The applicability of Provincial Courts’ decisions is set to be resolved at last
On 8 February, General Synod will consider the Report of the Revision Committee, GS 2064Y, on the draft Church of England (Miscellaneous Provisions) Measure, GS 2064A. An issue of relevance to ecclesiastical jurisdiction is Clause 7, which will finally resolve an on-going issue of the applicability of decisions of the Provincial Courts.
The Ecclesiastical Jurisdiction Measure 1963 provides the statutory basis for the Church of England’s ecclesiastical courts. Appeals from the diocesan courts on matters which do not concern “doctrine, ritual or ceremonial” lie with the respective Provincial Court of the two Archbishops: the Court of Arches, presided over by the Dean of the Arches for the Southern Province of Canterbury, and the York Chancery Court presided over by the Auditor in the Northern Province of York. Both these offices are held by the same person, and there is a similar commonality in the attendance of ecclesiastical lawyers in the consistory/commissary and appellate courts of each province. However, there is an on-going debate on whether the judgment of each appellate court is applicable only within the consistory courts of its respective province.
Re: Alsager vs Re: Blagdon
In his invaluable blog, Ecclesiastical Law, Philip Jones notes:
“When deciding exhumation cases, consistory courts have for many years followed guidance given by the Court of the Arches in the case of Blagdon Cemetery  4 All England Reports 482, without any apparent difficulty or controversy. The guidance was given because guidance given by the Chancery Court in the earlier case of Christ Church, Alsager  3 Weekly Law Reports 1394 was considered unsatisfactory.
However, in Re Sam Tai Chan  ECC Dur 2, Chancellor Bursell explored in detail the relationship between the Arches Court of Canterbury and the Chancery Court of York, and the rule of precedent in the ecclesiastical courts. At paragraph 22 he comments [emphasis added]:
“I note that the Arches Court, though finding difficulty in applying the Alsager test, did not purport to set it aside other than, perhaps, in relation to the southern province. In any event and for the reasons I have already set out, in so far as the northern province [is concerned] the Alsager test still prevails“.
The implications of this were explained by Jones as:
“Canterbury and York are separate provinces, and they remain separate ecclesiastical jurisdictions. The Court of the Arches has no superiority over the Chancery Court. This means that northern consistory courts are not ‘bound’ by the Blagdon guidance, only southern ones. On the contrary, the northern courts are bound to follow the Alsager guidance”.
In assessing whether circumstances warrant an exception to the norm of permanence of burial, whilst all cases in the Southern Province apply the guidance provided by Re Blagdon with its reliance upon the Rt Rev Christopher Hill’s Theology of Burial, not all those in the Northern Province apply Re Alsager.
On 16 January 2018, in In the Matter of David Ernest Newton  ECC She 1 HH Judge Sarah Singleton QC cited Chancellor Bursell’s 2016 judgment, and stated:
“[2.2] …In the Consistory Courts, depending on the nature or location of a dispute there are three alternative appeal courts exercising a parallel but distinct reviewing jurisdiction…although Blagdon is an important and influential decision, the binding authority for the Province of York (including the Diocese of Sheffield) remains Re Christ Church Alsager  3 WLR 1394.”
Nevertheless, in her conclusions she addressed both sets of criteria and concluded:
“. I have decided that this Petition should succeed. I consider that the reasons for granting it satisfy the Blagdon test of being exceptional and the Alsager test of there being a good and proper reason such that most right thinking members of the church would agree.”
However, it now appears that the applicability of appellate judgments is, at last, to be clarified.
Church of England (Miscellaneous Provisions) Measure
Section 7 of the Church of England (Miscellaneous Provisions) Measure seeks to resolve issues such as those that have arisen between the cases of Re Alsager and Re Blagdon (but not the separate issue raised by Bursell, of whether the Arches Court consideration was ultra vires in that the matter concerned an issue of doctrine, for which the appropriate appellate court would have been the Court of Ecclesiastical Causes Reserved, the third appellate court referred to by HH Susan Singleton).
Consequently, the judgments of both the Arches Court and the Chancery Court will be equally applicable to both provinces, S7(1). Furthermore, S7(3) provides that this will include decisions of the Arches Court of Canterbury or the Chancery Court of York made before the commencement of that section, as well as to a decision made afterwards. Thus section 7 will be retrospective to judgments of the appellate courts, but not retroactive with regard to the judgments of the consistory/commissary courts; the latter would be impractical, particularly with regard to the subject matter of such judgments, viz. exhumation. Furthermore, paragraph 33 of the Report of the Revision Committee, GS 2064Y, clarifies that should there be a conflict in decisions between the two Courts, “the general rule was that the more recent decision would be binding”.
As well as their application to the consistory/commissary courts, decisions of the Arches and Chancery Courts include within their ambit: those relating to the Vicar-General’s court of the province (including as constituted in accordance with the Clergy Discipline Measure 2003); and those relating to disciplinary tribunals within the province.
The following reproduces the relevant section from GS 2064A, [emboldening in original].
7 Provincial courts: decisions to be treated as taken by each Court
(1) After section 14 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2017, insert—
“14A Decisions treated as taken by each Court
(1) A decision of the Arches Court of Canterbury or the Chancery Court of York is to be treated by the other Court, and by the lower ecclesiastical courts in the province of the other Court, as if it were a decision which the other Court had itself taken.
(2) The reference to a decision of the Arches Court of Canterbury or the Chancery Court of York is a reference to a decision taken by it in the exercise of— (a) its jurisdiction under section 14(1), (2) or (3), or (b) its jurisdiction under section 7 of the Ecclesiastical Jurisdiction Measure 1963 (disciplinary jurisdiction).
(3) “Lower ecclesiastical court”, in relation to a province, means—
(a) the Vicar-General’s court of the province (including as constituted in accordance with the Clergy Discipline Measure 2003),
(b) the consistory court for a diocese in the province, or
(c) a disciplinary tribunal within the province.”
(2) In section 7 of the Ecclesiastical Jurisdiction Measure 1963 (Arches Court and Chancery Court: disciplinary jurisdiction), after subsection (3) insert—
“(3A) For provision as to how a decision of either of those Courts in the exercise of its jurisdiction under this section is to be treated in the province of the other Court, see section 14A of the Ecclesiastical Jurisdiction and Care of Churches Measure 2017.”
(3) This section applies to a decision of the Arches Court of Canterbury or the Chancery Court of York made before the commencement of this section (as well as to a decision made afterwards).
Those wishing for a more detailed analysis might look at paragraphs 7 to 12 of Chancellor Bursell’s judgment Re Sam Tai Chan, his paper Aspects of Burial and Exhumation, (2017) 19 Ecc LJ 169–192, and both of Philip Jones’ posts, Unprecedented Confusion (12 September 2016) and Alsager v Blagdon: Binding and Guiding (6 June 2017).
At the February 2018 Group of Sessions of General Synod, the Business Done indicates that Synod took note of the Report of the Revision Committee and the draft Church of England (Miscellaneous Provisions) Measure was committed to the Steering Committee in respect of its final drafting.