Accession

Her Majesty Queen Elizabeth II died on 8 September 2022, and her eldest son immediatelyFootnote ⁷ acceded to the throne of the United Kingdom and to the thrones of the other Commonwealth realms. On 10 September, the Accession Council gathered in London, and the accession was proclaimed, announcing the King's regnal name, Charles III.Footnote ⁸

In a Royal Warrant issued on 17 September 2022, the King directed that Accession Day should now be observed on the anniversary of his accession, 8 September.Footnote ⁹

A new monarch makes the Accession Declaration:Footnote ¹⁰

It is expected that this declaration will be made by the King at his coronation, as was the case at the coronation of George VI.Footnote ¹²

At the time of writing, Amending Canon 43 is expected to be presented to the General Synod for approval in February 2023. This Amending Canon makes necessary changes consequent upon the accession of the King. It would change the word ‘Queen’ to ‘King’, and make like changes, in Canons A1–A7, B19, C13 and C17. In what follows, all quotations from these canons are given as though this Amending Canon were already in force.

A reference to the Sovereign in Acts of Parliament and Measures of the General Synod should be ‘construed, unless the contrary intention appears, as a reference to the Sovereign of the time being’.Footnote ¹³

The coronation

It has been announced that the date of the King's coronation will be 6 May 2023.

The coronation is a service of the Church of England. The Archbishop of Canterbury and other ministers of the Church of England officiate. As such, a form of service authorised or allowed by canon must be used. There is no authorised coronation service, but it has been suggestedFootnote ¹⁴ that the very participation of the archbishops implies that the form of service has been approved by them under Canon B4(2), as long as the ‘words and order are in their opinion reverent and seemly and are neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’.

The coronation service has developed over the centuries, but always includes a number of significant ceremonies.Footnote ¹⁵ Among these are the presentation of the Holy Bible and the anointing of the monarch with holy oil on the palms, breast and head. This ceremony of anointing is particularly understood as a sign of the ‘religious or sacred power’ of the King.Footnote ¹⁶ The privilege of crowning the King or Queen regnant belongs to the Archbishop of Canterbury;Footnote ¹⁷ the Archbishop of York has traditionally crowned a Queen Consort.Footnote ¹⁸ The coronation service also includes the celebration of Holy Communion. Suggestions have been made in various quarters as to what changes might appropriately be incorporated in the coronation of Charles III.Footnote ¹⁹

One element of the service required by statute is the Coronation Oath,Footnote ²⁰ which is administered by one of the archbishops or bishops.Footnote ²¹ The Coronation Oath Act 1688 gives a statutory form of the oath, but in practice the oath taken has been varied without statutory authority.Footnote ²² The ecclesiastical content of the oath can be seen in this excerpt from the Coronation Oath of Queen Elizabeth II:

As Prime Minister John Major stated:

Nevertheless, it can be argued that the ministers have done so in the past, for example, relating to the disestablishment of the Church in Wales and in Ireland. However, once an Act of Parliament has received royal assent, it is not open to the courts to question the vires of such an enactment on the grounds of the Coronation Oath or any other.

The Convocations and the General Synod of the Church of England

The Convocations of Canterbury and York are summoned and dissolved at such times as His Majesty may determine.Footnote ²⁶ This is effected by Royal Writ, addressed to the Archbishop of each province.Footnote ²⁷ Each Convocation is automatically dissolved five years after being summoned,Footnote ²⁸ but not by the demise of the Crown.Footnote ²⁹

The General Synod comes into being when the Convocations are called together, and is dissolved when the Convocations are dissolved.Footnote ³⁰ Queen Elizabeth II was usually present at the inauguration of a new General Synod, and addressed the Synod on those occasions.

Ecclesiastical legislation

Measures passed by the General Synod are submitted to the Ecclesiastical Committee of Parliament, which reports to Parliament and gives its views on the expediency of proposed Measures. If each House of Parliament so resolves, Measures are then presented to His Majesty and ‘have the force and effect of an Act of Parliament on the Royal Assent being signified thereto in the same manner as to Acts of Parliament’.Footnote ³¹

The General Synod also legislates by canon, exercising a power that belonged to the Convocations until 1969.Footnote ³² Before a motion for the final approval of a canon is moved, the Synod petitions for His Majesty's royal assent and licence to make, promulge and execute the proposed canon.Footnote ³³ Slack explains that this is not merely a formal process, as the Ministry of Justice considers the compatibility of the proposed canon with the general law before the royal assent and licence are granted – although there seems to be no explicit legal basis for this.Footnote ³⁴

Canons cannot generally contain anything ‘contrary or repugnant to the King's prerogative Royal or the customs, laws, or statutes’Footnote ³⁵ of the realm. However, this does not apply to canons made pursuant to the Church of England (Worship and Doctrine) Measure 1974.Footnote ³⁶

