Ecclesiastical law

Category: Synodical Government

To Make Provision: The Gentle Art of Synodical Government

The General Synod was formerly known as the National Assembly of the Church of England, or ‘Church Assembly’ for short. The Church Assembly first received statutory recognition under the Church of England Assembly (Powers) Act 1919, the so-called ‘Enabling Act’.

It got its present name from the Synodical Government Measure 1969, s.2. Its constitution is found at schedule 2 of that Measure. The 1969 Measure also constituted diocesan synods (formerly diocesan conferences) and deanery synods (formerly ruridecanal conferences).

What does the General Synod do?

Schedule 2 contains extensive, detailed regulation of the membership and procedure of the General Synod. By contrast, there is very little regulation of its function, what it actually does.

The 1919 Act suggested that the Church Assembly / General Synod has 2 functions, to

(1) ‘discuss any proposal concerning the Church of England, and to make provision in respect thereof, and … where such provision requires Parliamentary sanction, the authority of Parliament shall be sought …’

(2) ‘debate and formulate its judgment … upon any matter concerning the Church of England, or otherwise of religious or public interest’ (Appendix 14).

The phrase ‘make provision’ in function (1) is exceedingly vague. It could refer merely to advice or exhortation, or supporting activities of a missionary or charitable nature. Function (1) does refer to a legislative function (preparing Measures for Parliament), but the wording ‘where such provision requires …’ may suggest that this function is intended to be exceptional, to be resorted to only where a particular ‘provision’ cannot otherwise be achieved.

The 1969 Measure reiterates the twofold function. The phrase ‘make provision’ is retained, indicating that the vagueness is intentional. However, the 1969 Measure suggests that legislation is normal, rather than exceptional, to function (1).

Thus the General Synod is

‘to consider matters concerning the Church of England and to make provision in respect thereof’ by

(1) Measure, under the 1919 Act

(2) canon

(3) order, regulation or other subordinate instrument authorised by a ‘parent’ Measure or canon

(4) Act of Synod, regulation, or other instrument or proceeding, where Measure or canon is not required’ (sch 2.6).

The purely deliberative function (2) is now worded ‘to consider and express … opinion on any other matters of religious or public interest’. This function is as broad as the ‘make provision’ function is vague. (Perhaps the idea was that wide-ranging discussion would ensure a better quality of ‘provision’.)

Legislation or regulation by canon is an ancient legislative function inherited from the convocations (cf 1969 Measure, s.1(1)). The revised canons do contain a reasonably coherent code of law concerning worship and doctrine (which are, after all, the raison d’etre of the Church). They also contain useful summaries of the common law concerning ecclesiastical jurisdiction and ministry. But most ecclesiastical legislation now takes the form of Measures, and secondary rules and regulations made under the authority of Measures.

The diocesan and deanery synods both share the General Synod’s twofold function ‘to make provision’ and ‘to consider and express their opinion etc’ (ss.4(2) and 5(3)), though their constitutions do not confer any legislative power. Instead of legislating, the diocesan synod is ‘to advise the bishop on any matters on which he may consult the synod’ (s.4(3)(b)).

However, the diocesan synod does possess a number of specific regulatory powers conferred by various Measures. For example, the constitution and procedure of the diocesan parsonages board is prescribed by a scheme made by the diocesan synod (Repair of Benefice Buildings Measure 1972, s.1). The synod also has power to give directions to the finance board (Diocesan Boards of Finance Measure 1925, s.3(1)), and to most other diocesan committees.

The Church of England’s Parliament?

This glib description of the General Synod is familiar, but comparisons with Parliament can be misleading. Its legislative and deliberative functions resemble those of Parliament. However, there is nothing in either the 1919 Act or the 1969 Measure to support a constitutional doctrine of the General Synod’s supremacy over the Church, analogous to Parliament’s supremacy over the state.

The vagueness of the General Synod’s ‘make provision’ function hardly supports a claim of its supremacy. The fact that the function is shared with diocesan synods, and even with the lowly deanery synods, also undermines such a claim.

The 1919 Act positively denied the Church Assembly’s supremacy. It provided that ‘Nothing in this Constitution shall … diminish or derogate from any of the powers belonging to the convocations … nor shall the Assembly exercise any power or perform any function distinctively belonging to the bishops in right of their episcopal office’ (Appendix, para 15).

The 1969 constitution of the General Synod suggests that its function is not supreme authority but rather its opposite – balance. This is the reason why there is so much regulation of its membership and procedure, and so little of its function.

Thus the Synodical Government Measure seeks to maintain a balance of claims and interests between

(1) bishops and other clergy

(2) clergy and laity, and

(3) the 2 Provinces of Canterbury and York.

The 1919 Act is concerned with the balance between Church and state, hence the legislative procedure provided by the Act.

Other legislation extends the balancing exercise to the various national and diocesan committees (also variously described as boards, commissions, councils) constituted since 1919, and to the Church Commissioners. The membership of these bodies, like that of the synods, is subject to quotas of episcopal, clerical and lay representatives.

This gentle system of government, based on deference, deliberation and balance, suffered an unpleasant economic jolt in the early 1990s. Ecclesiastical investments sustained heavy losses in the intense property recession of that unhappy time. Clergy stipends were painfully cut across the board. In consequence, discussion of synodical government moved away from high-minded theological reflection on the laity, and started to focus instead on more mundane considerations of administrative efficiency and accountability.

The National Institutions Measure 1998 addressed the economic concerns by constituting a new national body, the Archbishops’ Council, ‘whose objects shall be to co-ordinate, promote, aid and further the work and mission of the Church of England’ (s.1(1)). The Council is the last major addition to the structure of synodical government. The 1998 Measure also made changes to the constitution and functions of the Church Commissioners.

The Synodical Government (Amendment) Measure 2003 reduced the membership of the General Synod, in an apparent attempt to make it function more effectively (though nothing was done to limit the excessively broad scope of the Synod’s deliberative function (2), and so encourage members to concentrate on governance matters).

Cabinet Government?

Economic difficulties connected to the recent coronavirus pandemic have encouraged renewed interest in efficiency and accountability in synodical government.

The recent report of a ‘Governance Review Group’ (GS2239, 2021) lamented that

’20 years on from [the National Institutions Measure] the Church of England still does not have a unified national governance structure, or a single focus of decision-making and strategic planning‘ (para 75) and

‘there remains a multitude of bodies all seeking to do the Church’s work but with a diverse set of accountabilities, structures and methods’ (para 78).

The solution to this problem is a vigorous policy of centralisation. Noting that the House of Bishops of the General Synod already has a standing committee of 15 members, ‘a suitable size to be a governance body’ (para 111), the report recommends a national ‘board of bishops’ (para 113), and the establishment of a new ‘Church of England National Services Governance Body’, known as CENS for short (para 133).

