ecclesiasticallaw

Ecclesiastical law

Category: Parliament and The Church

The Burden of Legislative Reform

The Legislative Reform Measure 2017, aka The Enabling Measure

According to the Church of England’s website, the General Synod is due to consider the first draft of the above Measure this coming weekend, just before the ‘Shared Conversations’ on human sexuality.

The procedural flaws in the Measure have been discussed in a separate post, which is filed below (‘The Proposed Enabling Measure: A Complex Process of Simplification’).

However, the fundamental misconception of the Measure is that it is modelled on a piece of secular legislation that has no application to the Church.  The Legislative and Regulatory Reform Act 2006 makes provision for ‘removing or reducing any burden … resulting directly or indirectly for any person from any legislation’ (s.1).

This provision appears in the draft Measure.  However, the Measure indicates a failure to appreciate the significance of another provision of the 2006 Act.  A burden-reducing order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department …’ (s.1(4)).  The 2006 Act defines a ‘burden’ as that ‘which affects the carrying on of any lawful activity’ (s.1(3)).

The 2006 Act was intended to benefit private citizens, not public officials and public authorities.  Its purpose was to cut red tape, to enable ordinary people to go about their business without unnecessary official interference.

In the Measure, by contrast, the definition of  ‘burden’ makes no reference to ‘any lawful activity’ by private citizens.  This is because ecclesiastical legislation does not regulate such activity in the first place.  Instead, the Measure refers to burdens ‘resulting … from ecclesiastical legislation’ (s.1(1)).  However, with the exception of weddings and funerals (particularly the fees involved), ecclesiastical legislation does not impose any burdens on private citizens.

Thus the only burdens that the Measure will relieve, or can relieve, are the burdens attached to ecclesiastical office and governance, because these are the only burdens imposed by ecclesiastical legislation.  This is a quite different, indeed opposite, purpose to that of the 2006 Act.  The 2006 Act was intended to reduce official interference.  The Measure is intended to make the officials’ work easier.

Legislation that promises to reduce burdens always sounds attractive.  However, reducing burdens is not as simple as it sounds.  One person’s burden is another person’s benefit.  One person’s benefit may be another person’s unemployment.  One person’s burden may be reduced merely by increasing another person’s burden, or by appointing an extra person.

The Measure makes clear that burden-reducing may involve

[1] ‘abolishing, conferring or transferring, or …. delegat[ing] … functions of any description …’ (s.1(5))

[2] ‘creating a [new] body or office’

[3] ‘abolish[ing] a body or office’  if abolition is consequential on burden-reducing (s.1(6))

[4] considering ‘the interests of any person adversely affected’ by burden-reducing (s.2(c))

The purpose of the Measure is therefore a little more nuanced than merely ‘reducing burdens’.  It rearranges red tape more than cutting it.  It seeks to reorganise official functions with a view to improving the quality of ecclesiastical governance, by making it simpler, more efficient and less expensive.

This is an admirable purpose, of course.  But it does not justify a new legislative procedure.  It can, and should, be effected by ordinary legislation.  The whole point of all ecclesiastical legislation is to improve the quality of ecclesiastical governance.  The Measure will throw a spanner into the legislative works.  It adds a new legislative procedure that serves essentially the same purpose as the existing one, with the two procedures operating side by side.

The Measure may not receive very close attention in the General Synod, if the members are preoccupied with the more sensational matters to follow.  It may prove insignificant in practice, if it is used only to make minor and uncontroversial administrative changes.  But a more confused attempt at ecclesiastical law reform is hard to imagine.

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The Proposed Enabling Measure: A Complex Process of Simplification

‘A New Enabling Measure’ (General Synod Paper 2018, January 2016)

This paper indicates four major proposals for the reform of ecclesiastical legislation.  Three proposals concern existing legislation, as follows:

(1) the consolidation of various pieces of legislation on the same subject into one comprehensive, or ‘consolidated’, Measure. Four consolidation Measures are proposed affecting (1) the Church Representation Rules (2) pensions (3) ecclesiastical jurisdiction and (4) Church property (para 49).

