Prime Minister Andy Burnham has said that, while he is no longer a regular Mass-goer, he still professes the Catholic faith. His religious beliefs triggered the operation of s 18 of the Roman Catholic Relief Act 1829, which makes it unlawful for any person professing the Roman Catholic religion ‘directly or indirectly to advise [His] Majesty … touching or concerning the appointment to or disposal of any office or preferment in the Church of England, or in the Church of Scotland’. Indeed, that section provides that any person who offends that prohibition can be ‘guilty of a high misdismeanour’ and be subject to the rather drastic penalty of being ‘disabled for ever from holding any office, civil or military, under the Crown’.
To work around s 18, the responsibilities for advising the Sovereign on appointments to the Church of England have been transferred to the Lord Chancellor Alex Norris, who is not barred by s 18 or any other statute. (As an aside, the reference to the Church of Scotland appears to have no practical relevance because, since the Church Patronage (Scotland) Act 1874, the Sovereign has no role in making appointments to the Church of Scotland.)
Recently, First Secretary of State Louise Haigh introduced the Church Appointments (Repeal of Discriminatory Provision) Bill that would repeal s 18 of the 1829 Act, as well as the entirety of the Jewish Relief Act 1858, which contains a similar prohibition for adherents of the Jewish faith. (For more details, see a very helpful research briefing on this Bill by David Torrance in the House of Commons Library.) At the time of writing, the Bill has passed the House of Commons and is before the House of Lords. The post begins by explaining the evolving position in advising the Sovereign on appointments to offices in the Church of England. It argues that, in light of the modern constitutional arrangements between the King, the Church and the government, Parliament should consider empowering the Church to directly advise the Sovereign on these appointments.
Church of England appointments
The Sovereign holds the title ‘Defender of the Faith’ and is the Supreme Governor of the Church of England. In this role, the Sovereign is responsible for a range of ecclesiastical appointments. Under the Appointment of Bishops Act 1533, the Sovereign formally appoints the Archbishops of Canterbury and York and the other 41 Diocesan Bishops. The Sovereign also appoints the 68 Suffragan Bishops, who support the Diocesan Bishops but do not have independent authority over a diocese. Under the Suffragan Bishops Act 1534, there is a requirement that the diocesan bishop submits names of two ‘honest and discrete’ persons to the Sovereign, of whom he or she shall name one to be a Suffragan.
Although the plain text of the statutes envisage an absolute discretion on the part of the Sovereign, the development of responsible government has meant that the Sovereign exercises these powers on the advice of ministers who are responsible and accountable to the Parliament. To be clear, this does not preclude the Sovereign seeking to informally influence the final choice by using his or her ‘Bagehot rights’ but, as a constitutional Sovereign, they must yield to formal advice from a minister. It remains the position today that constitutional advice must be formally tendered to the Sovereign by the Prime Minister or Lord Chancellor but the freedom of the relevant minister to choose the name put forward to the Monarch has been gradually curtailed.
Professor Vernon Bogdanor, in his text Monarchy and the Constitution (OUP 1995), recorded that historically the Prime Minister, as First Lord of the Treasury, had ‘an unfettered right to advise on appointments, and the Church had no formal role in the appointing process at all, although it was invariably consulted, as a matter of courtesy’. (It remains the case today that the Prime Minister, as First Lord of the Treasury, is a Church Commissioner.)
In the early 1970s, the Church and government entered negotiations on a new way forward. The Church wanted to make appointments themselves without ministerial advice. Memoranda prepared by Whitehall officials (now available through the National Archives HO 304/33) show that ministers were warned against the Church’s proposal for two reasons. They first warned that the Sovereign would be placed ‘in the anomalous position of being able neither to exercise a personal choice nor to have effective recourse to the normal channels of advice’. The second was that nominations for the House of Lords would be ‘made by a body outside the normal political spectrum and not answerable to Parliament’.