Podmore notes that it is His Majesty's royal assent which gives Measures their legal force, whereas:

Patronage

The Crown exercises a significant ecclesiastical patronage, appointing bishops and archbishops, some cathedral deansFootnote ³⁸ and canons, and the incumbents of around 200 parishes. Other ecclesiastical appointments made by His Majesty include the First and Second Church Estates Commissioners,Footnote ³⁹ the Chair and members of the Churches Conservation Trust,Footnote ⁴⁰ the Deans and Canons of Westminster Abbey and St George's Chapel, Windsor, the Master of the Temple, the members of the College of Chaplains and other members of the Ecclesiastical Household. The Crown appoints the judges of the Court of Ecclesiastical Causes Reserved,Footnote ⁴¹ and Commissions of Review.Footnote ⁴² The Crown also approves certain appointments, such as the Dean of the Arches and Auditor.Footnote ⁴³ In addition, the Lord Chancellor appoints, on behalf of the Crown, some cathedral canons and the incumbents of over 400 parishes.

The usual law of parochial patronage is subject to certain variations where the Crown is patron of the benefice. Section 35 of the Patronage (Benefices) Measure 1986 excepts Crown beneficesFootnote ⁴⁴ from many provisions of that Measure. However, the Crown Benefices (Parish Representatives) Measure 2010 did extend to Crown benefices the right to appoint parish representatives. Likewise, section 100 of the Mission and Pastoral Measure 2011 provides that nothing in that Measure shall apply to benefices in the patronage of the Crown or the Duke of Cornwall without the consent of His Majesty or, as the case may be, the Duke of Cornwall. The Crown does not share patronage with others, but where a Crown benefice becomes part of a larger benefice, the Crown usually takes turns in presentation with the other patrons.

As patron paramount, the Crown formerly presented to benefices in various circumstances where the right of patronage was not regularly exercised.Footnote ⁴⁵ Most of these provisions have been abolished, but sede vacante patronage continues to exist. This means that, during the vacancy in see of a diocesan bishop, rights of presentation which would normally be exercised by that bishop are exercised by the Crown. This is usually done on behalf of his Majesty by a suffragan or other bishop delegated the task, but His Majesty may instead notify that he will exercise the right of presentation himself.Footnote ⁴⁶ In either case, the usual rules for Crown benefices apply to the presentation.

Bishops

The Appointment of Bishops Act 1533 places control over the appointment of diocesan bishops in the hands of the Sovereign. At least from George I onwards, decisions were effectively made by the Prime Minister in advising the Sovereign.Footnote ⁴⁷ In 1977, the Crown Appointments Commission was constituted in order that the Church should have a greater voice in the appointment of Bishops: under the new arrangements a shortlist of names in order of preference was drawn up, and the Prime Minister could advise the Sovereign to appoint the second name, or ask for further names. The system was further revised in 2003 to bring greater transparency, and the commission renamed the Crown Nominations Commission.Footnote ⁴⁸ In 2007, Prime Minister Gordon Brown announced that the Prime Minister would no longer take an active role in decisions.Footnote ⁴⁹ A second name may still be submitted by the Commission to the Prime Minister in case the first named person is unable to accept the appointment.Footnote ⁵⁰ All this means that, by convention, the Prime Minister and the Sovereign no longer exercise real choice in the appointment of diocesan bishops. Coleman discusses the legal implications both of the apparent fettering of the Sovereign's statutory discretion to appoint Bishops and also of the change to constitutional conventions in this area.Footnote ⁵¹

Once a candidate has agreed to accept the nomination, the Prime Minister advises the Sovereign, who formally nominates him or her to the See. The Sovereign grants to the College of Canons of the relevant cathedralFootnote ⁵² a licence (called a congé d’élire) to elect the bishop, with a letter missive containing the name of the person whom the college is to elect.Footnote ⁵³ The Sovereign then commands the archbishop to confirm the election.Footnote ⁵⁴ At the confirmation of election, the bishop-elect swears an oath of allegiance to the Sovereign, the election is confirmed, and the bishop-elect receives the spiritualities of the bishopric.Footnote ⁵⁵ If the new diocesan bishop is not already in episcopal orders, episcopal consecration follows at a later date. Finally, the new bishop does homage to the King in person, suing for the temporalities of the bishopricFootnote ⁵⁶ and ‘making a corporal oath to the King's Highness’.Footnote ⁵⁷

The process of appointment of suffragan bishops is less elaborate than that of diocesans, and by statute only one candidate name is now submitted to the King.Footnote ⁵⁸

The Sovereign visits the archbishops, and receives their resignations.Footnote ⁵⁹

