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Synodical Government and the Legislative Process
Published online by Cambridge University Press: 05 December 2011
Abstract
This article reviews the exercise of the legislative function of the General Synod of the Church of England over the last 25 years. Beginning with a summary of the principles of synodical government in the Church of England, it goes on to describe the establishment of the Synod, its composition and its functions. The different forms of legal provision available to the Synod in exercise of its legislative function are then considered, followed by an account of the impact of the Human Rights Act, the procedures applicable to the conduct of legislative business and the role of Parliament in the legislative process. After an assessment of the general pattern of synodical legislation over the last 25 years, the main areas of legislative change during that period are reviewed. The article ends with an assessment of possible areas for future legislative activity.
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References
1 For a summary of the history, and a description of the principles, of synodical government in the Church of England, see Podmore, C, Aspects of Anglican Identity (London, 2005), pp 103–123Google Scholar. For a history of the Convocations, see Kemp, E, Counsel and Consent (London, 1961)Google Scholar.
2 Synodical Government 1970–1990: the first twenty years, GS Misc 344 (1990), p 4.
3 Synodical Government in the Church of England: a review, GS 1252 (1997), p 9.
4 The Governance of the Church of England and the Anglican Communion, GS Misc 910 (2008), para 39.
5 Synodical Government in the Church of England, CA 1600 (1966).
6 Canon H 3 and the Convocations (Elections to Upper House) Rules 1989 to 1994.
7 Canon H 2 and the Clergy Representation Rules 1975 to 2004.
8 Church Representation Rules, Rules 35–36.
9 Synodical Government in the Church of England, p 24.
10 Synodical Government in the Church of England: a review, p 57.
11 Thus in the period 1880–1913, out of 217 Church Bills, 183 were dropped (162 never being debated at all), one negatived and only 33 passed – of which 13 were directly sponsored by the government of the day and the rest were considered probably to owe their passage to assistance of some sort from the government. (Report of the Archbishops' Committee on Church and State (London, 1916), p 29).
12 (1994) Times, 9 March (Court of Appeal).
13 (1994) 6 Admin LRGoogle Scholar 670. This interpretation was confirmed by the Court of Appeal in Williamson.
14 Synodical Government in the Church of England, p 119. Note that the requirement is not expressed in terms of a Measure relating only to a matter concerning the Church of England.
15 Crown Benefices (Parish Representatives) Measure 2010 and the Vacancies in Suffragan Sees and Other Ecclesiastical Offices Measure 2010. To that end, Her Majesty consented to place her interest, so far as it was affected by the draft Measures, at the disposal of the Synod for the purpose of the draft Measures (Proc GS (July 2008), pp 138 and 140).
16 See, for example, Church of England (Miscellaneous Provisions) Measure 2006, s 12 and schedule 4.
17 For example, Priests (Ordination of Women) Measure 1993, s 6, made provision in relation to the application of the Sex Discrimination Act 1975.
18 See the 227th Report by the Ecclesiastical Committee (on the Ecclesiastical Offices (Terms of Service) Measure), para 17.
19 See Ecclesiastical Offices (Terms of Service) Measure 2009, ss 2 and 11.
20 Standing Order 46.
21 Hill, M, Ecclesiastical Law (third edition, Oxford, 2007)Google Scholar, p 22.
22 (2001) 6 Ecc LJ 83Google Scholar.
23 So, for example, the Dioceses, Pastoral and Mission Measure 2007, s 51 required specified persons and bodies to have regard to the code issued by the House of Bishops under that provision, giving guidance in relation to mission initiatives.
24 For the advice tendered in July 2010 to the General Synod in connection with the status of the proposed code of practice under the draft legislation relating to women in the episcopate, see the Note from the Legal Adviser, GS Misc 899 (2010), which draws on the decision of the House of Lords in R (on the application of Munjaz) v Mersey Care NHS Trust [2005] UKHL 58.
25 If an instrument, it must not be, or be made pursuant to, a Measure or Canon; and if a resolution, it must not be one for the approval of, or pursuant to, a Measure or Canon.
26 Standing Order 40. Under SO 40(c), the procedure involves the Archbishops, as Presidents of the Synod, ratifying and confirming the Act of Synod for their respective provinces, consistently with the position as regards Acts of Convocation. (As stated in Canon C 17.5, ‘By ancient custom, no Act is held to be an Act of the Convocation of the Province unless it shall have received the assent of the archbishop’.)
