Does Parliament need an Ecclesiastical Committee?
by Philip Jones
The Church of England Assembly (Powers) Act 1919, though passed nearly 80 years before the Human Rights Act, addresses the principle of religious freedom. Once approved by Parliament, ecclesiastical law in the form of Measures has ‘the force and effect’ of an Act of Parliament (s.4). Thus the 1919 Act confers freedom on the members of the Church of England, by enabling them to govern themselves as a Church.
However, the 1919 Act also seeks to ensure that this Anglican self-governance does not infringe the rights and freedoms of others. The Act therefore created the ecclesiastical committee of Parliament, whose function is to scrutinise Measures submitted to Parliament by the Church. The ecclesiastical committee is required to
‘draft a report … to Parliament stating the nature and legal effect of the Measure, and its views as to the expediency thereof, especially with relation to the constitutional rights of all … subjects …’ (s.3(3)).
The work of the ecclesiastical committee was discussed by Lord Bridge of Harwich, a former chairman, in a paper now appended to a Church of England report Synodical Government (Church House Publishing, 1997, apprendix 5, pp.174-184).
The references in the 1919 Act to explaining the legal effect of a Measure and its impact on constitutional rights may suggest that the ecclesiastical committee has a quasi-judicial function. According to Lord Bridge, the chairman of the committee is always a law lord, though this is not required by the 1919 Act or by parliamentary rules (p.181).
Although the ecclesiastical committee’s function is to safeguard the constitutional rights of non-Anglicans (‘all … subjects’), its members tend to be ‘active members of the Church of England with a keen interest in its affairs’. (In recent years, some of them have been former Anglicans who have joined the Roman Catholic Church.) Some members of the ecclesiastical committee have even been members of the General Synod as well. Non-Anglican members of Parliament do not seem very interested in joining the committee.
Lord Bridge noted that the ecclesiastical committee has never reported that a Measure is ‘inexpedient’, though there have been occasions when the committee has informally advised the Church to make corrections to a Measure. The Measure in question was then revised and resubmitted with the suggested corrections included (pp.180-1).
Lord Bridge’s conclusion on the ecclesiastical committee indicates a gentle scepticism. He acknowledged that the committee ‘adequately provides the safeguards which were envisaged as necessary by the promoters of the 1919 legislation’, notwithstanding its Anglican bias. However, he suggested that the constitutional safeguards ‘might be provided more expeditiously and economically by a [different] body’ (p.184), though he did not describe the sort of ‘body’ that he had in mind.
It is indeed arguable that the 1919 regime is now rather anachronistic in its requirement that ecclesiastical legislation be subject to the scrutiny of a special committee of Parliament.
The primary purpose of the ecclesiastical committee under the 1919 Act is to safeguard the constitutional rights of all subjects, but it is hard to accept that it does much to serve this important function nowadays (if it ever did). Its deliberations seem to be mostly concerned with the policy and detail of Measures. Lord Bridge’s account confirms this (p.184). However, the General Synod is the appropriate forum to discuss matters of policy and detail.
For Parliament to share legislative power with another body may have been a radical reform in 1919, but today there are many authorities besides Parliament which possess legislative powers. It is hard to see why legislation emanating from the General Synod, of which there is only a very small amount, should receive greater parliamentary attention than the huge volume of legislation issued by myriad secular authorities.
Moreover the scope of judicial review has expanded enormously since the 1919 Act was passed. The function of the ecclesiastical committee is now substantially filled by the courts. The courts are now supposed to protect constitutional rights.
The recent Ecclesiastical Offices (Terms of Service) Measure 2009 may encourage fresh thinking about the relevance of the 1919 procedure. The 2009 Measure introduces a new type of ecclesiastical legislation, terms of service regulations, which, unlike Measures, are not subject to the scrutiny of the ecclesiastical committee.