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Barristers challenge Bishops’ legal advice against individual communion cups

26 August 2020

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A GROUP of six barristers, three of them QCs, have given a legal opinion that challenges the Legal Advisory Commission’s (LAC’s) advice to the House of Bishops against allowing the use of a small individual cup of consecrated wine for each communicant. Instead, the Bishops have instructed the clergy to administer holy communion in one kind during the pandemic.

The barristers were asked for their opinion by a General Synod lay representative from Chelmsford diocese, Mary Durlacher, after she received a negative answer to her question, asked at the Synod meeting last month, whether the Bishops would “reconsider the prohibition” of the use of individual cups to allow reception in both kinds “while current constraints remain”.

The Bishops’ answer quoted the LAC’s advice that the use of individual cups was unlawful, and that an appeal to the doctrine of necessity was impossible because the Sacrament Act 1547 provided for reception in one kind only when there was a necessity not to deliver a common cup.

The barristers write: “In our opinion, the LAC Opinion does not accurately reflect the law and therefore the position taken by the House of Bishops is based on an incorrect foundation. We believe that there is no legal barrier to the use of individual cups and that, by the use of individual cups, the distribution of communion in both kinds is lawful.”

Quoting the Sacrament Act, they say: “Section 8 of the Act states that Communion is universally to be delivered in two kinds. The function of section 8 is to mandate that, outside of the exception, delivery in both kinds is mandatory.

“However, section 8 says nothing as to the method of delivery of either kind. The House of Bishops’ position makes much of the final words of the relevant section of the Act: ‘except necessity otherwise require’. It is said that because the Act provides for one kind only where required by necessity, the use of individual cups is not permitted. The logic assumes that the Act (or the law more generally) mandates the use of a common cup, such that, where impossible to use a common cup, the only alternative under the Act is Communion in one kind.”

They describe the LAC’s advice as “a complete misreading of the Act”, which, they argue, “does not link the necessity provision to the common cup. It is important to distinguish between the elements of communion and their vessels. Both the LAC Opinion and ‘Holy Communion and the distribution of the elements’ [a document produced in July 2020 by the Chair of the Liturgical Commission and three others] focus on the necessity not to deliver a common cup. But that language is nowhere to be found in the Act. Instead, the Act provides for necessity not in terms of the cup but in terms of the kind (or element). Indeed there is no mention of a cup (common or otherwise) in Section 8 of the Act.”

They go on to discuss three further points: “That the use of a single chalice is a ‘norm’; that the rubric in the Book of Common Prayer envisions that individual cups are not used; that Canon F3 of the Revised Canons Ecclesiastical does not explicitly provide for individual cups.”

They argue that a norm, if it exists, does not justify a prohibition, and cite the example of allowing intinction under exceptional circumstances.

They go on to argue: “If it is open to the priest presiding to decide to use multiple cups (with no maximum number being stipulated), it is very difficult to see why individual cups are, or are always, impermissible. If multiple cups are permissible in the ordinary course in the interests of time, why are individual cups not permissible in the midst of a global pandemic in the interests of public health? It is unclear on what possible grounds a global pandemic is not a basis for departing from the norm (if there is a norm) by using multiple individual cups, or a fortiori multiple individual cups filled from a single flagon.”

They also argue that for legal reasons since the 1974 Worship and Doctrine Measure, Prayer Book rubrics cannot provide the basis of a prohibition. After dismissing arguments concerning the stipulations of canon law, the barristers then go on to draw a comparison with 19th-century case law, from the period of the Ritual prosecutions, concerning the bread to be used at holy communion. They conclude: “There is limited or no basis on which to consider individual cups unlawful which would not equally apply to individual wafers.”

After referring to public-health considerations, the barristers then propose that “the consecration of a single flagon from which the individual cups are filled would not only be entirely safe from a public health perspective, but would maintain the symbolism by providing a clear common source of the wine.

“Such practice would in fact accord with the rubric of the Book of Common Prayer which provides in the Prayer of Consecration that the priest shall: ‘lay his hand upon every vessel (be it chalice or flagon) in which there is any wine to be consecrated’, and with Canon B 17 which provides that ‘The bread shall be brought to the communion table in a paten or convenient box and the wine in a convenient cruet or flagon.’”

An Evangelical church historian, the Revd Dr Andrew Atherstone, who teaches at Wycliffe Hall, Oxford, said on Tuesday: “To exclude the laity from half of holy communion is wrong for many reasons. Jesus commands us to share both bread and wine; so let’s find a way to do it! The bishops’ ban on individual cups is mistaken and misguided.”

The Revd Paul Benfield, an Anglo-Catholic priest and a barrister, who serves on the LAC, said on Tuesday: “This is a complicated area of law on which I would not want to give a hasty view. It will be necessary to consider carefully what this legal opinion says and whether its arguments stand up to scrutiny.

“However, it is my understanding that it has been the practice since before the Church of England separated from the Church of Rome that a common cup was always used for holy communion.

“I would be surprised and disappointed if individual cups were found to be lawful, not least because of the difficulty in ensuring that the requirement of reverent consumption of all remaining consecrated wine be observed.”

The barristers consulted by Mrs Durlacher are Stephen Hofmeyr QC, Mark Cawson QC, Andrew Wales QC, Carolyn Johnson, Carl Fender, and Jonathan Schaffer-Goddard.

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