27 Bland v Archdeacon of Cheltenham [1972] 1 All ER 1012 at 1018.
28 Proc GS (1991), pp 12–21; and Proc GS (1996), pp 1071–1084.
29 GS 1809 (2010).
30 See Parochial Church Council of Aston Cantlow v Wallbank [2004] 1 AC 546 at 555 per Lord Nicholls.
31 Human Rights Act 1998, s 3(1).
32 Ibid, s 21(1). On the question whether canons represent ‘subordinate legislation’ for this purpose, see Hill, Ecclesiastical Law, p 17.
33 Human Rights Act 1998, s 10(6).
34 Church of England Assembly (Powers) Act 1914, s 3(3).
35 Equality Act 2010, Schedule 3, para 2(4).
36 Ibid, Schedule 18, para 4.
37 Proc GS (February 2004), pp 184–194.
38 For a fuller statement of the position, see GS Misc 704 (Revised) (2004).
39 Standing Order 48(a).
40 Standing Order 50 ff.
41 On a Division by Houses, the question is only carried if a majority of those voting in each House is in favour.
42 Article 5 and the Standing Orders also countenance the possibility that a Measure may require a Division by Houses and/or a special majority for some particular purpose – as, for example, do the Church of England (Worship and Doctrine) Measure 1974, s 3, and the Priests (Ordination of Women) Measure 1993, s 11.
43 Proc GS (July 2010), p 168. The voting was: House of Bishops: for 25, against 15; House of Clergy: for 85, against 90; House of Laity: for 106, against 86.
44 Under Standing Order 82, provision falling within Article 7 is identified by a formal process of ‘designation’ by the Synod's Business Committee, with the possibility of objection by members to designation or non-designation and subsequent conclusive determination by the Presidents, Prolocutors and Chair and Vice-Chair of the House of Laity.
45 Synodical Government 1970–1990, p 3.
46 Standing Order 86 ff.
47 Common Worship: ordination services (London, 2007)Google Scholar, p 67: ‘Make him steadfast as a guardian of the faith and sacraments, wise as a teacher and faithful in presiding at the worship of your people’.
48 The Governance of the Church of England and the Anglican Communion, paras 25 and 27.
49 Proc GS (February 2009), p 79, and GS 1642Z (2008).
50 If either of the Convocations or the House of Laity so requires, Article 7 business must, once it has been approved by the House of Bishops, be referred to the Convocations and the House of Laity for consideration by each of them separately before it can be submitted for Final Approval by the Synod. If the business is rejected by two or more of the Houses of Convocation or by the House of Laity, it cannot be proposed in the same or similar form until after the election of a new Synod. But, if only one House of one Convocation has objected, the business may be referred to the Convocations (only) again and, if only one House maintains its objection, that objection can be overridden on a third reference to the House of Bishops and the House of Clergy by a two-thirds majority vote in each house.
51 Synodical Government in the Church of England: a review, ch 7; Proc GS (1997), pp 663–704.
52 Such a resolution would amount simply to consideration of a matter concerning the Church of England within the meaning of the first part of Article 6(a), rather than ‘mak[ing] provision in respect thereof’ within the meaning of the second part.
53 R v Ecclesiastical Committee of Both Houses of Parliament, ex parte Church Society, (1994) 6 Admin LR 670Google Scholar, (1993) Times, 4 November.
54 Article 8(1).
55 Or, in the case of the Diocese in Europe, of the bishop's council and standing committee of that diocese.
56 For a history and assessment of the role of the Ecclesiastical Committee to 1992, see the paper by Lord Bridge of Harwich (Chairman of the Committee from 1982 to 1992) published as Appendix 5 to Synodical Government in the Church of England: a review.
57 Report of the Archbishops' Committee on Church and State, p 60.
58 Synodical Government in the Church of England: a review, pp 181–182.
59 Church of England Assembly (Powers) Act 1919, s 3(2).
60 ‘Ecclesiastical Committee’, <http://www.parliament.uk/business/committees/committees-archive/ecclesiastical-committee>, accessed 17 September 2011.
61 Church of England Assembly (Powers) Act 1919, s 3(3).
62 Ibid, s 3(4).
63 Proc GS (July 2000), pp 59–90. Similarly, the Ecclesiastical Committee indicated that it would not be able to find the Church of England (Pensions) Measure expedient in the form in which it was originally submitted to it, but would be able to do so if the Measure were amended so that any future extensions of the power it conferred on the Church Commissioners to resort to capital to meet pensions liabilities had to be conferred by Measure rather than by secondary legislation. The Synod was content to accept the Committee's view: see Proc GS (July 2002), pp 83–86.
