Changing marriage doctrine in the SEC – voting procedures

On the afternoon of Thursday 8th June, the Scottish Episcopal Church will vote on a number of motions relating to the proposed changes in the Church’s doctrine of marriage, as discussed in an earlier post. Below we have reproduced the sections from the document 2017 General Synod which concern the voting procedures and the opinions from the dioceses. 


Alterations to the Code of Canons
Voting Procedures – An Explanatory Note

The alteration of a Canon contained in the Code of Canons requires two “readings” in successive years at the General Synod. The voting procedure on each reading is different. An alteration, for these purposes, includes any modification or abrogation of any Canon, any addition to a Canon and the enacting of any new Canon. The process is set out in Canon 52, Section 17.

Canons for First Reading
A first reading requires a simple majority of the members of each house of Synod, present and voting. Voting is, therefore, in houses.

Canons for Second Reading
A second reading requires a two-thirds majority of the members of each house of Synod, present and voting. (Again, therefore, voting is in houses.) Before confirming any alterations at a second reading, the Synod must consider any opinions received from Diocesan Synods [see below].

On a second reading, amendments may be incorporated provided they are not, in the judgement of the chair, irrelevant to, beyond the scope of or inconsistent with the general subject-matter and purport of the Canon as put to Diocesan Synods after the first reading. Such amendments must themselves receive a two-thirds majority.

Also, no amendment may be moved on a second reading which, in the judgement of the chair, does not substantially reflect an opinion communicated by a Diocesan Synod or is not merely a verbal or drafting amendment unless due notice has been given or the Chair grants leave to dispense with notice. Due notice, for this purpose, means that notice must have been received by the time limit stipulated for the receipt of resolutions when the notice convening the Synod is despatched (Canon 52, Resolution 10).

John F Stuart Secretary General


Opinions from Dioceses

Canon 22, Sections 2 and 3

  • Aberdeen and Orkney: Approved unanimously.
  • Argyll and the Isles: Approved unanimously.
  • Brechin: Approved.
  • Edinburgh: Approved, nem con.
  • Glasgow and Galloway: Approved.
  • Moray, Ross and Caithness: Approved. Voting was as follows:-
  • St Andrews, Dunkeld and Dunblane: Approved.

Canon 31

  • Aberdeen and Orkney: The Canon was not approved.
  • Argyll and the Isles: Approved.
  • Brechin: Approved.
  • Edinburgh: Approved
  • Glasgow and Galloway: Approved.
  • Moray, Ross and Caithness: Approved.
  • St Andrews, Dunkeld and Dunblane: Approved.

Canon 63, Section 3

  • Aberdeen and Orkney: Approved unanimously.
  • Argyll and the Isles: Approved unanimously.
  • Brechin: Approved.
  • Edinburgh: Approved.
  • Glasgow and Galloway: Approved.
  • Moray, Ross and Caithness: Approved, nem con.
  • St Andrews, Dunkeld and Dunblane: Approved.

A breakdown of the votes is given on pages 91 to 94, inclusive.


Comment

Scottish Episcopal Church and the Anglican Communion

In addition to its implementation of the decisions on same-sex marriage, on which not all of the SEC is in favour, it is likely that there will be knock-on effects in its relationship with the Anglican Communion. As we noted in our post Communiqué from the Primates, the meeting of Anglican Primates on 11-15 January 2016 discussed inter alia the change to the doctrine of marriage by The Episcopal Church in the United Stated (TEC) and recommended [paragraphs 7 and 8 of Addendum A]:

“It is our unanimous desire to walk together. However given the seriousness of these matters we formally acknowledge this distance by requiring that for a period of three years The Episcopal Church no longer represent us on ecumenical and interfaith bodies, should not be appointed or elected to an internal standing committee and that while participating in the internal bodies of the Anglican Communion, they will not take part in decision making on any issues pertaining to doctrine or polity.

We have asked the Archbishop of Canterbury to appoint a Task Group to maintain conversation among ourselves with the intention of restoration of relationship, the rebuilding of mutual trust, healing the legacy of hurt, recognising the extent of our commonality and exploring our deep differences, ensuring they are held between us in the love and grace of Christ”.

