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Part IE The Ecclesiastical Judicial System

The CourtsE

1 The ecclesiastical courts.E

(1)For each diocese there shall be a court of the bishop thereof (to be called the consistory court of the diocese or, in the case of the court for the diocese of Canterbury, the commissary court thereof) which shall have the original jurisdiction [F1in non-disciplinary matters] conferred on it by this Measure.

(2)For each of the provinces of Canterbury and York—

(a)there shall be a court of the archbishop thereof (to be called, in the case of the court for the province of Canterbury, the Arches Court of Canterbury, and, in the case of the court for the province of York, the Chancery Court of York) which shall have the appellate jurisdiction conferred on it by this Measure; and

F2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)For both of the said provinces—

F3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)there shall be a court (to be called the Court of Ecclesiastical Causes Reserved) which shall have the original and appellate jurisdiction conferred on it by this Measure;

(c)there may, in accordance with the provisions in that behalf of this Measure, be appointed by Her Majesty commissioners who shall have such jurisdiction as is conferred on them by this Measure with respect to the review of findings F4... of the Court of Ecclesiastical Causes Reserved; and

(d)Her Majesty in Council shall have such appellate jurisdiction as is conferred on Her by this Measure.

Annotations:

Amendments (Textual)

F1Words in s. 1(1) inserted (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 1 para. 2 (with s. 47); S.I. 2005/6, Instrument made by Archbishops

F2S. 1(2)(b) repealed (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 2 (with s. 47); S.I. 2005/6, Instrument made by Archbishops

F3S. 1(3)(a) repealed (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 2 (with s. 47); S.I. 2005/6, Instrument made by Archbishops; S.I. 2005/6, Instrument made by Archbishops

F4Words in s. 1(3)(c) repealed (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 2 (with s. 47); S.I. 2005/6, Instrument made by Archbishops; S.I. 2005/6, Instrument made by Archbishops

The Judges of the Courts constituted by this MeasureE

2 Judge of consistory court.E

(1)Subject to the following provisions of this Measure, the consistory court of a diocese shall be presided over by a single judge who shall be styled the chancellor of the diocese or, in the case of the diocese of Canterbury, the commissary general, and appointed by the bishop thereof by letters patent.

F5 [( 1A )Before appointing a person to be chancellor of a diocese the bishop shall consult the Lord Chancellor and the Dean of the Arches and Auditor.]

[F6(2)A person appointed to be chancellor of a diocese shall be a person —

(a)who holds or has held high judicial office or the office of Circuit judge, or

(b)has the qualifications required for a person to be appointed a Circuit judge,

and, before appointing a layman, the bishop shall satisfy himself that that person is a communicant.]

F7(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subject to the provisions of [F8subsections (3) and (4A) [F9to (4C)] of this section], the appointment of a person to be chancellor of a diocese shall be [F10for the period beginning with the date of the appointment and ending with the date on which he attains the age [F11 of seventy years ]], but he—

(a)may resign his office by instrument in writing under his hand addressed to, and served on, the bishop of the diocese;

(b)may be removed by that bishop if the Upper House of the Convocation of the relevant province resolves that he is incapable of acting or unfit to act.

[F12(c)may continue to act as chancellor for the purpose of any proceedings or cause of faculty in the consistory court of the diocese during the course of which he attains the age [F11 of seventy years ] as if the date of the conclusion in that court of those proceedings or that cause, as the case may be, were the date on which he attains that age.]

[F13(4A)Where the bishop of a diocese considers it desirable in the interests of the diocese to retain the chancellor of the diocese in office after the date on which he would otherwise retire in accordance with subsection (4) above, he may authorise the continuance in office of the chancellor after that date for a period of up to 2 years.

(4B)The bishop may authorise the further continuance in office of a chancellor for periods of up to 1 year at a time.

(4C)The period during which a chancellor remains in office shall not be continued under subsection (4A) or (4B) above beyond the date at which the chancellor attains the age of 75 years.