This may be a good idea (though it is unclear why a new national governance body has to be created, rather than making use of the existing one – the Archbishops’ Council). However, it is argued that any policy concerning national administration should address 2 questions

(1) Should the Church have a national administrative function at all?

(2) If yes, what should be the relationship between the national administration and the diocesan administration?

The report correctly observes that synodical government is a system of ‘widely dispersed authority’ (para 79). Its function is expressed in the vaguest terms. However, it is clear that synodical government is constructed around the institutions of pre-synodical government – Parliament, the convocations, the dioceses and the Commissioners. In particular, the General Synod is constructed around the convocations, the diocesan synod around the diocesan bishop.

The convocations had a legislative function, which now vests in the General Synod, but they had no administrative / executive function. The General Synod’s constitution likewise makes clear that the General Synod has a legislative function (Measures etc), but makes no specific allusion to an administrative / executive function. This is consistent with pre-synodical government.

In pre-synodical times, the diocese, not the nation or the province, was the ordinary unit of ecclesiastical administration. Indeed the diocesan bishop is described as ‘the ordinary‘ (canon C18(2)). The archdeacons, who assist the bishop, are likewise described as ordinaries (canon C22(8)). Thus legislative power in the Church was national and provincial. Administrative / executive power was diocesan.

There was virtually no supra-diocesan ecclesiastical administrative function before the 19th century. The Archbishops have a common law metropolitical jurisdiction ‘to correct and supply the defects of other bishops’ (canon C17(2)), but this has long been limited in practice to ad hoc intervention in response to a serious problem. Only when an intervention has been made does the Archbishop exercise ‘jurisdiction as ordinary’.

Apart from that, the Archbishops confirm the election of new bishops, and ordain (consecrate) them if they are not already in episcopal orders. Provincial courts hear appeals from the dioceses, but this is a judicial function rather than an administrative one. The Archbishop of Canterbury grants special marriage licences where banns and common licences will not suffice.

This account indicates another difference between the General Synod and Parliament. Parliament is supposed to hold the government (i.e the executive branch of government) to account. In England (though not in other parts of the United Kingdom), Parliament still functions in a unitary state with a central cabinet government. By contrast, there is no cabinet government in the Church. The Archbishops preside over the General Synod, as they presided over the convocations, and the bishops may be ‘frontbenchers’ in the Synod, but that is not the same thing. The bishops have no collective executive responsibility, only an individual responsibility for their own dioceses.

The Ecclesiastical Commissioners (now the Church Commissioners) were first constituted in the early 19th century, and given the national administrative function of effecting pastoral reorganisation, including the redistribution of ecclesiastical property. However, the Commissioners were constituted because the diocesan authorities had no ability to effect this reorganisation and redistribution themselves.

That National Institutions Measure and the Archbishops’ Council may have been an attempt to construct something like a system of ecclesiastical cabinet government. The recent governance report seems to propose something similar. (Imitation is the sincerest form of flattery.)

However, national administration cannot be considered in isolation from diocesan administration. Any expansion of national administration without a corresponding reduction in diocesan administration obviously risks duplication and increased expense.

If dioceses are permitted to make joint administrative arrangements inter se, agreeing on policies and pooling resources, this should reduce, not increase, the need for a strong central administration.

It is argued that, while centralisation of the national administrative function may be desirable, ecclesiastical administration as a whole should conform to the contours of both synodical government and pre-synodical government, with the diocese as the ordinary unit of administration. This means that administration at the national and provincial levels should be limited to

(1) functions which cannot be exercised at diocesan level (diocesan reorganisation is an obvious example – altering diocesan boundaries, merging dioceses or creating new dioceses)

(2) reviewing, or hearing appeals from, diocesan decisions (a quasi-judicial function) and

(3) intervention, to remedy a serious administrative failure within a particular diocese.

(This blogpost presupposes some knowledge of the history, constitution and procedures of synodical government. These subjects are discussed in other posts filed under this category. See also posts filed under the category ‘Parliament and the Church’.)

The Crockford Preface 1987: Thirty Years On

The Preface excited remarkable interest and controversy.  By a longstanding custom, its author was anonymous.  However, even in those pre-internet days, anonymity was difficult to maintain in the face of relentless media attention.  The then Archbishop of York, Dr John Habgood, publicly condemned the ‘sourness and vindictiveness’ of the Preface, and the ‘scurrilous charges’ that it supposedly made.  Unnerved by the storm of controversy, and threatened with exposure, the author took his own life.

He was subsequently identified as the Reverend Dr Gareth Bennett (1929-1987), Oxford don and priest of the Church of England.  His Preface is 40 pages long.  It was republished in a posthumous collection of his work, To The Church of England (1988, at pp.189-228), edited by Geoffrey Rowell, a sympathetic colleague.  (Bishop Rowell himself died, of natural causes, earlier this year.)

At about the same time, Archbishop Habgood published a more measured assessment of the Preface, in Confessions of a Conservative Liberal (1988, at pp.82-91).  However, the tragic denouement of the controversy damaged his reputation, and may even have cost him the succession to St. Augustine’s Chair when it became vacant 3 years later.

Dr Bennett saw his task as the provision of ‘an informed and critical account of the state of the Anglican Communion and the Church of England in particular’ (p.189).  Hence the need for anonymity.  Anonymity made possible ‘the scrutiny of a writer who is given complete independence’ (p.190).

His essential criticism of ecclesiastical governance was that it fails to enable adequate consultation.  Improved consultation will improve the quality of ecclesiastical governance, by making it more cohesive and inclusive.

The Preface identifies 3 specific failures of consultation, within:

(1)  the Anglican Communion

(2)  the synods of the Church of England and

(3)  the Crown Appointments Commission (now called the Crown Nominations Commission), which nominates diocesan bishops to the Crown.  It was this that caused all the controversy.

(1) The Anglican Communion

The Preface begins with a survey of the fragmented state of the Anglican Communion.  Anglicanism began in England, of course, and the word ‘Anglican’ really means ‘English’.  The Church ‘followed the flag’ as the British Empire spread across the globe.

Bennett observed that ‘The Englishness of the Communion is not what it was … with the spread of American influence and the natural desire of African and Asian dioceses to break with their colonial past and develop their own indigenous styles’.  The Book of Common Prayer and its derivatives have fallen into ‘virtual disuse’ (p.197), and the new liturgies ‘have distinct doctrinal differences from each other’ (p.198).  This prompts the rhetorical question: ‘without its English style what does keep the Communion together?’ (p.197).

Another fragmenting force is the rejection of classical High Anglican theology, which found the Church’s authority in the Bible as this was interpreted in the life and practice of the Early Church (p.191).  Theologians now suggest that the authorities of the Early Church are too obscure, happened too long ago, and in too different circumstances, to guide the modern Church (cf p.200).  Modern man is therefore condemned ‘[to] live amid the ruins of past doctrinal and ecclesiastical systems, looking to the Scriptures only for themes and apprehensions which may inform [him] … ‘ (pp.200-1).

