Over the past thirty years questions have been raised, and still remain, as to the proper scope of the sovereign's title, Defender of the Faith, in a multi-faith society. Such questions are not only politically important but are legally important, especially as they raise questions affecting the Church of England. Those questions need to be addressed before any suggested changes are actually implemented. These questions are different from those that arise in relation to the Coronation Oath Act 1688, but nonetheless are important. In spite of the uncompromising wording of that Act, changes to the oath taken by new sovereigns have historically taken place at subsequent coronations. This has led to both denials and affirmations of the legality of such changes. As similar changes are likely to take place in the future, it is important to consider whether the courts (civil or ecclesiastical) have jurisdiction to entertain challenges to the legality of the coronation itself, to the oath and to the actions of the relevant participants.

This article considers a number of legal questions surrounding burial and exhumation. Based on an extensive paper given at the Ecclesiastical Law Society's conference in 2015, it builds on previous work by the author in this area and examines the changes in the law brought about by recent case law.

Following the Reformation, uniformity was a key principle undergirding worship in the Church of England. The Crown claimed the prerogative to order the use of, and to alter, Church services in spite of the provisions of any Act of Uniformity, the Canons or any Declaration of Assent. This caused confusion among the clergy and others as to who had ‘lawful authority’ to permit such usages or changes. This confusion was exacerbated by episcopal claims to a jus liturgicum. Statute and case law, as well as the wording of the Declaration, also ensured rigidity in doctrinal adhesion. Since the Church of England (Worship and Doctrine) Measure 1974 and recent amendments to the Canons and the Declaration of Assent, this rigidity has been relaxed and clarity provided as to who may authorise services or permit departure from otherwise authorised forms of service.

The taking of oaths of allegiance to the Crown has a long history pre-dating the Reformation. However, the shifting balance of power in the sixteenth century gave greater political weight to the taking of oaths, and developments in the monarchy were matched by developments in the oaths required of clerics. In the present day all clergy are required to take the Oath of Allegiance prior to ordination and on taking up clerical posts. Other office-holders in the church are also required to do so.

The requirement for an oath of canonical obedience (or due obedience) pre-dates the Reformation although a printed text has so far only been traced back to 1637. It is taken by every bishop, priest and deacon, as well as by deaconesses and readers. There are few cases on the scope and meaning of the oath but the Privy Council case of Long v Bishop of Cape Town (1863) decided that the oath only requires obedience to such commands as the superior is otherwise by law authorised to impose. This case is still a binding authority, although difficulties arise as to its application in relation, for example, to national and diocesan regulations, policies and guidelines.

Details of complaints under the Clergy Discipline Measure 2003 are beginning to come into the public domain. In particular, they raise questions as to the appropriate penalties to be imposed on a respondent, although even more worrying may be the anecdotal misunderstanding among some of the clergy about the moral behaviour expected of them. In addition, procedural questions remain that are not addressed in the written determinations. Such questions include the proper interest in making, and the motive behind, a complaint; the admissibility of hearsay evidence to support a complaint; and episcopal intervention and the bishop's role in reaching his decision.

The Clergy Discipline Measure 2003 lays down the procedures for bringing complaints against the clergy. These procedures can only be commenced in relation to specified acts or omissions and the article explores the difficulties that arise in relation thereto. It not only considers the case when a complaint is one involving doctrine, ritual or ceremonial, but also the overlap between the laws ecclesiastical; neglect or inefficiency in the performance of the duties of a cleric's office; and conduct unbecoming to the office and work of a clerk in holy orders.