But surely, I hear you say, that happened about a century ago. Well, yes and no…

When the Church in Wales was disestablished, in strictly legal terms the process was not fully completed. S 3(1) of the Welsh Church Act 1914 declares that:

“As from the date of disestablishment ecclesiastical courts and persons in Wales and Monmouthshire shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law”.[1]

That set aside purely ecclesiastical law – which was downgraded to the status of internal Church rules instead of forming part of the secular law of Wales – but, in addition, there were also common law rules which the framers of the Act either chose to ignore or simply overlooked.

Just as in the C of E, an incumbent in the C in W  is under a duty at common law to marry parishioners simply on the basis of residence, whether or not they are members (however defined) of the Church. Similarly, if a church has an open churchyard, every parishioner has the right to be buried in it; and except insofar as rights are preserved by the Welsh Church (Burial Grounds) Act 1945, no discrimination may be made between the burial of members of the C in W and of other persons.

One result of the common law rule on burials is that the Church’s burial fees have to be approved by Welsh ministers. As regards marriage, the Church is subject to the secular law but – unlike the C of E, which can legislate for itself by Measure and, in doing so, amend statute law – except in relation to devolved matters, the only way the law can be changed for Wales is by Act of the Westminster Parliament.

The result is that, on marriage law especially, the C in W has found itself playing catch-up with the C of E. By virtue of the Pastoral Measure 1983, the Church of England amended the Marriage Act 1949 to allow for banns to be called in one church in a grouped parish and for the marriage to take place in another. To achieve the same result the Church in Wales had to seek primary legislation: the Marriage (Wales) Act 1986, the culmination of a private Member’s bill promoted by Donald Coleman, MP for Neath.

More recently, the Church of England Marriage Measure 2008 relaxed the residence rules for marriage in a C of E parish church by introducing the concept of a “qualifying connection” for non-residents – but, again, the C in W needed primary legislation. The result was the Marriage (Wales) Act 2010, drafted in almost exactly the same terms as the 2008 Measure. It was introduced into the House of Lords as a private Peer’s bill by Lord Rowe-Beddoe (the Chairman of the Representative Body of the C in W at the time) then taken through the Commons by Alun Michael – and it got onto the statute-book just before the dissolution prior to the 2010 general election. Since then, the Church of England Marriage (Amendment) Measure 2012 has enabled those with a qualifying connection with one church in a group of churches to have their banns called in another church of the group – but to make that change for Wales will require yet another bill at Westminster.

What triggered the latest round of angst was the consultations (or lack of them) surrounding the Westminster Government’s proposals for same-sex marriage and the introduction of the Marriage (Same Sex Couples) Bill on which, in relation to the C in W, we have previously posted at some length. The Bill as finally introduced included what looks like a sensible provision in respect of the C in W – to allow for subsequent amendment of the statute by Order – which seems to give the Church adequate assurance that the Government has understood its special (?anomalous) position. But the affair raised a much more fundamental question about the status of the C in W more generally and prompted the NAW Constitutional and Legislative Affairs Committee to look at the problem of legislating for the Church in Wales – a decision arising from the same-sex marriage announcement and what the Committee described as “some subsequent confusion about how the proposals were to apply to Wales”.

The Committee’s Report on the Inquiry into Law-making and the Church in Wales [links to the evidence here: there is also a useful briefing note by the C in W] points out that the NAW does not have legislative competence in relation to marriage law and suggests that the preferred option for resolving the problem is “that the Church in Wales should be fully disestablished”, either by legislation at Westminster or “by a Welsh Government Bill in the event of a reserved powers model being introduced in Wales and relevant subjects, including, marriage policy, being devolved as part of that process”. However, as the Committee points out, “Any long term solution will … need to take account of the work of the Silk Commission [on Devolution in Wales] into the future powers of the National Assembly unless the issue is resolved promptly”.

The whole thing obviously came as something of a surprise to David Melding, the Chair of  the Committee, reported by the BBC as saying that

“I was astonished that an Act of Parliament from the Edwardian era had come back to haunt us. I certainly had assumed that the Church in Wales was disestablished – that’s an axiom of modern Welsh history. But apparently not. In two important areas – there may be more that we don’t know about – disestablishment is far from complete in Wales…”.

Whatever the final decision by the Welsh Government and the NAW, nothing is likely to happen any time soon. But if nothing else, both recent events and the NAW Committee’s report have demonstrated that the “vestiges of Establishment”[2] identified by Thomas Glyn Watkin almost twenty-five years ago are sometimes not as vestigial as one might have imagined.

Update

Since this was first posted, the Church in Wales has issued a press release of which the operative part is as follows:

“The Church was invited to participate in the National Assembly’s constitution and legislative affairs committee discussions on the legal status of the Church in Wales and the Archbishop of Wales was pleased to give evidence during a constructive and interesting exploration of the issues involved.

The committee’s conclusions are not unexpected … Certainly our position as a disestablished church which retains certain legal responsibilities to the community is unusual. However, in spite of that, we believe that we have a ministry to all in the people in Wales, regardless of whether they are members of the Church. The Church in Wales has not considered the issue of whether it should seek to change its status in relation to the marriage law. However, it would welcome any assistance the Welsh Government is able to provide in easing the burden on our parishes of maintaining our burial grounds, which are open to all in the community, and to disused burial grounds which cannot be handed over to local authorities as in England”.