Following the facilitated conversations of the Working Group on women bishops legislation on 5 and 6 February and the meeting of the House of Bishops on 7 February, the Church of England published a “next steps” consultation paper: Women in the episcopate: a new way forward, GS MISC 1042.  Synod members and others have been invited to help the Working Group in the next phase of its work by:

• Indicating whether they endorse the four propositions in paragraphs 17-29 which have emerged from the recent conversations:
  • Proposition #1: it would not be sensible to try to take the rejected draft Measure as a starting point and tweak it, [para.18].
  • Proposition #2: any new approach should not seek to reopen questions around jurisdiction and the position of the diocesan bishop, in law, as the ordinary and chief pastor of everyone in the diocese. [para.20].
  • Proposition #3: there needs to be a complete package of proposals that can be assessed in its entirety before final approval, without the possibility of further amendments to some parts of it between the final approval of the legislation and its coming into force, [para.24].
  • Proposition #4:  Any new package needs to try to achieve two objectives:
    • To produce a shorter, simpler measure than the one that was defeated
    • To provide, through the totality of the elements in the package, a greater sense of security for the minority as having an accepted and valued place in the Church of England while not involving the majority in any new element of compromise on matters of principle
• Offering initial comments on the spectrum of possibilities sketched out in paragraphs 37-50 (see also Annex B), which range from:
  • the simplest possible legislative package. This would involve simply making all three orders of ministry open equally to men and women, repealing the 1993 Measure and rescinding the 1993 Act of Synod, [para.37]; to
  • a package that included a more substantial measure than the one that was defeated in November.  This would mean that instead of relying on a Code of Practice, or other instruments such as an Act of Synod, to supplement the measure, the key relevant provisions would be written into the measure itself, [para. 42].

Comment

Annex B – Legislation and other instruments suggests one possible key to unlocking the present deadlocks is to try to fashion a different combination of legal instruments from what was proposed in the defeated package, [Annex B, para. 19].  Its statement “the first rule of producing good legislation is to be clear about the policy objectives to be secured” exposes the problems faced, and the secondary nature of the objectives outlined in para. 29 of the main document, [and reiterated in paras. 37 and 42], viz.

• to produce a shorter, simpler measure than the one that was defeated; and
• to provide, through the totality of the elements in the package, a greater sense of security for the minority as having an accepted and valued place in the Church of England while not involving the majority in any new element of compromise on matters of principle.

Whilst these address “the process to admit women to the episcopate”, the overall objective appears to be one consisting of two elements,

• to introduce consistent, durable and enforceable measures through which women may be admitted to the episcopate; and
• within these measures to address the concerns of those with theological difficulties over the ministry of women as priests and bishops, and provide adequate certainty on how their views will be addressed.

Annex B provides a general description of the various forms of “black letter law” and “soft law” that might be included in a package of measures to address these objectives, the former comprising: Measures; Canons; and Secondary Legislation, (Rules/Regulations/Orders); and the latter: Codes of Practice; and Acts of Synod.

Importantly, it notes, [Annex B, para.10],

“ . . . . . . the need to pass secondary legislation under the Measure would run directly against the general desire for the content of the “whole package” to be known when the Synod comes to vote on final approval, since any secondary legislation can only be made after the measure has received final approval and the Royal Assent. Instruments made under a Measure require the approval of the General Synod and, if they affect legal rights, also have to be laid before Parliament and be subject to approval, or at least annulment, in each House.”

Although not as concisely stated, the problem with “soft law” is that it is generally unenforceable and provides insufficient certainty, [Annex B, paras. 16 and 17]

“Codes do not create directly enforceable, legally binding obligations in the same way as measures, regulations or canons, though actions that do not have regard to the provisions of statutory codes may be invalidated by the courts. The uncertainties around the enforceability of the statutory code – as well as uncertainties over what its provisions would eventually be – undoubtedly played a part in the defeat of the legislation.”

“ . . . . . Acts of Synod . . . . . are not, in fact, a form of legislation at all and cannot create legally enforceable rights or duties. They have strong persuasive force, having been “affirmed and proclaimed” as “the embodiment of the will or opinion of the Church of England as expressed by the whole body of the Synod”.

“As a statement of policy, an Act of Synod might give rise to legitimate expectations in terms of the process that is to be followed in certain situations. That, however, is a rather different thing from directly enforceable rights and certainty of outcomes.”, [i.e. in the context of “soft law”, it is debatable whether it is meaningful to discuss legal certainty/legitimate expectations].

Next Steps

Synod members and other interested parties have been invited to help the Working Group in the next phase of its work through sending their responses to the consultation to women.bishops@churchofengland.org “if at all possible” by Thursday 28 February in advance of its next meeting on 4 March.  The House of Bishops meets again on 20/21 May at which it will determine what legislative proposals to bring to the Synod in July.