The existing pan-Anglican consultative bodies are not capable of arresting this process of fragmentation.  The Archbishop of Canterbury is no more than ‘an honoured guest’ outside England.  The Primates’ Meeting ‘lack[s] the authority to make major recommendations’ (p.203).  The ordination of women (still a novelty at that time) has undermined the unifying collegial function of the bishops: ‘the episcopal ministry … the focus of unity, has become a focus for Anglican disunity’ (p.199).

Bennett therefore argued for ‘a reconstituted [Anglican] Consultative Council … to meet more frequently, have an adequate secretariat and the assistance of theologians and experts … there will have to be some self-denying ordinance by which the provinces agree that certain matters should not be decided locally but only after a common mind has been established among the Churches’ (pp.203-4).  Thus Churches with very different cultural values would be forced to listen to each other.

This, of course, anticipated the conclusions of the Windsor Report of 2004, which fell flat.  Its proposal for a pan-Anglican ‘Council of Advice’ and an ‘Anglican Communion Covenant’ is really a more elaborate version of Bennett’s proposal.

Archbishop Habgood generously described the analysis of the Anglican Communion as the ‘best part’ of the Preface (p.87), though he did not endorse Bennett’s proposal.  The failure of the Windsor Report may have vindicated him on this point.  Instead, the Archbishop founded his hope for the Communion on a pan-Anglican ‘doctrine commission’ that had recently been established, but this body (if it still exists) has not been conspicuously successful either.

(2) Synodical Government

Bennett was not the first to point out that the House of Laity of the General Synod is not very representative of its constituency.  Ordinary churchgoers cannot elect its members, they can only elect those who do.  The House of Clergy is more representative, but even there the representative quality is diminished by the large number of ex officio members.

However, his most important point was that the General Synod has very little control of ecclesiastical governance.  He observed that, though the House of Commons can vote the government out of office, ‘the General Synod, by contrast, finds itself faced with a government of the Church which is almost wholly independent of it’ (p.212).

The bishops are not accountable to the General Synod in the way that ministers of the secular state are accountable to Parliament.  Ministers have to answer parliamentary questions and give evidence to select committees concerning the exercise of their responsibilities.  There is no equivalent scrutiny of bishops.

It is true that ecclesiastical legislation (Measures, canons and subordinate legislation) requires the Synod’s approval, but there is not much of this, and it is mostly uncontroversial.  Hence ‘most of the debates … are … on reports from various boards or committees … motions … whether passed or amended, lead to no action at all’ (p.212).

The General Synod’s constitution confirms its freedom (of which it takes full advantage) ‘to consider and express [its members’] opinion on any other matters of religious or public interest’ (Synodical Government Measure 1969, sch2(6)(b)).  But what does this have to do with the governance of the Church?

Synodical government is a misnomer if the synods do not govern the Church.  There is a well-known axiom that the Church of England is ‘episcopally led and synodically governed’.  However, Bennett argues that there is little connection between the two: ‘nothing the Synod does has much effect on [the bishops], the administration of their diocese or the work of the leadership group within it’ (p.212).

This explains ‘the irritation which many bishops feel at having to spend so much time at Synod meetings, and their desultory contribution to its debates’ (p.212).  And who can blame the bishops for being bored by the General Synod, if its proceedings have so little relevance to their work?

Although Bennett does not make this point, English bishops differ from their Roman Catholic counterparts as well as their secular counterparts in their lack of accountability.  Canon 399(1) of the Code of Canon Law 1983 obliges every bishop ‘to present a report to the Supreme Pontiff every 5 years concerning the state of [his] diocese … according to a [standard] form … determined by the Apostolic See’.  This form may resemble the articles of enquiry on a visitation.

The bishop presents the report personally on his obligatory ad limina visit to Rome (canon 400(1)).  (Apparently, when the bishop appears before the Pope, a map of his diocese is hung up in the papal library, for the Holy Father’s ease of reference.)  The bishop receives ‘feedback’, not only from the Pope personally, but also from the various departments of the Roman Curia.

Perhaps if English bishops were required to report regularly, and individually, on their leadership of their dioceses to the General Synod (or the constituent convocations) episcopal leadership and synodical government might become more closely linked.  Episcopal interest in synodical proceedings would certainly revive!

Besides the General Synod there are the diocesan synods, but these also lack much constitutional equipment to scrutinise episcopal leadership.  The bishop is required ‘to consult with the diocesan synod on matters of general concern and importance’ (1969 Measure, s.4).  However, the synod can merely ‘advise the bishop on any matters on which he may consult the synod’.

The Archbishop has an ancient power to visit the bishops and dioceses of his province, to the end ‘that means may be taken thereby for the supply of such things as are lacking and the correction of such things as are amiss’ (canon G5(1)).  Archiepiscopal visitations have been held in recent years, but only to particular dioceses or churches, in order ‘to correct and supply the defects of other bishops’ (canon C17(1)).  In other words, an archiepiscopal visitation is not a regular, routine review but only occurs when something goes seriously wrong and the local bishop cannot cope.

Every diocesan bishop is now required to submit to a procedure known as ministerial development review, once every 2 years.  This review is organised by the Archbishop, who must also organise one for himself (Terms of Service Regulations 2009, reg 18(2)).  However, the General Synod is not involved in this, and the review’s conclusions are kept confidential.  The requirement was introduced to demonstrate the bishop’s equality (or ‘common tenure’ as it is called) with other ecclesiastical officeholders, who are also required to undergo ministerial development review, not his accountability to Church members.

(3)  The Crown Appointments Commission

After criticising inadequate consultation between the bishops and the synods, Bennett controversially proceeded to criticise the consultation process for the nomination of new bishops.

He complained of ‘a virtual exclusion of Anglo-Catholics from episcopal office and a serious under-representation of Evangelicals’ (p.221).  He also noted ‘the personal connection of so many appointed with the Archbishop of Canterbury himself’.

Dr Bennett was of the Anglo-Catholic party himself.  Moreover, despite a brilliant academic career (including a starred First from Cambridge), ecclesiastical preferment had eluded him.  He had to endure the agony of being passed over in favour of men of inferior ability, whose churchmanship was totally at variance with his own.  He was therefore vulnerable (as he would surely have realised) to the reproach that his criticism of episcopal appointments was, as Archbishop Habgood carefully explained, ‘an outburst from a disappointed cleric’ (p.83).

Bennett concluded that ‘An Archbishop should have an influence on appointments [but] it is clearly unacceptable that so many are the protégés of one man and reflect his own ecclesiastical outlook’ (p.222).  This was represented by Habgood, and the media, as an ‘attack’ on the Archbishop of Canterbury.