(2) the repeal of obsolete or redundant legislation, by way of a Repeals Measure.  The redundant legislation has been identified as such by the Legal Office (para 50).

(3) the simplification of legislation that is considered ‘over-prescriptive’, by means of special orders approved by the General Synod.  This programme of legislative simplification will be effected by the Enabling Measure referred to in the paper’s title (para 51).

The final proposal concerns future legislation:

(4)  the most important ecclesiastical legislation will continue to be in the form of Measures made under the Church of England (Assembly) Powers Act 1919.  However, Measures are likely to be much shorter in future, and concerned only with ‘important matters of principle and policy’ (para 52).  Matters of detail arising from new Measures will be dealt with by secondary legislation, made under the authority of Measures.  This secondary legislation can then be made or amended by the Church without engaging the 1919 procedure.

This is all quite reasonable.  However, the proposed Enabling Measure (3), as presently described, is very confused.

The cause of the confusion is that the proposed Measure does not specifically identify the legislation that is proposed for simplification.  No explanation is given for this non-specific approach, nor is it easy to think of one.  The Enabling Measure, like the Consolidation and Repeals Measures, is concerned with legislation that has already been made, not with legislation that may be made in the future.  Future legislation will be dealt with by proposal (4).  (Para 54 confirms this.)

It should therefore be possible to identify and schedule the specific legislation to the Enabling Measure.  If it is possible to identify redundant legislation (2), why is it not possible to identify over-prescriptive legislation?

Identifying over-prescriptive legislation would not prejudice the General Synod’s position.  If the Measure identifies a particular piece of legislation as eligible for simplification the General Synod would still decide the precise terms of the simplification order after the Measure has been approved.  It could also decide that a piece of legislation may not be appropriate for simplification after all, and refuse to make an order in respect of it.

Instead of identifying the legislation to which it will apply, the Enabling Measure merely identifies legislation to which it will not apply.  Seven well known ecclesiastical statutes (only seven) are expressly excluded, including the 1919 Act and the Worship and Doctrine Measure 1974 (para 26).  The Enabling Measure itself will also be immune from simplification (though sorely in need of it!).  A simplification order may not alter the purposes for which the income of the Church Commissioners’ general fund is applicable (para 29).

There are other, vaguer limitations, described as ‘pre-conditions’.  A simplification order should inter alia be ‘proportionate’.  It should strike a fair balance between ‘the public interest, the interests of the Church of England as a whole and the interests of any person adversely affected’.  It should not remove any ‘necessary protection’, or prevent the exercise of any right or freedom ‘which [its possessor] mght reasonably expect to continue to exercise’.  It should not be of ‘constitutional significance’ (para 22), or alter the relationship between Church and state (para 23).

The Enabling Measure prescribes an onerous procedure for making orders in respect of the legislation that it fails to specify.  Given that the whole purpose of the Measure is simplification, the complex order-making procedure reads amusingly like something out of Yes Minister.  It fully vindicates the Ecclesiastical Law Society’s warning that ‘The problem of ‘too much’ law is to be addressed by creating more’ (Response, July 2015).

Thus the important business of ‘the removal or reduction of burdens’ (para 17), defined as ‘financial cost … administrative inconvenience … an obstacle to efficiency’ is to be supervised by … a brand new committee!  The Legislative Reform Scrutiny Committee will be a committee of the General Synod, though it will include members of the Archbishops’ Council (para 34).  Also ‘more detailed provision as to the committee’s membership would be contained in the standing orders of the General Synod’.

The Archbishops’ Council will prepare draft simplification orders and submit them to the Legislative Reform Scrutiny Committee.  Before it does this, however, the Council must invite representations on a proposed order from members of the General Synod and ‘other persons and bodies who might reasonably be considered to have an interest’ (para 32).

When the draft order is at last submitted to the Legislative Reform Scrutiny Committee, that committee will prepare a report on it to the General Synod (para 36).  Standing orders will ‘specify any matters which the committee [is] required to consider and report on’, but presumably the report is needed for assurance that the draft order satisfies the various constitutional criteria stated in the Measure and referred to above.

