The purpose of the draft Measure
The draft Measure would enable the General Synod to tidy up the Church of England’s statute law. Briefly, Clause 1 empowers the Archbishops’ Council to make orders removing or reducing “legislative burdens”. However, that power is subjected to a series of complex conditions, including a list of statutes that are excluded from the scope of the order-making power and, as we shall see, a special procedure in Synod.
The initial proposal came in for a degree of criticism. In The Proposed Enabling Measure: A Complex Process of Simplification, Philip Jones argued that the proposal was “very confused”, on the basis that it “prescribes an onerous procedure for making orders in respect of the legislation that it fails to specify”. More recently, in The Burden of Legislative Reform, he suggested that “the fundamental misconception of the Measure is that it is modelled on a piece of secular legislation that has no application to the Church” and that it based on a misunderstanding of the purpose of the Legislative and Regulatory Reform Act 2006.
In Reforming Church Legislation, Professor Mark Hill QC, Dr Charles Mynors and Professor Peter Smith commented on behalf of the Ecclesiastical Law Society on the proposals in the Archbishops’ Council’s initial Consultation Document GS Misc 1103. They observed that:
“The problem of ‘too complex’ law is to be addressed by creating a highly technical and legalistic new procedure and the establishment of a Scrutiny Committee adding yet further to the bureaucracy of the National Institutions (already over-burdened and under-resourced) when the direction of travel should be towards simplification.”
In short, they suggested that
“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.”
The process for making and scrutinising orders made under Clause 1 of the draft Measure was described in a tweet by my eagle-eyed former colleague, Martyn Atkins, as a “super-affirmative” procedure. In short:
- if the Archbishops’ Council proposes to make an order it must consult not only General Synod but a wide range of other interests [Clause 4(1)];
- if, as a result of those consultations, it appears to the Council that it would be appropriate to change the whole or part of its proposals, it must undertake “such further consultation on the changes as it considers appropriate” [Clause 4(3)];
- once the Archbishops’ Council has carried out the necessary consultations, it must lay the order before the General Synod in draft, with a detailed explanatory document [Clause 5(2)];
- the draft order is to be scrutinised by a committee of Synod established by Standing Order for that purpose [Clause 6(1)];
- following a report by the committee on a draft order, Synod may either approve it with any amendments made by the committee, reject it or refer the draft back to the committee [Clause 6(3)];
- where a draft order is referred back to the committee under subsection (3)(c), the Standing Orders of the General Synod are to apply to the draft order as if it were a draft order being referred to the committee for the first time. [Clause 6(4)].
At the end of that process, the draft order then goes through the normal synodical and parliamentary stages.
How it’s done in Scotland
In matters of ecclesiastical law, there’s very little new under the sun. The Church of Scotland has a basic two-tier system for making its legislation:
- generally, the Kirk may legislate for itself by a simple majority in the General Assembly; but
- the Barrier Act 1697 provides that in the case of matters “which are to be binding Rules and Constitutions to the Church” the GA may legislate only with the consent of a majority of presbyteries – which means that legislation that attracts the Barrier Act provisions is sent down to the presbyteries for consideration and, if assented to by a majority of presbyteries, returns to the GA in the following year for enactment.
But there is more.
The domestic, internal legislation of the Church no longer seems to be regarded as part of the general law of Scotland. In Percy v Board of National Mission of the Church  ScotCS 65, Lord President Rodger declared, obiter, that
“… the General Assembly enacts laws which have many of the stylistic and other hallmarks of the kind of legislation which is enacted by Parliament. The procedures of the Church courts are replete with terminology which is familiar to practitioners of Scots law. The language does nothing indeed to conceal the hand which those trained in Scots law have had in guiding such proceedings down the centuries. None the less, despite their outward appearance, the laws of the Church operate only within the Church and her courts adjudicate only on matters spiritual. In other words, the formality and indeed solemnity of all these transactions and proceedings does not disclose an intention to create relationships under the civil law; rather, it reflects the serious way in which the Church regulates the matters falling within the spiritual sphere.” [14: emphasis added]
What does remain part of the general law of Scotland, however, is the Church of Scotland Act 1921; and though Article VIII of Articles Declaratory in the Schedule to the Act gives the General Assembly power to amend the Articles Declaratory, it lays down a super-affirmative procedure with which the GA must comply in order to do so:
“Any proposal for a modification of or addition to these Articles which may be approved of by the General Assembly shall, before it can be enacted by the Assembly, be transmitted by way of overture to Presbyteries in at least two immediately successive years. If the overture shall receive the approval, with or without suggested amendment, of two-thirds of the whole of the Presbyteries of the Church, the Assembly may revise the overture in the light of any suggestions by Presbyteries, and may transmit the overture when so revised to Presbyteries for their consent. If the overture as transmitted in its final form shall receive the consent of not less [sic] than two-thirds of the whole of the Presbyteries of the Church, the General Assembly may, if it deems it expedient, modify or add to these Articles in terms of the said overture. But if the overture as transmitted in its final form shall not receive the requisite consent, the same or a similar proposal shall not be again transmitted for the consent of Presbyteries until an interval of five years after the failure to obtain the requisite consent has been reported to the General Assembly.”