64 Synodical Government in the Church of England: a review, p 177.
65 R v Ecclesiastical Committee of Both Houses of Parliament ex parte the Church Society (1994) 6 Admin LR 60Google Scholar per McCowan LJ. As to the meaning of ‘expediency’ in s 3(3), see I Slaughter, Functions of the Ecclesiastical Committee under section 3(3) of the Church of England Assembly (Powers) Act 1919 (unpublished), cited in Doe, N, The Legal Framework of the Church of England (Oxford, 1996)CrossRefGoogle Scholar, p 65 n 68.
66 Synodical Government in the Church of England: a review, p 180.
67 10 members of the Committee considered the Measure expedient and 9 considered it inexpedient.
68 16 members of the Committee considered the Measure expedient and 11 considered it inexpedient.
69 Frank Field MP, 203rd and 204th Reports by the Ecclesiastical Committee, p 64 Q 5 (19 April 1993).
70 For an analysis of the Committee's role to that effect see Maltby, J, ‘Gender and establishment: Parliament, “Erastianism” and the ordination of women 1993–2010’, in Chapman, M, Maltby, J and Whyte, W (eds), The Established Church (London, 2011), pp 98–123Google Scholar.
71 Synodical Government in the Church of England: a review, p 184.
72 The Measure would have abolished the requirements for the election by the Dean and Chapter of the Crown's nominee for a bishopric and the ceremony of confirmation of election.
73 By 32 votes to 17, the division taking place at 12.21 am on 17 July 1984.
74 The first motion was lost by 51 votes to 45 on 18 July 1989, the debate having begun at 2.06 am and the division taking place at 3.26 am. The later vote, on 20 February 1990 was carried by 228 votes to 106 – the debate on that occasion having begun at 10.15 pm and the division being conducted at 11.45 pm.
75 See eg Select Committee on Constitutional Affairs, oral evidence, 29 January 2004, QQ 48–95 and the 203rd and 204th Reports by the Ecclesiastical Committee, para 37.
76 For a discussion as to the propriety of government legislating for the Church in relation to civil partnerships, see Hill, M, ‘Editorial’, (2007) 9 Ecc LJ 2–3Google Scholar, and Slack, S ‘Church autonomy and the civil partnership act: a rejoinder’, (2007) 9 Ecc LJ 206–207Google Scholar.
77 The Civil Partnership Act 2004 (Overseas Relationships and Consequential, etc Amendments) Order 2005 SI 2005/3129, Art 4(3) and Schedule 3.
78 For assessments of that process see Welsby, P, A History of the Church of England 1945–1980 (Oxford, 1984), pp 41–44Google Scholar; Carpenter, E, Archbishop Fisher: his life and times (Norwich, 1991), pp 205–214Google Scholar; Jasper, R, George Bell: Bishop of Chichester (London, 1967), pp 194–200Google Scholar; and Boulton, P, ‘Twentieth-century revision of canon law’, (2000) 5 Ecc LJ 353–368Google Scholar.
79 For a list of the Measures that have received the Royal Assent, see <http://www.churchofengland.org/about-us/structure/churchlawlegis/legislation/measures/list.aspx>, accessed 17 September 2010.
80 Morris, R (ed), Church and State in 21st Century Britain (London, 2009)CrossRefGoogle Scholar, p 43.
81 Review of Clergy Terms of Service: report on the first phase of the work, GS 1527 (2004), p 38.
82 For the growth in the average numbers of ecclesiastical statutes, see The Canon Law of the Church of England (London, 1947)Google Scholar, p 50.
83 Report of the Archbishops' Committee on Church and State, p 291.
84 Church and State: report of the Archbishops' Commission (London, 1970)Google Scholar, p 53.
85 For an example, see Canon G 2(2), which reproduces Ecclesiastical Jurisdiction Measure 1963, s 2(2), in relation to the qualifications required for appointment as a chancellor.
86 Working as One Body (London, 1995)Google Scholar, p 72.
87 Church and State: report of the Archbishops' Commission, p 49.
88 For a full account of the process leading to the ordination of women to the priesthood, see Podmore, C, Aspects of Anglican Identity (London, 2005)Google Scholar, ch 8. See too Petre, J, By Sex Divided: the Church of England and women priests (London, 1994)Google Scholar.
89 Proc GS (1984), pp 1078–1142.
90 The Ordination of Women to the Priesthood: the Synod debate, 11 November 1992: the verbatim record (London, 1993)Google Scholar.