The new committee will therefore resemble the Ecclesiastical Committee of Parliament.  Its functions of scrutinising and reporting on simplification orders are analagous to those of the Ecclesiastical Committee concerning Measures.  Like the Ecclesiastical Committee, the Legislative Reform Scrutiny Committee will be chaired by a senior judge (though an ecclesiastical one rather than a secular one) (para 34).  However, unlike the Ecclesiastical Committee, the new committee will be able to amend the legislation that it considers (para 37).

The 1919 Act requires the Ecclesiastical Committee to consider a Measure and make a report to Parliament on ‘the nature and legal effect of the Measure and its [the Committee’s] views as to the expediency thereof, especially with relation to the constitutional rights of all … subjects’ (s.3(3)).  Yet it will hardly be able to do this effectively in relation to the Enabling Measure, because the Measure declines to identify the legislation to which it will apply.  The Legislative Reform Scrutiny Committee will therefore exercise the Ecclesiastical Committee’s function instead.  Thus the constitutional function of the Ecclesiastical Committee is frustrated, and two committees are required to do the work of one.  Sir Humphrey would be proud!

If, however, the Enabling Measure did specify the legislation to which it applies there would be no need of a new scrutiny committee, because the Ecclesiastical Committee would be able to scrutinise effectively.  As well as being inconsistent with the Ecclesiastical Committee’s function, the proposed order-making procedure is arguably inconsistent with the legislative function of the General Synod ‘to consider matters concerning the Church of England’ (Article 6(a), Synodical Government Measure 1969, sch2), and with the function of the Archbishops’ Council ‘to co-ordinate, promote, aid and further the work and mission of the Church of England’ (National Institutions Measure 1998, s.1(1)).  Striking balances between the public interest and the Church’s interest, policing Church-state relations and determining ‘constitutional significance’ (paras 22-23) are not pertinent to either of these ecclesiastical institutions.

The Church of England should be free to simplify its own administration, provided that simplification will not materially affect the rights, interests and functions of third parties, i.e private individuals, the general public and secular bodies, both private and public.  Any simplification that affects only the rights, interests and functions of ecclesiastical officials and institutions (clergy, parochial church councils, diocesan committees and officers) should be a matter for the Church itself to decide.

We therefore respectfully submit to Sir Humphrey that the simplification of ecclesiastical legislation may well be a sensible reform in principle, but that the proposed Measure requires amendment as follows:

(1) ecclesiastical legislation considered eligible for simplification should be specifically identified and scheduled to the Measure and

(2) the Measure should provide that simplification orders may not materially affect the rights, interests and functions of third parties.

The Ecclesiastical Committee will then be able to scrutinise the Measure effectively, and the General Synod will be able to make the simplification orders without the need for any new committee or special consultation procedures and reports.  If a particular simplification order were to impinge upon third parties in breach of the Measure then that order could be ‘quashed’ by the High Court in judicial review proceedings.

The proposed Measure suffers from two further difficulties:

(1) its title.  The word ‘enabling’ evokes the 1919 Act, which is widely known as the ‘Enabling Act’.  It implies constitutional reform and ecclesiastical autonomy.  Yet the Measure serves only the modest aim of simplifying ecclesiastical administration.  As mentioned, it is not supposed to affect the relationship of Church and state.

(2) a continuing fixation with the Legislative and Regulatory Reform Act 2006.  The Ecclesiastical Law Society’s sartorial criticism of the proposed Measure as an ”off the peg’ solution … borrow[ed] from [the 2006 Act]’ (Response, para 3.2, July 2015) has been answered with an assurance that the Measure will be ‘specifically tailored to the particular context of the Church’ (para 16).  However, it is argued that the 2006 Act cannot be applied to the Church of England, even in a ‘tailored’ form, for reasons discussed in the post ‘Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice’, which is filed below.

Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice

‘A Simpler Way of Reforming Church Legislation’ (General Synod Miscellaneous Paper 1103, issued 13th April 2015)

In the mid-20th century the cause of ecclesiastical law reform had a powerful supporter in the person of Archbishop Geoffrey Fisher, Archbishop of Canterbury from 1945 to 1961.  Fisher was not a lawyer, but as a former headmaster he possessed a natural appreciation of the importance of discipline.  As bishop, he had to contend with rebellious ritualists in the liturgical anarchy which followed Parliament’s rejection of the revised Prayer Book in the 1920s.