Archbishop Habgood justified his harsh words about the Preface by invoking the imperative of confidentiality.  ‘The [Crown Appointments] Commission can only do its work properly if its members feel free to discuss the lives and characters of [candidates] with total frankness, and if those who provide information can be similarly satisfied that nothing will be disclosed outside the actual meeting itself’ (p.84).

From this he concluded that a commentator who ‘claimed to write knowledgeably about the Commission … must either be abusing confidence … or … speculating on the basis of gossip’.  Either way, the Preface was dishonest.  The Archbishop concluded confidently ‘I believe [my criticism] is irrefutable’ (p.84).

It may not be.  Does confidentiality mean that knowledgeable, and fair, writing about the Commission is actually impossible?  Is the Commission’s work so confidential as to place it above and beyond all criticism?

Of course, the deliberations of the Crown Appointments Commission must be kept confidential, for the reasons identified by Archbishop Habgood.  However, the constitution, procedure and membership of the Commission are not, and should not be, confidential.  They are open to public comment and scrutiny.  And although the deliberations of the Commission are confidential, the outcome of those deliberations (i.e the appointments made as a result of them) is not.

It is not acceptable for a commentator to betray confidences, or make stuff up, and Dr Bennett did neither.  But it is acceptable to draw inferences from what is known of the constitution, procedure, membership (including the churchmanship and personalities of the members) and outcomes of the Commission.  Indeed any worthwhile commentary must draw such inferences, or it will add nothing to the known facts.  Dr Bennett did not betray confidences, nor did he lie.  He merely drew inferences from what was publicly known.

The Crown Appointments Commission is served by 2 appointments secretaries: ‘great power rests with the secretaries [because] they compile the list of candidates’ (p.219).  The Commission is chaired by the Archbishops, and ‘it is usually not difficult for a chairman to steer enough of [a committee’s] votes in the right direction’ (p.221).  The churchmanship of the Archbishops, and of the other Commission members, is known.  If no Anglo-Catholic bishops were appointed then the inference is that either no Anglo-Catholic candidates were shortlisted, or a majority of the Commission voted against them.

Of course, inferences can be mistaken.  Perhaps the bishops approved by the Commission were not mostly former colleagues and protégés of the Archbishop of Canterbury.  (That mistake, at least, should have been easy to correct.) Or perhaps they were simply the best men for the job, and their connection to the Archbishop and lack of Anglo-Catholicism a pure coincidence.  Or perhaps lots of Anglo-Catholics were offered bishoprics but turned them down.

Mistaken inferences may well be irritating to those in confidential possession of the true facts.  But they are not dishonest.  Archbishop Habgood’s criticism of ‘scurrilous charges’ was itself rather scurrilous.

A subsequent nomination of the Crown Appointments Commission suggests that there was some force in Bennett’s criticism.  And it was made when Archbishop Habgood was still in office, and still co-chairman of the Commission.  A candidate for one of the leading sees had a criminal conviction for indecency.  Yet this rather salient fact was not known to the representative members, who then approved the candidate’s nomination in ignorance of his past.  (Perhaps this could not happen nowadays, on account of the rigorous ‘safeguarding’ requirements.)


Church Membership: Religion and Representation

Church Representation Rules 1(2) and 54(1) (Synodical Government Measure 1969, schedule 3).

Lay participation in synodical government has always been subject to a religious qualification.  The qualification differs according to the degree of participation.  A distinction is drawn between

(1) a parish elector (a layperson whose name is on the electoral roll of a parish) and

(2) a lay member of a parochial church council (‘PCC’) or synod.

The present religious qualifications are stated in Rules 1(2) (for electors) and 54(1) (for PCC and synod members) of the Church Representation Rules.  The present Rules date from a statutory instrument of 1994 (no 3118(1)).

The original qualifications were first stated in the Rules for the Representation of the Laity 1(1) and 2(1) (Church of England Assembly (Powers) Act 1919, Schedule 1).  They were rather exclusive in character.  An elector had to be

(1) a baptised member of the Church of England or of another Anglican Church and

(2) not a member of any other religious body not in communion with the Church of England.

Thus the religious qualification was based on communion, and communion meant membership of the Anglican Church.  This had the effect of excluding Protestant non-conformists from participation in synodical government.

A PCC or synod member had to be a communicant member of the Church of England / Anglican Church, not just a baptised member, and thus eligible to be admitted to the Anglican Eucharist.

Within the Church of England / Anglican Church, admission to the Eucharist was conditional upon episcopal confirmation.  The rubric of the Book of Common Prayer provided that a communicant had to be either confirmed, or at least ‘ready and desirous’ to be confirmed, as well as baptised. 

Thus the two degrees of participation in synodical government followed the two degrees of communion in the Church.  An elector had to be ‘in communion’ to the extent of being a baptised member of the Church of England, but was not required to be confirmed.  However, a PCC or synod member, who participated in synodical government to a higher degree than a mere elector,  had to be confirmed or at least ‘ready and desirous’, and so eligible for the full communion of the Eucharist.

In the era of post-war ecumenism, the concept of communion was re-examined.  The result was a greater emphasis on baptism as a sacrament common to all Christian communities.  All baptised persons are ‘in communion’ to some extent. 

It was also thought that, if baptism is the basis of communion, then admission to the full communion of the Eucharist should not, or not always, be conditional upon episcopal confirmation.  This view is consistent with Article 25, which specifically denies that confirmation is a sacrament.  Canon 60 of 1603 describes confirmation as a ‘custom’, though also as a ‘holy action’.

The Admission to Holy Communion Measure 1972 empowered the General Synod to permit baptised members of non-episcopal Churches to be admitted to the Eucharist.  Canon B15A, which was promulged under the authority of the 1972 Measure, confers a right to be admitted to Holy Communion on all ‘baptised persons who are communicant members of other Churches which subscribe to the doctrine of the Holy Trinity, and who are in good standing in their own Church’.

The religious qualifications for lay participation in synodical government were revised in accordance with Canon B15A.  The Church Representation Rules were revised by a statutory instrument of 1973 (no.1865).  That instrument noted that ‘The requirement that [an elector] is not a member of any religious body which is not in communion with the Church of England is abolished’.

Rule 54(1) provides that a PCC or synod member must still be a communicant in the Church of England.  However, the definition of a communicant now includes a person who receives Holy Communion in accordance with Canon B15A, as well as a person who has been confirmed.

Rule 1(2) lacks the clarity and simplicity of Rule 54(1).  It provides that an elector must be

‘(a) a [baptised] member of the Church of England or of a Church in communion therewith resident in the parish; or

(b) to be such a member and, not being resident in the parish, to have habitually attended public worship in the parish … or

(c) to be a member in good standing of a Church which subscribes to the doctrine of the Holy Trinity (not being a Church in communion with the Church of England) and also prepared to declare himself to be a member of the Church of England having habitually attended public worship in the parish …’.