Clergy discipline

Certain penalties imposed under the Ecclesiastical Jurisdiction Measure 1963 and the Clergy Discipline Measure 2003 do not have an effect on an ‘archbishop or bishop or on any person holding any preferment the right to appoint to which is vested in [His] Majesty (not being a parochial benefice) … unless and until [His] Majesty by Order in Council confirms the penalty’.Footnote ⁶⁰ Furthermore, certain penalties imposed upon a member of the clergy under the Ecclesiastical Jurisdiction Measure 1963 and the Clergy Discipline Measure 2003 cease if he or she receives a free pardon from the Crown.Footnote ⁶¹

His Majesty in Council

His Majesty in Council performs various functions relating to the law of the Church. To give a few examples: His Majesty in Council has jurisdiction to hear and determine an appeal from the Court of Arches or the Chancery Court of York in faculty cases.Footnote ⁶² It is possible for a person to appeal against a draft pastoral scheme to His Majesty in Council, but only with the leave of the Judicial Committee of the Privy Council.Footnote ⁶³ If it is necessary to close a churchyard to further burial, this is achieved by His Majesty's Order in Council.Footnote ⁶⁴

Royal Peculiars

Royal Peculiars are jurisdictions which are visitable only by the Crown.Footnote ⁶⁵ Royal Peculiars include Westminster Abbey, St George's, Windsor, and the Chapels Royal. Their legal position is in many respects complex,Footnote ⁶⁶ and special provisions relate to Royal Peculiars in much ecclesiastical legislation.Footnote ⁶⁷

The Oath of Allegiance

Most clergyFootnote ⁶⁸ and legal officersFootnote ⁶⁹ in the Church of England are required to take the Oath of Allegiance.Footnote ⁷⁰ The Clerical Subscription Act 1865 describes the oath to be taken as an ‘oath of allegiance and supremacy’.Footnote ⁷¹ The wording of the oath as given in Canon C13(1)Footnote ⁷² is as follows:

In his article on the oath, Bursell states that a cleric acting contrary to the Oath of Allegiance or denying the royal supremacy as stated in Canon A7 would be liable to ecclesiastical penaltyFootnote ⁷³ – presumably as ‘conduct unbecoming’ under section 8(1)(d) of the Clergy Discipline Measure 2003 or as an offence ‘involving matter of doctrine’ under sections 38 to 45 of the Ecclesiastical Jurisdiction Measure 1963. It should be noted, however, that under section 8(3) of the 2003 Measure ‘lawful political opinions’ are protected. Furthermore, the Faith and Order Commission of the Church of England suggests that those who take the oath are not ‘forbidden from proposing different ways in which the state or Church should be governed, for example as a republic or with the Church of England disestablished’.Footnote ⁷⁴

Liturgical matters

From 1549, statutes required that only the provisions of the Book of Common Prayer be used in public worship.Footnote ⁷⁵ Nevertheless, royal authority was also frequently used to permit additions and variations to the strict law, such as hymns and additional services.Footnote ⁷⁶ However, the Church Assembly's attempt to revise the Book of Common Prayer by Measure, which failed in Parliament in 1927 and 1928, highlighted a need for the Church to be able to order its own liturgy.Footnote ⁷⁷ These concerns eventually led to the current arrangements under the Worship and Doctrine Measure 1974, and Canons B1–B5. Within certain constraints, forms of service can now be authorised by the General Synod,Footnote ⁷⁸ or approved by the Convocations, archbishops or diocesan bishops,Footnote ⁷⁹ without further approval or assent being sought from Parliament or the Crown.

Many forms of service in the Church of England include prayers for the King. In the Book of Common Prayer, the Sovereign is prayed for twice at Morning Prayer and twice at Evening Prayer (if the full order is used), and twice at Holy Communion. The texts of most Common Worship services do not include set prayers for the Sovereign, although modern language prayers for the Sovereign are included in Common Worship for use at appropriate points at the discretion of the officiant. In the notes concerning the prayers of intercession accompanying the Holy Communion service, it is stated, ‘Prayer for the nation is properly focused in prayer for the sovereign by name’.Footnote ⁸⁰

Section 1(7) of the Church of England (Worship and Doctrine) Measure 1974 provides:

On 17 September 2022, the King accordingly directed by Royal Warrant that various changes to prayers should be made to reflect the fact of His Majesty's accession to the throne.Footnote ⁸¹ The prayers for the Royal Family were also changed, and the prayer in the Book of Common Prayer now reads:

Canon B19 provides a bidding prayer which may be used by a preacher before any sermon, lecture or homily. The portion of this prayer relating to the KingFootnote ⁸² reads:

The Accession Service, annexed to and printed with the Book of Common Prayer, constitutes forms of prayer and thanksgiving for use on the anniversary of the Sovereign's accession. As noted above, Accession Day is now to be observed on 8 September each year.

