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it as an instrument by which the General Synod may ‘make provision’ (‘Judicial Review and the Church of England (1997), unpublished LLM dissertation, Cardiff University, at p.31).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).