This timely comment on Canon B5 and the Prayers of Love and Faith has been kindly provided by Russell Dewhurst, Doctoral Student and Fellow of the Centre for Law and Religion, Cardiff University.
It could once be said that ‘uniformity…is one of the leading and distinguishing principles of the Church of England – nothing is left to the discretion and fancy of the individual’ (Newbery v. Goodwin (1811)). However, considerable liturgical variation is now permitted at the discretion of the minister under Canon B5, and it is for use under this discretion that Prayers of Love and Faith are to be provided. A draft of Prayers of Love and Faith has been published here, describing itself as a suite of resources for ‘praying with and for two people who love one another and who wish to give thanks for and mark that love in faith before God.’ This blog post comments on some relevant provisions of Canon B5.
The draft Prayers of Love and Faith indicates that the prayers will be commended by the House of Bishops. Commendation (unlike approval under canons B 2 or B 4) gives no special legal status to the prayers.
Canon B 1(2) requires that:
“Every minister shall use only the forms of service authorized by this Canon, except so far as he may exercise the discretion permitted by Canon B 5.”
Canon B 5(1) provides that:
“The minister who is to conduct the service may in his discretion make and use variations which are not of substantial importance in any form of service authorized by Canon B 1 according to particular circumstances.”
Therefore, when an authorized service is used, such as ‘A Service of the Word’ or a ‘Holy Communion Service’, and it is proposed to vary the authorized form of the service by the insertion of material from Prayers of Love and Faith, it is for the minister who is to conduct the service, in his or her discretion, to make and use variations. These variations must not be ‘of substantial importance.’ This requirement would seem to place a significant limit on the variations which a minister can make and use under Canon B 5(1).
Nevertheless, the draft Prayers of Love and Faith indicates in ‘An Outline Order for a Service of the Word’ or ‘An Outline Order for a Service within a Celebration of Holy Communion’ that the inclusion of prayers and associated ceremonies (including rings and candles) are to be considered variations to the authorized services which are not of substantial importance. Having watched the February 2023 General Synod debates on Living in Love and Faith, it seems to me that one thing which united all sides to the debate was the fact that the proposed prayers are of great importance. It would therefore be helpful, in the final Prayers of Love and Faith, to see some reasoning as to why the prayers can be described as variations ‘not of substantial importance.’
In addition to the provisions of canon B 5(1), entirely unauthorized forms of service (rather than variations to authorized services) are permitted under canon B 5(2):
“The minister having the cure of souls may on occasions for which no provision is made in The Book of Common Prayer or by the General Synod under Canon B 2 or by the Convocations, archbishops, or Ordinary under Canon B 4 use forms of service considered suitable by him for those occasions and may permit another minister to use the said forms of service.”
Unauthorized forms of service may only be used where there is no authorized provision. An example of such a form of service would be An Order for Prayer and Dedication after a Civil Marriage, commended by the House of Bishops and included in the Common Worship: Pastoral Services volume. In this case, the decision is made by ‘the minister having the cure of souls’, who may use ‘forms of service considered suitable by him’ – and may also permit another minister to use the said forms of service. Here, as there is no authorized service from which variations are being made, there is no restriction that variations must not be ‘of substantial importance.’ As with An Order of Prayer and Dedication after a Civil Marriage, the provisions of this canon would seem to be the obvious way for a minister to use forms of services of blessings for couples. However, as we have seen, that is not the approach which the draft Prayers of Love and Faith is commending.
In addition, it is not clear whether the provisions of canon B 5(2) can be used where there is no ‘minister having the cure of souls,’ i.e. in a parochial vacancy where no priest-in-charge has been appointed, or in some chaplaincy or BMO settings. This seems a lacuna in the liturgical law. It is tentatively submitted that, until the canon can be revised to contemplate these situations, the only minister who can be described as ‘having the cure of souls’ is the Bishop.
Governing the discretion of ministers both in B 5(1) and B 5(2), canon B 5(3) requires that
“All variations in forms of service and all forms of service used under this Canon shall be reverent and seemly and shall be neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter.”
In the draft Prayers of Love and Faith it is stated that:
“The prayers and forms of service commended here are ‘neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’ (including, but not limited to, the definition of Holy Matrimony in Canon B 30).”
A conclusive determination of this doctrinal question would only follow disciplinary proceedings under the Ecclesiastical Jurisdiction Measure 1963, and such proceedings rarely take place. Commendation by the House of Bishops gives good grounds for a minister to believe that there is no doctrinal incompatibility– but the responsibility remains with the minister.
Finally, Canon B 5(4) states that:
“If any question is raised concerning the observance of the provisions of this Canon it may be referred to the bishop in order that he may give such pastoral guidance, advice or directions as he may think fit, but such reference shall be without prejudice to the matter in question being made the subject matter of proceedings under the Ecclesiastical Jurisdiction Measure 1963.”