The commission that eventually produced the 1947 report The Canon Law of the Church of England was appointed before Fisher became Archbishop, but Fisher was apparently the driving force behind the revision of the canons of 1603.

The Archbishop’s interest in ecclesiastical law was not widely shared by his contemporaries.  One commentator was scornful: ‘An extraordinary feature of the Church of England in the post-war years was the fact that, faced … with its mission to the nation and … immense administrative problems, its representative bodies spent such an inordinate amount of time on the revision of the canon law …’ (Paul Welsby, A History of the Church of England 1945-80, OUP 1984, p.41).  Archbishop Fisher, he relates, ‘was probably never happier than when he was spending long hours in drafting canons in exact phraseology’ (p.42).  One dignitary apparently compared ‘canon law’ revision to rearranging the furniture when the house was on fire!

Despite his strong commitment, forceful personality and a lengthy tenure as Archbishop, Fisher’s efforts at law reform enjoyed only limited success.  The revised canons were not finalised until 1969, more than 20 years after the 1947 report and some years after Fisher’s departure from Lambeth Palace.  The late Owen Chadwick described the whole project as ‘a pregnancy that lasted for years and gave birth to a mouse’ (Michael Ramsey, OUP 1991, p.336).  (It must also be admitted that the Church in Wales never adopted Fisher’s canons, choosing to stick to the canons of 1603, and seems none the worse for this.)

Nor was Fisher the first Archbishop of Canterbury to be interested in law reform.  The Submission of the Clergy Act 1533 provided for the appointment of a royal commission with authority ‘to view, search and examine the said canons, constitutions and ordinances provincial and synodal heretofore made’ (s.2).  Archbishop Thomas Cranmer was put in charge of this commission.  Cranmer is now remembered for his unique contribution to Anglican liturgy, but he was also much occupied with the law.  Yet what his biographer calls ‘Cranmer’s cherished canon law revision project’, the reformatio legum ecclesiasticarum, never came to fruition (D MacCulloch, Thomas Cranmer, Yale 1996, p.500).  In 1640, on the eve of the civil war, Archbishop William Laud, another enthusiast for ecclesiastical discipline, promulged a new set of canons, but these were never recognised as lawful.

The 19th century litigation over public worship did nothing to enhance the prestige of ecclesiastical law.  Sir Robert Phillimore, the original author of Phillimore’s Ecclesiastical Law, strove gallantly to produce a workable, coherent liturgical law.  His judgment in the case of Martin v Mackonochie (1868) 2 Admiralty and Ecclesiastical Cases 116 is 130 pages long.  However, his formidable erudition was in vain.  As Dean of the Arches, he was liable to be overruled by the Privy Council.  He himself observed wryly that ‘The cross was holden to be lawful when on a chancel screen [but] unlawful when attached to the holy table [i.e the altar].  The result seems to be that a cross is lawful everywhere except on the holy table.  It is not easy to discover any principle on which [this law] rest[s]’ (Ecclesiastical Law, pp.732-3).

In 1874 Parliament passed the Public Worship Regulation Act, an attempt to enforce the 1662 regime of public worship on romanizing ritualists.  (The original Bill was apparently drafted by yet another Archbishop of Canterbury, Archibald Campbell Tait).  It failed.  Clergy who disdained the Act’s provisions were imprisoned, thereby becoming martyrs for the ritualist cause.  In 1906 a royal commission concluded that the 1662 regime was unenforceable.  Yet the present regime of public worship was not finally settled until the Worship and Doctrine Measure 1974, a full 100 years after the Public Worship Regulation Act.  Archbishop Michael Ramsey spent his last day in office trying (successfully) to persuade the House of Lords to approve the Measure.

The anarchic state of public worship regulation for such a long time made ecclesiastical law appear irrelevant at best and obstructive at worst.  It is not surprising that Archbishop Fisher’s efforts at law reform met with apathy and scepticism.