A note to the present Church Representation Rules states that ‘The only Churches at present in communion with the Church of England are other Anglican Churches and certain foreign Churches’.  Thus Protestant non-conformist Churches are still not regarded as being in communion with the Church of England, modern ecumenism notwithstanding.

The wording of Rule 1(2) is convoluted, and may also create an unnecessary ecumenical difficulty.  All baptised individuals may be  members of the Church of England, even though also members of non-episcopal Churches.  They may be in full communion with the Church of England by baptism and sharing in the Eucharist.  However, their Churches are still not in communion with the Church of England.

This does not make much sense of the concept of communion.  It may introduce a false distinction between Church membership and communion.  Surely Church membership is communion?

Rule 1(2) also contains a strange distinction between Church of England ‘members’ and members of other Churches.  A member of the Church of England is entitled to enrolment as an elector on the basis of residence alone, whereas a member of another Church must be an habitual attender of worship.

It is hard to see the justification for this distinction.  All baptised and resident persons in the parish are parishioners.  The parish church is the parish church of them all.  A distinction between residents and non-residents of the parish may be justified.  However, if baptised persons from outside the parish choose to worship in the parish church, it is also hard to see why any distinction should be drawn as between them.

The effect of Canon B15A is that Church membership is now relevant only to the question of episcopal confirmation.  Rule 54(1) makes clear that, if one has not been confirmed, one must be a member of another Christian Church in order to qualify for membership of a PCC or synod.

However, references to Church membership have no proper place in Rule 1(2), because parish electors do not (and never did) have to be confirmed or participate in the Eucharist.  It is therefore argued that such references should be removed.  Rule 1(2) should be read in conjunction with Rule 54(1), not in isolation from it.  It will then become clear that the three relevant qualifications for enrolment as a parish elector are

(1) baptism

(2) residence in the parish and / or

(3) regular attendance at worship.

The Two Structures of the Church of England: Pyramids with Grass Roots

‘a pyramid structure of dispersed authority with the General Synod at its top and parochial church councils at the ‘grass roots’.’

(Mark Hill QC, Ecclesiastical Law, Oxford University Press, 3rd edition 2007, at p.38)

This memorable description of the legal-constitutional structure of the Church of England comes from the leading commentary on the subject, and offers an intriguing insight into the mind of its learned author.  However, it is argued that the Church of England, or ecclesiastical state, is better understood as comprising two structures:

(1)  the late mediaeval structure and

(2) the late Victorian structure.

The late mediaeval structure comprises the hierarchy of Archbishops, bishops, archdeacons, cathedral chapters, rectors (including lay rectors) and vicars, and Church courts, organised into provinces, dioceses and parishes.  This was the structure inherited from the late mediaeval Catholic Church and which survived the Reformation.

This structure was reorganised and rationalised by legislation from the 19th century onwards.  Recent reforms of the mediaeval structure include

(1) the introduction of team and group ministries, whereby rectors and vicars work together in the same parishes, instead of in separate parishes

(2) the reorganisation of the Church courts by the Ecclesiastical Jurisdiction Measure 1963 and the Clergy Discipline Measure 2003

(3) the reform of cathedral governance by the Cathedrals Measure 1999.

These adjustments have not altered the late mediaeval character of the structure.  The effect of modern legislation has been to reinforce the structure, not to dismantle it.

The late Victorian structure originated in the voluntary work of clergy and pious laypeople.  It started as a reaction against the secularisation of state and society in the 19th century.  The structure comprises the various institutions of what is now called ‘synodical government’, such as parochial church councils (PCCs), diocesan boards, conferences and trusts, houses of laity, and various other committees and corporations.

These institutions were not constituted by ecclesiastical law until the 20th century, but they began on a voluntary basis in the 19th.  Indeed some of them are still outwith the scope of ecclesiastical law.  Thus the Lambeth conferences and the theological colleges of the Anglican Church date from the 19th century, but they have never been legally incorporated into the structure of synodical government.

The most recent major development of the late Victorian structure was probably the creation of the Archbishops’ Council by the National Institutions Measure 1998.  The Dioceses Measure 1978 (now repealed) permitted the creation of ‘area synods’ within dioceses (s.17(2)).  However, synodical government by ‘area’ seems to have been discontinued by the Dioceses, Pastoral and Mission Measure 2007.

The convocations form the link between the mediaeval and Victorian structures.  Although virtually suppressed in the early 18th century, they were revived in the mid-19th century to form the nucleus of modern synodical government.

The development of modern synodical government is described in a Church of England report Government by Synod (1966).  In 1886 and 1892 the two Convocations admitted lay representatives to their proceedings for the first time since the middle ages.  At first, these new Houses of Laity had only a consultative, advisory role.  Lay representatives could comment on proposed legislation, but approval of the legislation depended on the bishops and lesser clergy alone.

In 1903 a new ecclesiastical assembly called the Representative Church Council was formed, comprising both Convocations, including their lay representatives.  This body evolved into the Church Assembly.

The Church Assembly was granted certain legislative powers under the Church of England Assembly (Powers) Act 1919, also known as the Enabling Act.  Half a century later, and following the 1966 report, the Church Assembly was reconstituted as the General Synod, under the Synodical Government Measure 1969, s.1.  The 1969 Measure also constituted the diocesan and deanery conferences as synods (ss.4 and 5).

It was originally felt that a synod was, or should be, an exclusively clerical body.  Thus the institutions of synodical government were originally described in secular, functional terms as ‘assemblies’ or ‘conferences’, because they included lay members.  The word ‘synod’ did not appear in legislation until the 1969 Measure.  The Church in Wales still declines to describe its representative assemblies as synods.  The Welsh equivalent of the General Synod is called only the ‘Governing Body’.

A mid-20th century commentator noted that the 1919 regime  ‘imposed a modern democratic system on a mediaeval theocratic one, and the two do not easily dovetail together’. (Bishop of London, ‘Our Legislative Assemblies’ (1954) Theology, p.204).

He further observed that the reverence for the ‘sacred’ office of the clergy meant that ‘the Enabling Act [of 1919] … left the rights of convocation unimpaired.  The four houses [of convocation, for Canterbury and York] were still responsible for matters of faith and worship because such questions were regarded as the special province of the clergy’.  The Church Assembly was kept separate from the convocations.  This caused practical difficulties: ‘it has never been quite clear where the rights and duties of convocation end, and those of the Assembly begin’.

Archbishop Michael Ramsey, who presided over the 1969 reforms, argued that the General Synod was practically needed as a forum ‘in which bishops, clergy and laity will sit together, debate together and decide together’ (House of Lords Official Report, volume 302, column 843).

However, a minority of the authors of the 1966 report remained unconvinced.  They argued that the ancient convocations

‘must remain provincial synods whose members are summoned … in the old sense of being set apart, under the vows of obedience … and subject to canonical discipline, to discharge their doctrinal and pastoral responsibilities’ (p.106).

