“Henry VIII powers” for the bishops?

Comments of the Ecclesiastical Law Society on proposals for reforming ecclesiastical law

The 26 July round-up included a quick-link to the response by a working party of the Ecclesiastical Law Society, (ELS), to a consultation by the Archbishops’ Council’s on proposals for reforming ecclesiastical law. These suggest the use of a scheme modelled on Part 1 of the Legislative and Regulatory Reform Act 2006 which contains what is popularly known as “Henry VIII clauses”; the House of Lords Select Committee on the Scrutiny of Delegated Powers defined the term in its first report of 1992-93 as “a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny”.

The Society’s response formed the basis of an article by Ruth Gledhill in Christian Today, Senior lawyers launch devastating critique on church law reform plans, which comments:

“[they] have condemned the proposals as ‘inchoate’ and urged the Archbishops of Canterbury and York ‘not to pander to the false narrative that law is a malign force which stifles the mission of the Church’. They have also raised fears that the proposals represent an attempt ‘to move legislative authority’ away from the General Synod, the Church’s parliament, and to the Archbishops’ Council, the policy body at the heart of Church management. Some even fear that the proposals are a ‘clandestine means’ of removing legal constraints and ‘ceding untrammelled authority to the bishops and to the Archbishops’ Council,’ according to the critique.”

The Christian Today headline is in strong contrast to the assessment of canon lawyer Philip Jones, who in his post of 31 July, Reformatio Legum Ecclesiasticum: Of Martyrs and Mice, refers to the Society’s “dignified Response,” and adds some useful analysis of his own, below. As with all L&RUK posts, this present one aims to be impartial; however, it is necessarily written from an Anglican/canon law/Ecclesiastical Law Society perspective, [and, not being an Anglican, Frank recused himself from commenting]. From this point of view, it would seem unfortunate if the CT article were to set the tone for future discussions between the Church and the Ecclesiastical Law Society. Embryonic proposals are of their very nature inchoate. Surely what the Working Party is trying to do is to identify the initial misgivings of ELS members without passing judgment on whether or not those misgivings are soundly based – and, in doing so, the Working Party is clearly making an entirely legitimate general comment, rather than any specific criticism of the proposals in the consultation document.

Background

Attempts to revise church legislation are not new, and throughout its history there has been an uneasy tension between those with a positive view of ecclesiastical law – lawyers, Archbishops and others –and those who considered it to be unnecessarily burdensome; it is clear that this dichotomy still shapes the present attempts to revise church law.

Philip Jones’ post traces earlier attempts at revision, including: the proposed Reformatio Legum Ecclesiasticum, overseen by Archbishop Cranmer; Laud’s canons of 1640, which were promulged but never recognized as lawful; the work of Sir Robert Phillimore and his Ecclesiastical Law; and the 1947 report The Canon Law of the Church of England, finally adopted in 1969. The Ecclesiastical Law Society itself has long been lobbying for the repeal of obsolete ecclesiastical law and in 1987 established a Working Party on the Revision of Ecclesiastical Statute Law led by Chancellor George Spafford. The Society’s response to the Consultation notes:

“It was disappointing that, despite the investment of considerable time and expertise by members of the Ecclesiastical Law Society, it was not thought appropriate to find time in General Synod’s legislative agenda to bring forward reforms which the Working Party categorised as urgent, pressing and expedient 30 years ago”.

Nevertheless, there is agreement between the Archbishops’ Council and the ELS on the need to repeal and revise obsolete ecclesiastical legislation, although they differ  as to how the task might be undertaked.

Present initiative

The genesis of the current initiative lies in the document Optimising the role of the National Church Institutions, GS Misc 1094, issued on 12 January 2015, on which the covering note stated:

“[p]aragraphs 65-67 propose a new enabling measure that would simplify the process for amending existing church legislation. There was considerable interest in this idea. The options paper referred to at paragraph 67 was considered by the Archbishops’ Council in November and further work was commissioned for the Council’s next meeting in March. It was recognised that further work and consultation were needed before any decision was taken to bring legislative proposals to the new Synod, which is due to be elected this autumn.”

The consultation document A Simpler Way of Reforming Church Legislation, GS Misc 1103, was issued on 13 April 2015: responses were required by 31 July. It proposes [emboldened text in original]:

“8. … that Synod should seek to equip itself with an equivalent to [Part 1 of the Legislative and Regulatory Reform Act 2006 (‘the 2006 Act’)] so that many Church of England Measures could be amended by Order rather than by a fresh Measure. This would greatly facilitate the task of pruning and simplifying the Church’s over-elaborate statute book”.