(4D)Before authorising any period of continuance in office of a chancellor under subsection (4A) or (4B), the bishop shall consult the Dean of the Arches and Auditor.]

(5)The chancellor of a diocese shall, before he enters on the execution of his office,—

(a) take F14 . . ., either before the bishop of the diocese in the presence of the diocesan registrar, or in open court in the presence of that registrar, the oaths set out in Part I of the First Schedule to this Measure; . . . F15

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16

and the diocesan registrar shall record the taking F14 . . . of the said oaths . . . F15

Annotations:

Amendments (Textual)

F10 Words substituted by Ecclesiastical Judges and Legal Offices Measure 1976 (No. 2) , s. 1(1)(3) except in relation to a person who holds the office of chancellor of a diocese, or, in the case of the diocese of Canterbury, commissary general on 25.4.1976

[F172A Number of chancellorships to be held by one person may be limited.E

(1)Regulations made by the House of Bishops of the General Synod may make provision with respect to the maximum number of chancellorships [F18 or deputy chancellorships] of dioceses which any one person may hold.

(2)Nothing in any regulation made under this section shall be taken as prohibiting any person who at the date on which the regulation comes into force holds more than the maximum number of chancellorships [F18or deputy chancellorships] prescribed by the regulation from continuing to hold such offices.

(3)Regulations made under this section shall be laid before the General Synod and shall not come into operation until they have been approved by the General Synod.

(4) The M1 Statutory Instruments Act 1946 shall apply to any regulations approved under subsection (3) of this section as if they were a statutory instrument and were made when so approved, and as if this Measure were an Act providing that any such regulations should be subject to annulment in pursuance of a resolution of either House of Parliament. ]

Annotations:

Amendments (Textual)

F17S. 2A inserted by Ecclesiastical Judges and Legal officers Measure 1976 (No. 2), s. 2

F18Words in s. 2A(1)(2) inserted (1.10.2006) by Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), ss. 7(3), 16(2); S.I. 2006/2, Instrument made by Archbishops; S.I. 2006/2, Instrument made by Archbishops

Marginal Citations

3 Judges of the Arches and Chancery Courts.E

(1)The judges of the Arches Court of Canterbury and the Chancery Court of York respectively shall be [F19as set out in subsection (2) of this section], but proceedings which, by virtue of the following provisions of this Measure, are cognisable by either of those Courts shall be heard and disposed of by such of the judges thereof as may be determined in accordance with those provisions.

(2)Of the judges of each of the said Courts—

(a)one, who shall be a judge of both Courts (and, in respect of his jurisdiction in the province of Canterbury shall be styled Dean of the Arches and, in respect of his jurisdiction in the province of York, shall be styled Auditor, and is hereinafter referred to in this Measure as the Dean of the Arches and Auditor), shall be appointed by the archbishops of Canterbury and York jointly with the approval of Her Majesty signified by warrant under the sign manual;

[F20(b)for the purposes of proceedings on an appeal under section 20 of the Clergy Discipline Measure 2003, four shall be appointed in accordance with subsections (2) and (3) of that section;]

F21 [( d )the others shall be all the diocesan chancellors appointed under section 2 of this Measure (in whichever province), except the chancellor of the diocese in Europe;]

[F22(3)A person appointed to be Dean of the Arches and Auditor shall be a person who—

(a)holds or has held high judicial office, or

(b)has the qualifications required for a person to be appointed a Lord Justice of Appeal,

and, before appointing a layman, the Archbishops of Canterbury and York shall satisfy themselves that that person is a communicant.]