This dissenting opinion evoked a concept of the synod as the self-regulatory professional authority of the ordained ministry, rather than as the Church of England’s ‘parliament’.

Although this view did not prevail, the present regime of synodical government includes certain safeguards of the ‘sacred’ ministry of bishops and clergy.

Hence diocesan and deanery synods, and PCCs, are not supposed to issue ‘any statement purporting to declare the doctrine of the Church on any question’ (Sections 4 and 5 of the 1969 Measure: s.2(2) of the Parochial Church Councils (Powers) Measure 1956).  A similar restriction was imposed on the Church Assembly under the 1919 Act (Appendix, rule 14(2)).

However, the restriction applies only to the declaration of doctrine.  It does not forbid discussion of doctrine.  It may difficult in practice to distinguish a discussion of doctrine from a declaration of doctrine.  The internet websites of dioceses and parishes suggest that the restrictions on declaring doctrine are widely ignored in practice.

The General Synod is not prohibited from declaring doctrine, but Article 7(1) of its constitution provides that legislative provisions or Acts of Synod which ‘touch’ worship and doctrine can only be approved by the General Synod ‘in terms proposed by the House of Bishops and not otherwise’ (1969 Measure, schedule 2.7(1)).  Again, the Church Assembly was subject to a similar provision (1919 Act, Appendix, rule 14(1)).

The members of the House of Laity of the General Synod are now mostly elected by the elected lay members of the deanery synods (Church Representation Rules, 35(3)), though there are ex officio and co-opted members as well.  There is no separate representation for licensed lay ministers.

However, licensed lay workers are ex officio members of their local deanery synod and so, unlike other lay people, have a direct vote in elections to the House of Laity (rule 24(6)).  Strangely, the rule refers only to lay workers, not lay readers, even though the Canons suggest that lay readers and lay workers are distinct (Canons E6 and E7).

Apart from this special provision for lay workers, the lack of direct representation for the parish electors means that the House of Laity suffers from something of a ‘democratic deficit’.  Ironically the ancient clerical convocations were probably more representative of their constituencies than is the modern General Synod.

Archbishop Ramsey acknowledged this difficulty.  Speaking in the House of Lords in 1974, he referred to the objection that ‘the [General] Synod fails to represent the laity because it is elected by 36,000 people, while there are nearly 2 million people on the parish [electoral] rolls’ (Official Report volume 354, column 867).  He suggested that direct election to the House of Laity by the parishes was simply too expensive to introduce.

The difficulty nonetheless remains, that the House of Laity is composed of persons with no individual responsibility for the ministry of the Church, its cure of souls, and with only a very doubtful claim to represent the lay members of the Church.  It has been observed that the House of Laity represents opinions rather than people.

The two convocations are organised by provinces, whereas the General Synod, like the Church Assembly before it, is a national body.  The 1966 report referred to the ‘fears of the Convocation of York as to the possible loss of status of the Northern Province should the powers of its convocation be curtailed’ (p.12).  The report also suggested that ‘in matters of theology and liturgy the views of North and South do not always coincide’ (p.97).

This concern may be reflected in Article 7 of the General Synod’s constitution which provides that a legislative provision or Act of Synod which ‘touches’ worship and doctrine may, after being settled by the House of Bishops, require the further approval of each House of each convocation sitting separately, and of the House of Laity sitting separately, if either convocation or the House of Laity requires this.

By the late 1990s, the North-South divide was evidently less acute.  The 1997 report Synodical Government in the Church of England suggested that the convocations had no significant function any more and recommended their abolition.  Nothing has yet come of this recommendation.

The 1969 Measure provides that the two Archbishops are joint Presidents of the General Synod (schedule 2, para 4(i)).  The National Institutions Measure 1998 likewise provides that the Archbishops are joint Presidents of the Archbishops’ Council (schedule 1.2).  The 1966 report stressed that ‘the two English primates should complement and balance each other … Canterbury should not be allowed to develop into a patriarchate or papacy’ (p.98).

The collegial character of the two Archbishops’ responsibilities for synodical government is in contrast to the status of ‘president’, ‘primate’ or ‘spiritual leader’ sometimes claimed for the Archbishop of Canterbury in relation to the Anglican Communion.

There may also be some misunderstanding of the place of the House of Bishops in synodical government.  The Interpretation Measure 1925 makes clear that the House of Bishops is ‘the House of Bishops of the General Synod’ (s.3).  It is not the House of Bishops of the Church of England.

According to yet another Church of England report Working as One Body (1993), the House of Bishops ‘has twice yearly residential meetings’ which are held independently of meetings of the General Synod (p.74).  Nevertheless the House of Bishops is not a free-standing institution.  It exists only as one House of the General Synod, or as one House of each Convocation, alongside the Houses of Clergy and Laity.

The 1997 report concludes that ‘Synodical Government is an attempt to seek and find the mind of Christ for His Church, as well as consensus in the ordering of the Church’s life’ (p.10). The 1966 report suggested that ‘no system of synodical government at the centre can be effective without a corresponding and complementary system in each diocese’ (p.8).  The diocesan and deanery synods should complement the work of the General Synod and of each other.

The functions of the General Synod are stated in Article 6 of its constitution (1969 Measure, schedule 2).  One of its functions is ‘to consider and express … opinion on … matters of religious and public interest’.  Sections 4 and 5 of the 1969 Measure provide that the diocesan and deanery synods share this deliberative function.

The diocesan and deanery synods also have a kind of reciprocal deliberative function.  S.4(5) of the 1969 Measure provides that diocesan synods must

‘keep the deanery synods … informed of the policies and problems of the diocese, and of the [agenda] of the diocesan synod’, and ‘keep themselves informed, through the deanery synods, of events and opinion in the parishes, and shall give opportunities for discussing … matters raised by deanery synods and parochial church councils’.

The function of the deanery synod under s.5(3) is ‘to bring together the views of the parishes … on common problems, to discuss and formulate common policies on those problems … to sound parochial opinion … to raise … matters … with the diocesan synod’.

The PCCs share the deliberative function of their diocesan and deanery synods.  According to s.2(2) of the Parochial Church Councils (Powers) Measure 1956 they may also discuss matters of religious or public interest but, like the synods, are not supposed to ‘declare’ doctrine.  They may give advice to, and raise matters with, the synods.  S.2(3) obliges PCCs to consider expressions of opinion by parochial meetings.

The late mediaeval structure clearly has a vertical character.  It is a hierarchy with Archbishops at the top, parish clergy at the bottom, and bishops and various ‘dignitaries’ in between.  The late Victorian synodical structure has a circular or lateral character.  It surrounds the vertical mediaeval structure and so protects and reinforces it, keeps it standing upright in the shifting sands of a secular state and society.  The mediaeval structure would collapse without the support of the Victorian structure.

