One of the General Synod papers issued today is GS 1708-09ZZZ which describes how the House of Bishops reconsidered clause 5(1)(c) in the women bishops legislation. It also includes the following legal advice on the meaning of the amendment to clause 5(1)(c) (which was the fourth one they considered) actually adopted by the House.
Legal advice given to the House of Bishops on the fourth of the proposed amendments to clause 5(1)(c)
1. The amendment would substitute the following for the present clause 5(1)(c):
“(c) the selection of male bishops and male priests in a manner which respects the grounds on which parochial church councils issue Letters of Request under section 3,”.
2. The effect of the amendment would not merely be to require that guidance be given on the issue of the selection of male bishops and male priests: like some of the other possible amendments, it would impose a requirement as to the end to which that guidance is directed – in this case, that the selection of male bishops and male priests be such as to respect the grounds on which PCCs issue Letters of Request under the Measure.
3. The effect of the use of the word ‘respect’ in that context is to require the Code of Practice to give guidance to the effect that, in selecting a male bishop or male priest, the person(s) making the selection would need to seek to address, or accommodate, the grounds on which a PCC has issued its Letter of Request. They could not simply fail to give effect to those grounds at all, even if they considered that there were cogent grounds for doing so.
4. The effect of the use of the word ‘respect’ in that regard can be helpfully contrasted with the effect of other expressions which have been canvassed in discussion of possible amendments:
5. The analysis set out above is reflected in the illustrative draft wording that has been produced to show what the Code of Practice might say about the selection of male bishops were this amendment to be made to the Measure: it states that “In making the selection of the bishop who is to exercise episcopal ministry by delegation the diocesan bishop should seek to accommodate [my emphasis] the parish’s concerns relating to holy orders and the exercise of ordained ministry of women so far as those matters are relevant to the grounds of theological conviction as to the consecration and ordination of women on which the PCC issued its Letter of Request.”
6. It would be open to the House, if it wished to do so, to include more detailed guidance in the Code as to what would be involved in order to ‘respect’ the grounds on which a PCC had issued its Letter of Request.
7. As to the use in the amendment of the word ‘grounds’, the grounds in question are those on which PCCs issue Letters of Request under clause 3 of the Measure – ie ‘grounds of theological conviction’. By necessary implication those grounds are limited to grounds as to the consecration or ordination of women. (It is implicit in clause 3 that, by allowing a parish to ask for a male bishop or priest, a PCC is allowed – and only allowed – to issue a Letter of Request on grounds of theological conviction as to the consecration or ordination of women.)
8. Thus the guidance required to be given by the amendment would have to be limited accordingly – that is, it would have to make it clear that the grounds which the selection of male bishops are to ‘respect’ were limited to grounds of theological conviction as to the consecration or ordination of women. The illustrative draft wording that has been produced to show what the Code of Practice might say about the selection of male bishops were this amendment to be made to the Measure reflects that position.
11th September 2012
Chief Legal Adviser
The Legal Office