F23(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F24(5)The appointment of the Dean of the Arches and Auditor shall be for a period beginning with the date of the appointment and ending with the date on which he attains the age of seventy-five years, but—

(a)he may resign his office by instrument in writing under his hand addressed to, and served on, the Archbishops of Canterbury and York,

(b)he may be removed by the Archbishops of Canterbury and York jointly if the Upper Houses of the Convocations of the provinces of Canterbury and York each resolve that he is incapable of acting or unfit to act, and

(c)he may continue to act as a judge for the purpose of any proceedings in either Court during the course of which he attains the age of seventy-five years as if the date of the conclusion of the proceedings were the date on which he attains that age.]

(6)[F25The Dean of the Arches and Auditor and every chancellor of a diocese shall, before he enters on the execution of his office as a judge of the said Courts],—

(a)take F26. . .,—

(i)before the archbishop of Canterbury in the presence of the registrar of the province of Canterbury and before the archbishop of York in the presence of the registrar of the province of York; or

(ii)in open court in both of those provinces in the presence of the registrar of the province;

the oaths set out in Part I of the First Schedule to this Measure; . . . F27

(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F28

(7)[F29A person appointed under paragraph [F30 (b)] of subsection (2) of this section] to hold the office of judge of either of the said Courts shall, before he enters on the execution of his office,—

(a)take F26. . . the said oaths either before the archbishop of the relevant province and in the presence of the registrar of that province or in open court in the presence of that registrar; . . . F27

(b) . . . F28

(8)A provincial registrar shall record the taking . . . F27F31. . ., of an oath . . . F27 in his presence in pursuance of either of the two last foregoing subsections.

Annotations:

Amendments (Textual)

F20S. 3(2)(b) substituted for s. 3(2)(b)(c) (1.2.2014) by Clergy Discipline (Amendment) Measure 2013 (No. 2), ss. 9(3), 10(2); S.I. 2014/1, art. 2

4 Appointment of deputy judges.E

(1)[F32Where the Dean of the Arches and Auditor or any chancellor is for any reason unable to act as such, or the office of the Dean or any chancellor is vacant], the archbishops of Canterbury and York in the former case, and the bishop of the diocese concerned in the latter, may appoint a fit and proper person to act as deputy Dean of the Arches and Auditor or deputy chancellor of such diocese as the case may be during [F32the period of inability or vacancy], and every person so appointed shall have all the powers and perform all the duties of the [F32office in respect of which he is appointed to act as deputy].

F33 [( 1A )The Dean of the Arches and Auditor F34... may, with the consent of the Archbishops of Canterbury and York F34... appoint a fit and proper person to act as deputy Dean of the Arches and Auditor F34... for such period not exceeding twelve months or for such purpose as may be specified in the instrument of appointment, and during that period or for that purpose every person so appointed shall have all the powers and perform all the duties of the office [F35of Dean of the Arches and Auditor]].

[F36(1B)Any chancellor may, with the consent of the bishop of the diocese, appoint, in writing, a fit and proper person to act as deputy chancellor of the diocese and any person so appointed shall have all the powers and perform all the duties of the office of chancellor.

(1C)The appointment of a deputy chancellor appointed under subsection (1B) of this section shall continue so long as the chancellor who appointed the deputy chancellor continues in office and, thereafter, for the period of three months beginning with the date on which the chancellor ceases to hold office or until the deputy chancellor attains the age at which the chancellor would be required to vacate the office of chancellor under section 2(4) of this Measure, whichever is sooner, but a deputy chancellor—

(a)may resign the office of deputy chancellor by notice in writing addressed to the chancellor,

(b)may be removed by the chancellor, after consultation with the bishop, if the chancellor considers that the deputy is incapable of acting or unfit to act, and

(c)may continue to act as chancellor for the purpose of any proceedings or cause of faculty in the consistory court of the diocese during the course of which the deputy chancellor attains the said age or, as the case may be, the three months period referred to above expires, as if the date of the conclusion in the court of those proceedings or that cause, as the case may be, were the date on which that age is attained or, as the case may be, that period has expired.]

