Church and State II – a further guide

An earlier post outlined the basics of the relationship between Church and State within the United Kingdom, aspects of which are relevant to the 12th December backbench debate in the House of Commons “on the Church of England Synod vote on women bishops”, which concluded with the resolution

“[t]hat this House has considered the matter of the Church of England Synod vote on women bishops”.

As we have noted, although debate per se did not progress the issue further, it provided parliamentarians with an opportunity to put forward their views.  It also exposed a number of common misconceptions and gaps in understanding of the relationship between Parliament and the Church of England, which are unlikely to be restricted to the Lower House. Indeed, Stephen Slack, the Registrar and Chief Legal Adviser to the General Synod, notes, [(2012) 14 Ecc LJ 54-55]:

“in the case of the draft legislation relating to women in the episcopate, members of Synod can wrongly assume that preliminary debates of this kind have conclusively settled the Synod’s position in relation to issues that have been debated, when in fact they remain open for subsequent further debate and decision in the course of the legislative process itself.”

Background

Two important aspects to bear in mind when considering the Church’s legislative provisions are:

  • the unique nature of the Church’s ecclesiastical law which, as a consequence of its established status, forms part of England’s statutory legislation; and
  • the designation of the authority to determine or adjudicate on doctrinal issues.

From the Reformation until to the beginning of the twentieth century, Church legislation was by Act of Parliament, apart from that by Canon, which had little changed from that drawn up by Richard Bancroft, Bishop of London, in 1604.  Likewise, the Church’s ecclesiastical courts addressed a wide range of issues but following a series of Parliamentary Commissions commencing in 1820, Acts were passed in 1857 which transferred most of their business to the secular courts thereby spelling the demise of the specialist advocates of Doctors Commons [D Pocklington, (2011) 166 Law & Justice 52].

A preference for legislation by Act of Parliament over that by Canon was promoted by Archbishop Tait, (ABC, 1868–1882), following Queen Victoria’s refusal to sign an amendment to Canon 29 (1604) regarding the baptism of infants.  However, legislation by this route could be a slow process – it is said to have taken nine parliamentary sessions to pass a Bill settling the salary of the archdeacon of Cornwall – and then, as now, this used valuable parliamentary time which would otherwise been spent on secular business.

In parallel with these developments was a movement for the greater involvement of the laity in Church governance, and the establishment of House of Laity in the two Convocations in 1886 and 1892, which initially acted in an advisory capacity.  The foundations of the Church Assembly/General Synod were based upon the Representative Church Council formed in 1903 and comprising both Convocations and their lay representatives.

Current Provisions

The Second Reading of the Bill that became the Church of England Assembly (Powers) Act 1919 (‘the Enabling Act’) was introduced to the Lords with the words

“My Lords, I ask your Lordships to give a Second reading to a Bill to enable the Church of England to do its work properly”.

The Act had the twofold function of freeing up parliamentary time that would otherwise have been devoted to Church matters, and devolving law-making powers to the Church Assembly.  The Church Assembly was given the power to legislate by Measure, which following its consideration by the Ecclesiastical Committee of both Houses, was then subject to the affirmative resolution procedure, prior to Royal Assent and becoming part of the statute law of England.  Parliament retained the power to consider such Measures (but not to amend them) and to resolve whether or not they should be presented to the Sovereign for the Royal Assent.  Kemp notes that: [i] the Assembly is a creature of the convocations, not of Parliament; [ii] the position of the Convocations is expressly safeguarded in the Constitution, in particular their exclusive role in definition of doctrine or any question of theology; and [iii] lay representatives with the Church hierarchy are required to be lay communicants though at parochial level the franchise qualification was on baptism alone.

The Synodical Government Measure 1969 defines the constitution of diocesan and deanery synods in sections 4 and 5, and Schedule 3 (normally referred to as the Church Representation Rules, an on-line, updated copy of which is available here).  Section 6 of the Measure updates the Parochial Church Councils (Powers) Measure 1956 in relation to the general functions of a parochial church council.

Under the 1969 Measure the powers formerly vested in the Church Assembly (in particular the functions under the Prayer Book Measures and the Ecclesiastical Jurisdiction Measure s 3), were transferred to the General Synod, whilst leaving Parliament’s powers unchanged. Significantly, the power to legislate by Canon was transferred from the Convocations of Canterbury and York to the General Synod.  The conduct of the General Synod is governed by its Standing Orders, GS 1721 and its legislative process is summarized here.  Diocesan Synods are subject to similar provisions, such as those for the Diocese of Sheffield, here.

