Thomas Watkin on the ongoing controversy in the Church in Wales
In a letter in the Church Times on Friday, 27 January, His Honour Judge Andrew Keyser QC responded to my letter in the edition of 13 January concerning Confirmation and Admission to Holy Communion in Wales. In his lengthy and carefully-worded letter, he quoted the views of the Doctrinal Commission on the issues, but he revealed nothing of the reasoning behind the Legal Sub-Committee’s conclusions. The two pieces of unanimous legal advice to which he refers, and the reasons why other interpretations were deemed “unpersuasive”, remain firmly hidden from scrutiny.
On the same day, the then-Archbishop of Wales released a précis of the Legal Sub-Committee’s advice, the text of which is reproduced here. Put simply, the question is whether the Bishops of the Church in Wales, in their Pastoral Letter, intend to change the role of Confirmation regarding a baptized person’s being “qualified to receive Holy Communion”. If they do, they are altering the current significance of the rite of Confirmation in the Church in Wales and changing its discipline for receiving Holy Communion. Such changes require a legal canon.
Chancellor Keyser’s letter makes much of the consideration given to the issue by the Governing Body. What is crucial, however, is whether the issue was properly debated and decided by that body. Tabling papers and short debates are no substitute for the bill procedure required by the Church’s Constitution for making alterations to rites and discipline.
In her commendably clear and candid account of how the issue was dealt with at the September 2016 Governing Body – published in the January 2017 edition of the Ecclesiastical Law Journal – the Solicitor to the Province of Wales, Lyn Chandler, states that “the decision was conveyed to the members of the Governing Body through a pastoral letter” (p.76). The Governing Body, which as its name suggests exists to govern the Church in Wales and which alone has the power to make alterations to rites and discipline, was simply told what had already been decided.
The Solicitor’s report also details the impact of the decision upon the rite of Confirmation. She reports that “Baptism is the full and complete rite of initiation whereby one becomes a full member of the Church and therefore able to receive communion. Confirmation then becomes the service for those who wish to affirm their commitment to the Church or be commissioned for service within it”. The words “Confirmation then becomes” indicate clearly that what Confirmation is becoming is different from what it previously was. In other words, there has been an alteration to the nature and significance of the rite. Again, such a change requires a legal canon. The legal advice as presented in the précis does not address this aspect of the change.
The précis focuses on the meaning of the rubric relating to the reception of Holy Communion. The précis recognizes that the discipline of the Church in Wales, until 1970, was set out in a rubric contained in the 1662 Book of Common Prayer. In fact, the rubric itself maintained a rule reaching back to the Lambeth canons of 1281.
There shall none be admitted to Holy Communion,
until such time as he be confirmed,
or be ready and desirous to be confirmed.
With the enactment of the Church in Wales’s own Order of Confirmation by canon in 1970, this rubric was replaced by the following:
Except with the permission of the Bishop,
no one shall receive Holy Communion until
he is confirmed, or is ready and desirous
to be confirmed.
As can be seen, the new rubric refers to reception of the sacrament rather than admission to it. Admission to Holy Communion had been interpreted by the courts to mean becoming, in the words of the Constitution of the Church in Wales, “entitled to receive Holy Communion”. It would appear that the new rubric not only intended that no one should become entitled to receive the sacrament without Confirmation, but that no one should receive the sacrament at all without Confirmation or readiness for it. It had been recognized by the courts that it was not uncommon for persons who were not confirmed to receive the sacrament even though they were not entitled to do so. Such reception was said to be a matter of grace rather than of right. While a minister had to show lawful cause when denying the sacrament to a person who was entitled to it – a person who was confirmed – that was not necessary if the refusal was based on the lack of confirmation. Lack of confirmation was not a lawful cause for refusing the sacrament to a person who was entitled by baptism; lack of confirmation was a lack of entitlement (see In re Perry’s Almshouses  1 ch.391).