(2)Every deputy judge appointed to act pursuant to the provisions of the foregoing [F37subsections]shall be qualified as hereinbefore provided with respect to the person whose functions he is appointed to perform and, before he enters on the execution of his office, such deputy shall take and subscribe such oaths . . . F38 as are required to be taken, . . . F38 and subscribed by the Dean of the Arches and Auditor or by a chancellor of a diocese, as the case may be, under the preceding provisions of this Measure in manner thereby appointed, and such oaths . . . F38 shall be recorded in the like manner.

Annotations:

Amendments (Textual)

F34Words in s. 4(1A) omitted (1.10.2006) by virtue of Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), ss. 7(4), 16(2); S.I. 2006/2, Instrument made by Archbishops

F35Words in s. 4(1A) substituted (1.10.2006) by Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), ss. 7(4), 16(2); S.I. 2006/2, Instrument made by Archbishops

F36S. 4(1B)(1C) inserted (1.10.2006) by Church of England (Miscellaneous Provisions) Measure 2006 (No. 1), ss. 7(5), 16(2); S.I. 2006/2, Instrument made by Archbishops

5 Judges of the Court of Ecclesiastical Causes Reserved.E

The Court of Ecclesiastical Causes Reserved shall be constituted of five judges appointed by Her Majesty, and of them two shall be persons who hold, or have held, high judicial office and who make a declaration that they are communicants and three shall be persons who are, or have been, diocesan bishops.

Jurisdiction of the CourtsE

6 Jurisdiction of the consistory court.E

(1)Subject to the provisions of the following subsection the consistory court of a diocese has original jurisdiction to hear and determine—

F39(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a cause of faculty for authorising—

(i)any act relating to land within the diocese, or to anything on or in such land, being an act for the doing of which the decree of a faculty is requisite;

(ii)the sale of books comprised in a library within the diocese, being a library to which the M2Parochial Libraries Act 1708 applies;

F40 [( bb )proceedings for an injunction or restoration order under section 13 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991;]

(c)proceedings upon anyjus patronatusawarded by the bishop of the diocese;

(d)proceedings for the recovery of any penalty or forfeiture incurred under section thirty-two . . . F41 of the M3Pluralities Act 1838 in relation to a benefice in the diocese F42... and any proceedings consequent upon the return into the court of a monition in pursuance of section one hundred and twelve of that Act;

(e)any proceedings (other than as aforesaid) which, immediately before the passing of this Measure, it had power to hear and determine, not being proceedings jurisdiction to hear and determine which is expressly abolished by this Measure.

(2)Nothing contained in the foregoing subsection shall extend, or be construed as extending, the jurisdiction of the consistory court in faculty matters to any land or to anything on or in such land in respect of which such court had no jurisdiction immediately before the passing of this Measure.

7 Jurisdiction of Arches and Chancery Courts.E

[F43(1)The Arches Court of Canterbury and the Chancery Court of York each have jurisdiction to hear and determine an appeal from a judgment, order or decree of the consistory court of a diocese within the province for which they are constituted respectively—

(a)in a cause of faculty, or

(b)in proceedings of the kind mentioned in section 6(1)(bb), (d) or (e),

unless the appeal to any extent relates to matter involving doctrine, ritual or ceremonial.]

[F44(1A)Each of the said Courts shall also have jurisdiction to hear and determine appeals from judgments, orders or decrees of the Vicar-General’s court of the province of Canterbury or York[F45 (including that Court as constituted in accordance with the Clergy Discipline Measure 2003 ], as the case may be.]

[F46(1B)Each of the said Courts shall also have jurisdiction to hear and determine appeals from judgments, orders or decrees of disciplinary tribunals within the provinces for which they are constituted respectively.]

(2)An appeal which, by virtue of this section, either of the said Courts has jurisdiction to entertain lies—

[F47(a)in a disciplinary case, [F48 with the leave of the court in accordance with section 20(1A) and (1B) of the Clergy Discipline Measure 2003,] at the instance of any party to the proceedings on a question of law and the defendant on a question of fact;

(b)in any other case, at the instance of any party to the proceedings but only with the leave of the consistory court or the Vicar-General’s Court as the case may be or F49... of the Dean of the Arches and Auditor.]

