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.

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.