Optimising the role of the National Church Institutions (GS Misc 1094) was issued in January 2015 by the Joint Employment and Common Services Board of the National Church Institutions of the Church of England. Amongst other recommendations it proposed a new enabling measure that would simplify the process for amending existing church legislation.
The Archbishops’ Council subsequently issued a consultation document on this proposal (A Simpler Way of Reforming Church Legislation GS Misc 1103) in April; responses were required by the end of last month.
One response was this from the Ecclesiastical Law Society (ELS): Reforming Church Legislation: A Response by a Working Party of the Ecclesiastical Law Society to the Archbishops’ Council’s Consultation Document, GS Misc 1103.
Last week Ruth Gledhill wrote about this for Christian Today under the headline Senior lawyers launch devastating critique on church law reform plans.
David Pocklington has now written a rather more considered article on the ELS response for Law & Religion UK, which I commend to readers: “Henry VIII powers” for the bishops?
Recognising the FACT that the Church of England currently has difficulty with acknowledging the right of the U.K. Government to enact legislation allowing for the Marriage of Same-Sex persons; how can congregations guarantee that any future Church legislation enacted by the Church will be any more in keeping with governmental openness to advocacy for an inclusive society?
If decisions are taken away from General Synod and made exclusively by episcopal fiat, how will that help the mission of the gospel?
The power proposed here is not at all equivalent to the secular order-making power in the 2006 act. The power in the 2006 act is subject to an affirmative resolution procedure, i.e. an order only comes into effect once both Houses of Parliament have voted in favour of it. The power proposed here would be subject to a negative resolution procedure, i.e. an order would come into effect without Parliament having to vote, as long as Parliament did not actively vote against. To undermine Parliamentary accountability to that extent is not a Henry VIII clause, it’s a Charles I clause.
Here’s the money quote from the ELS response: “The Working Party received comments from a variety of individuals including a few members of General Synod. There was a perception that the proposal is intended to move legislative authority away from Synod and into the Archbishops’ Council. There was a fear of a largely unelected and unaccountable body changing the law of the Church of England and diminishing the rights of its members (ordained and lay). The consultation document was perceived by some as saying that bishops have identified constraints on their power (‘burdens’) and the proposed Enabling Measure was a… Read more »
It’s the law of unintended consequences that will leave us with rather unpleasant authoritarian church.
The ‘road to hell is paved etc..’
One thing I suppose we can be thankful for is that there’s no prospect of this actually happening. The archbishops might find some way to drive it through Synod, but when the enabling measure reaches Parliament, it will be decisively defeated – in fact, I suspect the Commons might vote unanimously against it, which would be quite an interesting spectacle.
But their graces must know all that, so I wonder what they’re aiming to achieve by exposing themselves to such humiliation.
I concur with Jeremy’s comments on the matter of trust. I refer readers to the recent fine reflections in Christian Felber’s writings, and in particular his observation that when trust is sacrificed for efficiency in organizations or institutions by those in power, the corporate body will be in danger of breaking down, or just imploding. We have already seen evidence of the reform and renewal agenda at work in The Green Report, and on the proposals for theological education. Exactly the same DNA is there within the so-called ‘simplification’ process. Those driving these proposed reforms use inappropriate means to justify… Read more »
Feria, you are assuming that their graces have, among them, at least one political antenna that actually functions.
Recent evidence suggests otherwise.
Martyn mentioned Christian Felber. This link may be helpful
http://www.zedbooks.co.uk/node/20840
Although not a member of the CofE I am a canon lawyer, my view, based on ecumenical conversations over the past 14 years, some at high level, is that Rowan Willams was deeply concerned by claims from North American bishops that the way of electing bishops and their governing body had pointed their church in a direction that ran against apostolic tradition. My perception was he was often urging bishops to regain control and he saw this as the way of stopping “wayward” branches of your communion and essential for doctrinal development to be properly paced and accepted even when… Read more »
Thanks, Jeremy. I hope your explanation is the right one. It’s a much happier thought than the one I had in the back of my mind – that maybe the bishops had privately decided in favour of disestablishment (or at least in favour of threatening disestablishment in order to win some concession or other from government – let’s call it the “Davidson procedure”), and were engineering a massive parliamentary defeat for themselves in order to sow discord between Synod and Parliament.
The proposal might have a second effect which has been missed. At present if a couple wish to marry in a private chapel they need a special licence issued at the discretion of the Archbishop of Canterbury. So far as I can see at present, there is nothing to stop a same sex couple marrying in a private chapel subject to funding an obliging clergyman and obtaining a special licence. Also, so far as I can see there is no exemption in the Equality Act which would allow the Archbishop to discriminate against same sex couples in issuing a licence.… Read more »
Kate, Where you say “loophole”, I’d probably say “due process”, but you have a point. In a similar vein, the prohibitions on blessing civil partnerships and same-sex marriages have always taken the form of pastoral letters from the bishops, and the “royal peculiars” and some of the “archiepiscopal peculiars” are, by definition, places and groups of people outside the pastoral jurisdiction of the bishops. I know of three peculiars where some of the clerks in holy orders have ignored the prohibitions, as they are perfectly entitled to do under current CofE law. Also, as I recently mentioned on another thread,… Read more »
… although I think, as far as refusing to issue a licence for marriage in a private chapel is concerned, the ABC is protected from proceedings under the Equality Act by section 2(2)(c) of the Marriage (Same Sex Couples) Act 2013:
‘A person may not be compelled by any means (including by the enforcement of … a statutory or other legal requirement) … to consent to a relevant marriage being conducted’.
