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A Limited Episcopacy? Canon Law and the Ministry of the ‘Episcopal Assistant’ in the Anglican Communion

Published online by Cambridge University Press:  05 September 2023

Bradly S Billings*
Affiliation:
Assistant Bishop, Anglican Diocese of Melbourne

Extract

The theologian Paul Avis, in his handbook for those becoming bishops in the Anglican Communion, makes scarcely any reference throughout the course of the treatise to any distinction between a diocesan and a non-diocesan bishop. At one level this is refreshing, eschewing as it does any notion of a hierarchy within the order of bishops. However, on another level it is somewhat odd, for so much of the episcopal polity and praxis articulated throughout assumes the reader is ‘becoming’ a diocesan bishop, and is, consequently, at times irrelevant to those who are ‘becoming’ a bishop in an assisting role.

Type
Comment
Copyright
Copyright © Ecclesiastical Law Society 2023

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References

1 Avis, P, Becoming a Bishop: A Theological Handbook of Episcopal Ministry (London, 2015)Google Scholar.

2 Suffragan Bishops Act 1534.

3 Anglican Consultative Council, The Principles of Canon Law Common to the Churches of the Anglican Communion (2nd edn, 2022). See further Dewhurst, R, ‘The 2022 Revision of The Principles of Canon Law Common to the Churches of the Anglican Communion’ (2023) 25 Ecc LJ 6065Google Scholar.

4 Principle 38.

5 In the Church of England, for example, the September 2021 consultation document Bishops and Their Ministry: Fit for a New Context notes that there were at that time 42 diocesan bishops, 52 suffragan bishops, and 20 area bishops. See <https://www.churchtimes.co.uk/articles/2022/18-february/news/uk/bishops-and-their-ministry-full-document>, accessed 17 April 2023.

6 A Hanson maintained, in 1975, that ‘the institution of suffragan bishops stands in need of theological justification.’ See A Hanson, ‘The Theology of Suffragan Bishops’ (1975) 78 Theology 481–484, at 483.

7 See note 5. The report is described as a consultative document prepared for the College of Bishops.

8 Properly, The Form and Manner of Making, Ordaining, and Consecrating of Bishops, Priests, and Deacons according to the Order of The Church of England (hereafter ‘The Ordinal’). First published in a separate edition ‘alongside the BCP’ in 1550, and again in 1552, 1559 and 1604, The Ordinal was again revised in 1662 and incorporated into the Book of Common Prayer, still ‘based closely on the 1550 order’: see Cummings, B (ed), The Book of Common Prayer: The Texts of 1549, 1559 and 1662 (Oxford, 2011), 786nGoogle Scholar.

9 Canon C1 of the Canons of the Church of England begins: ‘The Church of England holds and teaches that from the apostles’ time there have been these orders in Christ's Church: bishops, priests, and deacons’.

10 Lambeth Conference, ‘Resolution 11’ (1888) – The Lambeth Quadrilateral (Lambeth, 12 August 1888).

11 Principle 35.6. Canon 4 of the Council of Nicea (325 CE) prescribed that a bishop should be appointed by all the other bishops in a province, but if this was difficult or not possible, then by at least three bishops.

12 In the Church of England, for example, ‘no person shall be consecrated bishop except he shall be at least thirty years of age’: Canon C2(4).

13 Doe, N, The Legal Framework of the Church of England: A Critical Study in Comparative Context (Oxford, 1996), 161CrossRefGoogle Scholar.

14 Halsbury's Laws of England (5th edn, 2011), vol 34, para 772.

15 Ramsbotham, J, ‘Suffragan Bishops’, in Simon, G (ed), Bishops (Cambridge, 1961), 90Google Scholar. In using the word ‘inferior’, Ramsbotham echoes Halsbury's Laws of England (5th edn, 2011), vol 34, para 772.

16 See Christopher Hill's review of ‘Becoming a Bishop: A Theological Handbook of Episcopal Ministry in (2016) 18 Ecc LJ 370–372, at 371.

17 Butler, A SSuffragan Bishops in the Medieval Diocese of York’ (2000) 37 Northern History 4960CrossRefGoogle Scholar.

18 Rogers, F, A Practical Arrangement of Ecclesiastical Law (London, 1840), 116Google Scholar.

19 Cited in Davies, D J and Guest, M, Bishops, Wives and Children: Spiritual Capital Across the Generations (Aldershot, 2007), 70Google Scholar.