With its combination of mediaeval and Victorian elements the constitutional structure of the Church of England may indeed resemble the architectural structure of many of its ancient church buildings.

The reference to ‘dispersed authority’ in Hill’s Ecclesiastical Law requires clarification.  There are two processes at work in synodical government

(1) the legislative process and

(2) the deliberative process.

It is true that the legislative functions of the Church of England vest only in the General Synod (1969 Measure, schedule 2, Article 6) and the Archbishops’ Council (for terms of service regulations under s.2 of the Ecclesiastical Offices (Terms of Service) Measure 2009), though certain important Measures and canons also require the approval of a majority of the diocesan synods (1969 Measure, schedule 2, article 8).

However, the legislative process originates in the deliberative process.  Our account shows that the deliberative process involves the diocesan and deanery synods and PCCs as much as the General Synod.  The General Synod and the Archbishops’ Council are therefore located at the centre rather than at the top of the synodical structure.

The Church Commissioners and the Archbishops’ Council

It must be admitted that the Church Commissioners do not fit neatly into the two-structure, late mediaeval-late Victorian, constitutional model of the Church which was described elsewhere. 

The Church Commissioners were established as such by the Church Commissioners Measure 1947.    They are the successors of two earlier corporations,

(1) the Ecclesiastical Commissioners and

(2) the Governors of Queen Anne’s Bounty.

The Commissioners still include six senior officeholders of the secular state, the Prime Minister, the Lord Chancellor, the Lord President, the Home Secretary, the Culture Secretary and the Speaker of the House of Commons (Church Commissioners Measure 1947, schedule 1(1) as amended).  Before the National Institutions Measure 1998 there were many more secular officeholders who were ex officio Commissioners. 

There is also a continuing secular influence over the appointment of some other Commissioners.  Two of the three Church Estates Commissioners are appointed by the Crown, the third by the Archbishop of Canterbury (Ecclesiastical Commissioners Act 1850, s.1).  Three more Commissioners are appointed by the Crown, and a further six by the Archbishops jointly.  However, three of these six appointments require consultation with the Lord Mayors of London and York, and the Vice-Chancellors of the ancient universities.  The other Commissioners are all Church appointments.

The Commissioners are an entirely statutory, secular creation, a product of the will of Parliament, and they include secular officeholders.  The Convocations, Church Assembly and the other synods, by contrast, were not created by Parliament, although Parliament subsequently conferred statutory recognition and powers on them.

The Ecclesiastical Commissioners were first established by an Act of 1836 (just before the reign of Queen Victoria).  They therefore predated the revival of the Convocations and the development of modern synodical government.  As its name implies, Queen Anne’s Bounty was the initiative of the Queen herself (who reigned from 1702-1714), but the Governors were incorporated by Act of Parliament.  The primary object of Queen Anne’s Bounty, in accordance with the Queen’s ‘gracious intention’, was ‘augmenting the maintenance of the poor clergy’.

The Act of 1836 which first established the Ecclesiastical Commissioners was precipitated by the reports of two royal commissions.  The recital to the 1836 Act records that these royal commissions were appointed to investigate the state of the Church and make recommendations of structural reform ‘conducive to the efficiency of the Established Church, and to devise the best mode of providing for the cure of souls’. 

The Ecclesiastical Commissioners were established by Parliament to institute structural reform at a time when the secular state still accepted a direct responsibility to support the ecclesiastical state and its cure of souls.  This accounts for the appointment of secular state officeholders as Commissioners. 

According to the 1947 Measure the Church Commissioners, like the Ecclesiastical Commissioners, were established for the purpose of promoting ‘the more efficient and economical administration of the resources of the Church of England’ (recital).

Thus the Commissioners’ functions today remain broadly the same as those for which their two parent bodies were created

(1) structural reform of the Church (now known as pastoral reorganisation) and

(2) maintenance of its ministers.

The original purpose of the Commissioners is well illustrated by the form of consecration of new churches approved by the Convocations in 1712 (shortly before they were suppressed).  The consecration service includes a prayer of thanks for ‘our gracious sovereign and the estates of this realm [i.e Parliament] [who] supply the spiritual wants of thy people, by appointing this and many other churches to be erected and endowed …’ (quoted by Phillimore in Ecclesiastical Law, 2nd edition 1895, at p.1395). 

Thus the Commissioners were the creation of Monarch and Parliament rather than the Church.  They were the means by which Parliament was to ‘supply the spiritual wants’ of the English people.  Just as other public authorities were, and are, established by Parliament to promote education, trade, health and the environment, so the Commissioners were established to promote religion.  They were the nearest equivalent in England to a department or ministry of religion.

Of course, the secular state no longer accepts responsibility for the cure of souls.  This can now be supported only on a voluntary basis, which is the function of modern synodical government.  Certain secular officeholders remain Commissioners, but their involvement in the Commissioners’ work is now virtually non-existent. 

Thus although the Commissioners’ parent bodies were pre-modern, pre-secular creations, the Commissioners have effectively been adopted by, and integrated into, the modern synodical system.

The Archbishops’ Council was created by the National Institutions Measure 1998.  The function of the Council is ‘to co-ordinate, promote, aid and further the work and mission of the Church of England’ (s.1(1).  This function is similar to that of the Commissioners, though even more widely drawn.  Yet although the 1998 Measure created the Council, it did not abolish the Commissioners.

This means that there are now two national authorities dedicated to very similar purposes, one an ecclesiastical body, the other (originally) a secular authority.  The logic behind the creation of the Archbishops’ Council would seem to dictate the eventual abolition of the Commissioners, or their absorption by the Council, but there is little sign of this 14 years after the 1998 Measure was passed.

However, the 1998 Measure makes provision for the transfer of functions exercised by the Commissioners to the Council.  A transfer of functions order is effected by an order of the Archbishops under s.5, subject to the approval of the General Synod.  S.5 expressly permits the transfer of the Commissioners’ responsibilities for pastoral reorganisation of the Church.

Certain functions exercised by the Commissioners may not be transferred under the 1998 Measure.  There are four categories of reserved functions in s.5, the management or ownership of assets vested in the Commissioners, the Commissioners’ dealings with bishops and cathedrals, and their functions concerning Church pensions.

The Origins of Synodical Government

Eric Waldron Kemp, Counsel and Consent (SPCK, London, 1961).

Formal ecclesiastical assemblies emerged clearly in England in the late 12th and early 13th centuries.  This was the era of Becket and Magna Carta, when English clergy started to become ‘very sensitive on the matter of secular encroachments upon ecclesiastical jurisdiction’ (p.67).  In the earlier middle ages, the distinction between secular and ecclesiastical assemblies was not at all clear, despite the famous separation of ecclesiastical and secular jurisdiction by William the Conqueror.

