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Lawyers spell out ‘respect’

02 November 2012


From on high: the General Synod meets in London earlier this year

From on high: the General Synod meets in London earlier this year

THE legal advice to the House of Bishops concerning the implications of the term "respect" in the House's revised amendment to the draft women-bishops legislation was published for the first time last Friday, at the press briefing for next month's General Synod meeting.

Scepticism has been expressed by members of Forward in Faith and others about the degree of reassurance that can be gained from this amendment ( Letters, 26 October).

The legislation would face a "higher hurdle" than any so far, the Secretary General of the General Synod, William Fittall, told the press. Both the Measure and the Amending Canon would need a two-thirds majority in each of the three Houses.

"The expectation in the Church of England, given the very strong support from the dioceses and the expectation outside the Church of England, is that this is going to go through," Mr Fittall said. But, as with the final-approval debate on the women-priests Measure in 1992, "the arithmetic is again very tight."

In July, the Synod resolved by 288 votes to 144 to adjourn the final-approval debate on the Measure, and ask the House of Bishops to reconsider Clause 5(1)(c), which stated that the Code of Practice should cover "the selection of male bishops or male priests the exercise of ministry by whom is consistent with the theological convictions as to the consecration of women" of the PCC in a traditionalist parish (News, 13 July).

On 12 September, the House of Bishops voted in favour of an amendment to the clause, which now states that the Code should cover selection that "respects the grounds on which Parochial Church Councils issue Letters of Request" ( News, 14 September).

The Measure cannot be further amended. The question to be put to the Synod on 20 November was, Mr Fittall said, "a very simple one: 'Is it yes or is it no?'" He was "sure" that the debate would "range widely, both over the principle of women becoming bishops . . . and the specifics of this legislative package".

If the vote was lost, for women bishops to be introduced, new legislation would have to be prepared, and a full legislative process repeated, he said. It would be "at least five years" before such a Measure would reach the final-approval stage, probably longer, considering that the process for preparing the current draft Measure before the Synod began in 2005.

It is possible that, if the vote is lost, diocesan-synod motions on the Episcopal Ministry Act of Synod 1993 and the ordination of women to the episcopate, both "parked" by the Business Committee for the duration of the current legislative process, could return for debate.

If the final approval is secured, the Measure must be sent to the Ecclesiastical Committee of Parliament, and debated in the House of Commons and the House of Lords in 2013, before it can receive Royal Assent. The first scheduled meeting at which the House of Bishops would be able to create the Code of Practice would be in May 2013. This could then be considered by the Synod meeting scheduled for July. The earliest that the Code could be approved would be November 2013. The earliest that a woman could be appointed as a bishop would be early in 2014.

A "very substantial illustrative draft" of the Code of Practice was circulated to members of the Synod in January, but there could be no "binding assurances" about what the final Code would say, Mr Fittall said. Although he expected that, were the Measure to be passed, there would be "a strong momentum to conclude the remaining stages in reasonable order", there could be "lively debate" about the Code; and there was no deadline for its conclusion. This would require only simple majorities, but it was Article 7 business, which meant that the Convocations and House of Laity could debate it separately, but the Bishops would determine its final form. So there could not be an "indefinite process of ping-pong": it would be expected to conclude in 2014.

When asked about the legal advice regarding the use of the word "respect" in the amended Measure, Mr Fittall said that it "could be tested by judicial review in a case where somebody thought a bishop had not paid due regard to the Code". It was possible to depart from the Code, but only for "cogent" reasons.

The advice given to the Bishops by the Chief Legal Adviser, Stephen Slack, is that the term "respect" is "less prescriptive" than their "consistent with" wording had been, but "more prescriptive" than such terms as "take account of" or "have regard to".

"The person(s) making the selection would need to seek to address, or accommodate, the grounds on which a PCC has issued its Letter of Request. They could not simply fail to give effect to those grounds at all, even if they considered that there were cogent grounds for doing so."

To depart lawfully from the statutory Code of Practice required "cogent" grounds that could be tested by a judicial review; and Mr Slack stated that the standard for this had been said judicially to be a "high" one, and "not easily satisfied".




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