This depressing narrative may suggest that ecclesiastical law reform for its own sake is a hopeless cause.  If even Archbishops of Canterbury are unable to effect significant law reform, who can?

However, there is a glimmer of hope on the horizon.  The General Synod’s consultation paper, cited above, seems to envisage a new programme of law reform.  The Ecclesiastical Law Society has just issued its dignified Response to the consultation paper (published on its internet website 20th July 2015).

The Response laments the lack of interest in law reform hitherto.  The Society has been ‘a voice crying in the wilderness’ on this subject (para 2.3).  The Response relates, with a hint of wounded pride, that the Society proposed its own programme of law reform as long ago as 1987, but this was ignored by the ungrateful legislators.  Nevertheless, despite being thus ill-used for so many years, the Society magnanimously ‘renews its offer to place at the General Synod’s disposal its collective experience and the expertise of its members’.

The consultation paper refers to ‘The Presenting Problem‘ (singular), but it seems to identify two separate problems:

(1) the legislative procedure laid down by the Church of England Assembly (Powers) Act 1919 is too lengthy and onerous (cf paras 7-8) and

(2) the present volume of ecclesiastical legislation is too large and complex.

These problems are different in character, and should not be confused.  Problem (1) is procedural, and it is concerned with future lawmaking.  Problem (2), by contrast, concerns the substantive law, not procedure, and it is concerned with the past, with legislation that has already been made.

What are the proposed solutions to these two different problems?

(1) Most ecclesiastical legislation should in future be secondary legislation, in effect statutory instruments.  This means that it will no longer be subject to the scrutiny of the Ecclesiastical Committee of Parliament, as required by s.3 of the 1919 Act.

This is reasonable.  As the consultation paper points out, most secular legislation is now secondary legislation, so why should most ecclesiastical legislation be primary legislation?  We have suggested elsewhere that the Ecclesiastical Committee may have outlasted its usefulness (‘Does Parliament need an Ecclesiastical Committee?’, filed below).  The Committee’s essential function, which is safeguarding ‘the constitutional rights of all … subjects’ (s.3(3)) is now exercised by the High Court, which has power to ‘quash’ secondary legislation that is considered unconstitutional.

The Ecclesiastical Law Society gives cautious approval to the proposal, suggesting that secondary legislation may be appropriate in matters where the Church of England is ‘properly autonomous’, while retaining primary legislation for matters which engage Church – State relations and the rights of individuals (Response, para 3.4).

This distinction is important.  The 1919 Act permits a very broad scope to Church Measures.  Measures may legislate on anything ‘touching matters concerning the Church of England’ (recital).  If secondary legislation is to become the norm of ecclesiastical law, its permitted scope will have to be narrower than that.

(2) The consultation paper proposes ‘pruning and simplifying the Church’s over-elaborate statute book’ (para 12), by means of a statutory power similar to that conferred by the Legislative and Regulatory Reform Act 2006.  This Act empowers the (secular) government to amend both primary and secondary legislation by order.  An order may be made for one of two purposes:

(1) ‘removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation’ (s.1, quoted at para 10) or

(2) simplifying the language of primary legislation so that it is more accessible or more easily understood.

The consultation paper’s advocacy of a burden-reducing power similar to (1) may be based on a careless reading of the 2006 Act.  The ‘persons’ referred to in the Act are private persons, not public authorities and officials.    The Act is intended to relieve citizens, not officials.  S.1(4) of the Act makes clear that an order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department, unless it affects the Minister or department in the exercise of a regulatory function’.  The reference to a regulatory function means that an order may be made to relieve citizens of a burden imposed on them by a particular regulatory regime.  The Act is not intended to lighten the load on public authorities, only on persons whose activities are subject to regulation by those authorities.

It is argued that there is no proper scope for an order of this type in the Church.  Apart from the regulation of weddings and funerals (in particular the fees involved), it is hard to see how ecclesiastical legislation imposes any burden on ordinary churchgoers, let alone non-churchgoers.  Parishioners may be affected by pastoral reorganisation (e.g closure of a church or merger of parishes) or by works done to the parish church, but ecclesiastical law makes scrupulous provision for reorganisation and faculty proposals to be publicly advertised and objections to them considered.  The ‘burden’ of ecclesiastical legislation falls almost exclusively on ecclesiastical officials and authorities and their employees, i.e those involved in the Church’s governance and ministry.  Yet, as mentioned, the order under the 2006 Act does not apply to officials and authorities.

