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Piecemeal revision of C of E law won't help, say canon lawyers

28 August 2015


In his pomp: a portrait of Henry VIII in 1540, by Hans Holbein the Younger 

In his pomp: a portrait of Henry VIII in 1540, by Hans Holbein the Younger 

PROPOSALS for a new Enabling Measure that would give the Archbishops’ Council “Henry VIII” powers to change or repeal some synodical Measures and Acts of Parliament do not go far enough, the Ecclesiastical Law Society (ELS) have said.

At present, minor changes to existing church laws usually require the passage of another Measure, with full scrutiny by the General Synod and Parliament’s Ecclesiastical Committee, in a process that takes a minimum of 18 months.

The proposed new Measure would give the Archbishops’ Council the power to change Measures and other legislation by Orders that, if approved by the General Synod in a single majority vote, would be laid before Parliament as Statutory Instruments.

Such enabling legislation is known in legal circles as “Henry VIII Clauses” after the 1539 Statute of Proclamations, which gave King Henry VIII the power to legislate by proclamation.

In a consultation document, the Secretary General of the Synod, William Fittall, wrote that the Measure would contain provisions limiting when such a power could be used. “One obvious category . . . would be that of legislation which is foundational to the life of the Church, including because it addresses its relationship with the State.”

Such legislation would include the Submission of the Clergy Act 1533, the Appointment of Bishops Act 1533, and the Act of Uniformity 1662.

In their response to the consultation, the ELS say that they “welcome the initiative”, but that “the substantive proposal is not radical enough.” They warn that with the current proposals, “the ecclesiastical law of the Church of England will be subjected to years of piecemeal orders rather than the swift clear surgical intervention which it undoubtedly needs.”

In 1987, after a review led by Chancellor George Spafford, the ELS called for “a relatively straightforward programme of repeals and consolidation, together with proposals to update much legislation that was considered unfit for purpose”, they say.

They express disappointment that this hasn’t happened in the 30 years since the Spafford review, and they call on the Archbishops’ Council “to take immediate steps to repeal redundant and obsolete legislation and to conduct a thorough consolidation of the legislation that remained”.

The Bishop of Willesden, the Rt Revd Pete Broadbent, chairs the Archbishops’ Council’s task group on simplification, which drew up the proposals.

“Spafford, as I understand it, was mainly about tidying up the legal framework by deleting redundant provisions,” he said on Wednesday. “The enabling proposals suggest simplifying the way in which we make law in the future.

“We need to move from a Church that runs on defensive bureaucracy. The best legal provision asks ‘How can I make that happen within a good framework?’ — not ‘How can I erect hurdles to make it as difficult as possible?’”

He said: “The C of E is a Church in which law is there to give order and framework. But the issue here is about a cultural change, where the legalities sometimes prevent or slow down much needed reform.”


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