20 Davies and Guest (note 19), 69.

21 Doe (note 13), 161. This is the case also in the Roman Catholic Code of Canon Law 1983, which knows of, in addition to the Pontiff, diocesan bishops and other assisting bishops described as ‘titular’ bishops (376), and which also provides for the appointment and ministry of ‘coadjutor and auxiliary bishops’ (403–411).

22 Halsbury's Laws of England (5th edn, 2011), vol 34, para 772.

23 See, for example, the Canons of the Anglican Church of Southern Africa, Canon 10.9(b).

24 Doe, N, Canon Law in the Anglican Communion: A Worldwide Perspective (Oxford, 1998), 122CrossRefGoogle Scholar.

25 See, for example, the Canons of the Anglican Church of Southern Africa, Canon 10.18.

26 Dioceses, Pastoral and Mission Measure 2007, s 13(16).

27 The distinctive role of the suffragan bishop of Dover is specifically excluded from the statutory provisions governing the filling of suffragan sees: see Dioceses, Pastoral and Mission Measure 2007, s 17(8).

29 The Defence Force Ministry Canon 1985.

30 See <https://www.anglican.ca/im/niab/>, accessed 17 April 2023.

31 ‘All Elections of the Archbishops or Bishops shall be made by the Deans and Chapters, & 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’ (s 3).

32 Hill, M, Ecclesiastical Law (4th edn) (Oxford, 2018), 124CrossRefGoogle Scholar.

33 Principle 36.

34 S Coleman, ‘The Process of Appointment of Bishops in the Church of England: A Historical and Legal Critique’ (2017) 19 Ecc LJ 212–223, at 213.

36 Dioceses, Pastoral and Mission Measure 2007, s 17(1).

37 Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010, s 1.

38 The validity of this was clarified by the Suffragan Bishops Act 1898, s 1, which was promulgated to confirm that, ‘notwithstanding anything contained in the Suffragan Bishops Act 1534 it shall be lawful to nominate, present, and appoint as suffragan bishop a person already consecrated as a bishop’.

39 N Doe, The Law of the Church in Wales (Cardiff, 2002), 139.

40 Hong Kong Keng Shung Hui (Hong Kong Anglican Church (Episcopal)), Constitution of the Province, §13.6.1.

41 Canons of the Anglican Church of Southern Africa, Canon 10.5.

42 Canons of the Church in the Province of the West Indies, Canon 11.3-4.

43 Hong Kong Keng Shung Hui (Hong Kong Anglican Church (Episcopal)), Constitution of the Province, §13.6.6.

44 Principles 38.4 and 41.6.

45 Canons of the General Synod of the Anglian Church of Canada, Canon XVIII(1).

46 In a recent decision (December 2021), the Episcopal Standards Commission effected the deposition of the former Archbishop of Perth, Roger Herft. See G Blake, ‘Bishop Roger Herft: The Determination of the Episcopal Standards Board of the Anglican Church of Australia’ (2022) 24 Ecc LJ 363–377.

47 Canons of the Church of England, Canon C18. The Principles refer to the diocesan bishop's ‘special responsibility and authority as the chief pastor, minister and teacher of the diocese’: principle 37.1.

48 T Briden (ed), Moore's Introduction to English Canon Law (4th edn) (London, 2013), 26.

49 Halsbury's Laws of England (5th edn, 2011), vol 34, para 772.

50 Consistent with Canon C20.

51 Dioceses, Pastoral and Mission Measure 2007, s 13(1). It has been noted that such an instrument is ‘intended to be a formal legal act’: see ‘The delegation of episcopal functions’, Legal Opinion, General Synod Legal Advisory Committee (September 2018), para 3, which is available at <https://www.churchofengland.org/sites/default/files/2018-02/Delegation%20of%20episcopal%20functions.pdf >, accessed 17 April 2023.

52 I Slaughter, ‘The Dioceses, Pastoral and Mission Measure 2007’ (2009) 11 Ecc LJ 4–34, at 11.

53 The Dioceses, Pastoral and Mission Measure 2007, s 13(1), specifically excludes this by excluding the provisions of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s 9(2).

54 Canons of the Church of England, Canon C18(3): ‘Such jurisdiction is exercised by the bishop himself, or by a vicar general, official, or other commissary, to whom authority in that behalf shall have been formally committed by the bishop concerned’.