(3)Appeals under this section shall be lodged and conducted in such manner as may be prescribed.

[F50(4)Each of the appellate courts mentioned in subsection (1) of this section also has jurisdiction, either on its own motion or on the application of any party to proceedings pending in a consistory court, to give directions as to the further conduct of those proceedings if it considers that there has been inordinate delay in the conduct of the proceedings or it is otherwise in the interests of justice.

(5)Subsection (4) enables any directions to be given which could have been given by the chancellor.]

Annotations:

Amendments (Textual)

F45Words in s. 7(1A) inserted (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 1 para. 4(a) (with s. 47); S.I. 2005/6, Instrument made by Archbishops

F46S. 7(1B) inserted (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 1 para. 4(b) (with s. 47); S.I. 2005/6, Instrument made by Archbishops

F47Words in s. 7(2) substituted (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 1 para. 4(c) (with s. 47); S.I. 2005/6, Instrument made by Archbishops

8 Appellate jurisdiction of Her Majesty in Council.E

(1)Her Majesty in Council has jurisdiction to hear and determine appeals from judgments of the Arches Court of Canterbury and the Chancery Court of York in proceedings which, by virtue of [F51paragraph (a)] of subsection (1) of the last foregoing section, those Courts have jurisdiction to entertain.

(2)An appeal which, by virtue of this section, Her Majesty in Council has jurisdiction to entertain lies at the instance of any party to the proceedings [F52with the leave of Her Majesty in Council].

F539 Jurisdiction of commissions of convocation.E

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

F53S. 9 repealed (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 2 (with s. 47); S.I. 2005/6, Instrument made by Archbishops

10 Jurisdiction of Court of Ecclesiastical Causes Reserved.E

[F54(A1)The Court of Ecclesiastical Causes Reserved has jurisdiction to hear and determine an appeal from a judgment, order or decree of a consistory court—

(a)in a cause of faculty, or

(b)in proceedings of the kind mentioned in section 6(1)(bb) or (e),

where the appeal to any extent relates to matter involving doctrine, ritual or ceremonial.]

(1)The Court of Ecclesiastical Causes Reserved has original jurisdiction to hear and determine—

(a)proceedings upon articles charging an offence against the laws ecclesiastical involving matter of doctrine ritual or ceremonial committed by—

(i)a priest or deacon who when the offence was alleged to have been committed or when the proceedings were instituted, held preferment in a diocese or resided therein;

(ii)an archbishop or a bishop who, at one of those times, was a diocesan or a suffragan commissioned by a diocesan or (not being either a diocesan or a suffragan) held preferment in a diocese or resided therein

(b)all suits of duplex querela;

F55...

(2)An appeal which, by virtue of this section, the Court of Ecclesiastical Causes Reserved has jurisdiction to entertain lies at the instance of any party to the proceedings.

(3)For the purpose of determining whether an appeal from a judgment, order or decree of a consistory court F56... lies to the Arches Court of Canterbury or the Chancery Court of York under F57... subsection (1) of section seven of this Measure or to the Court of Ecclesiastical Causes Reserved by virtue of this section, it shall be the duty of the chancellor to certify upon the application of the party desiring to appeal whether or not [F58the proposed appeal relates to any extent to matter involving doctrine, ritual or ceremonial] F59. . ..

F60 [( 4 )In any proceedings in the Court of Ecclesiastical Causes Reserved on an appeal from a judgment, order or decree of a consistory court of a diocese F61..., the court—

(a)if it considers that it has heard and determined the appeal in so far as it relates to matter involving doctrine, ritual or ceremonial but that the appeal relates also to other matter, may, if it considers it expedient to do so, deal with the other matter, but otherwise shall refer it, and

(b)if it considers that no matter of doctrine, ritual or ceremonial is involved, shall refer the appeal (notwithstanding any certificate to the contrary issued under subsection (3) of this section),

to the Arches Court of Canterbury or the Chancery Court of York, as appropriate, to be heard and determined by that court.