Summary

From this overview, it is apparent that the law relating to the King and the Church of England pervades many areas of ecclesiastical law. The Oath of Allegiance and the liturgical provisions unite the ministry of each parish with the Sovereign. In the national life of the Church, the King's involvement in ecclesiastical legislation and in senior appointments demonstrates that the Supreme Governor plays a fundamental role in the Church's constitution. An essential context for understanding the purpose behind much of this law is the royal supremacy – a discussion of which forms the second part of this article.

Canon A7

Canon A7 is titled ‘Of the Royal Supremacy’:

In this canon, we see the essential features of the supremacy:

1. i. The King's authority extends to matters ecclesiastical as well as civil;

2. ii. The King's authority is supreme, that is, there is no higher jurisdiction to which one can appeal either within the kingdom or in a foreign jurisdiction;

3. iii. The supremacy is acknowledged when the King acts according to law;

4. iv. The King is under God.

Taking these points together we see that although the King's authority is supreme, it is not absolute: but rather is exercised according to law and under God.

Act of Supremacy 1558

There is one unrepealed section of the Act of Supremacy 1558 still in force, section 8:

The powers and authorities which have been united to the Crown by this provision encompass those used for ecclesiastical visitation and for the correction of ecclesiastical offences.Footnote ⁸⁶ Does the supremacy extend beyond these powers of oversight into determination of doctrine? Queen Elizabeth I herself did not claim ‘superiority to ourself to define, decide, or determine any article of point of the Christian faith and religion’Footnote ⁸⁷– and it is hard to imagine Charles III derogating from this. In the 19th century, William Gladstone argued that as the Henrician Act of Supremacy had been repealed, the above-quoted section of the 1558 Act provided the legal basis for the supremacy over ecclesiastical matters:

In practice, Parliament certainly had legislated for the Church and continued to do so in the 19th century. Gladstone believed, however, that it was proper for the Church to determine the content of its own law. Such beliefs animated the 20th century movementFootnote ⁸⁹ that led to the establishment of the Church Assembly and, later, the General Synod. Of course, even today, the Crown does have an essential part in the process of ecclesiastical legislation, giving royal assent to Measures and licence and assent to canons. There is, however, no necessary contradiction between the Church having freedom to determine its own law (especially doctrinal law) and the involvement of its Supreme Governor in the process. As a church report from 1935 argued, the principle that legislation in matters of ritual and doctrine should be decided only by an authority which is based on membership of the Church:

There is now a convention ‘that the government does not legislate for the Church of England on its internal matters without the Church's consent’.Footnote ⁹¹ The civil courts today are reluctant to enter upon questions of doctrine. They are not understood to ‘declare, create, or change ecclesiastical doctrine’Footnote ⁹² but rather state what the law is respecting doctrine.

Therefore, whatever the case in earlier centuries, something like Gladstone's ‘narrow’ interpretation of the royal supremacy seems to reflect the legislative and judicial practice of the present day: the Crown's role is not to decide doctrine or to frame legislation but rather to confirm the Church's law, incorporate it into the law of the nation, and oversee its implementation in the courts.

The Church's support of the present system relies upon convention being respected. If a parliament were frequently to legislate for the Church, especially on doctrinal matters, or if a Prime Minister were to adopt the approach of routinely advising the King to exercise his ecclesiastical powers according to a party programme, the Church would presumably find this unacceptable and seek to renegotiate constitutional arrangements.

Article 37

According to Canon A5, the doctrine of the Church of England is to be found ‘in particular’ in the Thirty-nine Articles of Religion. The Articles are also mentioned in the Declaration of Assent.Footnote ⁹³

Article 37, Of the Civil Magistrates, begins:

By asserting that it is found in Holy Scripture, the Article seems to make the royal supremacy a doctrinal matter: Godly princes ‘should’ rule ecclesiastical estates.

Despite this doctrinal basis, the supremacy has not been retained by all the churches of the Anglican communion. For example, in 1801, the episcopalian church in the USA (PECUSA) established the Thirty-nine Articles of Religion while revising Article 37 to state:

By 1801, of course, Anglicans in the USA were living in a republic. In this version of the Article, the civil magistrate does not have spiritual authority. This appears to be a significant difference between the polities, and perhaps the doctrines, of the Church of England and the Episcopal Church in the USA. In practice, however, divergence around the royal supremacy has not caused insurmountable difficulties for the Anglican Communion.

The Lambeth Conference (a decennial meeting of bishops from across the Anglican Communion) has never assumed the power to legislate by canon. Recent research has shown that the reluctance to do so originally arose from a concern to respect the royal supremacy.Footnote ⁹⁵ Today, however, it is the autonomy that is understood to belong to every member church which makes a legislating Lambeth Conference unthinkable.Footnote ⁹⁶

Because of the royal supremacy, the Anglican Covenant proposed in 2004 (which might have introduced a supra-national Anglican jurisdiction) would have required a process of legislative adoption in the Church of England different from that needed in most other Anglican churches.Footnote ⁹⁷