Tuesday, 25 August 2015

Simplifying Church Legislation

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?

Posted by Peter Owen on Tuesday, 25 August 2015 at 10:35am BST | TrackBack
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Comments

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?

Posted by: Father Ron Smith on Tuesday, 25 August 2015 at 11:43am BST

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.

Posted by: Feria on Tuesday, 25 August 2015 at 2:09pm BST

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 clandestine means of removing those constraints and ceding untrammeled authority to the bishops and to the Archbishops’ Council."

Fittall admits there's a lack of trust.

He and his bosses ought to ponder why that might be.

Posted by: Jeremy on Tuesday, 25 August 2015 at 2:36pm BST

It's the law of unintended consequences that will leave us with rather unpleasant authoritarian church.

The 'road to hell is paved etc..'

Posted by: Concerned Anglican on Tuesday, 25 August 2015 at 8:20pm BST

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.

Posted by: Feria on Tuesday, 25 August 2015 at 8:48pm BST

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 their ends. But there is no ecclesiology or wisdom here, which would foster loyal dissent and deeper discussion. Nor would this be welcomed by those in power. The result of this will sullen consent and damaging conformity This will lead to serious disenfranchisement, followed by demoralization, and finally ending in the erosion of (essential) trust between leaders and led.

Ultimately, there can be no short-cuts in the church for work of listening deeply to the whole people of God, and discerning the depth, density and breadth of the body of Christ. Until our present leadership engage in this most basic spiritual work, the resistance will continue - as evidenced in the many hundreds of comments and postings reflected on this website.

Posted by: Martyn Percy on Tuesday, 25 August 2015 at 8:56pm BST

Feria, you are assuming that their graces have, among them, at least one political antenna that actually functions.

Recent evidence suggests otherwise.

Posted by: Jeremy on Wednesday, 26 August 2015 at 12:50pm BST

Martyn mentioned Christian Felber. This link may be helpful

http://www.zedbooks.co.uk/node/20840

Posted by: Simon Sarmiento on Wednesday, 26 August 2015 at 2:42pm BST

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 there was radical discernment beyond universally accepted parameters.
Reading in the threads here, there seems to be a move away from Synodical government as the key towards episcopal leadership. This, I believe, lay at the heart of the Covenant process.
He was however equally anxious about bishops becoming mere pawns in the games being played out in the west and so his Lambeth was aimed at making bishops listen, talk, pray and consult rather than build alliances and make war.
At least that is an outsiders view.
My humble view is he got it wrong on nearly every level and ended up being manipulated by those with a certain world/church approach. One we have seen dominate.
I see the present developments and this report in particular as further manifestations of these anxieties.

Posted by: Fr Alan on Wednesday, 26 August 2015 at 4:22pm BST

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.

Posted by: Feria on Wednesday, 26 August 2015 at 6:42pm BST

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.

The new proposals would allow measures to close loopholes like that to be rushed through to block them. My example might not work ... But I am sure there are legal loopholes and this proposal would offer a way to shut them down.

Posted by: Kate on Thursday, 27 August 2015 at 12:48am BST

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, Howden, the home of Jeremy Timms, _might_ be a peculiar, in which the Archbishop of York had no power to revoke his PTO. But no-one can be quite sure whether or not Howden is a peculiar, as a result of badly-drafted legislation from the 1830s.

In the (unlikely) event that the Archbishops' Council gets the proposed power to amend primary legislation without a vote in Parliament, then it might well use it to abolish some or all of the peculiars - in particular, the AC might move to "clarify" that legislation from the 1830s in a direction that abolishes as many peculiars as possible.

Posted by: Feria on Thursday, 27 August 2015 at 10:24am BST

... 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'.

Posted by: Feria on Thursday, 27 August 2015 at 11:49am BST

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.

Posted by: Neil Patterson on Thursday, 27 August 2015 at 1:42pm BST

"were engineering a massive parliamentary defeat for themselves"

Bishops being outvoted is a salutary thing.

Posted by: Jeremy on Thursday, 27 August 2015 at 3:16pm BST

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.

Posted by: Cynthia on Thursday, 27 August 2015 at 5:36pm BST

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 back over the Covenant.

