Women in the episcopate: legislation and its adoption

The Church’s current deliberations on women in the episcopate began in July 2000, and are summarized on its web site, here. More detail on the background is included in Ruth Gledhill’s article in The Tablet When the stained-glass ceiling cracked. There are five formal stages in the development of new legislation by the Church of England Synod:

  • First Consideration, when the Measure is the subject of general debate;
  • Revision Committee Stage, when a Revision Committee considers it clause by clause, together with any proposals for its amendment;
  • Revision Stage, when it is subjected to a similar process on the floor of the Synod, but with amendments normally limited to matters addressed by the Revision Committee;
  • Final Drafting, when the Steering Committee for the draft Measure (ie the members responsible for its progress through its synodical stages) can move certain limited types of amendment intended to put it into its final form; and
  • Final Approval.

Legislation with significant policy content is generally the subject of earlier debate(s)before it is introduced to the Synod, either by the Archbishops’ Council or by the Business Committee of the Synod [1]. The previous attempt at introducing legislation on women in the episcopate reached Final Approval stage in the July 2012 Synod, but was adjourned until November, when it narrowly failed to achieve the necessary two-thirds majority in the House of Laity.

The recent approval of the various instruments necessary to secure appointment of women to the episcopate commenced with a First Consideration in November 2013, underwent the Revision Stage in February 2014, and proceeded to General Synod’s Final Approval in July 2014.  General Synod voted on a range of different instruments, and as such, the routes for their subsequent adoption and legal effect are dependent upon the type of instrument concerned.

Bishops and Priests (Consecration and Ordination of Women) Measure, (GS 1925B)

This instrument of primary ecclesiastical legislation now passes to the Legislative Committee of General Synod, a statutory Committee required by the Church of England Assembly (Powers) Act 1919 and the Constitution of General Synod, (Standing Order 114).  This is comprised of members of each of the three Houses, and discusses the presentation of the Measure, such as the approval of “Comments and Explanations”, to the Ecclesiastical Committee of the Houses of Parliament [2]: the Ecclesiastical Committee is made up of 15 backbenchers and 15 peers appointed by the Speaker of each House, and while its powers are laid down by the 1919 Act, its procedures are those of a Joint Select Committee. On Tuesday 22 July, the Ecclesiastical Committee unanimously agreed the Measure, which will now be debated in both Houses, following which the Measure receives Royal Assent and becomes part of the law of the land. Sir Tony Baldry has indicated that the Commons debate in likely to be in September and that in the Lords in October.

The Measure itself is straightforward: section 1 repeals the Priests (Ordination of Women) Measure 1993 (No. 2), and enables General Synod to make provision by Canon for enabling women, as well as men, to be consecrated to the office of bishop, (s1(1)) and priest, (s1(2)), if they otherwise satisfy the requirements of Canon Law.  An important corollary to section 1 is that the term “bishop” in ecclesiastical law now encompasses both men and women, just as the term “marriage” in secular law now includes same-sex marriage under section 1 of the Marriage (Same Sex Couples) Act 2013.

Section 2 amends Schedule 6 to the Equality Act 2010 [3]  by adding

“Bishops

4 The office of diocesan or suffragan bishop is not a public office.”

The requirement for this provision is explained in the Explanatory Memorandum GS 1886, paras.121 to 136, and is summarized in para.127,

“The Equality Act did not materially change the position save in one respect, which is not relevant to the priesthood (and not therefore to the appointment of certain Deans by the Crown) but is in relation to the episcopate. Under section 50 of the Equality Act it is unlawful to discriminate not only in making public appointments but in the terms in which appointments are offered. A ‘public appointment’ for this purpose includes one made ‘on the recommendation of or subject to the approval of a member of the executive.’ “

Repeals are dealt with in section 3 and the Schedule, and section 4 concerns inter alia the date of commencement, which is to be set jointly by the two Archbishops, its general applicability to the Provinces of York and Canterbury, and conditional applicability to the Channel Islands, (s4(4)) and the Isle of Man, (s4(5)). The Measure repeals inter alia the Priests (Ordination of Women) Measure 1993, but a separate instrument – the Act of Synod, below – was needed to rescind the 1993 Act of Synod.