91 Proc GS (1984), pp 7–9.
92 Ordination of Women to the Priesthood: Pastoral Arrangements. Report by the House of Bishops, GS 1074 (1993).
93 Proc GS (1993), pp 672–703 and 982–996.
94 Proc GS (July 2000), pp 199–234; Women Bishops in the Church of England (London, 2004)Google Scholar.
95 Proc GS (July 2005), pp 327–377.
96 Proc GS (July 2006), pp 267–309.
97 See the report of the House of Bishops' Women Bishops Working Group, GS 1605 (2006); the report from the Bishops of Guildford and Gloucester, GS Misc 826 (2006); and the reports of the Legislative Drafting Group, GS 1685 (2008) and GS 1707 (2008).
98 Proc GS (July 2008), pp 78–104 and 305–384.
99 Proc GS (February 2009), pp 167–196.
100 The committee met on 16 occasions between May 2009 and April 2010, receiving 297 submissions, of which 114 were from individual Synod members or groups including Synod members and others.
101 See Percy v National Mission Board of the Church of Scotland [2005] UKHL 73; Stewart v New Testament Church of God [2007] EWCA Civ 1004; Moore v President of the Methodist Conference [2011] ICR 819.
102 See Under Authority, GS 1217 (1996).
103 Clergy who are the subject of a complaint under the 2003 Measure are, subject to an assessment of their financial resources, eligible to receive ecclesiastical legal aid, the arrangements for which were revised by the Church of England (Legal Aid) Measure 1994 and the Rules made under it.
104 Thus the Code of Practice under the Measure was amended by the Commission within five years of its first being made, following wide-ranging consultation.
105 See R v Ecclesiastical Committee of Both Houses of Parliament ex parte the Church Society (1994) 6 Admin LR 670Google Scholar.
106 For example, by referring to the diocesan ‘mission and pastoral committee’ rather than the ‘pastoral committee’, and declaring a church ‘closed for regular public worship’ rather than ‘redundant’.
107 See in that connection the statutory duty ‘to have due regard to the furtherance of the mission of the Church of England’, now imposed by the Mission and Pastoral Measure 2011, s 1.
108 For an account of the 2007 Measure see Slaughter, I, ‘The Dioceses Pastoral and Mission Measure 2007’, (2009) 11 Ecc LJ 4–35Google Scholar.
109 As regards statutory provisions alone, it repealed 10 Acts and Measures in their entirety and amended 25 other statutes.
110 For the original recommendations of the review, see its report Working as One Body.
111 Heritage and Renewal: the report of the Archbishops' commission on cathedrals (London, 1994)Google Scholar.
112 The Measure received Final Approval in July 2011 and at the time of writing awaits consideration by the Ecclesiastical Committee.
113 The Measure applies to churches that are designated for the purpose by the Archbishops and that are either ones to which the Sharing of Church Buildings Act 1969 applies or that are nominated by the Synod.
114 Originally limited to a period of seven years, that power was most recently extended to 2018 by the Church of England Pensions (Amendment) Measure 2009.
115 The Measure gave effect to recommendations of the Faculty Jurisdiction Commission's Report, The Continuing Care of Churches and Cathedrals (London, 1984)Google Scholar, relating to the faculty jurisdiction.
116 The 1990 Measure gave effect to those recommendations of The Continuing Care of Churches and Cathedrals relating to cathedrals.
117 GS Misc 995 (2011), describing a proposal to carry forward the agenda set out in Challenges for the New Quinquennium, GS 1815 (2011).
118 Church and State: report of the Archbishops' Commission, pp 55–56.
119 Working as One Body, p 149.
120 See Chancellor Spafford and others, ‘Revision of ecclesiastical statute law’, (1990–1992), 2 Ecc LJ 42–47Google Scholar, 305–314 and 388–418.
121 See, during the period under review, the Church of England (Miscellaneous Provisions) Measures of 1988, 1992, 1995, 2000, 2005, 2006 and 2010.
122 Proc GS (July 2004), pp 79–103 and GS 1554 (2004).
123 Matthew 18:18. See too Matthew 16:19 and 19:28, and Luke 22:28–30 and 10:16. For a discussion of the role of the law in the life of the Church, see The Canon Law of the Church of England, ch 1.
124 Hooker, R, On the Laws of Ecclesiastical Polity, Bk III, ch 1.14 (reproduced in R Hooker, The Works (seventh edition, Oxford, 1888)Google Scholar, vol I, p 352).
125 The Canon Law of the Church of England, p 4.