Could a new province be set up for traditionalists without reference to General Synod? Matthew Chinery offers a pessimistic analysis of the legal arguments
In August’s New Directions Fr Robert Van Der Weyer submits that traditionalists could seize for themselves the new province which Synod has denied them. It is a beguiling prospect which has certainly excited certain congregations in the PEV Sees. However, I do not believe it can withstand a close legal analysis. I submit that the unilateral creation of a new province would necessarily, as a matter of law, mean leaving the Church of England and the Anglican Communion, if not permanently, at least temporarily. If that is correct, it will be impossible to retain churches and parsonages for the use of this new province.
This article is concerned solely with the legal arguments. Needless to say, such action would be expensive, fiercely resisted by the establishment and perhaps pastorally damaging. It would further delay our oft-stated aim to ‘get off the battlefield and onto the mission-field’. That debate I leave to others.
Precise terminology is key. What do not expec is the Anglican Communion? Self- laws to be on identifying as Anglican is clearly not enough, a fact amply demonstrated by the array of continuing Anglican churches. Nor can communion with the Archbishop of Canterbury, of itself, be sufficient; the Old Catholics and Porvoo churches are ‘in communion’ but not ‘of the communion’. My definition would be along the lines of ‘an international association of separate churches and provinces in the Anglican tradition and in full communion with the Archbishop of Canterbury’.
I must also define what I mean by ‘the Church of England’. The Church of England is those two provinces of the universal Church, established by law with the monarch as Supreme Governor and the Archbishop of Canterbury as Metropolitan and Primate of All England. As an established church, the alteration of the borders of a province requires either an Act of Parliament (as in 1541 when Chester and Sodor & Man transferred from Canterbury to York) or a piece of suitably authorized delegated legislation (such as the Diocese of Southwell Transfer Measure 1935). Erection or suppression of dioceses is no less legalistic, with modern procedure laid out in the Dioceses, Pastoral & Mission Measure 2007.
When a new province springs up, is it automatically recognized as part of the Anglican Communion? The spread of Anglicanism throughout the world in the eighteenth and nineteenth centuries cannot be a suitable precedent in the way Fr Van Der Weyer suggests. Bishops were sent to the colonies under the direct jurisdiction of the Archbishop of Canterbury or York. First in the United States and then elsewhere, these direct jurisdictional ties were amicably cut and the new provinces came to life.
Unilaterally forming a new province within the existing territorial boundaries of York and Canterbury is clearly very different. ACNA serves as a useful example. The recent General Synod motion (February 2010) declares ACNA to be within the ‘Anglican family’, but not currently within the Anglican Communion. It notes their desire to be within the Communion and asks the Archbishops to report to Synod in 2011 about whether this can be achieved. Despite the claim that ACNA is recognized by 80% of Anglican provinces, the legal position must currently be that ACNA is not in communion with the Archbishop of Canterbury and therefore not within the Anglican Communion.
Outside the Communion
Applying this to the specifics, a unilaterally declared new province would only become a member of the Anglican Communion once full communion with the Archbishop of Canterbury was restored. Temporarily at least, it would be outside the Anglican Communion. Without legal authority for its creation, in this way it would also be outside the established Church of England. Parishes, dioceses, clergy and congregants would be removing themselves from both these structures by joining the new province.
This brings us to the question of property. Whilst legal arguments about the precise extent of the ecclesiastical freehold are fascinating, I merely point to s56(2) of the Pastoral Measure 1983, which states: ‘it shall not be lawful to sell, lease or otherwise dispose of any church or part of a church… except in pursuance of powers under this Part or section 30.’
The incumbent and churchwardens are office holders in the Church of England and hold church property for themselves, the parish and their successors. By leaving the Church of England, they leave their office and a vacancy would arise. In order for the outgoing incumbent and churchwardens to retain legal ownership of the church, a sale, lease or disposal would be necessary. Such transfer is unlawful unless the procedures in the Pastoral Measure are followed, and suffice to say these procedures would not deliver the desired result. The position with parsonages is similar enough to warrant no separate analysis.
Please do not expect the property laws to be on your side if you leave the Church of England in this way. There may be some interesting legal debate over other assets, such as trusts held for PCCs or by independent Anglican charities. If and when Synod fails traditionalists for the final time, I suggest time be better spent by investigating these avenues, rather than building up hope on a scheme doomed to expensive failure. ND