55 Canons of the Anglican Church in Aotearoa, New Zealand and Polynesia, Canon 1.8.1.

56 Hong Kong Keng Shung Hui (Hong Kong Anglican Church (Episcopal)), Constitution of the Province, §12.12.

57 Principle 38.4.

58 Canons of the Episcopal Church (USA), Canon III.11.9(b) and Canon III.12.6(d).

59 Hanson (note 6), 483.

60 Hong Kong Keng Shung Hui (Hong Kong Anglican Church (Episcopal)), Canons of the Province, Canon 5; cf. the Canons of the Church in the province of the West Indies, Canon 11.9, and the Canons of the Anglican Church in Aotearoa, New Zealand and Polynesia, Canon 1.2A.

61 Canons of the Episcopal Church (USA), Canon III.11.9(a)(1) – a ‘Diocese may elect a Bishop Coadjutor who shall have the right of succession; cf. the Canons of the Episcopal Church in the Philippines, Canon 11.9(a).

62 In Australia, the ‘Assistant Bishops Canon 1966’, s 8, provides that ‘no assistant bishop shall be appointed with a right of succession to the see’.

63 Doe (note 24), 119.

64 The Canons of the Anglican Church of Southern Africa, Canon 10.11. Hong Kong Sheng Kung Hui (Hong Kong Anglican Church (Episcopal)) has a similar provision: see Constitution of the Province, §13.6.7.

65 In the Province of Hong Kong Sheng Kung Hui, both diocesan and assistant bishops may continue in office until the end of the calendar year in which they turn 70: see Hong Kong Sheng Kung Hui (Hong Kong Anglican Church (Episcopal)), Constitution of the Province, §13.7.

66 Canons of the Episcopal Church (USA), Canon III.12.9(a).

67 Hill (note 32), 128.

68 This is the case also in the Roman Catholic Code of Canon Law 1983 (c. 381), excepting those powers reserved by the Pontiff.

69 P Avis, ‘The Roles of the Ecclesial Orders in the Governance of the Church’ (2022) 18 Ecclesiology 3–9, <https://doi.org/10.1163/17455316-18010002>, accessed 17 April 2023.

70 Doe (note 13), 174.

71 Canons of the Church of England, Canon C20(2);

72 Australia, ‘Assistant Bishops’ Canon 1966’, s 6; Hong Kong Sheng Kung Hui (Hong Kong Anglican Church (Episcopal)), Constitution of the Province, §13.6.4.

73 Canons of the Anglican Church of Southern Africa, Canon 10.9(a).

74 Canons of the Episcopal Church (USA), Canon III.11.9(b.3).

75 The Canons of the Anglican Church in Aotearoa, New Zealand and Polynesia, Canon 1.2A(4); Canons of the Church in the Province of the West Indies, Canon 11.8.

76 The Oxford Dictionary defines ‘delegate’ as ‘a person sent or authorised to represent others’; A Stevenson (ed), Oxford Dictionary of English (3rd edn) (Oxford, 2010), 462.

77 ‘Acts Interpretation Act 1901 (Cth)’ s 34AA (Australia).

78 At civil law, the principal in an ecclesiastical context may be taken to be the diocesan bishop, even where the diocesan bishop may be acting in a temporal proprietary matter in isolation to their diocesan council. Commonwealth Bank of Australia v The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst [2015] NSWSC 450 (10 December 2015).

79 International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644.

80 Ireland v Livingstone (1872) LR 5 HL 395.

81 Arising from the stipulation in the Statute of Frauds (29 Car 2 c 3) 1677, s 3, that dealings in land be in writing; cf. Powell v London and Provincial Bank [1893] 2 Ch 555.

82 Sometimes this is referred to as ‘usual authority’.

83 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549.

84 Sometimes referred to as ‘ostensible authority’.

85 Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147.

86 Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480.

87 ‘Assertions made by the alleged agent that he or she is acting for the alleged principal can never by themselves prove the existence of the alleged agency’: Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 92 ACSR 343 (79), citing Diplock LJ in Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480.

88 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 [36] (5 August 2004).

89 DP (a pseudonym) v Bird [2021] VSC 850 (22 December 2021) (3). The decision was recently upheld on appeal – Bird v DP (a pseudonym) [2023] VSCA 66 (3 April 2023).

90 Hanson (note 6), who suggests the office of suffragan bishop in the Church of England is a medieval one unsuited to contemporary practice.

91 Doe (note 13), 182.