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 today, at the press briefing for next month's General Synod meeting.
Much scepticism has been expressed by members of Forward in
Faith about the degree of reassurance that can be gained from this
The legislation would face a "higher hurdle" than any so far,
the Secretary General of the Church of England, 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 which "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
Measure before 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
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 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 determined its final form. So there
could not be an "indefinite process of ping-pong": it would be
expected to conclude in 2014.
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
"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, "not easily satisfied".