor alterations which did not require a faculty at all.
The existence of this developed faculty procedure led to ecclesiastical buildings being exempted from secular planning procedures when they were introduced, including the ecclesiastical exemption from listed building controls and ancient monuments legislation. Despite disestablishment, the Church in Wales continues to enjoy the ecclesiastical exemption, and its Faculty Rules are to be found in the Constitution of the Church in Wales.
Town and Country Planning, listed buildings, ancient monuments, and buildings and places of historical or architectural interest are all devolved subjects.