Amending Canon No 33: Of the consecration of bishops, Of the quality of such as are to be ordained deacons or priests, Of women deacons, Of women priests, Of ministers exercising their ministry, Of admission and institution, Of the House of Bishops’ Declaration on the Ministry of Bishops and Priests, (GS 1926B)

As “a form of primary legislation whose application is specific to the Church of England”, Canons do not require parliamentary approval, but their promulgation  by the General Synod requires Royal Assent and Licence.  Consequently, the Petition for Her Majesty’s Royal Assent and Licence (GS 1926C) agreed by Synod will be forwarded to the Sovereign. This effectively summarizes of effect of Amending Canon No 33, which

“inserts a new Canon C 29 (‘Of the House of Bishops’ Declaration on the Ministry of Women and Priests’), revokes Canons C 4A (‘Of women deacons’) and C 4B (‘Of women priests’) and amends the following Canons: C 2 (‘Of the consecration of bishops’); C 4 (‘Of the quality of such as are to be ordained deacons and priests’); C 8 (‘Of ministers exercising their ministry); and C 10 (‘Of admission and institution’).

Of these, the new Canon C 29 is the most significant since this requires the House of Bishops to make Regulations prescibing a procedure for dispute resolution, as provided for in the House of Bishops’ Declaration[4]. Such Regulations are to be laid before the General Synod, and subsequent amendments “must be approved by a majority of two-thirds of each House of the General Synod present and voting.”

When granted, the Petition for Royal Assent and Licence will be returned to the Synod to be promulged, thereby formally giving the Amending Canon full force and effect in the Church of England.

Draft Act of Synod Rescinding the Episcopal Ministry Act of Synod 1993 (GS 1934A)

The more limited legal effect of Acts of Synod is apparent from their somewhat convoluted definition in its Standing Orders [5]:

“If in respect of:

(i) any instrument of the Synod, not being a Measure or Canon, or pursuant to a Measure or Canon, or;

ii) any resolution of the Synod, not being for the approval of or pursuant to a Measure or Canon,

it is desired to give formal publication to the same as the embodiment of the will or opinion of the Church of England as expressed by the whole body of whole body of the Synod, it shall be affirmed and proclaimed as an Act of Synod in accordance with the following paragraphs of this Standing Order.”

In common with the House of Bishop’s Declaration and Regulations made by Synod, Acts of Synod form part of the Church of England’s quasi-legislation: they are “not law per se, nor do they have the force of a statute” and “there is as yet no refined or coherent jurisprudence on ecclesiastical quasi-legislation”, although considerable importance is often placed upon them [6].  Consequently there was no requirement for General Synod to seek external approval once it had voted firstly to approve the Act of Synod, and then to affirm and proclaim the Act; following these votes it was ratified and confirmed by the Presidents of the General Synod.

The Recitals/Preamble to the Act of Synod summarize the background to the Episcopal Ministry Act of Synod 1993 and the requirement for its repeal following approval of the Measure and Amending Canon.  The substantive part of the Act is the resolution by the Archbishops, Bishops, Clergy and Laity of the General Synod of the Church of England to rescind the 1993 Act of Synod, and for the Archbishops to bring this into effect in their respective Provinces once the Amending Canon 33 is promulged and executed.

House of Bishops Declaration and Regulation

The final version of the House of Bishops’ Declaration was agreed on 19 May 2014 and circulated to General Synod and others in June. Normally there is no requirement for the approval of Declarations or Statements made by the House of Bishops, either from Synod or externally.  Although at one level this is no different, the provisions of the Amending Canon/new Canon C 29 link the Declaration in its present form to a duty of the House of Bishop to make Regulations “prescribing a procedure for the resolution of disputes arising from the arrangements for which the House of Bishops’ declaration on the Ministry of Bishops and Priests makes provision” to be laid before General Synod and for subsequent amendments to these to achieve a two-thirds majority in each House in order to be passed.