Kate,
in sympathy with the idea, but sorry, it is quite impossible for any clergyperson, however willing, to conduct a same-sex marriage, in a chapel following special licence or anywhere. The clergy can only conduct Church of England marriages. The Archbishop can only issue licences for Church of England marriages. The Same-Sex Marriage Act expressly excludes all Church marriages from its effects – they can only and always be between opposite-sex couples, unless and until new legislation (which might be a Church of England Measure from Synod) is passed.
“were engineering a massive parliamentary defeat for themselves”
Bishops being outvoted is a salutary thing.
Given the reprehensible behaviour of CoE bishops against Jeremys Pemberton and Timm, one might want to be exceedingly careful of moving power and decision making away from your Synod and into the Council.
Additionally, didn’t the leadership at “Church House” or some such place come up with an awful document against equal marriage? Isn’t that Valentine’s Day document enough to believe that lay people should take power AWAY from the bishops, not give them more?
Fr. Alan probably has a correct read here.
I’m against any attack on the rule of law, but currently, it barely exists in the Church of England. Bishops make policy by decree, have the power to arbitrarily ban priests from exercising ministry in their dioceses, and can suspend livings at-will after a rubber stamp from a committee they can pack. So perhaps what’s needed is to strip away the vestigial figleaf of canon law, and drag the brute reality of episcopal diktat out into the light of day. So exposed, bishops might go far enough to, at long last, cause English Anglicans to fight back, as they fought… Read more »
Cynthia, Furthermore … Significant transfers of power(s) – whether from Parliament or within the C of E – will, I predict, quickly lead to questions of disestablishment. The panic (probably) that will follow such a suggestion will in turn lead to proposals for compromise: keep the Establishment but more power transferred to the Church of England (exactly what, where, and with what safeguards could keep us bogged down for years). And what will be the new red lines for those determined to keep the establishment? Bishops in the House of Lords? Access to the monarch? others … An increase in… Read more »
Rowan Williams may well have been worried about the polity incoherences within the more recent TEC, but these are still at some remove from Synodical government in the CofE. Colin Podmore has written some helpful essays on this issue. TEC emerged from a colonial states model and formed an association. Its neuralgic points have to do with inherent tensions between diocesan integrity, an emergent Title IV centralization based in the PB (who is not a metropolitan), a GC with no obvious way to determine constitutionality via a judiciary. The consequence in 2015 is the office of Bishop being given certain… Read more »
Feria Your example of peculiars is so much better than mine. Still, let’s just persist. S2.2c might prevent the incumbent of the Bishopric of Canterbury as a person from being compelled to grant a special licence to a same sex couple but it doesn’t exempt him from a complaint of unlawful discrimination. Nor does it prevent the office from being compelled and a top silk might manage to thread a way through that. On Neil’s point, if (and I agree it is a big if) a special licence could be engineered then the marriage would then become a CoE marriage.… Read more »
James
Your suggestion of a Magna Carta for CofE seemed immediately to me to highlight the real need.
CofE is supposed to steer a balanced course between the two poles of Papal infallibility and personal gnosis. That is always going to be challenging and risk tension. Maybe before looking at new legislation to shift the balance of power, CofE should articulate in theological terms what level of theological autonomy it believes members of each tier in the hierarchy, from lay parishioners to archbishops, should have. Legislation can then be passed to articulate that clear theology.
“Although not a member of the CofE I am a canon lawyer … claims from North American bishops that the way of electing bishops and their governing body had pointed their church in a direction that ran against apostolic tradition. My perception was he was often urging bishops to regain control and he saw this as the way of stopping “wayward” branches of your communion” Posted by Fr Alan Hello, Rome! Relax, Padre: while the “North American … way of electing bishops and their governing body” *IS* coming to the Roman Catholic Church (Praise Christ!), depending on your age, you… Read more »
In TEC, there are only about 7 dioceses where the diocesan bishop voted against inclusive marriage. At least one said that he would provide for it within the diocese, others won’t do that. For now, those bishops fulfill the terms of GS 2015 by making the liturgy available and referring couples to other dioceses. Those couples do not have any Title IV recourse, unless the bishop doesn’t fulfill his minimal requirement. The liturgy and names and addresses of welcoming parishes can be emailed. This provision was made on behalf of conservatives. It was a gracious thing to do, given that… Read more »
When the Church of England hierarchy talks about legislative change that will facilitate easier administration (read: control of clergy and laity) it first needs to explain why there is such a great credibility gap between the legal, canonical acceptance of women clergy and bishops; while at the same time, providing an escape clause for those in the Church who will not accept such a doctrinal status for women clergy and bishops. With this wide interpretation of ‘the law’ in its own household; how can the House of Bishops pretend to be in favour of ‘tightening up’ the administration of polity… Read more »
“Those couples do not have any Title IV recourse, unless the bishop doesn’t fulfill his minimal requirement.”
