A couple of weeks ago, I asked a well-informed conservative member of the Church of England why he thought it was that the House of Bishops seemed reluctant to even consider the idea of a provincial solution to the Church of England’s current impasse over issues to do with human sexuality as proposed by the Church of England Evangelical Council. His answer was that one of the key reasons was that the bishops believed that there was no point in considering a provincial solution because Parliament would never vote for such a development.
Prima facie this argument seems persuasive, but it should be rejected for two reasons.
First parliamentary approval would only be needed for a provincial solution which involved the creation of a new province (for either conservatives or liberals) in addition to the existing provinces of Canterbury and York. It would not be needed for a re-arrangement of the Church of England’s current diocesan and provincial structure that did not involve the creation of an additional province.
Secondly, even if a provincial solution involving an additional third province would have to involve the Church of England bringing a proposal to Parliament for approval, this should not be regarded as a reason for not trying to bring such a solution about.
In order to understand why these two counter arguments have force, the first thing that needs to be understood is that the legislation which requires the Church of England to bring church legislation to Parliament for approval is The Church of England Assembly (Powers) Act 1919.
Sections 3 and 4 of this act state:
‘(1) Every measure passed by the General Synod shall be submitted by the Legislative Committee [of the Church Assembly] to the Ecclesiastical Committee, together with such comments and explanations as the Legislative Committee may deem it expedient or be directed by the Church Assembly to add.
(2)The Ecclesiastical Committee shall thereupon consider the measure so submitted to it, and may, at any time during such consideration, either of its own motion or at the request of the Legislative Committee, invite the Legislative Committee to a conference to discuss the provisions thereof, and thereupon a conference of the two committees shall be held accordingly.
(3)After considering the measure, the Ecclesiastical Committee shall draft a report thereon to Parliament stating the nature and legal effect of the measure and its views as to the expediency thereof, especially with relation to the constitutional rights of all His Majesty’s subjects.
(4)The Ecclesiastical Committee shall communicate its report in draft to the Legislative Committee, but shall not present it to Parliament until the Legislative Committee signify its desire that it should be so presented.
(5)At any time before the presentation of the report to Parliament the Legislative Committee may, either, on its own motion or by direction of the Church Assembly, withdraw a measure from further consideration by the Ecclesiastical Committee; but the Legislative Committee shall have no power to vary a measure of the Church Assembly either before or after conference with the Ecclesiastical Committee.
(6)A measure may relate to any matter concerning the Church of England, and may extend to the amendment or repeal in whole or in part of any Act of Parliament, including this Act:
Provided that a measure shall not make any alteration in the composition or powers or duties of the Ecclesiastical Committee, or in the procedure in Parliament prescribed by section four of this Act.
(7)No proceedings of the Church Assembly in relation to a measure shall be invalidated by any vacancy in the membership of the Church Assembly or by any defect in the qualification or election of any member thereof.’
When the Ecclesiastical Committee shall have reported to Parliament on any measure submitted by the Legislative Committee, the report, together with the text of such measure, shall be laid before both Houses of Parliament forthwith, if Parliament be then sitting, or, if not, then immediately after the next meeting of Parliament, and thereupon, on a resolution being passed by each House of Parliament directing that such measure in the form laid before Parliament should be presented to His Majesty, such measure shall be presented to His Majesty, and shall have the force and effect of an Act of Parliament on the Royal Assent being signified thereto in the same manner as to Acts of Parliament:
Provided that, if upon a measure being laid before Parliament the Chairman of Committees of the House of Lords and the Chairman of Ways and Means in the House of Commons acting in consultation, shall be of opinion that the measure deals with two or more different subjects which might be more properly divided, they may, by joint agreement, divide the measure into two or more separate measures accordingly, and thereupon this section shall have effect as if each of the measures resulting from such division had been laid before Parliament as a separate measure.’ [1]
The reference to the Church Assembly in the act is a bit confusing, but what it reflects is the fact that for the purposes of this legislation the General Synod now acts as the Church Assembly but with a new name.
The key thing to note in relation the 1919 act, is that the only matters which the Ecclesiastical Committee gets to consider, and on which Parliament gets to vote, are new measures proposed by General Synod, or amendments by General Synod to existing measures. Other pieces of ecclesiastical legislation do not require parliamentary approval.
The question therefore arises whether the establishment of a new provincial structure for the Church of England would require a new measure, or the amendment of an existing measure, and hence parliamentary approval.
In order to answer this question, the first point that needs to be understood is that Part II section 3 (1) of the Dioceses, Pastoral and Mission Measure 2007,[2] lays down that the Church of England’s Dioceses Commission has the duty:
‘…. to keep under review the provincial and diocesan structure of the Church of England and, in particular—
a)the size, boundaries and number of provinces,
(b)the size, boundaries and number of dioceses and their distribution between the provinces, and
(c)the number and distribution of episcopal offices and the arrangements for episcopal oversight.’
Part II section 3(3) then goes on to lay down that:
‘If, when carrying out its functions under subsections (1) and (2) above, the Commission publishes proposals to alter the number of provinces, it shall also include, in those proposals, recommendations concerning the method of achieving the changes required by the proposals.’
