THE POLITICAL AND LEGAL CONTEXT

There were four ancient Welsh dioceses: Bangor, Llandaff, St David's and St Asaph. From the twelfth century especially, they came under the control of Rome and Canterbury. Alongside local law, the Church was subject to papal law until the Reformation. The Henrician legislation of the 1530s ended papal authority and prepared the way for the establishment of the Church of England under the royal supremacy – consolidated and developed under Elizabeth. However, by statute, Roman canon law continued to apply to the Church unless contrary to the law of the realm. The Canons Ecclesiastical 1603/4 were promulgated by the Convocations of York and of Canterbury: Welsh bishops and clergy were present. These canons, with any papal law surviving the Reformation, case law and, particularly in the nineteenth century, a host of Acts of Parliament, together formed the ecclesiastical law regulating the Church of England in Wales. All of these, within the common law framework, defined the terms of ecclesiastical autonomy. They were the sources of law of the land applying to the English Church in Wales till 1920.

But discontent was brewing. In England the Anti-State Church Association (formed 1844) gave little thought to the issue in Wales. Welsh agitation for disestablishment was stimulated by various factors. Nonconformity was the majority religion. Nonconformists refused to pay tithes and this led to violence in the 1880s. There was a belief that the minority and alien Church of England was anglicising Welsh life, on the heels of the 1847 report on education, which portrayed the Welsh as backward, barbaric and bone idle. The Liberal Party supported the Nonconformists. It inherited from its Whig roots sympathy for their causes and it had a strong Nonconformist following. It advocated religious freedom and equality, and separation of State and Church; Gladstone's Liberals had of course disestablished the Church of Ireland in 1869. In contrast, the ‘throne and altar’ Conservative Party defended establishment, and its unionism opposed Wales-only law on religion. Indeed, as the nineteenth century closed, the English Church in Wales no longer had power to monopolise education, control university life or impose church rates. While the call to disestablish waned for England's Nonconformists, it waxed in Wales – especially so after legislation about denominational education and the great Welsh revival (1904–5), which dramatically increased the numbers of Nonconformists in Wales.

The legislative battle to disestablish was long and hard. It took half a century from the first Bill to disestablishment day. Two Welsh barristers and Liberal MPs kicked off. In 1870, George Morgan sought to reform burial law, and Watkin Williams proposed the first Bill to disestablish; they were both sons of Anglican clergy. Disestablishment became official Liberal Party policy in 1891. Yet, after election success in 1892, the Liberal government was reluctant to proceed. So four Welsh MPs (including Lloyd George) refused the party whip. In turn, disestablishment Bills were introduced in 1894 and 1895; both failed. The House of Lords opposed them and the Liberals lost the 1895 election. But a landslide Liberal win in 1906 led to a Royal Commission reporting in 1910, itself a delaying tactic; it was heavily criticised and its proposals were not unanimous.

Another disestablishment Bill was introduced by Asquith in 1909. But, along with Lloyd George's budget, it was rejected by the Lords. So the Parliament Act 1911 was passed, enabling the Commons to present a Bill for royal assent without the Lords: a radical move. A further Welsh Church Bill was introduced in the Commons in 1912; it was rejected twice by the Lords. The Commons then invoked the Parliament Act – the first time they did so – and the Welsh Church Act 1914 was passed. Its implementation was delayed until after the First World War, and so the Church of England in Wales (and Monmouthshire) was disestablished on 31 March 1920.

THE LIBERATING EFFECT OF THE WELSH CHURCH ACT 1914

The Act provided that the Church of England in Wales ceased to be ‘established by law’. It separated the Church from the State. There was to be no more royal supremacy or appointments to Church offices in Wales. Every ecclesiastical corporation was dissolved. There were no more Welsh bishops in the Lords, and Welsh clergy could be elected to the Commons. The Act also dis-endowed: English Church property was nationalised and transferred to Welsh Church Commissioners to redistribute. Churches and parsonages were vested in the new Church representative body. Churchyards were transferred to local authorities. Other property passed to county councils, the university and bodies such as the National Library of Wales.

