Part I (of 2) of our analysis of new CofE legal opinion on organists and parish music
On 4 April 2017, new and updated legal advice on a number of issues was added to the Church of England’s Document Library. In view of its relevance at the time vis-à-vis the forthcoming wedding of Pippa Middleton, we first reviewed that relating to Celebrity Marriages shortly followed by a post on Royal Marriages, prompted by media speculation relating to Prince Harry. The document Parish Music: organists and choirmasters and church musicians, (*the Opinion”) concerns organists and “all musicians in similar positions” [though clearly not “all musicians”]. This is discussed below with regard to issues concerning the music and the clergy. A further post considers the related employment law issues.
Scope of Guidance
This new guidance to the issues surrounding with Canon B 20 Of the musicians and music of the Church supersedes that previously published under this title. As we have commented earlier, document control is not a strong point in some of the Church’s guidance, and whilst not advocating the a rigorous adoption of the requirements of ISO 9001:2008, undated documents such as this are less than helpful, particularly in the area of employment law such as here.
Canon B 20 states [emphasis added]:
1. In all churches and chapels, other than in cathedral or collegiate churches or chapels where the matter is governed by or dependent upon the statutes or customs of the same, the functions of appointing any organist, choirmaster (by whatever name called) or director of music, and of terminating the appointment of any organist, choirmaster or director of music, shall be exercisable by the minister with the agreement of the parochial church council, except that if the archdeacon of the archdeaconry in which the parish is situated, in the case of termination of an appointment, considers that the circumstances are such that the requirement as to the agreement of the parochial church council should be dispensed with, the archdeacon may direct accordingly. Where the minister is also the archdeacon of the archdeaconry concerned, the function of the archdeacon under this paragraph shall be exercisable by the bishop of the diocese.
2. Where there is an organist, choirmaster or director of music the minister shall pay due heed to his advice and assistance in the choosing of chants, hymns, anthems, and other settings, and in the ordering of the music of the church; but at all times the final responsibility and decision in these matters rests with the minister.
3. It is the duty of the minister to ensure that only such chants, hymns, anthems, and other settings are chosen as are appropriate, both the words and the music, to the solemn act of worship and prayer in the House of God as well as to the congregation assembled for that purpose; and to banish all irreverence in the practice and in the performance of the same.
The need for a 13-page exegesis on the above three paragraphs indicates the “greyness” in the application of this area of church law. The Church of England has a long-established tradition of music in its churches, which has developed to meet the requirements of the different forms of churchmanship and the resources available to its many congregations. Consequently, the practical situations covered by Canon B 20 range from organists who play on an ad hoc basis, to larger choirs which follow a “cathedral model” with an organist and conductor. The guidance also provides a degree of clarification on the meaning of “the minister” within the Canon.
Organists and Musicians, paragraphs 1 to 3
The Opinion notes that Canon B 20 was amended in 1988, and:
“1…Although the body of the Canon refers to “any organist, choirmaster (by whatever name called) or director of music”, the Canon is entitled “Of the musicians and music of the Church” and what is said in the Canon itself should be understood as including all musicians in similar positions. References in this opinion to “the organist” therefore include all such musicians and music directors and the term “choirmaster” includes choir mistresses and choir directors.
“2… the Commission recognises that there are many cases (especially in small parishes) where both the organist and the parish have no intention, or desire, to enter into any legally binding contract… In all such cases it is best practice to set out that determination in writing, spelling out the reasons for so deciding and stating that there is no intention to create any legal relationships; this is particularly so if the organist receives any remuneration for his or her services. All such cases depend upon the particular circumstances; for example, there would no requirement upon the organist to pay a substitute in the case of his or her absence. Nevertheless, it is necessary to stress that the final determination of the legal relationship in such cases will always fall on a civil court or tribunal if the matter were ever to be litigated.
This section concludes by stressing that safeguarding and DBS checks applies whether or not there is a contract of employment, para.8. Further consideration of this is given in paragraph 33.