In 1976, a new arrangement was reached between the Church and 10 Downing St. A Crown Appointments Commission (now known as the Crown Nominations Commission) was created whose composition included members of the General Synod. The then-Prime Minister, James Callaghan, explained in a statement in the House of Commons that the Commission would ‘draw up a short list of two names, which might be given in an order of preference’ and put it to the Prime Minister, who ‘would retain the right to recommend the second name, or to ask the committee for a further name or names.’ Callaghan therefore argued that, in advising the Sovereign, the Prime Minister retains ‘a real element of choice’. He maintained that there are ‘cogent reasons why the State cannot divest itself from a concern with these appointments’: (1) the Sovereign must be able to look for advice and ‘that must mean, for a constitutional Sovereign, advice from Ministers’ and (2) as the ‘[t]he Archbishops and some of the bishops sit by right in the House of Lords’, ‘their nomination must therefore remain a matter for the Prime Minister’s concern’. It appears that Callaghan accepted the two objections raised by Whitehall officials.
In choosing between the two names, Prime Ministers have given advice on political rather than ecclesiastical grounds. Bogdanor says that former Prime Minister Margaret Thatcher ‘overrode the wishes of the Church and appointed the name that was second amongst the preferences of the church’ in 1981 for the post of Bishop of London; in 1987 for that of Bishop for Birmingham (allegedly after lobbying from Conservative Party members of Parliament); and in 1990 in recommending George Carey rather than John Habgood as Archbishop of Canterbury.
The 1974 reforms were susceptible to gamesmanship between the relevant political actors. Iain McLean and Benjamin Linsley argued that ‘[i]f the Church really wants to select its favoured candidate, it can put up a hapless nonentity as its second name. If the Prime Minister really wants to make a point, s/he can choose the hapless nonentity.’ But the game theory analysis of McLean and Linsley does not account for a third possibility: a Prime Minister rejecting both names and demanding that the Commission produce new names. The Prime Minister could insist that, if new names are not forthcoming, he or she will simply not tender any advice to the Sovereign and thereby leave the vacancy open.
Jason Loch argues that former Prime Minister Tony Blair ‘precipitated a miniature constitutional crisis’ when, in 1997, he rejected both names from the Commission and asked for new names for the appointment of the Bishop of Liverpool. This prompted Carey (by now the Archbishop of Canterbury) to write to the Prime Minister’s Secretary for Appointments, saying ‘I really must express my considerable dismay on learning that the Prime Minister has asked for more names to be considered … I can only surmise that your own personal influence has been too strong.’ This appears to be only instance following the 1974 reforms where the Prime Minister has rejected both names.
Although the 1974 reforms gave the Church a greater say in its leadership, the Prime Minister retained a great deal of discretion. A cunning Prime Minister who had the political will could flex his or her muscles to shape the leadership of the Church. A problematic element of this is the secrecy of the process. The deliberations of the Commission and the process of recommendations from the Commission to Prime Minister are all shrouded in secrecy until the appointment is made. Loch was only able to uncover the actions of Blair because a Cabinet Office staffer accidentally sent the material when denying his freedom of information request, and it was only fully uncovered in 2020—over 20 years after the events. The only aspect in public view is the Prime Minister advising the Sovereign, which is reflected in the countersignature of the Prime Minister on the relevant instrument.
In 2007, then-Prime Minister Gordon Brown sought to narrow the role of the Prime Minister in advising the Sovereign on Church appointments. A Green Paper titled The Governance of Britain (Cm 7170, July 2007) records the government’s position ‘in principle that the Prime Minister should not play an active role in the selection of individual candidates’ and therefore ‘should not use the royal prerogative to exercise choice in recommending appointments of senior ecclesiastical posts … to The Queen’. From then on, the Prime Minister was to ask the Crown Nominations Commission to put only one name to him or her, a recommendation the Prime Minister would then convey to the Sovereign (at [62]–[63]). The Commission would continue to select two names (a preferred name and a reserve) but would forward to the Prime Minister only the preferred name, which would have to receive the support of at least two-thirds of the total number of voting members of the Commission. 10 Downing Street will ask the nominee whether he or she is willing to serve. If the nominee declines or it otherwise becomes ‘impossible to appoint’ the first name, the Prime Minister will ask for the second name. Under this system, the Prime Minister serves as nothing more than a postbox or paper shifter with no substantive discretion whatsoever.