If a question is duly raised and the bishop chooses to give direction, rather than guidance or advice, then the duty of canonical obedience may be engaged. If this is so, then failure to follow the bishop’s direction would be a breach of ecclesiastical law and a disciplinary offence. This would seem to indicate that, if a question is raised, the bishop would be able to direct a minister not to use Prayer of Love and Faith, or indeed any other variations which the bishop believed were inappropriate, in a given context or generally.
Two concluding points:
- Firstly, the Church of England has not changed its doctrine, and commendation does not change the legal status of prayers. Therefore, it seems that anything which will lawfully be commended as part of Prayers of Love and Faith is already lawful for use under Canon B5, and has been for some time.
- Secondly, in proposing to commend prayers, rather than seeking for the prayers to be approved under Canon B2 or Canon B4, the House of Bishops leaves a degree of legal uncertainty as to the circumstances in which they can be used. It appears that a bishop may be able to veto their use under Canon B 5(4). Clergy using the prayers cannot be certain that they will not be liable to disciplinary proceedings. Given the controversy surrounding the prayers which was seen in the February 2023 meeting of the General Synod, these legal questions are ones which some interested parties may be inclined to test.
Cite this article as: Russell Dewhurst, “Canon B5 and the Prayers of Love and Faith” in Law & Religion UK, 10 February 2023, https://lawandreligionuk.com/2023/02/10/canon-b5-and-the-prayers-of-love-and-faith/
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An excellent and useful summary of Canon B5. Given the ‘not of substantial importance’ proviso of (1) it does indeed strange that this is the canon cited in the draft, when (2) seems far more suitable, (accepting that this clause is not itself without issues, due to the proviso in that clause regarding the minister having the cure of souls).
The observation that comendation of prayers by the HofB does not change the legality of the use of such prayers is an interesting one. One wonders what the response to a legal challenge of the use of similar focused prayers would have been had any such prayers/services been used before now.
I await with interest what responses are made to address these points in July.
Many thanks for the article. It helps answer the question I posed yesterday in ‘Church of England General Synod approves same-sex blessings’: With an eye to CHURCH OF ENGLAND (WORSHIP AND DOCTRINE) MEASURE 1974 (No. 3) can these prayers only be used by a minister on a private occasion and not during a service?
The ‘legal uncertainty’ as to the circumstances in which the ‘Prayers of Love and Faith’ can be used, and whether the draft is correct in stating that “The prayers and forms of service commended here are ‘neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’ (including, but not limited to, the definition of Holy Matrimony in Canon B 30)”, was what prompted the amendment (Item 61) moved by Clive Scowen to the LLF motion:
‘In paragraph (e) leave out “commending and issuing” and at the end insert “, and bringing the refined version back to this Synod as liturgical business for approval pursuant to Canon B2.”.’
In his speech, Clive argued that the use of Canon B5 was “wholly inappropriate where the liturgy concerned is both controversial as to content and as to lawfulness”, saying that “It is at the least arguable that the use of these prayers in certain contexts would be indicative of a departure from the doctrine of the C of E, e.g. where the couple are known to be in a sexually active relationship. Commendation leaves ministers completely exposed because under Canon B5 it is their responsibility to ensure that their use of the prayers in any particular context is not indicative of a departure from doctrine, exposing them to complaints under the Ecclesiastical Jurisdiction Measure. Those who decline to use them may, on the other hand, be sued for discrimination. It doesn’t matter whether such proceedings are well-founded: the mere fact of their being brought will be devastating. Commendation by the bishops has no legal effect, it provides no cover for ministers—though they might be misled into thinking that it did.
“A principal role of bishops is to pastor their clergy, to have their back. But the way the bishops wish to commend these prayers is, I want to suggest, profoundly unpastoral, though I’m sure they don’t intend that, because it hangs the clergy out to dry. So how can ministers be protected? If, as this amendment asks, we were to use the Canon B2 procedure for authorising liturgy, it would be for this Synod to assess and determine whether the prayers are contrary to or indicative of a departure from the Church’s doctrine. If we approve the prayers, the Worship and Doctrine Measure says that that would be conclusive that the prayers were consistent with the doctrine, protecting those who use them from legal challenge—something which no amount of commendation or pastoral guidance will be able to do. Protecting those who don’t use the prayers from litigation may require a Measure, and I’d invite consideration to be given to that as well. But please let us at least use the full authorisation procedure for the prayers so that if they are approved we can be certain, clergy and lay ministers up and down the country can be certain, of their status and that they can use them lawfully without risk of challenge.”
