Earlier this year, there was some debate over whether or not Boris Johnson had run afoul of section 18 of the Roman Catholic Relief Act 1829. There were reports that he’d converted to Roman Catholicism, and Roman Catholics are barred from advising the Sovereign on ecclesiastical appointments.[1] Since then, the situation has been murky. Ben Lewis filed a Freedom of Information request in a bid to shed light on the situation, but Downing Street’s answer is something of a mess and only raises more questions.
No. 10 claimed that “[u]nder reforms introduced in 2007 by the then Prime Minister, the Rt Hon Gordon Brown, the Prime Minister does not choose or advise on Church appointments. His or her role is confined to conveying the name of the nominated candidate to The Queen.”
It’s true that, for diocesan bishops, the Crown Nominations Commission gives the Prime Minister a single name which he passes along to the Queen. But this doesn’t mean the Prime Minister isn’t advising Her Majesty in a constitutional sense. Indeed, the Governance of Britain green paper (which was cited in Downing Street’s reply) explicitly stated that “The Queen should continue to be advised on the exercise of her powers of appointment by one of her Ministers, which usually means the Prime Minister.[2]“
With one exception, Brown’s changes to the ecclesiastical appointment process weren’t enshrined in law.[3] Consequently, from a constitutional standpoint, the Prime Minister retains unfettered discretion when advising the Queen on these matters. While it seems unlikely that a modern Prime Minister would try to assert themselves the ecclesiastical sphere, it can’t be ruled out, either. In 1997, Tony Blair rejected both of the Crown Appointments Commission’s candidates for the Bishopric of Liverpool even though Prime Ministers had chosen a candidate from the first slate of names for twenty years.[4]
One wonders if Downing Street has considered the wider implications of their argument. If the Queen is actually acting on the recommendation of the Crown Nominations Commission rather than the Prime Minister, it’s debatable whether she is obliged to accept their submissions. Ministerial advice has constitutional weight because ministers are part of a government that is accountable to Parliament (and ultimately the electorate). The accountability of the Crown Nominations Commission, on the other hand, is debatable.[5]
This whole affair is decidedly strange. If Johnson is, in fact, a Roman Catholic, he’d be better off letting another Minister of the Crown advise the Queen on ecclesiastical appointments instead of trying to hand-wave the 1829 Act away.
[1] This provision is ripe for repeal along with the similar prohibition against Jews advising the Sovereign on ecclesiastical appointments. Even if the Crown Nominations Commission didn’t exist, a Roman Catholic Prime Minister would find it incredibly difficult to use their influence to subvert the Church of England.
[2] Back in June, an anonymous No. 10 source told The Sunday Times that the 1829 Act was an issue and the Lord Chancellor would take over the Prime Minister’s role in making ecclesiastical appointments. It seems that never actually happened.
[3] Section 1 of the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010 does allow diocesan bishops to submit a single name to the Queen when filling suffragan bishoprics (under the Suffragan Bishops Act 1534, they had been required to submit two names). The current practice is for the Prime Minister to recommend that candidate to the Queen, but as with other appointments, they are not legally obligated to follow this convention.
[4] The first candidate on the list was usually recommended to the Queen, though Margaret Thatcher went with the second candidate on a few occasions.
[5] While the Crown Nominations Commission includes elected representatives of both the General Synod and the relevant Vacancy in See Committee, its deliberations are conducted in secret. Both the Archbishops’ Secretary for Appointments and the Prime Minister’s Secretary for Appointments also play a key role in its proceedings even though they aren’t voting members.
A Venerable Puzzle 