Ministers as the source of constitutional advice
It therefore seems that Callaghan’s vision of retaining to the Prime Minister a ‘real element of choice’ has dissipated. Argument (2) proffered by Callaghan—the need for political involvement because 26 bishops sit in the House of Lords—appears to have been abandoned and cannot be reconciled with the postbox role currently taken by the Prime Minister. Contrary to the warnings of Whitehall officials, the House of Lords Appointments Commission today recommends individuals for appointment yet is independent and not directly answerable to Parliament.
The issue is whether argument (1)—that the Sovereign must act on the advice of a responsible minister—continues to justify the involvement of the Prime Minister, even in a purely formal capacity. Given that Parliament is considering a Bill that removes discriminatory provisions precluding adherents of the Roman Catholic and Jewish faiths to participate in the process of making Church appointments, should it go further and remove the role of ministers completely?
That analysis must begin with a recognition that, aside from a limited number of reserve powers (such as the appointment of the Prime Minister), the Sovereign must act on advice. As Bogdanor argued, the reason why the Sovereign must be advised in relation to Church appointments is so that the Sovereign is not embarrassed by appearing to have made decisions based on his or her own personal preferences.
The issue then becomes whether it would be constitutionally improper for direct advice to the Sovereign to be given by a body or person who is not a responsible minister. I argue that the answer is no. Constitutional law and convention today recognises a limited range of powers where the Sovereign can act on the advice of a body or person other than a responsible minister. The most obvious is the Judicial Committee of the Privy Council (JCPC). The JCPC cannot itself give effect to orders. Rather, judgments typically conclude with words like ‘The Board will humbly advise His Majesty [or Her Majesty] to allow [or dismiss] the appeal’. Those proposed orders are then made formally by the Sovereign by way of an Order in Council.
There are certain powers that are only exercisable on an Address from one or more Houses of Parliament. Perhaps the most well-known is the removal of judges: see, eg, s 33 of the Constitutional Reform Act 2005 for judges of the Supreme Court. But it can also extend to certain appointments. The appointment of the Electoral Commissioners, for example, is exercisable by the Sovereign only on an Address from the House of Commons: Political Parties, Elections and Referendums Act 2000, ss 1(4), 3(1). A similar provision applies for the Chair of the Local Government Boundary Commission for England: Local Democracy, Economic Development and Construction Act 2009, sch 1 para 2. The appointment of the Comptroller and Auditor General is exercisable on an Address from the House of Commons and only if the motion for the Address is moved by the Prime Minister, who must have the agreement of the Chair of the Committee of Public Accounts: Budget Responsibility and National Audit Act 2011, s 11.
There are also certain powers in connection with Scotland and Wales where the Sovereign acts on the advice of a person other than the Scottish or Welsh ministers. The submission of Bills for Royal Assent in both Scotland and Wales is for the Presiding Officer of the Scottish Parliament or Senedd: Scotland Act 1998 s 32(2); Government of Wales Act 2006, s 115. (This contrasts with the approach for Bills of the United Kingdom Parliament, which are formally submitted by the Lord Chancellor.) Similarly, it is for the Presiding Officer to ‘recommend’ to the Sovereign the appointment of a person nominated by the Parliament to be First Minister: Scotland Act 1998, s 46(4); Government of Wales Act 2006, s 47(4). The Auditor General for Scotland and Auditor General for Wales is appointed by the Sovereign ‘on the nomination of’ the Scottish Parliament or Senedd: Scotland Act 1998, s 69(1); Public Audit (Wales) Act 2013, s 2(2).
The above examples are sporadic and appear to have developed piecemeal. But they show that Parliament can legislate—and has legislated—to authorise a body or person other than a responsible minister to tender advice to the Sovereign. Parliament can do so again, if it so desired.
Should such a change be made for Church appointments? The Constitution Unit in their response to the 2007 Green Paper (reproduced by the House of Commons Library) argued that going further would ‘produce a more complete and honest ministerial disengagement which would also protect the position of the sovereign’, leaving the Church to be ‘free of dependence on the government‘ but ‘remain a special part of the state‘.
