Conrad Arnander looks at the legalities of the case of Carol Stone

The Bishop of Bristol’s comments on the Revd Peter Stone appear to have been widely misreported in June last year. According to the national press he said that there were ‘no ethical or ecclesiastical legal reasons why the Reverend Carol Stone should not continue in ministry in the Church of England’. His Lordship’s letter in New Directions (May, 2001) makes it clear that this is not what he was told. In fact, he was aware of some quite serious legal problems, but gave himself the benefit of the doubt.

So what of the issues that the Bishop did face? Unlike him, I will start with Scripture, although the way in which he appeals to it appears to conflict with his oath of allegiance. The object of the oath is not merely her Majesty in her natural person, but in her capacity as head of state. To obey her, the Bishop must obey the law of the land, the more so if it also happens to be canon law inherited from the undivided Church. There is no room for him to appeal to private judgment on isolated texts to defeat the duly enacted canons of a sovereign legislature (and there can be no doubt of the worldwide sovereignty of the Council in ecclesiastical matters when it met).

The principle is well illustrated by Blake v Director of Public Prosecutions [1993] Crim LR 586, in which the defendant (the Vicar of Barnehurst) had (as the court recognized) received a direct command from God to commit acts of criminal damage. Even this was not sufficient lawful authority, so one bishop’s own interpretation of a couple of texts can hardly mitigate the binding effect of the canons.

In any case, the proof texts show nothing. Acts 8.26–38 does not point in any direction. Even if the eunuch in question is properly regarded as a postulant for Holy Orders, it is clear that he was castrated both by barbarians and before his baptism. The citation of St Matthew is even more absurd. The practice of self-mutilation on an over-literal reading of that verse was well known in the early Church, and at least one purpose of Canon 1 was to suppress it as a misinterpretation of Scripture.

As a final point, one might also ask if the Bishop considered whether allowing Father Stone to continue to preach in his diocese is consonant with 1 Corinthians 14.34–35. Those verses certainly seem ‘to point in a different direction’, although his Lordship’s legal advisers were perhaps able to comfort him by reference to Corbett v Corbett [1971], p83.

What authority does Canon 1 of Nicaea have as law in the Church of England? This depends on two questions. First, was it in 1533 still part of the canon law of Rome? If so, was it not contrariant or repugnant to the laws of God or our lord the King? There is a short cut to the answer to the first question. It still is part of the Roman canon law, and there is no reason to believe that it may ever have been suspended. In the current codification, Canon 1041 makes anyone who has mutilated himself irregular for ordination, and Canon 1044 makes a priest who has done so irregular for the exercise of his orders. Whether or not Canon 1 of Nicaea has ever been formally repealed (and one can perhaps understand why it is taking the Bishop’s teacher of canon law so long to find the evidence), its substance has continuously remained in force.

The second question may be a legitimate subject for academic debate, but if one consults a practical rather than academic textbook of ecclesiastical law there is a standard answer. The pre-Reformation canon law applies in its entirety, in so far as it has during the last four centuries been accepted and acted on by the Church of England. There are no reported cases of self-inflicted or voluntary castration during this period, but it does not require too much imagination to guess how Lord Penzance or Dr Lushington would have answered the question. The mere fact that the question has never been litigated does not show that the canon in question has fallen into desuetude, as may be illustrated by the analogous question of bastardy. This was of course an impediment to Orders under the mediaeval canon law, but in Kensit v Dean & Chapter of S. Paul’s [1905] 2 KB 249 the divisional court suggested that it might no longer be one. This view proved wrong, and the impediment had to be abolished by section 8 of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964. The committees set up by Archbishop Fisher did not see fit to use this opportunity to address mutilation of the clergy, although in the light of the increasing fashion of going to Morocco for gender reassignment they had every reason to suspect that the question might arise.

The Bishop’s third issue is Fr Stone’s medical condition. We should not pry into his medical history, but the Bishop was under a duty to do so, which his letter suggests that he shirked. In the absence of the facts we can only assume that Fr Stone’s condition was before his operation discernable only as a state of his mind, and a purely physical examination, however detailed, would only confirm the soundness of his health. This would put him on the wrong side of the Canon.

The Bishop may have considered Canon 1 of Nicaea, but it is hard to see how he reached the conclusion that it does not apply to Fr Stone.

One may also ask whether the Bishop considered Re Parrott [1946] Ch 183, a decision of Mr Justice Vaizey (a judge with much experience in the ecclesiastical courts) that undoubtedly does form part of the law of England. The ratio of that case is simple: a man may choose to be called what he will, but may not change his Christian (that is, baptismal) name except on confirmation. The plaintiff was a layman, which no doubt explains the lack of any reference to ordination or religious profession. It would seem unlikely that Peter adopted the name Carol Ann on his ordination (even if he might have been known by it during the previous two or three years), so his adoption and use of it in the course of his ministry some eighteen years later seems unlawful.

Conrad Arnander has served as a churchwarden in the Diocese of London.