Importantly, the Welsh Church Act 1914 Act provides that, from the date of disestablishment, ‘ecclesiastical law … shall cease to exist as law’ for the Welsh Church (section 3(1)). Before 1920, English ecclesiastical law, applicable in Wales, formed one part of the law of the land. But this ecclesiastical law (in both state-made and church-made law) did not lose all its authority for the Welsh Church. The Act provides that pre-1920 ecclesiastical law continues to apply to the Church in Wales ‘as if’ its members had assented to it (section 3(2)). This is what might be styled the statutory contract of the Church in Wales. It was to fill the juridical vacuum to be left by disestablishment and to ensure some continuity.

Nevertheless, the 1914 Act also provided for the Church to govern itself by its own system of law. Nothing in any Act of Parliament, law or custom is to prevent the bishops, clergy and laity from holding synods or electing representatives to them, nor from framing ‘constitutions and regulations for … the Church in Wales’ (section 13(1)). The Act also empowered the Church to repeal or alter Acts of Parliament forming part of pre-1920 ecclesiastical law (section 3(4)), because they were no longer the law of the land but terms of a contract.

So the Welsh Church became a voluntary association like other denominations in Wales. But the courts struggled to classify the Church. In a case of 1944, Viscount Simon spoke of ‘the disestablishment … of the Church in Wales’; in 1951 it was said that ‘the Welsh Church Act 1914 did not disestablish the Welsh Church, but only disestablished the Church of England … in Wales’; and in 1957, for Wynn-Parry J, the object of the 1914 Act was ‘to re-establish the Church in Wales on a contractual basis’.Footnote ² Some still call it ‘quasi-established’.

THE DRAFTING OF THE CONSTITUTION

Delaying bringing the Act into force enabled Anglicans to prepare. A convention was held in Cardiff in 1917 to discuss a new constitution. And, while it was Parliament that separated Church from State, it was an ecclesial act that separated the Welsh dioceses from the English Church. The Archbishop of Canterbury released the Welsh bishops from obedience and in April 1920 he declared the Welsh dioceses ‘to be separate from the Province of Canterbury, and free to form themselves, should they so desire, into an Ecclesiastical Province’. They did. It became the Church in Wales (not of Wales), to avoid a sense of superiority. Two new dioceses were created: Monmouth in 1921, Swansea-Brecon in 1923.

Three Welsh judges were active in drafting the constitution for the Church in Wales. James Richard Atkin, later a law lord (Baron Atkin of Aberdovey), was an original member of the Governing Body and Representative Body, and later judge of the Provincial Court. John Eldon Bankes, of Flintshire, a Court of Appeal judge and former diocesan chancellor of St Asaph, was active at the Cardiff Convention 1917 and chaired the Representative Body from 1928 to 1943.

Most prominent was John Sankey of Cardiff, former diocesan chancellor of Llandaff. He spoke against disestablishment at the Albert Hall in 1912 (when 10,000 attended) and in Aberdare in 1914 (when 3,000 attended). For Sankey disendowment was ‘morally wrong’: church funds were not national property but belonged to each parish. A High Court judge, the chair of the Enemy Aliens Advisory Committee and of a coal industry commission which proposed nationalisation, Sankey became Lord Chancellor in 1928. He worked tirelessly on the Constitution. At the 1917 Convention, he was positive: we have ‘the privilege … seldom given to a generation [of] shaping the course of the Church, it may be, for centuries’. But he warned of ‘chaos’ if it had not framed its constitution. His team ‘consulted every constitution of every disestablished Church’. His drafts included only the ‘absolutely essential’, with ‘no originality … not running after any new thing. With a few exceptions … every paragraph … is taken from some constitution which has been tried in the balance and found not to be wanting.’Footnote ³

Sankey's diaries attest to his hard work. For example, on 2 October 1917 at the Cardiff Convention, ‘I proposed chief resolution. Spoke for 70 minutes. Bankes CJ seconded.’ On 18 October he attended the Welsh Church Drafting Committee in London. In January 1918 he was at the Governing Body's first meeting, at Westminster, for ‘2 hours explaining a chapter of the constitution’. September of that year saw its first meeting in Wales: ‘many speeches in introducing … various clauses … Greatly helped by Bankes.’ In 1920, he worked on the Church tribunals, chaired the Legal Committee of the Representative Body, presided at the Welsh Church Legal Committee and spoke at Governing Body: on 7 October, ‘Made a long speech on churchwardens! The meetings have gone fairly well except for episcopal disputes and jealousies.’Footnote ⁴

