A New Ecclesiastical Law
by Philip Jones
Ecclesiastical Offices (Terms of Service) Measure 2009
The 2009 Measure may be the most radical reform of ecclesiastical law since the Church of England Assembly (Powers) Act 1919, for three reasons:
(1) it has created a new category of ecclesiastical legislation, called Terms of Service Regulations (‘TSRs’), alongside Measures and canons.
(2) it has altered the balance of legislative power, away from Parliament and the General Synod, and in favour of the Archbishops’ Council
(3) the new category of ecclesiastical legislation conflicts with, or circumvents, existing legislation but without actually repealing it.
(1) A New Ecclesiastical Law. Before the 2009 Measure almost all ecclesiastical legislation took the form of Measures and canons. It is true that a number of Measures provide for the making of rules by various authorities other than the General Synod, but such rules are usually confined to points of detail rather than substance. They clarify or facilitate the functions, rights and duties provided by the parent Measure or canon.
The Synodical Government Measure 1969 refers to the power of the General Synod ‘to make provision’ for matters concerning the Church of England ‘by such order, regulation or other subordinate instrument as may be authorised by Measure or Canon’ (schedule 2(6)), but there are very few such regulations.
The National Institutions Measure 1998, which created the Archbishops’ Council, may be some sort of precedent for TSRs. The 1998 Measure empowered the Archbishops to order the transfer to the Council, or to another specified body, of functions previously exercised by the Church Commissioners, the Central Board of Finance and the committees of the General Synod (s.5). Thus a ‘transfer of functions order’ by the Archbishops alone was required, not a Measure or Canon.
However, the scope of TSRs is much wider than that of the transfer of functions orders. TSRs are substantive, not procedural or transitional. Their purpose is ‘to make provision for terms of service’ (2009 Measure, s.2(2)). They confer new functions, rights and duties. Moreover, ‘terms of service’ is a vague phrase, and the 2009 Measure allows a very broad scope to regulations. Its suggested subjects of regulation are non-exhaustive, and expressed to be ‘without prejudice to the generality of [the phrase ‘terms of service’]’.
The evident purpose of the 2009 Measure and the TSRs is to extend the range of ecclesiastical legislation. TSRs will provide statutory regulation of matters that were formerly dealt with by informal ‘quasi-legislation’ or were indeed completely unregulated. This may improve the quality of ecclesiastical governance.
(2) The Balance of Legislative Power. TSRs are made by the Archbishops’ Council, not by the General Synod, and it is for the Council, not the Synod, to propose new regulations (s.2).
The General Synod has a power of amendment, but this must be clearly understood. Strictly speaking, the Synod cannot amend the regulations. It can only amend the draft regulations. The Council may then either
(1) accept the amendments and make the regulations or
(2) withdraw the draft regulations ‘for further consideration’.
This means that the Synod may suggest amendments, but cannot actually insist on them. Such a procedure is not compatible with the supposed ‘legislative supremacy’ of the General Synod in the Church of England. The regulations will be the outcome of a dialogue between the Council and the Synod. But the Council is the dominant party in this process.
The 2009 Measure seems to assume that regulations are unlikely to cause much controversy. The Measure allows the business committee of the Synod to determine ‘that draft regulations do not need to be debated by the General Synod’, subject to the right of Synod members to insist on a debate. Proper scrutiny of regulations may therefore depend on alert Synod members who are prepared to risk a certain unpopularity by insisting on debates and proposing amendments.
Unlike Measures, TSRs are not subject to the scrutiny of the Ecclesiastical Committee of Parliament, and do not even have to be positively approved by Parliament. They are merely ‘laid before’ Parliament, under the negative resolution procedure (s.2(8)).
The lack of scrutiny by the Ecclesiastical Committee may be justified on the ground that the Ecclesiastical Committee is concerned with the constitutional aspects of ecclesiastical legislation, its impact on the constitutional rights of all subjects (1919 Act, s.3(3)). TSRs are likely to affect only clergy and lay ministers, and employees of the Church. They do not engage the constitutional rights of all subjects. An unconstitutional regulation could be ‘quashed’ by the High Court in judicial review proceedings.
(3) Impact on existing legislation. The effect of the 2009 Measure is that some Measures (such as the Vacation of Benefices Measure 1977) will continue in force, but will apply only to clergy who are not subject to the TSRs (cf 2009 Measure, s.11(6)). As tenure under the TSRs (so-called ‘common tenure’) becomes universal, the Measures will gradually cease to have effect, even if they are not formally repealed.
The 2009 Measure empowers the Archbishops’ Council, as part of the Council’s new legislative function, to amend or repeal existing legislation ‘as appears to the Council to be necessary or expedient in consequence of any provision of this  Measure or of [terms of service] regulations’ (s.11). This power will lapse after 5 years. Any exercise of the power in the meantime will require the approval of the General Synod on the same terms as the approval of TSRs.
The 2009 Measure expressly affirms the continued application of the Clergy Discipline Measure 2003 and of the Ecclesiastical Jurisdiction Measure 1963. It provides that ‘misconduct’, as defined in those Measures, shall continue to be dealt with under the existing disciplinary procedures (s.9). The Archbishops’ Council will therefore not be able to amend or repeal those two Measures, nor disapply them to clergy who are subject to common tenure.
However, that does not resolve the difficulty of reconciling the 2003 disciplinary regime with the capability procedure laid down by the 2009 Measure and by terms of service regulations. This difficulty is discussed separately.