CofE: a quasi-consultation on quasi-law?

On 4 June 2015, the CofE published the House of Bishops’ Declaration on the Ministry of Bishops and Priests Consultation Paper on the Operation of the Resolution of Disputes Procedure. The Press Notice accompanying the Consultation Paper states:

“The Independent Reviewer, Sir Philip Mawer, appointed to consider grievances and concerns relating to the operation of the House of Bishops’ Declaration on the Ministry of Bishops and Priests, has issued a consultation paper on the working of the disputes resolution procedure. The paper sets out how Sir Philip intends to implement the new procedure.”

The Consultation Paper itself explains: as part of the package enabling the consecration of women to the episcopate in the Church of England, a process was introduced for the resolution of disputes relating to the operation of the House of Bishops’ Declaration on the Ministry of Bishops and Priests, GS Misc 1076. This was accompanied by the House of Bishops’ Declaration on the Ministry of Bishops and Priests – Guidance note from the House, GS Misc 1077.

The Declaration on the Ministry of Bishops and Priests (Resolution of Disputes Procedure) Regulations 2014, GS Misc 1087were made by the House of Bishops under Canon C 29, and provide for the appointment of an Independent Reviewer to consider individual grievances from a parish as well as more general expressions of concern arising from the operation of the House of Bishops’ Declaration. Sir Philip Mawer was appointed by the Archbishops of Canterbury and York, with the concurrence of the Chairs of the Houses of Clergy and Laity of the General Synod with effect from 17 November 2014.

This post identifies the importance of Sir Philip’s Consultation and further explores the legal issues associated with this aspect of the provisions relating to the appointment of women to the episcopate.

Consultation Document

Sir Philip prefaces the document by describing it as “draft notes setting out some aspects of how [he envisages] the disputes procedure will operate”, stressing that “the notes are not intended to supplant the Regulations but to supplement them.” His purpose in publishing these notes is “to provide an opportunity for all concerned to comment, and so to help build trust in the new arrangements. While the key features of the new arrangements are set within a clear framework, the procedures [he describes] will inevitably evolve over time as experience grows through the handling of individual cases.”

The raison d’être of the Consultation document is evident from paragraph 5 which states:

“[t]he Regulations do not prescribe in detail how the Independent Reviewer will carry out his functions. However, they do lay down some requirements and they also include some permissive provisions intended to guide the Reviewer in the task. These are, so far as the consideration of grievances is concerned, set out in Regulations 16-26.”

This is not a consultation in the normal sense in which respondees comment on a the content of a provision in terms of its general application. Here stakeholder comment is unlikely to change the basic Regulations, GS Misc 1087; it is being sought to provide benchmarks to a single person, the Independent Reviewer, to inform him on their application of the permissive provisions within the Regulations[1]. The document may therefore be regarded as an initial engagement between the Independent Reviewer and those with interests in the dispute resolution process, the operation of which may change as experience is gained.

Ruth Gledhill’s article in Christian Today Church of England bans lobby groups from interfering over women bishops focussed on the process for bringing a grievance, as set out in paragraphs 9 to 15 of the Regulations. In this context, paragraphs 12 and 13 of the Consultation stress: it is the concerns of the parish as expressed by the PCC, not the concerns of any third party-which will be paramount; and this must be underpinned by “a genuine theological conviction in relation to the matters covered by paragraphs 16-29 or 33 of the House of Bishops’ Declaration”.

With regard to the Independent Reviewer’s consideration of “a concern about the operation of the House of Bishops’ Declaration” under Regulation 27, whilst this cannot be used to circumvent the procedure in regulation 8 relating to the acts or omissions of any office holder, this permits any person to raise a concern relating to “more than one act or omission under the House of Bishops’ Declaration and to more than one parish or diocese.” Such a concern “must raise a question of more general application about the operation of the House of Bishops’ Declaration. It will also generally be expected to relate to more than one act or omission under the House of Bishops’ Declaration and to more than one parish or diocese.” Furthermore, the Steering Committee on the legislation suggested that the threshold for such intervention “should be reasonably high”, (GS 1924, paragraph 75).