Sankey's efforts were summed up by a lady in Llandovery: ‘We in Wales owe you a great debt … for your powerful aid and wise counsel during the crisis in the history of our beloved Church, and for your strong hand in drafting its new constitution.’Footnote ⁵ By 1936, in a letter about possible publication of his ‘reminiscences’, Sankey himself wrote that, when ‘I drew up the constitution of the Church in Wales’, this was number five of the top ten ‘points’ of his career.Footnote ⁶

THE VESTIGES OF ESTABLISHMENT

Despite disestablishment, ‘vestiges of establishment’ remained. Further Acts of Parliament followed over the century – and, after devolution in 1998, legislation of the Welsh National Assembly and Government. The well-known vestiges relate to burial, marriage and perhaps heritage. The Church is not free in these areas: they are still in the keeping of the State, and civil law therefore applies. The Church in Wales also has a statutory duty to provide prison chaplains.

First, burial. As today in the Church of England, before 1920 residents and those dying in a parish were entitled to burial in its churchyard. The 1914 Act transferred churchyards to local authorities. Parishioners had a right of way over the churchyard to attend church and a right to burial in the local authority-owned churchyard. The right to burial continued, even though the owner changed. The scheme proved inconvenient, especially with regard to maintaining the churchyard. So the Welsh Church (Burial Grounds) Act 1945 was passed. It ended transfers and allowed the Church to reclaim churchyards to be held on trust by the Representative Body. But the deal was that the Church had to allow the burial of anyone resident in the parish – it could not discriminate between church members and non-members. The Act also allowed the Church to make Rules to administer the churchyards. These had to ensure that there was no discrimination and be approved by the Secretary of State – and, after devolution, by the National Assembly, now by the Welsh Ministers. So the 1914 Act nationalised churchyards; the 1945 Act privatised their ownership. But it did not de-nationalise them fully, since it protected the public right of burial in them. The arrangement was a simple quid pro quo – not respect for the spiritual value of an establishment right under pre-1920 ecclesiastical law.

Second, marriage. Before 1920, as today in the Church of England, residents in a parish had a right to marriage in the parish church. The 1914 Act provided that, after 1920, marriages conducted in the Welsh Church should (like those in other churches) be civil marriages. Churches would be registered. Clergy could register civil marriages or conduct them with a civil registrar present. But Parliament changed the rule. By the Welsh Church (Temporalities) Act 1919, disestablishment would not affect marriage law in Wales. This included the right to be married in a parish church. So the Church still solemnises marriages under much the same law as applies to the English Church but in accordance with its own liturgy. The Church of England may amend civil marriage law by Measure. This has no effect in Wales. The Welsh Church cannot amend marriage law. Instead, it must promote a private bill in Parliament. It has done so with Acts of 1962, 1986, and 2010, which extended the right to marry in the parish church to those with a qualifying connection. Marriage is not devolved to the National Assembly.

There are two pressure points here: one old, one recent. When Parliament debated the Divorce Bill 1937, in the House of Lords, Lord Atkin successfully moved an amendment allowing Welsh Church clergy to refuse to solemnise the marriage of a civilly divorced person whose former spouse was still living. So the Act provided for ‘the relief of conscience among the clergy’. But the Welsh bishops then forbade clergy to solemnise such marriages – marriage dissolves only on death of a spouse – and they forbade parties married after divorce from receiving Holy Communion unless allowed by the bishop. Atkin argued that the bishops had no right to do so: while a parishioner had a right to marry in church, the 1937 Act relieved individual clergy by a statutory right of conscientious refusal which could not be fettered by any blanket episcopal prohibition. As to Communion, Atkin argued a right to repel vested first in the cleric not the bishop. The bishops disagreed. Atkin threatened to resign his Church offices. In 1938 at Governing Body, he proposed a rule on the issues but it was dropped owing to the outbreak of the Second World War. The Matrimonial Causes Act 1965 repeats the 1937 Act. But Atkin's position was later adopted. The bishops lifted the ban in 1998. Today, the decision to solemnise such marriages is for individual clerics and their consciences.