Ministers, paragraphs 4 to 7
The Opinion notes that the words “the minister” have at different times been given specific, and slightly differing statutory meanings (Halsbury’s Laws of England, 5th ed., 2011, Vol 34 at paragraph 382, note 1, and paragraph 451, note 2). It is the Commission’s view that Canon B 20 should be read in the same way as Canon B 35 §5: Both are concerned with music to be played in church; the latter concerns music to be played at marriage services and speaks of “the minister of the parish”.
Within this interpretation, the word “minister” does not include a curate or assistant priest even during a vacancy in the benefice; however, it does include a priest-in-charge and a team vicar assigned a special cure of souls (S37(7) Mission and Pastoral Measure 2011. The exception to such usage is that in the context of Canon B 1 §2: Of the approval of forms of service, where “the minister” refers to the person actually conducting the service, which can include a Reader.
Paragraph 5 states the final responsibility and decision in the choosing of chants, hymns, anthems or other settings and in the ordering of the music of the church rests with the minister of the parish, (Canon B 20 §2, and Canon B 35 §5) although he must “pay heed to the advice and assistance of the organist or choirmaster”. This is expanded in paragraph 6 which states [emphasis added]:
“6. It is the duty of the minister (i.e. the minister of the parish) to ensure that only such chants, hymns, anthems, and other settings are chosen as are appropriate, both the words and the music, to the solemn act of worship and prayer in the House of God as well as to the congregation assembled for that purpose; it is also his or her duty to banish all irreverence in their practice and in their performance (Canon B 20 §3; see also Canon B 35 §5).
In the Commission’s view Canon B 1 §2 (which imposes a duty on the minister conducting the service to “endeavour to ensure that the worship offered glorifies God and edifies the people”) does not permit the person conducting the service to overrule any decision already made by the minister of the parish but is primarily concerned with the actual performance of the worship, especially by the congregation. The organist may not play the organ in opposition to the minister of the parish’s direction although, if the minister were to act in an arbitrary fashion, the organist may seek the bishop’s directions to the minister (Wyndham v Cole (1875) 1 PD 130).
Paragraph 7 considers the situation during a vacancy or during a suspension of the minister, where no organist is in post. In these circumstances, the churchwardens or PCC may invite an organist to play during services, although it should always be made clear that this is on an ad hoc basis until there is a minister who may make a formal appointment: “the organist should co-operate in the choice of music with such minister as is to conduct the service. The latter has the final determination if in the minister’s opinion the choice would not glorify God or edify the congregation”.
Choice of music
Canon B 20 §3 empowers the minister of the parish a wide discretion over the choice of music in divine service, viz.
“the duty of the minister to ensure that only such chants, hymns, anthems, and other settings are chosen as are appropriate, both the words and the music, to the solemn act of worship”.
This covers most of the music that will be used: the Ordinary, Propers, motets, Preces, Versicles and Responses, and also the voluntary at the end of a service. Excluded, however, are the organist’s improvisations used to provide a degree of continuity to the service. By their ex tempore nature, they cannot be regarded as “settings” and may include allusions to music that would not normally be played in church.
The minister’s discretion over “both the words and the music” implicitly includes the provisions of Canon B 42 Of the language of divine service. This requires the authorized forms of services to be said or sung in English; in the provinces of Canterbury and York outside England, authorized forms of service may be said or sung in the vernacular; and authorized forms of service may be said or sung in Latin in: Provincial Convocations; Chapels and other public places in university colleges and halls; University churches; the colleges of Westminster, Winchester and Eton; and such other places of religious and sound learning as custom allows or the bishop or other the Ordinary may permit. With regard to the singing of the Kyrie in Greek, Russell Dewhurst points out, below, that the Common Worship Holy Communion service authorises its use.
Beyond the text and the music there is the acceptability of the composer, an issue on which Michael Ainsworth mused in the earlier Guest Post Hymns (and other things) to avoid?