The Preparation of Church Measures
by Philip Jones
Church of England Assembly (Powers) Act 1919 (‘the Enabling Act’)
A Measure is defined by s.1(5) of the 1919 Act as ‘a legislative measure intended to receive the Royal Assent and [intended] to have effect as an Act of Parliament’.
The recital to the 1919 Act suggests that a Measure must ‘touch’ matters concerning the Church of England. S.3(6) provides that a Measure ‘may relate to any matter concerning the Church of England’. This wording allows a very wide scope to a Measure.
S.3(1) provides that when a Measure has been passed by the General Synod (formerly the Church Assembly) it must be submitted to the Ecclesiastical Committee of Parliament. This is a joint committee, comprising members of both Houses. The Measure is submitted to the Ecclesiastical Committee by a committee of the General Synod known as the Legislative Committee.
The two committees should not be confused. The Legislative Committee is a committee of the General Synod. The Ecclesiastical Committee is a committee of Parliament.
The Ecclesiastical Committee is required to consider the Measure, and to prepare a report to Parliament on
‘the nature and legal effect of the Measure and its [the Ecclesiastical Committee’s] views as to the expediency thereof, especially with relation to the constitutional rights of all [Her] Majesty’s subjects’ (s.3(3)).
The report must not be presented to Parliament until the General Synod’s Legislative Committee has seen it and indicated that it wishes the report to be presented (s.3(4)). The Legislative Committee may choose to withdraw the Measure before the report is presented to Parliament, either of its own volition or at the General Synod’s direction (s.3(5)). However, the Legislative Committee may not vary the Measure.
S.4 provides that, when the report on the Measure is presented to Parliament, the Measure is subject to a resolution of each House directing that it be presented to the Monarch for the Royal Assent.
The effect of s.4 is that Parliament may either approve or reject a Measure, but may not amend it. The Measure is presented to Monarch ‘in the form laid before Parliament’, which excludes any power of amendment.
The Chairman of Committees of the House of Lords and the Chairman of Ways and Means of the House of Commons (the Deputy Speaker) may by agreement divide a single Measure into two or more separate Measures, but they may not alter the substance of the Measure.
S.4 further provides that the Royal Assent to a Measure is signified in the same manner as to an Act of Parliament. Furthermore a Measure which has received the Royal Assent ‘shall have the force and effect of an Act of Parliament’.
Professor Norman Doe takes a very exalted view of the General Synod’s legislative function under the 1919 Act. He suggests that the General Synod may
‘create for the Church in the form of a Measure any law it pleases and, with the exception of the General Synod itself and … Parliament, no body … may legally deny a synodical Measure its status as law’ (The Legal Framework of the Church of England (1996) Clarendon Press, Oxford, p.56).
‘The present legal regime [in the 1919 Act] enables the General Synod to share in Parliament’s legislative supremacy in ecclesiastical matters’ (p.58).
More precisely, the General Synod
‘is an inferior legislator under the secular constitution, empowered to share in the parliamentary competence to create legislation for ecclesiastical matters …’ (p.59).
It is argued that this assessment overestimates the General Synod’s legislative function and blurs the critical distinction between the General Synod and Parliament. The provisons of the 1919 Act just described make clear that a Measure passed by the General Synod has no legislative force whatever, unless and until it receives the approval of both Houses of Parliament and the Royal Assent.
It is true that a Measure becomes a Measure when it is passed by the General Synod, but it does not thereby become a law. When s.1(5) of the 1919 Act defines a Measure as ‘legislative’, this means that a Measure is legislative, as distinct from administrative, deliberative or judicial, in character. Without the required parliamentary and royal approval, a Measure has no more legal significance than a public or private bill presented to Parliament. Like a bill, it is merely draft legislation.
Thus it is argued that the General Synod cannot legislate by Measure. Only Parliament legislates by Measure. The General Synod, acting through its Legislative Committee, has the right under s.3(3) and (4) to prepare Measures for Parliament. The Ecclesiastical Committee cannot refuse to present a Measure to Parliament. A Measure, unlike a bill, cannot be amended in Parliament.
The legislative character of a Measure was made clear by Lord Hugh Cecil in the House of Commons debate on the bill which became the 1919 Act. He suggested that the Act introduced ‘a short way to obtaining an Act of Parliament’ (Official Report, volume 120, column 856).
Later he suggested that the 1919 Act was ‘to facilitate legislation affecting the Church by allowing it to pass through Parliament without all the forms of Parliament which are now insisted upon’ (column 1869). In other words, the 1919 Act introduced a ‘fast-track’ procedure for ecclesiastical legislation.
It must be acknowledged that the language of the 1919 Act is rather convoluted. The recital to the Act records that
‘subject to the control and authority of [Parliament] powers in regard to legislation touching matters concerning the Church of England shall be conferred on the [General Synod]’.
Powers in regard to legislation touching matters concerning …
Perhaps the recital would have been better worded as follows:
‘To confer on the [General Synod] the right to prepare and submit to Parliament draft legislation on matters concerning the Church of England’. The definition of a Measure in s.1(5) could have been ‘a draft legislative enactment / instrument prepared in accordance with the provisions of this Act’.
The status of Church of England Measures was discussed in the case of R v Legislative Committee of the Church Assembly ex parte Haynes-Smith (1928) 1 King’s Bench 411.
The High Court decided that the function of the Church Assembly and the Legislative Committee is ‘to set in motion in a preliminary way proposals for legislation which may or may not mature into legislation’ (p.416). The Church Assembly was ‘a deliberative Assembly, the function of which … is to deal with the earlier stages of that which, if the whole programme is carried out to the end, may become a statute’. The ‘intention and effect’ of the 1919 Act is ‘to authorize the [Church] Assembly, acting through and by means of its Legislative Committee, to promote legislation’ (p.417).
This analysis supports the view that Parliament alone legislates by Measure.
Doe suggests that ‘Measures may be conceived strictly as a species of secondary or subordinate legislation, which, to be valid, must be approved by the Queen in Parliament’ (op.cit.,p.59). However, this view is not supported by the wording of s.4 of the 1919 Act, which makes clear that a Measure has the same force and effect of an Act of Parliament. The Human Rights Act 1998, which was of course enacted after Doe wrote, affirms that Church of England Measures are indeed ‘primary legislation’ (s.21(1)).