The earliest provincial councils tended to comprise only bishops, abbots and dignitaries such as deans and archdeacons.  Lesser clergy were not invited to them.  However, in 1283 the Archbishop of Canterbury issued a citation for the attendance of ‘two proctors [representatives] for the clergy of each diocese and one for the chapter of each cathedral’ (p.77).

Synodical government, like parliamentary government, was originally necessitated by royal tax demands.  The Pope also requested subsidies in the 13th century, and was informed that there would be ‘rebellion among the lower clergy’ if they were not consulted before a subsidy was agreed (p.70).

In 1294 Edward I summoned the clergy to Westminster to vote taxes.  Initially the lesser clergy sat with the lay commoners, but eventually a separate ecclesiastical assembly was formed for the purpose of voting taxes.  This was the convocation.

The convocation was originally quite distinct and separate from the ancient provincial council.  The council dealt with ecclesiastical business, but the convocation dealt only with taxation.  However, the constitution and proceedings of the convocation began to influence those of the council.

From 1356 onwards, the distinction between a provincial council and a convocation began to disappear.  By the early 15th century ‘the assemblies … seem to be described indifferently as convocation or provincial council … Under Archbishop Chichele (Archbishop from 1414-43) convocatio and concilium provinciale seem to be completely interchangeable terms’ (pp.109-10).

Thus the convocation, which had come into existence for the first time as a result of royal tax demands, eventually remoulded the constitution of the provincial council and gave it its name.  As Kemp says, convocation is ‘the ancient provincial council whose membership has been greatly expanded and formalized by its fusion with [the taxing assembly]’ (p.112).

One important consequence of this fusion was the advisory role of lesser clergy in ecclesiastical matters hardened into a right of veto, which they had originally enjoyed in the matter of taxation.

Synodical government in mediaeval England functioned predominantly in the Southern Province.  The Province of York then had only three dioceses (fewer than Wales, which had four).  The York records are very sparse, but there does not seem ever to have been any separate tax-raising convocation.  The provincial council voted tax subsidies.  As in Canterbury, the terms ‘council’ and ‘convocation’ were used interchangeably to refer to the provincial council.

In 1462, the York Convocation effectively adopted the ecclesiastical law of Canterbury, albeit with the reservation that no constitutions of Canterbury should take effect if they were repugnant or prejudicial to those of York.  Kemp records that, after 1462, ‘York was definitely taking second place to Canterbury.  It became increasingly rare for the Archbishop to attend meetings of Convocation … it was the custom to see first what … Canterbury decided, and then for York to consent or dissent as the case might be’ (p.118).

From 1435 onwards the Convocation was summoned following the issue of a royal writ addressed to the Archbishop and incorporated in the Archbishop’s citation of attendance.  Thus the Submission of the Clergy Act 1533, like the Appointment of Bishops Act 1533, confirmed and codified the existing late mediaeval practice, rather than introduced a new practice.

In 1603 the Canterbury Convocation prepared 141 canons, which were promulged the following year.  The new canons received the assent of the York Convocation a year or so later (p.141).

In 1664, shortly after the Stuart Restoration, the clergy ceased to tax themselves in Convocation and became taxpayers on the same terms as the laity.  However, the Convocations remained active until 1717 when they were effectively suppressed.  They had ceased to be a source of revenue for the Crown.  Bishops may have tired of listening to the complaints and grievances of the lesser clergy, and were better able to influence the governance of the Church from the House of Lords.  More seriously, the newly regal House of Hanover and the Whigs suspected the lesser clergy of Jacobite sympathies.

Yet the Convocations returned in the mid-19th century, to form the nucleus of the present system of synodical government.  This was prompted by the growing secularisation of the state.  In Phillimore’s words:

‘A feeling which had existed for some time that Parliament, in great measure composed of members wholly unconnected with and even necessarily hostile to the Church of England, could not, to say the least, properly claim the sole legislation on matters relating to her doctrine and discipline’ (Ecclesiastical Law, 2nd edition 1895, p.1541).

This feeling led eventually to the formation of the Church Assembly, and to the Church of England (Assembly) Powers Act 1919.

What is an Act of Synod?

Stephen Slack ‘Synodical Government and the Legislative Process’ (2012) Ecclesiastical Law Journal, January 2012, p.43.

This article provides a magisterial review of the Church of England’s legislative processes, which will be very helpful to anyone wishing to study ecclesiastical law.

The article is also reassuring.  It shows that the author (who heads the Church of England’s legal office) is well aware of how badly churchpeople (and hence the media) can misunderstand the process of ecclesiastical governance:

‘members of synod can wrongly assume that preliminary debates … have conclusively settled the synod’s position in relation to issues that have been debated, when in fact they remin open for subsequent further debate and decision in the course of the legislative process itself’ (pp.54-55).

The General Synod quite often passes ‘resolutions’ on many different subjects, but these are not ecclesiastical law.  They do no more than express the opinion of the individuals who voted for them.  A resolution of the General Synod, per se, has no more legal authority than a resolution of the Oxford Union.  Yet such resolutions are widely treated as if they were laws.

The author is also well aware that Acts of Synod are not laws either.  The constitution of the General Synod is clear that the General Synod has power to 

‘consider matters concerning the Church of England and to make provision in respect thereof’ by Act of Synod,’

but this is only

 ‘where provision by or under a Measure or Canon is not required …’

Thus an Act of Synod should not be used as a substitute for legislation by Measure or Canon.  (Synodical Government Measure 1969, schedule 2, article 6). 

The author quotes a standing order of the General Synod which describes Acts of Synod as ‘the embodiment of the will or opinion of the Church of England…’ (p.51).  This may add to the confusion that he rightly warns against.  Surely the General Synod can only ’embody’ the will of the Church as a whole though legislation?  An Act of Synod, as its name implies, embodies only the will or opinion of the Synod.

If an Act of Synod is not legislation, perhaps it is only an expression of opinion.  However, Jeremy Burrows astutely points out that

‘The difficulty with the view that an Act of Synod is a mere expression of opinion is that [Article 6] describes it as an instrument by which the General Synod may ‘make provision’ (‘Judicial Review and the Church of England (1997), unpublished LLM dissertation, Cardiff University, at p.31).

The General Synod can hardly ‘make provision’ for the Church of England merely by expressing an opinion.  The words ‘make provision’ imply a practical act.

It is arguable that an Act of Synod should be understood neither as an expression of opinion nor as quasi-legislation, but as a quasi-judicial instrument.  Like a court judgment, it should declare the existing law and apply that law to a particular situation.

The Episcopal Ministry Act of Synod 1993 matches this description.  It applies the existing law of episcopal oversight to the new pastoral situation resulting from female ordination.  However, it must be admitted that many Acts of Convocation, from which Acts of Synod are descended, do not answer to this description, being mere suggestions or opinions (see Acts of the Convocations 1921-60 SPCK 1961).