Back in 2021, I wrote about the confusion over whether or not Boris Johnson had violated section 18 of the Roman Catholic Relief Act 1829 by advising the Queen on ecclesiastical appointments after his (reputed) conversion to Roman Catholicism. One of my followers on the social network formerly known as Twitter, Dr. Benjamin Lewis, made a FOI request to the Cabinet Office on the matter and received a rather unexpected reply. It said:
Under reforms introduced in 2007 by the then Prime Minister, the Rt Hon Gordon Brown, the Prime Minister does not choose or advise on ecclesiastical appointments. His or her role is limited to conveying the name of the nominated candidate to The Queen.[1]
This seems to suggest that, if the Prime Minister does not exercise discretion when recommending an appointment to the Sovereign, they are not offering advice in the constitutional sense. Therefore, there could be no conflict with the Roman Catholic Relief Act 1829. This argument is problematic on several levels, however.
Until the 1970s, Downing Street had unfettered discretion when advising the Sovereign on church appointments.[2] In 1976, James Callaghan announced the creation of the Crown Appointments Commission[3] which provided the Church with a greater say in the appointment of diocesan bishops. However, he noted that “[t]he Sovereign must be able to look for advice on [the appointment of diocesan bishops] and that must mean, for a constitutional Sovereign, advice from Ministers… In giving that final advice, the Prime Minister would retain a real element of choice.”
Under this system, the Commission would give Downing Street two names for each vacant see. Although the Prime Minister usually recommended the first nominee to the Sovereign, they weren’t obliged to do so. There were several instances where the Prime Minister went with the second name, and Tony Blair even went so far as to reject both of the Church’s proposed candidates for the See of Liverpool in 1997. Gordon Brown gave up that discretion in 2007. Since then, the Commission has only provided the Prime Minister with a single name.[4]
Neither the Roman Catholic Relief Act 1829 nor the Jews Relief Act 1858 (which similarly bans Jews from advising the Monarch on ecclesiastical appointments) define what it means for a person to advise the Crown. In the absence of a statutory definition, it seems safe to conclude that ‘advice’ in this context encompasses a Minister of the Crown’s formal recommendation that the Monarch should appoint someone to an ecclesiastical office.[5] Despite the 2007 changes, the Prime Minister almost certainly continues to make formal submissions to the Monarch regarding ecclesiastical appointments. Indeed, there are other cases where the Prime Minister offers advice even when they aren’t the actual decisionmaker. For example, the Prime Minister still tenders formal advice to the Sovereign on the appointment of the Lord Chamberlain and the Lord Steward even though those offices ceased to be political appointments in 1924.[6]
Consequently, it seems clear that Prime Minister is still offering advice to the Sovereign.[7] As a result, they retain the power to reject the Commission’s nominee or even recommend a candidate of their own choosing.[8] Alternatively, since their Appointments Secretary is still part of the Commission’s deliberations, they can bring their influence to bear before a name is even submitted to Downing Street.[9] Moreover, there are ecclesiastical appointments where No. 10 continues to play a substantive role, such as Crown livings.
Of course, if the Cabinet Office is correct and the Prime Minister isn’t offering advice in the constitutional sense, one could argue the Sovereign isn’t necessarily obliged to accept such a recommendation. Ministerial advice derives its force from the fact that ministers are responsible to Parliament. If Parliament is unhappy with the advice that ministers have been offering, it can bring about a change in the Crown’s advisers.[10] The Crown Nominations Commission, however, isn’t responsible to Parliament at all.[11] It would be interesting to know if the Cabinet Office even considered this point.
Instead of offering clarity, the Cabinet Office has only muddied the waters further.[12] While the prohibition against Roman Catholics and Jews advising the Sovereign on ecclesiastical appointments is long past its sell-by date,[13] the Cabinet Office’s response suggests a level of institutional carelessness about the constitution.[14] This isn’t an isolated incident, either. The last few years have seen a number of instances where those at the heart of Whitehall have seemed oblivious to the complexities of the British constitution. That doesn’t bode well for a system that’s heavily reliant on uncodified conventions.
[1] Ironically, the Cabinet Office has refused to release information to be on the grounds that doing so would negatively affect the integrity of the senior church appointments system!
[2] From 1964 onward, No. 10 handled the Lord Chancellor’s ecclesiastical patronage as well as the Prime Minister’s.
[3] It became the Crown Nominations Commission in 2003.
[4] A similar change was made to the appointment process for suffragan bishops. However, since the Suffragan Bishops Act 1534 required a bishop to present the Sovereign with two names, the change couldn’t take effect without primary legislation.
[5] The Prime Minister is not the only Minister of the Crown involved with ecclesiastical appointments. The Lord Chancellor makes appointments to benefices valued at less than £20 in The King’s Book on the Sovereign’s behalf in addition to making other appointments that are in the Lord Chancellor’s own gift, while the Chancellor of the Duchy of Lancaster advises the Monarch on ecclesiastical appointments that are in their gift in right of the Duchy.
[6] I’m grateful to Dr. David Torrance for bringing this Written Answer to my attention. Peers chosen by the House of Lords Appointments Commission would be another example.
[7] The appointment of Australian state governors prior to 1986 provides an interesting parallel. Before the Australia Acts, the British Foreign Secretary advised the Queen on the appointment of Australian state governors (and on certain other state matters, such Queensland’s petition to the Judicial Committee of the Privy Council regarding their rights over the seabed). The state governments came to believe that the Foreign Secretary’s role was a formality. However, the Foreign Office believed that the Foreign Secretary retained a real element of discretion when advising the Queen. For more information, see Anne Twomey, The Chameleon Crown: The Queen and Her Australian State Governors (Sydney: The Federation Press, 2006).