Compared with that, the proposed procedure for Clause 1 orders under the draft Legislative Reform Measure might not be so complex after all.
- Clause 1 confers on the Archbishops’ Council the power to make orders removing or reducing legislative burdens; but
– an order cannot be made by the Council under unless it has been approved by the General Synod following a process of consultation and scrutiny;
– the power to make orders must be exercised for the purpose of removing or reducing burdens resulting directly or indirectly from ecclesiastical legislation; and
– “ecclesiastical legislation” includes Acts of Parliament, Church Measures and subordinate legislation.
- Clause 2 provides that the Archbishops’ Council may include provision in an order only if it considers that each of the following conditions is met–
– that the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means;
– that the effect of the provision is proportionate to the policy objective;
– that the provision, taken as a whole, strikes a fair balance between the public interest, the interest of the C of E as a whole, and the interests of any person adversely affected by the provision;
– that the provision does not remove any necessary protection;
– that the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise; and
– that the provision is not of constitutional significance.
- Clause 3 expressly excludes from the scope of the order-making power:
– the Submission of the Clergy Act 1533 (which provides that canons cannot be contrary to the general law);
– the Appointment of Bishops Act 1533 (which sets out the procedure for appointing diocesan bishops);
– the Suffragan Bishops Acts 1534 to 1898 (which set out the procedure for appointing suffragan bishops and related matters);
– the Act of Uniformity 1662 (the unrepealed provisions of which prevent those who have not received episcopal ordination as priests from being appointed as incumbents etc. and require preachers to be licensed);
– the Church of England Assembly (Powers) Act 1919 (which devolves legislative power to the General Synod);
– the Synodical Government Measure 1969 so far as it relates to the General Synod and the Convocations;the Church of England (Worship and Doctrine) Measure 1974 (which enables the General Synod to approve forms of service alternative to those in the Book of Common Prayer, subject to certain safeguards); and
– (for obvious reasons) the Legislative Reform Measure itself.
- Clause 4 imposes an obligation on the Archbishops’ Council to carry out a consultation if it is proposing to make an order: the Council must consult–
– the members of the General Synod;
– persons who have or exercise functions to which the proposals relate;
– other persons whose interests would be substantially affected; and
– any other persons the Council considers appropriate.
- Clause 5 provides that if, having completed the consultation under Clause 4, the Archbishops’ Council decides to proceed, it must lay a draft of an order before the General Synod together with an explanatory document setting out an introduction to, and reasons for, the provision contained in the order; why the Council considers that relevant conditions in clause 2 are satisfied; an assessment of the extent to which the provision contained in the order would remove or reduce burdens; and details of the consultation undertaken under clause 4, the representations received and the changes (if any) made as a result.
- Clause 6 provides for the establishment by Standing Order of a Synod committee to consider and report on draft orders laid before the Synod. The committee will be able to address any matter relating to the draft order in its report. In particular, if it concludes that a provision of legislation at which a draft order is directed does not in fact amount to a “burden”, or that a precondition to the exercise of the order-making power is not met, it will be able to draw that matter to the Synod’s attention. Once the committee has reported, the General Synod may approve the draft order (with any amendments made by the committee), reject it, or refer it back to the committee.
- Clause 7 provides for a separate order-making power for use only in relation to consolidation Measures.
- Clause 8 provides for an order made under clause 1 or clause 7 to contain consequential, supplementary, incidental, transitional, and saving provisions. Such an order must be made in the form of a statutory instrument and laid before both Houses of Parliament, where it is subject to the negative procedure, under which it can be annulled by Resolution of either House within 40 days, rather than the affirmative procedure normally used for Church of England Measures.