There remains the possibility for primary legislation concerning the Church of England to be made by Act of Parliament, although this is relatively uncommon and there is a constitutional convention that Parliament does not legislate for the internal affairs of the Church of England without its consent.  Nevertheless, the 2004 Civil Partnership Act contains provisions for ministerial intervention to Church legislation relating to allowances or gratuities concerning the surviving civil partners or dependants of deceased civil partners, (s 255), and more generally for further provisions as the minister considers appropriate for the general purposes, or any particular purpose, of the Act (s 259).

Conversely, Slack notes that the Ecclesiastical Committee has accepted that section 3(6) of the Enabling Act allows a Measure to provide for an instrument made under it, as opposed to the Measure itself, to amend an Act of Parliament.

Primary legislation of the Church comprises Measures and Canons Ecclesiastical

  • Measures are passed by the General Synod and if approved by both Houses of Parliament by affirmative resolution they then receive the Royal Assent.  By virtue of the Church of England Assembly (Powers) Act 1919 they have the same force and effect as Acts of Parliament;
  • Canons Ecclesiastical are specific in their application to the Church of England.  They  may be made and promulgated by the General Synod without reference to Parliament, but require Royal Assent and Licence. They are, however, given prior consideration by the Ministry of Justice in relation to their compatibility with general and human rights legislation applicable in the UK, i.e.including provisions of the EU and ECHR.

Secondary (or ‘subordinate’) legislation is made by the General Synod under powers contained in a Measure before being laid before both Houses of Parliament as a statutory instrument, generally under the negative resolution procedure, and can take the form of Rules, Regulations or an Order. Some subordinate legislation made by the General Synod under other powers, such as those contained in a Canon, does not need to be laid before Parliament

The General Synod has the power to create an “Act of Synod, regulation, or other subordinate instrument or proceeding as may be appropriate in cases where provision by or under a Measure or Canon is not required”.  Doe notes, that “final approval of an Act of Synod must be construed as referring to the General Synod’s final approval of the Act and not to the promulgation thereof.  There is no requirement for parliamentary or royal prerogative, and the common opinion is that an Act of Synod does not have binding force”, [N Doe, The Legal framework of the Church of England (Clarendon Press, Oxford 1996) 77-8]

In addition, there is also a body of “quasi-legislation”, which Hill refers to as “interstitial in their nature, filling legislative lacunae, supplementing, clarifying and interpreting formal law, [M Hill, Ecclesiastical Law, 3rd Edn. (OUP, Oxford 2007), 21-22.].  Examples are Acts of Convocation and Statements of the House of Bishops, which although not law per se have persuasive authority.

Comment

In Counsel and Consent, (SPCK, London 1961), Eric Kemp wrote:

“It is no disrespect to the House of Commons to say that very many of its members, including many Anglicans, are ill-informed about Church matters and particularly about the sometimes rather technical and theological issues involved in measures which come from the Church Assembly, [now the General Synod].

The Church has in the House of Commons only one official spokesman and he is there primarily to represent the Church Commissioners whose work, important though it is, is not always directly concerned with theology and worship.

The House is therefore very much at the mercy of any group of members who may be disposed to take an interest in some Church matter, and also singularly open to the influence of societies and groups outside which can afford to undertake extensive propaganda. Against all this the official voice of the Church has difficulty in making itself heard effectively for as a rule people are more easily stirred up to oppose than to support”.

Some might draw parallels between these comments and aspects of the Church Times’ observations of the “women bishops” debate on 12th December, which commented:“the theological credentials of the House of Commons were put to the test”; “few of the 35 speakers in the three-hour debate came to the defence of these opponents [of women bishops]”; “the “Something Must Be Done” campaign were in high spirits, but precisely what that Something might be remained undecided”; and its conclusion “[t]he question, in the end, was not whether Parliament should deliver the “prod” to General Synod recommended by the Second Church Estates Commissioner, but just how sharp it should be”.

However, looking at the debate from a public policy point of view, a different set of  issues emerges which concern the Church’s representation:

  • How effective is the Church in briefing MPs in order to overcome some of the difficulties arising from the associated technical and theological issues, a)      generally; and b) in advance of critical debates?

A more controversial corollary of which is:

  • Should the Church be more active in encouraging supportive MPs to engage in these debates?

Whilst not doubting the effectiveness of the Second Church Estates Commissioner,

  • Is his involvement  more effective on issues such as this when linked with meetings between senior members of the Church and  parliamentarians, such as that arranged for 13th December?

Alternatively, others might suggest that Kemp’s remarks apply equally well to General Synod.

3 thoughts on “Church and State II – a further guide

  1. Pingback: Religion and Law roundup: 23rd December | Law & Religion UK

  2. Pingback: 1.566 LINK-URI ORTODOXE

  3. Pingback: 1.563 LINK-URI ORTODOXE

Leave a Reply