I agree with those who say Title IV will soon be brought in to deal with Bishops who do not operate as desired. Why should couples have to leave their home parishes and go to another diocese?
If they do so, and return to run for the vestry and the Rector forbids this, etc., why would Title IV discipline not be called for?
As for the polity of TEC being incoherent, that is another topic.
By the way, Kate, earlier on you said ‘so far as I can see there is no exemption in the Equality Act which would allow the Archbishop to discriminate…’. If you’re looking at schedule 3 of the Equality Act on legislation.gov.uk, you’ll notice a red banner near the top of the page warning you that changes have been made to the Act that have not yet made their way into the copy of the Act on legislation.gov.uk. There will be a link offering to show you a list of those changes. The first of the changes currently in that list… Read more »
Cheers Feria, yep I missed that one. Thanks.
I’m curious about that word ‘exemptions’, when applied to application of the strict rules in the Church of England. I do know that one such ‘exemption’ exists in order to allow anti-women rigorists to avoid the authority of a woman priest or bishop. However, it obviously doesn’t allow an exemption for a legally married same-sex person to act as a (Lay) Reader in the Church.
Are ‘exemptions’ special rule-avoidance mechanisms for bishops only?
Having observed the machinations of General Synod at first hand for 10 years, my personal and controversial opinion is that it is just not fit for purpose as a decision making body. It models some of the worst characteristics of any dysfunctional PCC that you have experience of, may folk unable to do anything other that pick and minutiae rather than make bold decisions.
Well Stephen this may be because,as Cheslyn Jones observed in the ill fated “Christians Believing”, the C of E is a suitable amalgam held together by a Erastian framework.
Stephen, I see nothing controversial there, but what’s the alternative? English bishops are hardly an example of bold decision making, and even if they were, bold decisions can be horribly wrong.
If General Synod isn’t working, best solution I can see is to elect better representatives.
No, Fr. Ron, exemptions are not just for bishops, nor are all of them used in a “rigorist” way: see my comments about peculiars upthread.
Oh dear! the report was ” Christian Believing”. And Cheslyn wrote that the C of E is an UNSTABLE amalgam…..must preview!! I also remember him telling me ( in the early 70s) that the prayer that united the C of E was “O God,make us financially viable”. !!
The only democratic body that represents Anglicans in general is Parliament.
Surely not, Turbulent Priest. Maybe “The only body with represents the parishioners of English parishes in general is the UK Parliament.” I don’t see how it can be democratic when the Welsh, Scots, and Irish get a vote too. There are Anglicans galore even in the UK that are not represented in any sense by the UK Parlaiment. There are Anglican churches outwith the jurisdiction. And anyway, I am pretty sure that members of parliament properly look after the interests of all the parishioners, not just the people on church electoral rolls or who self-describe as “Anglicans”. But this may… Read more »
Even if Howeden, as suggested above, were still a peculiar jurisdiction, a disciplinary tribunal constituted for the surrounding diocese would, I think, have jurisdiction to hear disciplinary proceedings against the incumbent (for example, if a complaint were made that he or she were allowing unlicensed readers to officiate in the parish in a manner contrary to canon law). Section 43 of the CDM 2003: “For the purposes of this Measure an extra-diocesan place (including any place exempt or peculiar other than a Royal Peculiar) which is surrounded by one diocese shall be deemed to be situate within that diocese, and… Read more »
Thanks, piskie, for rewording my gnomic utterance more accurately. And for coming to exactly the conclusion I have. Just as Parliament takes responsibility for pensioners or children or any other group of people without being wholly elected by this group, it could reassert its authority to take responsibility for those of the residents of England who affiliate with the established church. Or it could disestablish the church completely. If you go on a tour of the parliament by the way, you are reminded that the UK (and the Isle of Man) are the only jurisdictions apart from Iran which reserve… Read more »
Thanks for ferreting that out, rd. Not for the first time, I’m glad that the peculiar of which I’m a member is a non-geographical one. Nevertheless, there might be an opportunity associated with your discovery. If Howden is still a peculiar, then _none_ of the people currently preaching there, lay or ordained, are legitimately licensed (because the wrong ordinary has been signing the licences for the last 160 years). A CDM complaint could provide a relatively cheap way to obtain a judicial ruling on whether Howden (and by extension, the several dozen other parishes whose status depends on the interpretation… Read more »