The other pressure point was the Marriage (Same Sex Couples) Act 2013. The Bill made special provision for the Church in Wales, the Explanatory Notes stating that ‘As a disestablished church [sic] with a legal duty to marry, the Church in Wales is uniquely placed.’ And so ‘the common law duty’ of its clergy to marry ‘will not be extended to same-sex couples’. The Bill provided ‘protection for the Church whilst still enabling it to make its own decision on same-sex marriage’. But, while the Church of England could opt in by Measure, the Church in Wales could opt in through an order of the Lord Chancellor – without the need for an Act of Parliament. However, critically, under the Bill, the Lord Chancellor did not have a duty to agree to a request from the Welsh Church to opt in – the order was a matter of discretion – the Lord Chancellor may make it. This was pointed out to the Constitutional and Legislative Affairs Committee of the Welsh Assembly. After exchanges with Westminster, the Bill was changed. The Act now provides: if satisfied that the Welsh Church Governing Body has resolved that civil law should be changed to allow same-sex marriages according to its rites, then: ‘The Lord Chancellor must, by order, make such provision as the Lord Chancellor considers appropriate to allow’ it (section 8(2)). In other words, the Church in Wales can now compel a change to civil marriage law. Interestingly, the same Welsh Assembly Committee also proposed exploring how the constitutional convention that Parliament will not legislate for the Church of England without its consent might be developed to apply to the Welsh Church ‘while vestiges of establishment relating to marriage remain’.

Third, the ecclesiastical exemption also reflects the entanglement of the Church in the fabric of the State, now devolved to the National Assembly and Welsh Government. But it is not really a vestige of establishment: other Welsh churches have it. The Welsh Government's Ecclesiastical Exemption (Listed Buildings and Conservation Areas) (Wales) Order 2018 now applies to churches and churchyards vested in the Representative Body. Its continuance depends on the Church having a satisfactory internal system of control. As in the Church of England, this is supplied by the faculty system and diocesan courts, whose jurisdiction with its public element might be subject to judicial review.

THE REVISION OF THE CONSTITUTION

The Church in Wales has certainly used its freedom under the 1914 Act to create an elaborate domestic legal system for itself – some might say too zealously. The Constitution generates at least 15 different types of regulatory instrument. Revision has been piecemeal, not systemic.

The subject matter and ordering of chapters of the Constitution has changed little since 1920. But in 2010 chapters were reorganised and non-fundamental material contained in them transferred to regulations. Both deal with Governing Body, the Representative Body, diocesan and deanery conferences, parochial administration, the archbishop and diocesan bishops, and more.

Changes were made to the Constitution by Governing Body across the century by making canons; no royal assent was needed for this. Between 1949 and 2016 43 canons to amend chapters. They indicate the intensity and preoccupations of legislative activity, for example patronage, courts, pensions, incumbents resigning, archiepiscopal elections and women bishops. The 1662 Book of Common Prayer was revised by six canons in the 1970s and seven in the 1980s, and a new Book of Common Prayer was introduced in 1984; there were no revisions of this in the 1990s but five canons were made allowing new liturgical texts in the period 2003–2014.

Since 1937, 33 canons have been made, mostly on clerical matters not involving changes to chapters. Of these canons, 18 are on ecumenism. The other 15 relate to, among other things, experimental liturgies (1955), removing irregularity of birth as an impediment to ordination (1961), female deacons (1980), clerical disabilities (1990), ordaining women priests (1996), removing divorce as an impediment to ordination (1998) and women bishops (2013). Most canons have lengthy preambles and brief enacted norms. A few have long enacted norms or detailed schedules. These arrangements do not represent a ‘code of canons’, as exists in most Anglican churches, nor do they deal with the range of topics treated by the principles of canon law common to Churches of the Anglican Communion 2008.

