The failure of the draft Measure on the consecration of women to the episcopate of the Church of England has generated a massive amount of comment, both among journalists and politicians. Bob Morris, of the UCL Constitution Unit, is the principal author of Church and State in 21st Century Britain: The Future of Church Establishment (Palgrave, March 2009). He has long experience of Church-State relations both as a senior civil servant and as an academic and has kindly contributed the following guest post on the political and parliamentary implications of the vote.
On 21 November 2012 the Church of England Synod rejected a draft Measure for the introduction of women bishops by a narrow margin of six votes in one of the Synod’s three ‘houses’, that of the laity. Sufficient two-thirds majorities were attained in each of the other two houses – bishops and clergy. Forty-two of the forty-four Anglican dioceses had previously supported the change.
The amended draft contained a compromise arrangement, linked with a putative ‘code of practice’, that would have permitted congregations opposed to women bishops on theological grounds to retain male only episcopal oversight. The opponents – from both the ‘catholic’ and evangelical groups – felt that the compromise did not go far enough to recognise their views. Ordinarily, Synod’s standing orders would prevent a failed draft Measure’s reconsideration until the next newly-elected Synod – in this case in 2015. There is, however, an exceptional procedure which could bring the issue back for redetermination.
(a) For the Church
Having in the past been, if anything, in the vanguard on divorce and homosexual law reform in England, the Church continues to find difficulty in agreeing on issues of gender and human sexuality. These difficulties are not confined to disputes in England: they exist in the wider Anglican community too and now appear to be so irreconcilable as to threaten schism. Addressing these differences will be one of the primary tasks of the new Archbishop of Canterbury, Justin Welby, as they were for his predecessor, Rowan Williams.
The decision to ordain women priests in 1992 carried the implication that at some point episcopal orders would also be made available to them. Granted the strong reservations held by a minority in the Church, agreement to proceed could be reached only as the result of compromise – as had been the case in 1992 when, essentially, female ordination was secured on a basis of conferring a clerical status inferior to that of men. At that time, Parliament – through the Ecclesiastical Committee – was concerned that the minority should be reconciled. The question for the Church now could be whether any compromise satisfactory to the opponents of women bishops could be regarded as compatible with having women bishops at all.
(b) For Parliament
Parliament retains the ability to legislate for the Church. Since 1919, on the other hand, it has in practice ceded the legislative initiative to the Church itself. Above all, even if Parliament did decide to legislate directly, it is difficult to believe that it would be prepared to do so without the consent of the Church. If that consent were forthcoming, then there would, of course, be no reason why the Church should not take the initiative itself. Only if Parliament decided to proceed without the Church’s consent would there be a case for its intervening. But if it did so, it would intervene in the interests presumably of the majority party and negative any possibility of holding all the parties together. Contemplating such a sequence is to remind why Parliament conceded the right of legislative initiative to the Church in the first place.
The Public Worship Regulation Act 1874 was the last time Parliament legislated for the Church when the latter was divided on an issue. The outcome was not a happy one. Five priests underwent terms of custody, and the bishops in the end vetoed all attempted proceedings rendering the Act a dead letter.
Evidence of the House of Commons’ present mood can be found here. In the BBC studio discussion, Ben Bradshaw, a member of the Ecclesiastical Committee, judged that the mood of Parliament is very different from that of 1992 when it could be argued that it was more concerned to protect the position of the objectors to female ordination than the status of female orders. Whilst that may well be so, it is also the case that Parliament has now in the Equality Act 2010 passed legislation which exempts priestly orders from the non-discrimination rules otherwise applicable. Requiring women bishops would amount to trenching on the religious freedom that the Act’s provisions were meant to protect.
Mr Field’s Equality Act 2010 (Amendment) Bill, which received its first reading on 22 November (and is due to receive its second on 18 January 2013), will presumably attempt to remove a protection permitted under the EU Directives the 2010 Act was designed to implement. If singling out the Church of England for the repeal alone, the Bill will itself be discriminatory: if the repeal is general, then it will be opposed by every other Christian denomination and all other religions as well. It seems unlikely that the bill will, or could ever have been likely to, obtain essential government support. In so far as that is the case, the bill looks more like a gesture of the moment than a credible and viable solution.