[…]

13. To achieve this the Council would need to bring forward a new draft Measure (‘the new Enabling Measure’) which, closely following the pattern of the 2006 Act, would confer a new power to repeal or amend Church legislation – including primary legislation in the form of Measures and Acts of Parliament – by means of an order made by the Council which was laid before the Synod for approval and then before Parliament as a Statutory Instrument. Like the power conferred by the 2006 Act, that power would need to be carefully defined in its scope and regulated in its exercise.

14. Before it could become law the new Enabling Measure would, having been finally approved by the General Synod, need to be scrutinised by the Ecclesiastical Committee and approved by both Houses of Parliament in the usual way. The likelihood is that the terms on which the new Enabling Measure was framed would be examined with particular care since the proposed order-making power would pave the way for future legislative changes, within the limits imposed by the Measure, which were made without the scrutiny of the Ecclesiastical Committee. There would still be a degree of parliamentary oversight since individual orders would have to be laid before Parliament as Statutory Instruments and subject to a degree of parliamentary control (described below).

15. The justification for this new approach would be that it: was necessary to enable us to respond more nimbly to changing needs; did not extend to fundamental matters such as Church/State relations or worship and doctrine; followed the pattern that Parliament had already agreed in relation to Westminster legislation; and was another sensible step in the long and gradual process whereby the Church of England had acquired increased ownership of its own framework of law.

Ecclesiastical Law Society

The ELS response Reforming Church Legislation: A Response by a Working Party of the Ecclesiastical Law Society to the Archbishops’ Council’s Consultation Document, GS Misc 1103, concludes by stating, [5.3],

“Both the Working Party and the Committee of the Ecclesiastical Law Society commend the Archbishops’ Council for taking up the challenge of repealing and revising obsolete ecclesiastical legislation; and are willing to offer further assistance in the future to frame the best possible provisions for making the law of the Church of England and its governance fit for purpose in the twenty-first century to promote the mission and witness of the church at national, diocesan and parochial level.

With regard to the timing, it notes, [4.1],

“The decision of the Archbishops’ Council in putting out its ‘blue sky’ thinking at an early stage and to a wide range of consultees has the distinct advantage of permitting real and meaningful input to an inchoate proposal which is still embryonic”.

Nevertheless, the Working Party was unconvinced of the premise which underlies the questions raised in the consultation document, and these have not been addressed individually, [5.2]. However, it offers a series of recommendations to inform and shape long-overdue changes to make the ecclesiastical law and law-making of the Church of England fit for purpose in the twenty-first century, [4.1 to 4.7], and encourages the Archbishops’ Council to look afresh at its rationale for what is proposed.

Comment

Philip Jones observes that the consultation paper identifies two separate problems:

  • the legislative procedure in the Church of England Assembly (Powers) Act 1919 relating to future legislation is too lengthy and onerous (paras 7-8); and
  • the fact that the current volume of substantive ecclesiastical legislation is too large and complex,

and, as such, two essentially independent solutions are possible. With regard to the latter, the ELS response comments,

“4.4 The most pressing need … is the immediate repeal of moribund, otiose, obsolete and arcane legislation, coupled with the consolidation of dispersed statutory provision. Much of the preparatory work has already been done, [by the Spafford Working Party]. Indeed the wholesale repeal of huge swathes of obsolete legislation could be completed pursuant to an uncontroversial Revision Measure,

[…]

4.5 … a Measure directed towards repealing obsolete legislation with a mopping up provision for consequential revisions and consolidation is much more likely to find widespread approval in General Synod than one whose sole purpose is to create an untried and untested procedure including the establishment of new committee with the capacity (real or perceived) to change the law surreptitiously.

It suggests that this could be undertaken using a fast-track procedure provided that: i] this was ancillary to a wholesale and systematic repeal of obsolete legislation; and ii] it was subject to necessary safeguards of the type outlined in the consultation document, [4.6]. With regard to the procedural issues, however, as the ELS observes “the radical proposal of a new Enabling Measure” will be “a matter of intense debate and polarised opinion” and this is likely to extend far beyond the membership of the Society. In particular, consideration would need to be given to the interpretation of section 3(6) of the 1919 Act, which states:

“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 this 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.”

David Pocklington

Cite this article as: David Pocklington, "“Henry VIII powers” for the bishops?" in Law & Religion UK, 25 August 2015, https://lawandreligionuk.com/2015/08/25/henry-viii-powers-for-the-bishops/

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