The Anglican Church of Canada, which has allowed some clergy members to perform same-sex marriages but has not adopted a policy for the entire province, escaped sanctions. However, the primates’ resolution fell short of the demands of conservative primates to evict the Americans and the Canadians from the Communion. It seems likely that Archbishop Welby will be under pressure to apply sanctions similar to those on the TEC to the Scottish Episcopal Church.

“Missionary Bishops”

On 5 June, Harry Farley reported that sources had told Christian Today that in anticipation of the vote on Thursday, the conservative Anglican grouping GAFCON is expected to announce the Revd Canon Andy Lines as a new “missionary bishop” for Scotland. Canon Lines is currently chair of the Anglican Mission in England (AMiE) and part of GAFCON UK’s taskforce. He is also director of the missionary society Crosslinks. The CT report also states:

“The move will come within hours of the vote and will trigger a rupture with Canon Lines offering alternative leadership for traditionalist parishes in Scotland who oppose gay marriages in church. The new role will rival existing church structures in the UK with priests having the option to defect and come under the oversight of Lines rather than their official local bishop”.

The move has been anticipated following the GAFCON Communiqué in May which suggested: “Faithful Anglicans in Scotland will need appropriate pastoral care”. This was met with a riposte from The Most Revd David Chillingworth, Bishop of St Andrews, Dunkeld & Dunblane and Primus of the Scottish Episcopal Church, who said:

“In June, the General Synod of the Scottish Episcopal Church will reach the final stage of consideration of changes which would make possible same-sex marriage in our churches. The news that GAFCON intends to send a missionary bishop to Britain is regrettable. The Anglican Communion functions as a global communion on the basis of respect for the territorial integrity of each province. This move is a breach of that understanding.

The outcome of the synodical process which will take place in June is not a foregone conclusion. The voices of clergy and lay people from across Scotland will be heard both in debate and in the voting process. The Scottish Episcopal Church is working closely with those who find this proposal difficult to accept. Whatever the outcome may be, it is our intention to be and to remain a church which honours diversity”.

However, the modus operandi of Canon Lines and other “missionary bishops” is unknown and is unlikely to follow the model of the Personal Ordinariate of Our Lady of Walsingham, which left the Church of England and has attracted a number of clergy and some “Winsome nuns”, but no entire congregations. As to the irregularly-consecrated “Jesmond bishop“, whose raison d’être was to work within the Church of England, a commentator on our post Bishops sans frontières indicated that the Bishop of Newcastle had written to clergy and lay chairs stating that while the minister in question remains a Clerk in Holy Orders in the Church of England, he has no authority to act as bishop, whether within the Diocese of Newcastle or anywhere else. She also issued him with a direction not to carry out ordinations or confirmations or to exercise any other episcopal function and sought assurances from him that he will not do so.

Secular legislation

It also occurs to us that the possibility of a “missionary bishop” offering “alternative oversight” outside the structures of the Church is not without secular legal issues, let alone issues of canon law.

As in England and Wales, almost all religious organisations in Scotland are charities under the terms of the Charities and Trustee Investment (Scotland) Act 2005. The SEC website points out, under Responsibilities of the Vestry, that

“Vestry Members are normally the ‘charity trustees’ of the charity comprising the Charge and it is important that all individuals holding office in the Church are aware of their responsibilities under the Charities and Trustee Investment (Scotland) Act 2005.  As such, vestry members must be eligible to serve as charity trustees.”

Again as in England and Wales, charity trustees in Scotland are bound by the terms of their charity’s governing document. In its Guidance and good practice for Charity Trustees, OSCR has this to say about their duties:

“1.1 You must seek in good faith to ensure the charity operates in a manner consistent with its purposes. Your charity’s purposes are set out in your governing document (often called a constitution, trust deed or articles of association). A charity’s purposes are what your charity has been set up to achieve and are the reason your charity exists.

You must always act honestly and reasonably (“in good faith”) when acting for the charity and make sure that the activities advance its charitable purposes.