(c) For the Ecclesiastical Committee
Any draft Measure from the Synod will have to come through this Committee, and it will be a test of its judgement whether what it feels able to approve is acceptable to Parliament at large. The Committee is not a Parliamentary joint committee but in fact a statutory joint committee with equal Lords and Commons membership in a total of 30. It will no doubt weigh carefully whether it can in the event certify under the 1919 ‘Enabling’ Act “as to the [Measure’s] expediency thereof, especially in relation to the constitutional rights of all [Her] Majesty’s subjects”. What it approves could be voted down in Parliament and that may temper any Committee enthusiasm to wave through a compromise in flagrant and indefensible default of gender equality. What may be an acceptable price of compromise in the Church may not be automatically acceptable outside so far as the rights of all Her Majesty’s subjects are concerned.
(d) For the Government
There is unlikely to be any Ministerial enthusiasm for intervening. Parliamentary legislation would in practice have to be via a government sponsored bill. No government would want to start intervening in the affairs of a religious body. If it was seen to do so in this case, it would be invited to intervene in other controversies such as theological and property disputes not only in respect of the Church of England but also in the case of other religious denominations, Christian and non-Christian. Parliament last ventured into this territory very gingerly with the Church of Scotland Act 1921 which paved the way for the reconciliation of a major schism that had occurred in 1843. Ministers were careful in 1921 to ensure that the Act merely recognised a compromise reached by the parties rather than forcing one.
Is ‘disestablishment’ the answer?
In a situation where religious belief has greatly declined and, where it remains, is much pluralised, church establishment is a hangover from the confessional state – abandoned finally for most purposes in 1828-9 – where everyone in the UK outside Scotland had to be a member of the Church of England or suffer civic penalties. Church and state functioned together, inseparably. But the abandonment of the confessional state was not accompanied by severing that Church’s ties with the state. The disestablishments in Ireland in 1871 and in Wales in 1920 did not affect the position of what was left for England alone.
The key political and constitutional problem is that, although the Church of England now behaves largely as if it is a voluntary society, it remains nonetheless part of the state. The Queen as head of state is ‘Supreme Governor’ of the Church, must be in communion with it, holds the title Fidei Defensor and – nominally – appoints its senior clergy. The Archbishop crowns and anoints the new sovereign, and the Church conducts important public ceremonies and rituals effectively in relation to the UK as a whole. The Church’s courts remain courts of the land, although they lost their public law jurisdictions in the 1850s. Twenty-six bishops continue to sit in the House of Lords – each nowadays actually appointed by a private, unaccountable committee of the Church itself.
These are high matters and could be addressed again by Parliament. However, whatever the degree of change made, none could procure the appointment of female bishops unless Parliament legislated directly to that end. In other words, disestablishment could not by itself resolve the particular question of female bishops. On the other hand, what disestablishment could do would be – a very different matter – to permit the state and Parliament to wash its hands of Church of England affairs altogether.
Since nothing so far suggests that Parliament contemplates such a rupture, it follows that the Church must be allowed to deal with the present crisis itself. Whether in doing so it strengthens the case for a radical review of remaining church/state ties is another question.
Could the CE’s establishment be the the very grounds for removing its and no other religious group’s exemptions under equality law without being discriminatory? I.e. Could it be argued that being the state church requires full compliance with state law – no exemptions on religious grounds?
I don’t know definitively – you’d have to ask one of my former colleagues in the Clerks’ Departments in Parliament. But if the suggestion is that a bill to remove the equality exemption from the C of E would not be hybrid because the C of E constitutes a class of one for the purposes of hybridity, that’s certainly a tenable view.
I’d like to point out that the introduction to this post is misleading. It gives the impression that the House of Laity voted against the measure with a majority of 6, whereas of course the House voted for the measure, but failed by 6 votes to reach the threshold of 67% which would have meant approval
That’s one way of reading it – but since the next sentence talks about two-thirds majorities it’s pretty clear what happened. Anyway, I’ve changed “majority” to “margin”.
Thank you for this. I wouldn’t be so sure that Parliament would not legislate on any given set of facts going forward. The acid test would be ‘what constitutes the consent of the Church?’ A single clause measure ( + Code) could be fast tracked through the General Synod in July 2013 and sent back to the dioceses (accompanied by a thoroughly well worked Code) on the back of a deal with Westminster that if General Synod attempted to vote against it again on Final Approval a Parliamentary Bill would quickly follow. There is an advantage in delaying the Final Approval until November 2015 when there will be a new Synod, but my sense is that both Synod and Parliament are not displaying that much patience on the matter.
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