Part II section 4.3 (a-d) further adds that:
‘A reorganisation scheme may make provision for one or more of the following purposes—
(a)the foundation of one or more new diocesan bishoprics with one or more dioceses constituted from one or more existing dioceses and, if necessary, the dissolution of one or more existing dioceses and the abolition of the bishopric or bishoprics thereof;
(b)the transfer of the whole of the area of any diocese to another diocese and the dissolution of the first mentioned diocese and the abolition of the bishopric thereof;
(c)the transfer of parts of the area of any diocese to one or more other dioceses and, if necessary, the dissolution of the first mentioned diocese and the abolition of the bishopric thereof;
(d)the transfer of a diocese or parts of the area of any diocese from one province to another.’
Taken together, what these three sections of the measure mean is that neither the number of the provinces of the Church of England, nor the dioceses they contain are immutable. They can be changed, just as the number of provinces in the Church of England and the number and identity of its dioceses have been changed in the past. This means that it would be possible to create a provincial solution in which the existing provinces of Canterbury and York remained in place, but in which a new set of dioceses was created within them to cover (a) those parishes who wanted to retain the Church of England’s traditional doctrine and practice with regard to sexuality and (b) those parishes who wished to change it.[3]
Such a reorganisation scheme could thus be proposed by the Dioceses Commission within the scope of the 2007 measure, and if approved by General Synod following the procedure laid down in the measure the scheme could then be approved by an Order in Council, as laid down in Part II (8) of the measure, without requiring Parliamentary approval.
Under Part II section 3(3) the Dioceses Commission could also recommend creating a new province in addition to Canterbury and York and creating new dioceses to be part of it. It would then also presumably need to recommend making provision for the creation of a third archbishop to exercise jurisdiction within this new province.
However, unlike the re-organisation of existing provinces, the implementation of such a scheme would seem to require parliamentary in addition to synodical approval.
This is not because parliamentary approval would be needed for the creation of new dioceses or even a new archbishop (which could be achieved by royal assent to, and synodical promulgation of, an amendment to Canon C17), but because of the need to amend the Synodical Government Measure 1969.[4] This measure (and Canons H.1-3 which reflect it) only make reference to the Convocations and Houses of Laity of the provinces of Canterbury and York. This means that amendments to the measure would need to be made to include references to the Convocation and House of Laity of the new province as well. Such amendments would require parliamentary approval under the 1919 act.
However, the mere fact that parliamentary approval would be required does not means that a provincial solution involving a third province should not be attempted. This is because there are three good arguments for saying that members of Parliament should approve rather than block such amendments.
First, by giving its approval to the 2007 measure Parliament has given the Church of England the responsibility to review and reform its existing diocesan and provincial structure through a synodical process leading to an Order in Council. It would be perverse of Parliament to prevent the Church of England undertaking its responsibility in this matter by blocking consequential amendments to the Synodical Government Measure. Parliament would in effect be preventing a lawful process taking effect.
Secondly, contrary to what is sometimes suggested, the creation of a new provincial structure would not be a ‘homophobic’ move that Parliament should therefore reject as contrary to ‘the constitutional rights of all His Majesty’s subjects.’
This is because a provincial solution would allow those supportive of lesbian and gay relationships to achieve the changes in the Church of England’s doctrine and practice that they want to see, and which would not otherwise take place given the lack of the necessary 2/3 majority in Synod for them, while also allowing the effective exercise of freedom of conscience to those who could not conscientiously accept such changes.
Furthermore, not making effective provision for those conscientiously opposed would go against the principle of respect for freedom of conscience in matters of religion already reflected in the Equality Act of 2010 and the Marriage (Same Sex Couples) Act 2013. The right of religious believers to act in accordance with their conscience in relation to same-sex relationships is specifically protected by both these acts, and a refusal by Parliament to allow a particular form of such protection, which the Church of England had already decided was necessary, would be refusal to follow this precedent, and would thus arguably breach the constitutional rights of the King’s subjects.
Thirdly, the previous two points mean that refusal by Parliament to agree to the necessary amendments to the Synodical Government Measure would constitute an arbitrary refusal by Parliament to let the Church of England exercise the power of self-government given to it in 1919. If Parliament were to do this it would create a very serious crisis in the relationship between Parliament and the Church of England, and this is hopefully something that members of Parliament would wish to avoid.
[1] The Act can be found online at https://www.legislation.gov.uk/ukpga/Geo5/9-10/76/contents
[2] This measure can be found online at https://www.legislation.gov.uk/ukcm/2007/1/contents.
[3] It might perhaps be argued that the 2007 measure does not make provision for changes in the provinces or dioceses of the Church of England to accommodate differences in theological and ethical conviction. This is true, but what is also true is that it does not rule them out either. The measure does not lay down any rule that says that changes to the provinces or dioceses may be made for some reasons and not for others.
[4] This measure can be found online at https://www.legislation.gov.uk/ukcm/1969/2/contents.
Reflections of an Anglican Theologian 
Whatever the merits or demerits of this proposal, let’s not adduce lack of “catholicity” in its ecclesiology. In the UK there are around a dozen Eastern Orthodox Churches/ jurisdictions, and a similar number of Roman Catholic ones counting both the Latin Rite and the Eastern Rite ones. Surely we won’t try to beat them at “catholicity”. And catholic teaching tradition is what is being attempted to preserve.