Co-ordinate jurisdiction: a new way of ministry

by
23 June 2010

Draft legislation on women in the episcopate: amend­ments to be proposed by the Archbishops of Canterbury and York

1. We owe a great debt of gratitude to the revision committee for their dedicated and painstaking work. We wish, however — after much con­sideration, and after discussion in the House of Bishops — to offer legislative amendments to the Draft Measure which we believe might provide a way forward for the Church of England. We want as many people as possible to feel that there is good news for them in this process, and we hope that what we are suggesting may help secure the broadest degree of support for the legislation without further delaying the process of scrutiny and decision.

2. Successive General Synod debates have produced clear majorities in favour of admitting women to the episcopate in the Church of England. At the same time, a number of mo­tions have also shown a widespread desire to proceed in a way that will maintain the highest possible degree of communion within the Church of England between those who differ on the substantive point, reflecting the 1998 Lambeth Conference Res­olu­tion that “those who dissent from as well as those who assent to the ordination of women to the Priest­hood and episcopate are both loyal Anglicans”.

3. The issue that has proved most difficult to resolve in securing these two objectives has been that of “jurisdiction”. Once women become bishops, it will be possible to main­tain something like the present “mixed economy” in the Church of England only if there is provision for someone other than the diocesan bishop to provide episcopal over­sight for those who are unable to accept the new situation. The need for such provision is widely ac­cepted. But what is still much debated is what should be the basis in law for the authority exercised by a bishop in this kind of ministry.

4. The various approaches so far explored have all taken for granted that there is a simple choice between either deriving this authority from the diocesan by way of delegation or removing some part of the diocesan’s jurisdiction so as to confer it on a bishop who then exercises authority (“ordinary jurisdiction”) in his own right.

5. The amendments we intend to propose involve neither delegation nor depriving a diocesan of any part of his or her jurisdiction. Instead we seek to give effect to the idea of a “co-ordinate” jurisdiction.

6. What this would mean is that:

• the jurisdiction of the diocesan bishop — whether male or female — remains intact; he or she would remain the bishop of the whole area of the diocese and would be legally entitled to exercise any episcopal function in any parish of the diocese;

• where a parish had requested ar­rangements, by issuing a Letter of Request, the diocesan would in practice refrain from exercising certain of his or her functions in such a parish, and would leave the nominated bishop to exercise those functions in the parish in question;

• the legal authority of the nom­inated bishop to minister in this way would derive from the Measure itself — and would not, therefore, be conferred by way of delegation; but the identity of such a bishop and the scope of his functions would be defined by the scheme made by the diocesan for his or her diocese, in the light of the provisions contained in the national statutory Code of Practice drawn up by the House of Bishops and agreed by General Synod;

• thus both the diocesan and the nominated bishop would possess “ordinary jurisdiction”; the diocesan would retain the complete jurisdic­tion of a diocesan in law, and the nom­inated bishop would have jurisdiction by virtue of the Measure to the extent provided for in the diocesan scheme — in effect holding jurisdiction by the decision of the Church as a whole, as expressed in the Measure;

• in respect of the aspects of epis­copal ministry for which the dio­cesan scheme made provision, the diocesan and the nominated bishop would be “co-ordinaries”, and to that extent, their jurisdiction could be described as co-ordinate — that is to say, each would have an ordinary jurisdiction in relation to those matters; and

• the Code of Practice would contain guidelines for effective co-ordination of episcopal functions so as to avoid duplication or conflict in the exercise of episcopal ministry.

7. The amendments needed to achieve all this will be brief and will not involve a radical rewriting of the draft legislation. They are likely to be confined to Clauses 2 and 5 of the draft Measure and are consistent with its overall structure. They would not require a further Revision Committee stage.

8. Thus if they were passed — and sub­ject to decisions reached by Gen­eral Synod on amendments tabled by other members — the way would still be clear to refer the legislation to diocesan synods if the revision stage is successfully completed in July. As the recent statement from the House of Bishops makes clear, the Arch­bishops and most of the House are persuaded that delay would not be wise or helpful.

9. Since the amendments would not divest the diocesan bishop of any jurisdiction, they would involve no change in the Church of England’s understanding of the episcopate. But for those seeking ministry under this provision from a nominated male bishop, there would no longer be the difficulty that this authority was derived in law from an act of delega­tion by an individual diocesan.

10. An arrangement whereby two people have jurisdiction in relation to the same subject matter would not be unique. For example, the High Court and the Charity Commission each has jurisdiction to make schemes for the reorganisation of char­­ities. Many courts and other bodies have overlapping juris­dictions.

11 Such situations are often de­scribed as “concurrent” jurisdiction — though this should not be un­derstood in the sense of two different courts acting at the same time in relation to the same things, simply as meaning two authorities possessing jurisdictions that exist side by side. We prefer the term “co-ordinate” as less likely to give rise to confusion.

12. Where there are cases of concurrent jurisdiction in the law, procedural rules and rules of prac­tice have had to be developed to avoid two authorities acting at the same time on the same matters. Similarly, our amendments will re­quire the Code of Practice to give guidance on arrangements for co-ordinating the exercise of ministry as between the diocesan bishop and the nominated bishop under the dio­cesan scheme. The diocesan retains the freedom to amend the diocesan scheme from time to time after consultation with the diocesan synod.

13. Since 1994, the Church of England has managed to operate a practical polity that reflects continu­ing differences over the question of the priestly ministry of women. This has been possible not only because of the framework created by General Synod through the 1993 Measure and the Act of Synod but also be­cause a great many people on all sides have wanted to make it work.

14. We are convinced that the small but significant changes we are proposing will make it easier for the statutory framework and Code of Practice emerging from the legis­lative process to create a climate in which mutual trust and common flour­ishing across the Church of England can be nourished, in a situation where for the first time, all orders of ordained ministry are open to women and men alike.

15. We believe that the amendments secure two crucial things:

• that women ordained to the epis­copate will enjoy exactly the same legal rights as men within the struc­tures of the Church of England and that there will be no derogation of the rights of any diocesan bishop, male or female; and

• that those who request oversight from a nominated bishop under a diocesan scheme will be able to recognise in them an episcopal au­thor­ity received from the whole Church rather than through delega­tion or transfer from an individual diocesan.

16. It will be for General Synod to reach a view on these proposals, as on each of the many amendments offered by Synod members. We com­mend our suggestions to you for prayer and reflection, in the hope that we may emerge from the July Group of Sessions with a sense that the full diversity of voices in the Church of England has been duly heard and attended to.

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