What England needs is a Magna Carta for the church, with elected bishops, exercising strictly limited powers, their every decision appealable to an impartial tribunal. Allowing them to hang themselves may be the only way to bring it about.

Posted by: James Byron on Thursday, 27 August 2015 at 6:48pm BST

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 the volume of organizational change, greater use of informal mechanisms, more publicly and legally disputed decisions will only contribute to pressure for root-and-branch reform.

Posted by: Paul Bagshaw on Thursday, 27 August 2015 at 7:24pm BST

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 historical deference, yet only as a decoration. They must 'make provision' for ssm rites, even as no roll call vote was taken in the House of Bishops.

But all of this post-dates whatever views +RDW may have been wishing to lodge.

Certainly at its inception concern was voiced about the character of GC, and its two houses, but the objections from the CofE were met and satisfied. Perhaps +RDW saw that as a flashpoint. After all, other forms of government exist, including Presbyterian ones.

The next months will see the recourse to Title IV to adjudicate the objections of LGBT couples unhappy with the way 'make provision' plays out under X or Y Bishop. That is increasingly being acknowledged. Diocesan canons and constitution--foreign to the CofE--now make very little sense except as historical vestige. TEC's polity is a movable target.

Posted by: cseitz on Thursday, 27 August 2015 at 8:46pm BST

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.

The law is so complex there are bound to be some chinks which could be used. These new powers would allow those chinks to be slammed shut and I don't like that.

Posted by: Kate on Friday, 28 August 2015 at 1:40am BST

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.

Posted by: Kate on Friday, 28 August 2015 at 1:53am BST

"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 probably won't live to see it.

Posted by: JCF on Friday, 28 August 2015 at 3:17am BST

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 it could have passed demanding marriage in every diocese. Calling TEC "incoherent" because it made provision for the last vestige of conservative bishops doesn't seem quite right.

CoE can look forward to more outrageous actions that are out of step with the English population if power is consolidated into the hands of the bishops. It's a very bad deal.

Posted by: Cynthia on Friday, 28 August 2015 at 5:57am BST

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 - except to safeguard its own political and theological agenda?

At least the Church of Rome is consistent in its insistence on obedience to the Vatican's 'One-Way' polity.

Posted by: Father Ron Smith on Friday, 28 August 2015 at 9:37am BST

"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.

Posted by: cseitz on Friday, 28 August 2015 at 2:08pm BST

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 includes the exemption you couldn't see. Sorry about that.

Posted by: Feria on Saturday, 29 August 2015 at 12:15pm BST

Cheers Feria, yep I missed that one. Thanks.

Posted by: Kate on Sunday, 30 August 2015 at 12:39am BST

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?

Posted by: Father Ron Smith on Sunday, 30 August 2015 at 1:40am BST

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.

Posted by: stephen on Sunday, 30 August 2015 at 11:11am BST

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.

Posted by: Perry Butler on Sunday, 30 August 2015 at 1:26pm BST

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.

Posted by: James Byron on Sunday, 30 August 2015 at 7:07pm BST

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.

Posted by: Feria on Sunday, 30 August 2015 at 7:27pm BST

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". !!

Posted by: Perry Butler on Sunday, 30 August 2015 at 10:42pm BST

The only democratic body that represents Anglicans in general is Parliament.

Posted by: Turbulent Priest on Monday, 31 August 2015 at 4:59pm BST

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 be a convoluted way of agreeing with you that the duty to crush this ongoing nonsense lies in the Palace of Westminster.

Posted by: american piskie on Tuesday, 1 September 2015 at 5:41pm BST

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 an extra- diocesan place which is surrounded by two or more dioceses shall be deemed to be situate within such one of them as the archbishop of the relevant province may direct."

Posted by: rd on Tuesday, 1 September 2015 at 10:54pm BST

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 places for clergy in the legislature.

Posted by: Turbulent Priest on Friday, 4 September 2015 at 2:15pm BST

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 of the phrase "locally situate in") actually is still a peculiar. The downside, of course, is that the court making the ruling would be one that had a vested interest in the opposite outcome from the one that I (we?) would prefer.

Posted by: Feria on Saturday, 5 September 2015 at 12:31pm BST
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