Indeed, on subjects commonly treated in Anglican codes of canons, the Welsh Church still has to resort to pre-1920 ecclesiastical law. The Constitution provides that the ‘ecclesiastical law as existing in England’ at 1920 ‘shall be binding on the Members’ and determine ‘any question or dispute’ between them, if it is not in conflict with the Constitution. So, pre-1920 sources continuing to bind the Church include, inter alia, Acts of Parliament (the Sacrament Act 1547), the Canons Ecclesiastical of 1603, and pre-Reformation canon law, if consistent with the laws of the realm. The Church still sometimes resorts to these – as it did in the mid-1990s on divorce and ordination. In fact, the Church has disapplied only 12 Acts of Parliament since 1920.Footnote ⁷

Next, there are those further constitutional instruments for the whole province, such as: Rules made by the Representative Body under the Welsh Church (Burial Grounds) Act 1945; Regulations to administer churchyards; schemes for, for example, maintenance of ministry; and Rules, Rubrics and General Directions in service books. Then there are proper laws: Governing Body Standing Orders; bishops’ Decrees made with Diocesan Conference assent on parish reorganisation; Diocesan Conference Rules; Rules and Regulations may be made by a deanery conference or parochial church council (PCC) for their own procedures; and cathedral constitutions, statutes, ordinances, byelaws and customs operating under provincial schemes, one for each cathedral. A new canon will soon replace these cathedral schemes.

Last but not least, since the 1990s there has been a dramatic increase in the Church's use of soft law, with codes of practice, policy documents and guidelines. But it is often not easy to identify their author or date. For example, we have provincial guidance for: PCCs to reduce the environmental impact of their activities; parochial expenses and fees; record-keeping; parsonage security; and safeguarding. A handbook for clergy has detailed prescriptive norms on: terms of service and job descriptions; grievance procedures; ministerial review; welfare; and pensions and retirement. At diocesan level too, soft law has blossomed – for example, guidance on faculty petitions. For a church that would fill just over half the seats in the Principality Stadium, this battery of formal and informal instruments may be thought a touch excessive. In 1927, it had 187,000 Easter communicants; in 1999, 85,000; in 2017, 48,500.

THE PURPOSES OF THE CONSTITUTION

Pre-1920 books on church law were descriptive, mostly uncritical and lacking in theological analysis. Cripps was typical: his book is ‘to enunciate rather than to criticise the law’. But the leading nineteenth-century Welsh canonist Robert Owen was more theological. His Institutes of Canon Law (1884) is about how canon law ‘reveals the true nature of … our continuity with the Catholic Church’.Footnote ⁸ He criticises earlier ecclesiastical law books as either ‘ever in humble vassalage to the Statute Law’ or ‘spoilt by homely vulgarity’.Footnote ⁹ He called the English Church ‘an Act of Parliament Church’ and favoured disestablishment.Footnote ¹⁰ Yet, the Welsh Church Act 1914 provided – mechanically – for the Church to make rules for its ‘general management and good government’.

A more theological grasp of the Church Constitution emerged after 1920. First came Charles Green's book, The Setting of the Constitution of the Church in Wales (1937), written when he was Archbishop of Wales. For Green, ‘Ecclesiastical Law is a System of Rules, for soul and body, which governs the relation of member to member, and of all … to the entire Church’; it enables ‘the conservation and development of that Common or Mutual Faith which animates the Body of Christ’; and ‘breaches of [it are] punishable, spiritually, by the dread of Divine Displeasure [and] temporally, by varying degrees of exclusion from [its] common life’. He saw the 1914 Act as having ‘secured the Spiritual liberty of the Church in Wales’ – but limited in its use by catholic order.Footnote ¹¹

A second landmark was 1992 – stimulated partly by renewed academic interest in church law. For Thomas Glyn Watkin, ‘Regrettably, it would be misleading to pretend that the Church [in Wales] perceives its Constitution as a theological document’; rather, it is seen as ‘a necessary but unwelcome legal guest’. This reflects ‘its genesis in an ecclesiastical law … not of the Church's own making’, and ‘the fact that the Constitution and canon law are not sufficiently studied, criticized and appreciated from a theological standpoint’. But the Constitution ‘has a theological as well as a legal integrity’, as ‘the law of the Church, made by the people of God for the people of God’.Footnote ¹²