Thus, although the Declaration was not voted on, by agreeing Amending Canon 33, Synod has implicitly agreed the provisions within the Declaration, and the only remaining debate by will be upon the Regulations to be formulated by the House of Bishops. A draft of the Declaration on the Ministry of Bishops and Priests (Resolution of Dispute Procedures) Regulations 20** – Regulations made by the House of Bishops under Canon C 29 was included as Annex B to the Report from the House of Bishops, (GS 1932) which was circulated to dioceses in February this year.  As subordinate legislation these Regulations will not require approval other than that of General Synod under the conditions of Canon C 29 and General Synod’s Standing Orders.

Summary

At the present time, the sequence of events for each of the legislative instruments appears to be as summarized below:

Bishops and Priests (Consecration and Ordination of Women) Measure

  • To be reviewed for approval by the Ecclesiastical Committee of the Houses of Parliament, 22 July
  • Ecclesiastical Committee issues a report on whether or not Measure is expedient, and this is then debated in the Commons (possibly in September) and the Lords (possibly in October).
  • Following votes in favour, the Measure receives Royal Assent and becomes part of the law of the land

Amending Canon No 33: Of the consecration of bishops &c

  • Petition forwarded to Sovereign
  • Royal Assent and Licence to be granted
  • To be promulged at General Synod in London, 17 to 19 November

Act of Synod Rescinding the Episcopal Ministry Act of Synod 1993

  • No further approval required
  • To be brought into effect by the Archbishops in their respective Provinces once the Amending Canon 33 is promulged and executed.
  • From this point, PCCs will no longer be able to pass resolutions A or B or petition for extended episcopal ministry under the 1993 Act of Synod.  However, there will then be a further transitional period for PCCs as outlined in paragraph 43 of the Report from the House of Bishops, (GS 1932), viz.

“ . . . .  the House of Bishops acknowledges that PCCs may want some time to consider the options to them. To allow for an orderly transition the House has agreed, therefore, that resolutions passed under the 1993 Measure or petitions made under the 1993 Act of Synod should be treated for two years after the date on which the Amending Canon is promulged as if they were resolutions passed under paragraph 20 [of GS 1932]”.

House of Bishops’ Declaration

  • No further approval required
  • No subsequent changes to be made

Regulations pursuant to House of Bishops’ Declaration

  • House of Bishops to make Regulations prescribing a procedure for the resolution of disputes arising from the arrangements, as included in House of Bishops’ Declaration
  • Regulations to be laid before November General Synod, after Amending Canon 33 is promulged.  No further approval required.
  • The present draft Regulations do not refer to a commencement date.

With thanks to Peter Owen for corrections to Parliamentary procedure

_____________________________

[1] S Slack, “Synodical Government and the Legislative Process”, [2012] 14 Ecc LJ 43–81, at page 54

[2] Paragraph 10, Schedule 2

[3] Under section 3(6) of the 1919 Act, a Measure “may relate to any matter concerning the Church of England, and may extend to the amendment or repeal in whole or in part of any Act of Parliament, including [the 1919] Act: Provided that a measure shall not make any alteration in the composition or powers or duties of the Ecclesiastical Committee, or in the procedure in Parliament prescribed by section four of this Act.

[4] Section 6 states: After Canon C 28 there is inserted the following Canon – “Canon C 29 (Of the House of Bishops’ Declaration on the Ministry of Bishops and Priests):

  1. The House of Bishops shall be under a duty to make Regulations prescribing a procedure for the resolution of disputes arising from the arrangements for which the House of Bishops’ declaration on the Ministry of Bishops and Priests makes provision.
  2. The House of Bishops may, by Regulations, amend any Regulations made under paragraph
  3. Any Regulations made under paragraph 1 shall be laid before the General Synod.
  4. Any Regulations made under paragraph 2 must be approved by a majority of two-thirds of each House of the General Synod present and voting.”

[5] Standing Order 40, General Synod Standing Orders, October 2010 Edition, GS 1801.

[6] M Hill Ecclesiastical Law, (3rd Edn, Oxford University Press, 2007). Section 1.35.

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