Legal Issues

During the development of the legislation on women in the episcopate, concern was expressed in some quarters at the replacement of the Episcopal Ministry Act of Synod 1993 with the Bishops’ Declaration. However, as we have noted earlier, although both instruments were essentially different forms of the Church’s quasi legislation[2], the provisions of Canon C 29 link the Declaration 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”.  Furthermore, these must be laid before General Synod and for subsequent changes to these to achieve a two thirds majority in each House in order to be passed.

With regard to concerns that the Declaration was reliant on trust rather than on law, (i.e. the Act of Synod), the Q&A provided by Forward in Faith state:

“The Act of Synod was not part of the law of the land, so for episcopal ministry we have already been relying on trust not law (and Resolution C was in practice complied with) … Canon C 29 requires the House of Bishops to make ‘regulations prescribing a procedure for the resolution of disputes arising from the arrangements for which the House of Bishops’ declaration… makes provision’. Because the Regulations have been under canon law, refusing to take part in the process will be a disciplinary offence.”

The likelihood of any such action is likely is debatable; the point is that the new provisions are more robust that those of the Act of Synod.

Comment

Sir Philip’s consultation document is open for comment until 4 September 2015[3] after which he will make such revisions as appropriate in the light of the comments received, and publish an amended text. Further reviews will take place “from time to time”, as experience is gained in operating the new arrangements.


[1] Any Deputy Independent Reviewers that are appointed will act under the direction of the Independent Reviewer, performing such functions of the Independent Reviewer as the Independent Reviewer may from time to time determine, [Regulation 3].

[2] Stephen Slack notes [‘Synodical Government and the Legislative Process’ [2012] 14 Ecc LJ (1), 43] that whilst Acts of Convocation were said to have ‘great moral force, as the considered judgment of the highest and ancient synod of the province’, [Bland v Archdeacon of Cheltenham [1972] 1 All ER 1012 at 1018], they did not create legally enforceable rights or duties; Philip Jones suggests “[i]t 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.”

[3] Comments should be sent to Sir Philip at Church House, Great Smith Street, London SW1P 3AZ. 

[Links to CofE documents updated 7 October 2018]

Cite this article as: David Pocklington, "CofE: a quasi-consultation on quasi-law?" in Law & Religion UK, 10 June 2015, https://lawandreligionuk.com/2015/06/10/cofe-a-quasi-consultation-on-quasi-law/

5 thoughts on “CofE: a quasi-consultation on quasi-law?

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  2. The Bishop of Rochester, in introducing GS 1934 to General Synod on 11 Feb 2014, stated:

    “It is interesting to note that SO 40, which deals with Acts of Synod, comes in that part of the Standing Orders headed ‘Other procedures and customs’. Acts of Synod are not forms of legislation and therefore cannot create rights or obligations. They are described in the Standing Orders as a means of giving formal publication to any instrument or resolution of the Synod ‘as the embodiment of the will or opinion of the Church of England as expressed by the whole body of the Synod’. They are therefore weighty and significant statements, but perhaps sometimes they are accorded more weight than might be appropriate for the slightly unsatisfactory reason that ‘Act of Synod’ sounds rather like ‘Act of Parliament’, when in fact the synodical equivalent of an Act of Parliament is, of course, a Measure.”

    • A useful consideration of What is an Act of Synod? was posted by Philip Jones on his blog, in which he refers to Stephen Slack’s ‘Synodical Government and the Legislative Process’ (2012) Ecclesiastical Law Journal, January 2012, p.43.

      Philip concludes “[t]hus an Act of Synod should not be used as a substitute for legislation by Measure or Canon, and suggests “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. He states:

      “[t]he 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)”.

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