You must make sure that the charity’s assets are used to advance its charitable purposes. This can be done directly by using an asset to undertake activities or indirectly by investing assets to generate funds for the charity.”

So if the Vestry of St Thing’s in the Diocese of St Andrews, Dunkeld and Dunblane decides to accept the episcopal jurisdiction of the Revd Mr Lines in preference to that of their Diocesan Bishop (and Primus), they had better look very carefully at the terms of their governing document. Unless the church and its associated buildings are in the ownership of the Vestry of St Thing’s, one would imagine that they could not change the charge’s allegiance and take the buildings with them. And quite apart from the issue of the violation of the canons of the SEC – for which see especially Canon Six: Of Diocesan Bishops and their Jurisdiction, and of Bishops’ Commissaries – there is at least a possibility that they would be in breach of the 2005 Act.

On the issue of jurisdiction, Canon Six says this:

4. No Bishop of one diocese, except as provided in these Canons, shall interfere with the concerns of another diocese.

5. The clergy of a diocese shall take no direction for their official conduct but from their own Bishop, except in the case of a lawful decision of the Episcopal Synod, or of the College of Bishops.

6. No Bishop shall perform any episcopal function in any other diocese without the sanction, nor exercise any other ecclesiastical function against the will, expressed in writing, of the Bishop thereof, except as provided in Section 11 of this Canon” [ie in case of suspension].

Which seems to us to be pretty conclusive, both in canon law and charity law – though possibly someone better-versed in SEC canon law than we are might take a different view.

David Pocklington and Frank Cranmer

Cite this article as: David Pocklington and Frank Cranmer, “Changing marriage doctrine – voting procedures” in Law & Religion UK, 30 May 2017, http://www.lawandreligionuk.com/2017/06/07/changing-marriage-doctrine-in-the-sec-voting-procedures/.

5 thoughts on “Changing marriage doctrine in the SEC – voting procedures

  1. Thanks, Frank and David, for another fascinating post.

    Suppose that the Vestry of St Thing’s in the Diocese of St Andrews, Dunkeld, and Dunblane, did not reject the oversight of its Diocesan, but did, in defiance of the Diocesan, invite the GAFCON bishop to do an ordination or confirmation, would that constitute a breach of charity law along the lines you discuss, do you think?

    • Good question: it would certainly be a breach of Canon Six (4) and would – presumably – also be a breach of the trust’s governing document, because one of the purposes of the trust is – presumably – to advance religion in accordance with the doctrines of the SEC. Whether OSCR would be concerned about an irregular confirmation I can’t guess; but an irregular ordination might be regarded as more serious and worthy of OSCR’s notice.

      But the major issue, where I’m sure charity law would bite, is the use of buildings held on trust for the individual charge or for the wider Church. Once trustees start using property for a purpose beyond those set out in the governing document, then it’s a pretty clear case for the regulator’s intervention. One might take the view that an irregular ordination constituted such use: something done in an SEC church that was not authorised by the Diocesan Bishop, contrary to the Canons and therefore illegal under church law.

      • Many thanks, Frank.

        How do you think the debate would play out if it concerned not a Vestry in the Scottish Episcopal Church, but a PCC in the Church of England? I ask because, as I understand it, PCCs have a special legal position in charity law, they aren’t just normal charities.

        The legally defined functions of PCCs in the Church of England ‘shall include—
        (a) co-operation with the [minister] in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical;
        (b) the consideration and discussions of matters concerning the Church of England or any other matters of religious or public interest, but not the declaration of the doctrine of the Church on any question;
        (c) making known and putting into effect any provision made by the diocesan synod or the deanery synod […];
        (d) giving advice to the diocesan synod and the deanery synod on any matter […];
        (e) raising such matters as the council consider appropriate […].’

        These, at any rate, don’t seem to rule out inviting an authorized bishop to conduct an ordination or confirmation in despite of the Diocesan’s order.

  2. Pingback: Scottish Epicopal Church to discuss Same-Sex Marriage | Kiwianglo's Blog

  3. Pingback: SEC approves same-sex marriage | Law & Religion UK

Leave a Reply