‘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.