It may, of course, be appropriate to remove a particular burden on an ecclesiastical institution or office, or to alter its function in some way.  But this is a matter for ordinary legislation, not any special order.  As the Ecclesiastical Law Society points out, obsolete legislation could easily be repealed wholesale by an uncontroversial Revision Measure (Response, para 4.4).

It is also hard to accept to accept that ecclesiastical legislation is unduly complex and in need of a language-simplifying order similar to (2).  Some ecclesiastical legislation, perhaps even quite a lot of it, is undeniably boring to read, but that does not make it complex.  It is certainly easier to read than much secular law.  Reading ecclesiastical legislation requires a knowledge of its subject-matter (the institutions, ministry and property of the Church) and a degree of patience.  Ecclesiastical officeholders and employees should be expected to possess both, and, as mentioned, they are the only people who are likely to be directly affected by most ecclesiastical legislation.  And they can always call on free advice from the Church’s legal officers.

It may well be true that some ecclesiastical legislation is ‘over-elaborate’, but whose fault is that?  Since 1919, the Church has been free to legislate for itself, subject only to the veto of Parliament.  No external authority forces legislation on the Church.  Any difficulty is therefore entirely self-inflicted.  If the General Synod is troubled by the volume and detail of legislation, it should just approve less and simpler legislation.

Some provisions of Church Measures can indeed be irritatingly petty and pedantic.  There are seemingly endless requirements to obtain consent, consult, inform, consider representations, convene meetings.  Not much is left to the wisdom of common law, let alone common sense and common courtesy.  A casual reader might conclude that the draftsmen of ecclesiastical legislation must have a low opinion of the competence and integrity of its subjects!

On the other hand, the minuteness of ecclesiastical legislation may be a credit to synodical government.  The synodical process, and the ecclesiastical legislation which it has produced, may be admired for its inclusiveness, the stable balance of conflicting interests that it has maintained since 1919.

The legislative importance of a particular matter is a question of interest.  The synodical process is a dialogue between a number of interests.  Bishops seek effective powers of oversight.  Lesser clergy seek autonomy and security of tenure.  Persons of particular ‘churchmanship’ seek to express this in their preferred styles of worship, and under the guidance of like-minded clergy (and clergy of particular gender, of course).  Ecclesiastical judges, with the conservation lobby behind them, seek to maintain their control over dealings with Church property.  Cathedral chapters seek to preserve their mediaeval privileges.  The Church Commissioners seek to avoid excessive demands on their resources.  Diocesan authorities seek to manage their investments efficiently.  Legal advisers seek to minimise the risk of litigation.

The settlement of ecclesiastical law on the basis of interest may be another reason for Fisher’s limited success.  His project did not engage any practical vested interest in the Church, only a minority intellectual interest, so it had little momentum.  (Perhaps Cranmer’s project failed for the same reason.)

Modern ecclesiastical legislation may be praised for its pragmatism.  However, there is an unedifying contrast between its jealous micro-regulation of the Church’s property and interest, and its much briefer references to the Church’s religion.  The selection and training of candidates for the ordained ministry is almost entirely regulated by quasi-legislation, i.e informal guidelines and codes of practice, not by proper law.  The remarriage of divorced persons in church is also dealt with by quasi-legislation which contradicts the proper law forbidding such remarriage.  There is virtually no legislation concerning catechesis, or the use of the Bible in worship.

The legislators may reply that this is as it should be.  Legal regulation of religion should be minimal.  The proper function of ecclesiastical law, like secular law, is the regulation of worldly matters such as property, not other-worldly ones.  It is anachronistic and pre-modern to suggest that the separation of law and religion undermines both, and even separates man from God, and that human rights and human authority can only be understood correctly in the context of the rights and authority of God.

 

The Preparation of Church Measures

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).

Also,

‘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)).

Does Parliament need an Ecclesiastical Committee?

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.