It would appear, therefore, that the new rubric is stricter than its predecessor in that it regulates not merely entitlement to the sacrament but reception of it. As a consequence, the rubric provided for the severity of the rule to be mitigated, but in a manner that allowed for consistency of practice. Unconfirmed persons could lawfully receive the sacrament with the Bishop’s permission; hence the introduction of the words “except with the permission of the Bishop” at the beginning of the rubric.
I interpret those words as intending to allow an exception to the general rule inherited from the Church of England and amended by the 1970 canon. The fact that the phrase begins with the word “except” indicates that the following phrase is an exception. I do not believe that an episcopal discretion to allow such exceptions was intended to allow the discretion to be exercised so widely that the general rule as inherited and amended could be made redundant.
According to the précis, the Legal Sub-Committee interprets the rubric differently: “No restriction is placed on the Bishop’s power to give permission.” Instead, “Episcopal permission is not an exception to that rule; it is an instance of that rule. A person who takes Communion by virtue of the permission … does not do so by way of an exception to a rule of Church law; he or she does so in accordance with the rule.” The Sub-Committee states that in plain language the meaning of the Rubric is:
No Communion without:
(a) confirmation; or
It also states that this is what the “plain and straightforward” wording of the rubric means. In its members’ view, Confirmation and permission are equally valid routes to communicant status. They pay no attention to the rubric’s history, its structure, or the presence of the word “except”. As a result, they equate the effect of a sacramental rite with the exercise of an episcopal discretion.
I maintain that the “plain and straightforward” meaning of the rubric is that there is a general rule, with a pedigree of over seven centuries, to which exceptions are allowed by episcopal permission; but that such exceptions – which are not limited to individual cases – cannot be so wide as to render the general rule of no effect.
Even if one were to accept the précis’s interpretation of the rubric, I would dispute whether it would allow what the Pastoral Letter intends. Even on the précis’s interpretation, the rubric anticipates two paths to communicant status – Confirmation or permission. It is therefore questionable whether a permission can be granted so widely that the other route for which the rubric provides is made redundant. Yet that is the consequence of allowing all the baptised to receive Holy Communion, for once that is the case, no one will ever become qualified by virtue of their Confirmation. Only one path will remain, and what the rubric intends, even on the précis’s interpretation of it, will no longer be the case.
Moreover, the interpretation placed upon the rubric by the Legal Sub-Committee does not deliver the Pastoral Letter’s intended goal. The Bishops state that it is their “conviction that all the baptised, by virtue of their Baptism alone, are full members of the Body of Christ and qualified to receive Holy Communion”. According to the Legal Sub-Committee’s interpretation of the rubric, by virtue of the Pastoral Letter those who have been baptised but not confirmed will not be “qualified to receive Holy Communion” “by virtue of their Baptism alone”. Instead, they will be qualified to do so because they are permitted to receive by the Bishops. Being a communicant, with its widespread significance for participation in Church governance, will result not from a sacrament (Baptism) or from a sacramental rite (Confirmation); it will be based on an exercise of episcopal discretion (permission).
Permissions can be given, and they can also be taken away. In his prizewinning book The Rule of Law, the late Lord Bingham of Cornhill, a former Lord Chief Justice of England and Wales, considered one element of the rule of law to be that questions about rights “should ordinarily be resolved by application of the law and not the exercise of discretion” (p.48). That principle, I believe, applies as much to the reception of Holy Communion as to any secular privilege. The interpretation placed upon the rubric by the Legal Sub-Committee not only circumvents the Church’s due processes for alteration to rites and discipline. In its consequences, it displays a scant respect for – or an inchoate understanding of – the rule of law in Church affairs.
The Revd Professor Thomas Glyn Watkin is a former Professor of Law at Cardiff and Bangor, and before his retirement was First Welsh Legislative Counsel to the Welsh Government. Between 1981 and 1998 he served as Legal Assistant to the Governing Body of the Church in Wales.