[8] This contrasts with the process for appointing judges, which has been extensively codified in recent years. It’s currently governed by The Judicial Appointments Regulations 2013 which set out the Lord Chancellor’s options when the Judicial Appointments Commission recommends candidates for various judicial offices.
[9] I’ve been told by reliable sources that Downing Street has, in fact, done this.
[10] Parliament itself is, of course, accountable to the electorate.
[11] The Church’s General Synod has some control over the Commission, but it’s not equivalent to Parliament’s control over the Executive. For the relationship between Synod and the Commission, see the Standing Orders 136-141 of the General Synod.
[12] Not only is it unclear if Johnson actually converted to Roman Catholicism, it’s also unclear whether another minister assumed responsibility for advising the Queen on church appointments. Contemporary media reports suggested that the Lord Chancellor had taken on that role, but the accuracy of those claims is uncertain.
[13] Even if the Prime Minister regained full discretion over ecclesiastical appointments, it would be extraordinarily difficult for them to fill the Church of England with Jesuits and rabbis.
[14] If Johnson did convert to Roman Catholicism, all he would’ve had to do to comply with law is allow another minister to advise the Queen on church appointments. While primary legislation was needed to allow the Lord Chancellor’s ecclesiastical responsibilities to be transferred to another Minister in the event of the office being held by a Roman Catholic, this would not be necessary in the case of the Prime Minister. Not only does the Lord Chancellor exercise some patronage by virtue of their own office, their role in making appointments on the Sovereign’s behalf was formally declared in Parliament under Edward III (see Rot. Parl. 4 Edw. 3). Conversely, the Prime Minister’s role is limited to advising the Monarch and is solely a matter of convention.
A Venerable Puzzle 
Pingback: Opinion – 9 August 2023 | Thinking Anglicans
Thank you so much for these observations. In my experience officials no longer understand these sorts of nuances because they do not really ‘speak the language’ and anything to do with the Church of England is either terra incognita and/or is viewed as so unimportant that it is perceived as not being worth the time of an ambitious official (for whom anything to do with the Church will not guarantee advancement and whose supervision of these tasks might not last more than a year or two) to learn the language. Perhaps I am being unfair, but I suspect I am not. After all, less than 1% of those aged between 18-24 identify as even nominally Church of England: the whole thing is in terminal run-off, and the only reason why the Church retains its so-called privileges is due to a mixture of inertia and the belief (the incorrect belief, in my estimation) that disestablishment and disendowment would be ‘enormously complicated’ (as Archbishop Welby suggested recently). It would be as complicated as it was in 1869 or 1914, which is to say, not especially so at all if a government has the will to effect the change. As the Labour party under Starmer is practically indistinguishable from its Conservative rival, and as it may depend on Liberal Democrat support in office, effecting disestablishment and/or Lords reform might be a useful way of filling the likely cavernous void in the legislative timetable, as per the inadequate constitutional changes of Blair’s first term. The want of knowledge and sympathy on the part of Cabinet Office/Downing Street officials regarding the Church indicates that there has already been a certain psychological disestablishment on the part of the official class.
As far as your footnote about Australian governors is concerned, I recall that Gough Whitlam chafed, in the 1985 memoirs of his 1972-75 administration, against the interference by Douglas-Home and Callaghan in the appointment of state governors, and by the way in which state premiers almost seemed to encourage this (never mind Joh Bjelke-Petersen, he had notably poor relationships even with such ALP premiers as Don Dunstan of South Australia and Eric Rees of Tasmania – Rees was also agitated about the seabed). Some of this has been touched upon in a recent, and useful, article in the Journal of Imperial & Commonwealth History, by Changwei Chen, ‘‘To Dust Off the Cobwebs’: The Whitlam Government’s Failure to Completely Abolish Appeals From Australian Courts to the Privy Council’ (v. 49, 2001 (1)). It was left to Gareth Evans to complete the task for Bob Hawke. Thank you also for citing Anne Twomey, and I felt that ‘The Veiled Sceptre’ has been about the best thing on ‘representative heads of state’ and their powers since Herb Evatt’s 1936 monograph, and especially useful for highlighting the curious survival of reserve powers even after a number of Commonwealth states have adopted republican constitutions.
Sorry – the article was published in 2021, not 2001. Apologies for the typo.
I’m honestly amazed – indeed appalled – that either of the bigotted, prejudiced and utterly archaic laws you refer to are still allowed to remain on the statute book. Presumably, Mr Sunak, being a practicing Hindu, is not covered by either one? If that isn’t racial and religious discrimination, then what is?
You’re correct that Mr. Sunak isn’t covered. Only Roman Catholics and Jews are statutorily barred from advising on ecclesiastical appointments; any other non-Anglican is free to offer advice. It would be great if these provisions were repealed, but it might not happen anytime soon. In practice, these prohibitions only affect the three Ministers of the Crown who are actually involved with ecclesiastical appointments (the Lord Chancellor, the Prime Minister, and the Chancellor of the Duchy of Lancaster). Roman Catholics or Jews can still hold these offices–their responsibility for ecclesiastical appointments is just given to someone else during their tenure. But I don’t think a Jewish or Roman Catholic holder of any of these offices is going to feel too aggrieved that they can’t make these appointments, so there’s not much of an appetite for change. Hopefully that will change before too long, though!
Isn’t it just crZY? All the public squabbling and argument over segregation and discrimination being unlawful and unjust (which I believe too, if anyone is interested to know) and yet something that blatant is still lawful because nobody’s that bothered to change it