Anthony Lewis was also critical: the Constitution is ‘like a suit of clothes’ but gives an impression of having been handed down from an earlier generation … a more prosperous … bygone age’; the Church ‘moves awkwardly’ in them and ‘an entirely new suit’ is needed. So ‘Constitutional renewal should be a priority if the Church … is to be ready for the challenges of the 21st century’.Footnote ¹³ This led Roy Davies, Bishop of Llandaff, to write of the perception that ‘the Constitution is a necessary evil’, of reluctance to tamper with it and of ‘Making things possible without resort … to the legislative grind’. He too anticipated that the Church would develop a clearer understanding of purposes of its Constitution. He was right.Footnote ¹⁴

The Constitution now has a Prefatory Note from about 1998. It states the twin purposes of the Constitution: ‘to serve the sacramental integrity and good order of the Church and to assist it in its mission and … witness to … Christ’. Its ‘chief features’ are ‘synodical government, episcopal oversight, canonical ministry, the participation of the laity, and access to the ministrations of the Church’. The note says that these are ‘shared’ with all other Anglican churches, give ‘an essential focus of unity’ and are a ‘product of the freedom given to the Church’ by the 1914 Act. In 2002 the then Archbishop of Wales, Rowan Williams, captured the new view: ‘Canon Law, in Wales or anywhere else, is for: the advancing of God's Kingdom and the holiness of God's people.’Footnote ¹⁵

THE INSTITUTIONS OF THE CHURCH

In 1920, the Church in Wales adopted much the same institutional organisation as the Church of England. And the Constitution then prescribed and still today prescribes that existing territorial arrangements of dioceses and parishes are to continue except as provided by the Constitution. Once again, there have been few changes in the constitutional ordering of its institutions.

The Governing Body has three orders: bishops, clergy and laity. It has power to amend the Constitution and to decide on doctrine and liturgy. Changes to faith, order and discipline are by bill procedure with three readings, committee stage and two-thirds vote in each order. An expedited process was introduced in 1999 for bills certified as non-controversial. A bill is promulgated as a canon. In 2004 the size of Governing Body was reduced from 350 to 144 members.

The Representative Body (set up by royal charter) holds assets in trust on behalf of, and for the benefit of, the whole Church. Its membership too, after a review from 2003 to 2005, was reduced from 75 to 26. The Bench of Bishops advises on teaching, mission, liturgy, ministry, ethics and ecumenism. At diocesan level, there are diocesan conferences, deanery conferences and, more locally, parochial church/ministry area councils, each with its own members, functions and norms.

After 1920 there were church courts. The Archdeacon's Court was for disputed parochial elections. The Diocesan Court had its faculty jurisdiction and limited discipline over lay officers. The Provincial Court heard clergy discipline cases and Diocesan Court appeals. A Special Provincial Court attended to episcopal discipline. The Supreme Court was the final appeal court. But in 2000 a Disciplinary Tribunal was introduced for clergy cases, with appeal to the Provincial Court. The Archdeacon's, Special Provincial and Supreme Courts were abolished. The Constitution provides that these courts ‘shall not be bound by any decision of the English Courts in matters of faith, discipline or ceremonial’. The 1914 Act forbade these courts to exercise any coercive jurisdiction, yet it simultaneously provided that the Church Constitution was enforceable in civil courts in property matters. A landmark civil case of 1998 held that in church disciplinary cases the High Court lacks authority over the consensual jurisdiction of the church courts.

Although there had been earlier institution-specific reviews, it was not until 2012 that there was a wide-ranging ‘external review’ of the Church. It found that: ‘the Church in Wales continues to have the structure … appropriate to an established church 100 years or so ago, but which is now stretched beyond what it can or should properly bear’. The ‘legacy of establishment has good features’, such as its sense of responsibility to wider society. But, ‘as a disestablished church, [it] has, and ought to claim, the freedom that comes from this’. Indeed, the ‘present structures are hindering people from making visible the Word’. There is ‘a feeling that the constitution’ is ‘an unhelpful constraint’, ‘large, complex and unwieldy’ and ‘an inhibitor of necessary change’. So, the review recommended, ‘In due course a small working party should be formed to re-examine the Constitution’ and ‘seek to produce a document which is shorter and simpler’. This should build on the principles, already established, of distinguishing between ‘Canons which could be changed only with difficulty and Regulations which could be changed by the Standing Committee’ of the Governing Body. None has been set up yet.Footnote ¹⁶