(5)In any proceedings in the Arches Court of Canterbury or the Chancery Court of York on an appeal from a judgment, order or decree of a consistory court of a diocese F62..., the court [F63shall, if it considers that the appeal to any extent] relates to matter involving doctrine, ritual or ceremonial, refer the appeal (notwithstanding any certificate to the contrary issued under subsection (3) of this section) to the Court of Ecclesiastical Causes Reserved to be heard and determined by that court.

(6)Subject to any rules made under section 26 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, any reference of an appeal under subsection (4) or (5) of this section shall be in accordance with such practice directions as may be issued jointly by the Dean of the Arches and Auditor and the two judges of the Court of Ecclesiastical Causes Reserved appointed in accordance with section 5 of this Measure by virtue of their holding, or having held, high judicial office.]

Annotations:

Amendments (Textual)

11 Jurisdiction of Her Majesty with respect to review of findings of commissions of convocation or of Court of Ecclesiastical Causes Reserved.E

F64(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)A petition addressed to Her Majesty praying that she will be pleased to cause a finding of the Court of Ecclesiastical Causes Reserved to be reviewed may be lodged with the Clerk of the Crown in Chancery—

(a)in a case where the finding of the Court was in exercise of the jurisdiction it has by virtue of paragraph (a) of subsection (1) of the last foregoing section, by any party to the proceedings on a question of law and the defendant on a question of fact;

(b)in any other case, by any party to the proceedings.

(3)Any such petition must be in the prescribed form and must be lodged as aforesaid within the prescribed period after the finding to which it relates.

(4)Upon a petition being duly lodged under this section, a commission shall be directed under the Great Seal to such five persons as Her Majesty may be pleased to nominate, of whom three shall be [F65 judges of the Supreme Court, or members of the supplementary panel under section 39 of the Constitutional Reform Act 2005,] who make a declaration that they are communicants and two shall be lords spiritual sitting as Lords of Parliament, to review the finding to which the petition relates.

(5)A commission appointed under this section shall be called a Commission of Review.

Annotations:

Amendments (Textual)

F64S. 11(1) repealed (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 2 (with s. 47); S.I. 2005/6, Instrument made by Archbishops

Miscellaneous Provisions relating to the Courts and the JudgesE

12 Consistory, Arches and Chancery Courts to be unaffected by vacation of sees.E

The vacation of the see of Canterbury or of the see of York shall not render the Arches Court of Canterbury or the Chancery Court of York unable to exercise their respective jurisdictions nor shall the vacation of those sees or the see of the bishop of any other diocese render any consistory court[F66, Vicar-General’s court or disciplinary tribunal] unable to exercise its jurisdiction, and subject to the provisions of subsection (3) of section two of this Measure no such vacancy shall affect the discharge by the judges[F67, members or officers of any such court or tribunal] as aforesaid of their functions.

Annotations:

Amendments (Textual)

F66Words in s. 12 inserted (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 1 para. 5(a) (with s. 47); S.I. 2005/6, Instrument made by Archbishops

F67Words in s. 12 substituted (1.1.2006) by Clergy Discipline Measure 2003 (No. 3), s. 48(2), Sch. 1 para. 5(b) (with s. 47); S.I. 2005/6, Instrument made by Archbishops

13 Certain judges to be ex officio officials principal.E

(1)The Dean of the Arches and Auditor shall, by virtue of his office, be the Official Principal of the archbishop of Canterbury and the Official Principal of the archbishop of York in their respective capacities of Metropolitans and shall also be Master of the Faculties to the archbishop of Canterbury.

(2)The chancellor of a diocese shall by virtue of his office be the Official Principal of the bishop of that diocese.