Women in the episcopate consultation: an analysis

An earlier post outlined the basic points within the “next steps” consultation paper  Women in the episcopate: a new way forward, GS MISC 1042 on which members of General Synod and others have been asked to forward their views. Responses are to be sent to the Working Group via women.bishops@churchofengland.org by Thursday 28 February, “if at all possible”, in advance of its next meeting on 4 March.

This post explores some of the issues raised in the consultation paper and in Annex B.

Proposition 4

Annex B highlights the identification of policy objectives as “the first rule of producing good legislation”.

The earlier post suggested that whilst Proposition 4 outlines two secondary objectives relating to “the process to admit women to the episcopate, 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,

there is in fact a two-fold overall objective,

  • to introduce consistent, durable and enforceable measures through which women may be admitted to the episcopate, [Objective 1]; 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 this will be achieved, [Objective 2].

These two components broadly encompass the requirements of those supporting the introduction of women in the episcopate, and of those with concerns in such a development, but taken together they form a basis for moving forward.

A third objective is working to a realistic agreed timetable. There would be less pressure from Parliament, the media and elsewhere if groups within the Church agree on when specific milestone events in the process are to be achieved.

Proposition 3

This proposition states

“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”

and effectively addresses two issues:

  • problems with the failed draft Measure &c and the partial reliance on an unseen and unenforceable Code of Practice; and
  • the current need for certainty on all components of the measures to be introduced.

Given the limitations of “soft law” options identified in Annex B, it is clear that the “complete package of proposals” would be better served by a combination of primary and secondary legislation.  However, paragraph 10 states:

“. . . . .  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.”

This dismissal of secondary legislation is only valid on the assumption that Royal Assent is synonymous with the commencement date of the primary legislation, (i.e the proposed Measure). This is not always the case, and a commencement date may be included either within a Measure, or subject to a Church Instrument. The most recent example is the Mission and Pastoral Measure 2011(Appointed Day) Instrument 2012, in which “[t]he Archbishops of Canterbury and York, in exercise of the powers conferred by section 112(3) of the Mission and Pastoral Measure 2011”, specify the starting date of the Measure as 1 July 2012, i.e. thirteen months after the 2011 Measure received Royal Assent thirteen months previously on 24th May 2011[1].

The use of Church Instruments is within the control of the two archbishops and may be exercised without further reference to Parliament. It also provides a means of synchronising the commencement dates of legislation that is subject to Royal Assent with that of Measures within the control of General Synod.

This is not an elegant solution and requires a high degree of trust during the formulation of the different components of the package.  Nevertheless,  it provides a means whereby a “complete package” may be developed using primary and secondary legislation, which would be enforceable (in the legal sense) and give a higher degree of certainty than if “soft law” options were included in the package.

Propositions 1 and 2

In view of the entrenched positions associated with the vote on 20 November, Proposition 1 would appear to be logical – the rejected draft would not be a constructive point from which to start. Likewise, Proposition 2 – reopening questions around jurisdiction and the position of the diocesan bishop, in law, as the ordinary and chief pastor of everyone in the diocese – is unlikely to lead to an early resolution to the appointment of women to the episcopate, Objective 1 above. However, paragraph 22 indicates that “at different moments the Revision Committee, the Archbishops and around half of the Synod were prepared in principle to contemplate such possibilities.”  Given such a degree of support, this option should perhaps be revisited if other options are found to be impracticable or unacceptable.

Comment

The above analysis suggests that whilst the four propositions developed by the Working Group provide a broad framework within which to proceed, these need to be finessed further to maximize the benefit of the progress achieved to date.  This would include.

  • more formal declaration of the objectives a) to provide a clearer focus for the group’s work, and b) to give a signal to those outside the group of the expected outcome;
  • minimization of “soft law” instruments within the “package” which is developed, which would rely a combination of primary and secondary legislation coming into force at the same time ;
  • a statement on the expected time-scale, identifying key milestones and reviews of progress.

To date the working group has focused on the criteria for appointments to the episcopate, and some aspects of how this might be addressed in the existing model of governance assuming that a practicable solution is possible with some degree of change. However, what is being sought is essentially a “quick fix” solution, and does not currently address other associated issues:

  • The  election of members of the House of Laity and their delegate status      (rather than being present as representatives of the diocesan synod) has      attracted much attention, but the present timetable is dependent upon the      retention of the existing Synod.

The role of Deanery Synods as the electoral college for diocesan synods and the General Synod is under review by the Church and a report is expected later this year.

  • If the costly nonsense of the “no confidence vote” in the Chair of the House of Laity achieved anything it was to highlight the separation of powers issue for those chairing Synod groups, an issue that revised procedures would address.
  • Whilst the length of time involved in appointing a new Archbishop of Canterbury  caught the public’s attention and is a further issue to be addressed, a more pertinent  issue with regard to the appointment of women to the episcopate is the operation of the Vacancy in See Regulations.

[1] Section 112(3) states: “[t]his Measure shall come into force on such day as the Archbishops of Canterbury and York may jointly appoint and different days may be appointed for different provisions”.

 

2 thoughts on “Women in the episcopate consultation: an analysis

  1. Pingback: Religion and Law round up – 24th February | Law & Religion UK

  2. Pingback: Religion and Law round up – 10th March | Law & Religion UK

Leave a Reply

Your email address will not be published.