I argue the case differently. The 2007 reforms left the Prime Minister with no real choice or discretion in the appointment but he or she remains the formal adviser to the Sovereign. In that role, the Prime Minister tenders a formal submission to Buckingham Palace containing the advice and must countersign the relevant instruments. Under the principle of responsible government, the Prime Minister can be questioned and criticised in Parliament for his or her advice to the Sovereign. The Prime Minister may feel embarrassed answering questions about an appointment that has attracted controversy. (This is not a fanciful prospect—there were public calls for former Prime Minister David Cameron to ‘demonstrate his gay-friendly credentials by overruling the Crown Nominations Commission’ when it was claimed that the Commission blocked the appointment of a gay cleric.) Anticipating such a situation, a Prime Minister may well feel the need to take a more active role in influencing the names that the Commission puts forward. This may occur, for example, through the Prime Minister’s Secretary of Appointments who, as an ex officio and non-voting member of the Commission, may seek to shape the names put forward. But if a name eventually reaches a Prime Minister who is facing strong political pressure, there is a risk that he or she may seek to revisit the practice and refuse to pass on a name or otherwise intervene. Such a situation is highly undesirable for both the Church and the Prime Minister.
The issue can be seen through a historical example. Between 1930 and 1986, an odd position had arisen where the Sovereign acted on the advice of federal ministers in Canberra on Australian federal matters but on the advice of British ministers in London on Australian State matters. State Premiers did not see any pressing need to change the position because they assumed that British ministers would act merely as a ‘post box’ for advice. For decades, British ministers were content to channel recommendations from State Premiers to the Sovereign on State matters, such as the appointment of State Governors. But when political issues became hot in the 1970s, British ministers saw things differently. They reasoned that, because they could be questioned in the Westminster Parliament for their advice, they must exercise independent judgment and could, if they thought right and taking into account British interests, reject the views of State governments. This led to British ministers rejecting a recommendation from the Queensland Premier to reappoint a Queensland Governor who had made controversial comments against the Australian Prime Minister and, against the views of the New South Wales Government, refusing to advise the Queen to assent to two reserved bills passed by both Houses of the New South Wales Parliament. As Francesca Jackson recently outlined in this post, British ministers advised the Queen not to refer petitions to the Judicial Committee of the Privy Council that were transmitted by Australian State governments. These events infuriated State governments and ultimately led to the enactment of the Australia Act 1986. Section 10 removed the role of British ministers in advising on State matters altogether. Section 7 made clear that the Sovereign, in exercising powers when personally present in a State or in appointing a State Governor, is to act on the advice of the State Premier.
If it is the policy of the British Government today to let the Church be the decisive voice in its own leadership, this is best secured by removing the role of the Prime Minister. It would not be constitutionally improper for the Parliament to legislate so that the Church could directly tender advice to the Sovereign for ecclesiastical appointments. Indeed, the three most senior bishops of the Church (the Archbishops of Canterbury and York and the Bishop of London) are Privy Counsellors and therefore enjoy a right of audience with the Sovereign and are bound by secrecy under the Privy Councillor’s Oath. And legislation by Parliament in this way would be consistent with the evolving practice from 1976 to cut down the choice and discretion of ministers over these appointments. If such a change were enacted, the Church would be responsible both formally and substantively for its own senior appointments in the future. Such a change, to be clear, would not imperil the Sovereign’s role as Supreme Governor.
I am very grateful to Emeritus Professor Robert Hazell of UCL for sharing material from the late Dr Bob Morris on the appointment of Church of England bishops, and the editors of this blog for their feedback on an earlier draft.
Dane Luo, Farthing Scholar in Administrative Law, Pembroke College, University of Oxford
(Suggested citation: D. Luo, ‘The Church Appointments (Repeal of Discriminatory Provision) Bill 2026 and Constitutional Advice to the Sovereign’, U.K. Const. L. Blog (9th November 2026) (available at https://ukconstitutionallaw.org/))
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