In support, Daniel Matovu (Oxford) said that the only way the bishops could restore trust and credibility in Synod was “to do it properly under Canon B2.”
Bishop Mullally’s response was something of a fudge that did not address Clive’s immediate concern. She said: “We will pay attention to that, bringing back very clear proposals that can be used consistently across the dioceses in the Church to protect those who wish to use them and those who do not wish to use them… The Prayers of Love and Faith are not intended to be liturgy authorised under Canon B2, rather than a set of resources which are commended and could be used either in a service of Holy Communion or of the Word.”
Accordingly, she resisted the amendment, which was lost on a counted vote by houses (Bishops: for 3, against 29, abstentions 1; Clergy: 85-109-1; Laity 90-101-0).
It remains to seen now whether any clergy person will face proceedings, either under the EJM or the Equality Act, for using the prayers, or refusing to use them, between now and when Synod next meets at York in July.
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Three comments on Russell’s characteristically learned article:
1. I suggest that a crucial difference between the 1980s service of ‘Prayer and Dedication after Civil Marriage’ and the ‘Prayers of Love and Faith’ is made by the authorisation, within Common Worship, of the generic ‘Service of the Word’ within which almost anything can fall, so there is no need to commend a specific service. However, as the papers make clear, a service for a same-sex couple is definitely NOT a service of Holy Matrimony, and so it is not an alternative to any authorised service.
2. Russell suggests that disciplinary proceedings under the EJM1963 “rarely take place.” In fact, as I have explained in my history of discipline in the CofE and more recently in an article in the last Ecclesiastical Law Journal, they have NEVER taken place, and it would seem very problematic for them to now do so. That does not, of course, prevent someone trying, but it would invite counter-complaints against the many churches not complying with even the most rudimentary definition of a Service of the Word in their modern worship.
3. I agree very much with the first of the concluding bullets – if the published prayers are acceptable under Canon B5, they are acceptable now, on the basis of the legal advice in GS1339, regardless of what happens next.
I think Neil Patterson’s point contains some important clarifications: adding the Prayers for Love and Faith material to a communion service is potentially more problematic, whereas A Service of the Word does give enough scope for them to be included within that. However, we should also note that A Service of the Word also has rubrics which allow it to form the basis of a communion services, so – again – within that liturgical framework, the use of the new material would appear to be within the rubrics. So the only basis for an EJM procedure would be on the basis of the Bishops themselves proposing material which is contrary to, or indicative of a departure from, the doctrine of the Church of England in an essential matter. The case would have to prove the issue of them being “indicative” of such a departure and that the departure was an “essential matter”. Again, given that they are specifically not for “Holy Matrimony” as the Church had defined it, it would be struggle – if only for the reason that, as the Legal Office now says, a legal distinction has opened up between Holy Matrimony and what the state defines as “marriage”.
I don’t think it’s correct to say that disciplinary proceedings under the Ecclesiastical Jurisdiction Measure 1963 never take place. The case of Bland v Archdeacon of Cheltenham [1972] was brought under the EJM 1963. There is also a body of caselaw on doctrinal disputes under the earlier Privy Council jurisdiction.
A useful and informative article. On his first concluding point, while it is true that Church of England has not changed its doctrine as a matter of legal fact, it would seem that the mere commending of the prayers by the House of Bishops does not in itself make them lawful. If that is the case, the question will be whether they can be made lawful by any legislative procedure of the General Synod.
Is it not also worth noting that, while clergy may be open to the complaint of departing from CofE doctrine, bishops may also be subject to disciplinary proceedings on matters of doctrine in the same (substantive if not procedural) way and that their views on doctrinal matters ought not therefore carry any greater weight than those of the clergy?
I was also surprised by the comment that a service for a same-sex couple was definitely not a service of Holy Matrimony. Canon B30 refers interchangeably to “Holy Matrimony” and “marriage”. It also seems significant that section 1(3) of the Marriage (Same Sex Couples) Act 2013 acknowledges the potential conflict between the CofE definition or “marriage” and the civil law definition of “marriage” – which s.1 implies is “extended” to same sex couples (in contrast to the duty to solemnise which is not “extended”) – and states that there is no conflict between the canons of the CofE and the law of realm as a consequence of the changes made by the Act. As a matter of legal construction, therefore, the Canons must be read so as to avoid a conflict with English law as it now stands. This must mean that the CofE has to accept that a same sex couple who are married under civil law are, in fact, married for the purposes of the prayers of love and faith – making the service, to all intents and purposes, the same as a service of Solemnisation of Matrimony under Canon B36. For a married same-sex couple, the civil marriage will be the relationship for which the couple is seeking a blessing, and this would be indicative of a departure from the doctrine set out under Canon B30 – wouldn’t it?