Would a provincial solution require parliamentary approval?

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.

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[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.

On not saying anything significant – a response to GS 2346

On not saying anything significant – a response to GS 2346

Back in the days when I used to work at Church House, London, I was told a story about a visit by a former Archbishop of Canterbury to an Anglican province in Africa. During this visit, the archbishop gave a sermon in English with a translator provided to give the archbishop’s message in the local language. According to the story, the archbishop gave his sermon in four sections, and it was noted that after each section the translator gave a single short sentence and then stopped. Curious about this, a member of the archbishop’s staff enquired as to what the translator had said. Eventually the embarrassed locals explained that the first time the translator said, ‘He hasn’t said anything,’ the second time he said ‘He still hasn’t said anything,’ the third time he said ‘He isn’t going to say anything,’ and the final time he said ‘I was right, he didn’t say anything.’

I was sadly remined of this story when I read GS 2346, Bishop Martin Snow’s new paper from the House of Bishops for General Synod, ‘Living, in Love, Faith and Reconciliation.’ [1] 

The paper is in four parts.

The first part ‘outlines ten draft commitments through which the whole Church can continue to pursue the implementation of the motions previously passed by Synod on Living in Love and Faith.’

The purpose of these commitments is: ‘1) cultivating unity as far as possible; 2) enabling as many as possible to stay within the Church of England; 3) equipping the Church’s mission to the nation.’

The commitments are as follows:

‘1. Humility and repentance – we will seek to embody the apology we have already made to LGBTQI+ people. We will call out homophobia and actively challenge it. At the same time, we will devote ourselves to Holy Scripture with an openness to all the Holy Spirit is saying to us through God’s word, acknowledging that at times this will be deeply uncomfortable and challenging for us all.

2. Honesty and transparency – we will ensure a transparent, honest process for LLF which fully includes the Houses of Laity and Clergy in General Synod and (as far as possible) Diocesan and Deanery Synods, as well as PCCs. We commit to listening to voices which are often absent from our discussions – in particular the voices of LGBTQI+ people, those of children and young people, and GMH people. We will seek the maximum possible level of transparency regarding legal advice given to the House of Bishops (acknowledging the complexities of such advice). We will ensure that LLF does not dominate agendas of the House / College of Bishops or Synod.

3. Reconciliation – we will prioritise reconciliation as our primary witness to wider society at this time. We will commit to being a ‘learning Church’ and to embodying the ‘habits’ of reconciliation (be curious, be present, reimagine). We will learn from other parts of the Anglican Communion where there have been serious splits (in some cases now deeply regretted). We will seek to appoint an interim “Independent Reviewer” as soon as possible, to monitor the practical outworkings of the bishops’ commitment to value and respect different theological understandings, to advise us, and to reassure those concerned about their future place within the Church.

4. Breadth – we will recognise the gifts of the different traditions within the Church. We will actively reflect on how these gifts are exchanged such that power is acknowledged and everyone – those who use the PLF and those who don’t – are afforded an honoured place within the Church. We will draw fully on the LLF Resources and the expertise of FAOC (allowing them time to do their work well). We will do everything we can to ensure that no-one feels pushed out of Church. We will seek a commitment to avoid using the civil courts to settle our disputes.

5. Freedom of conscience – we will ensure freedom of conscience in relation to PLF for all clergy and lay ministers. We acknowledge the complexities within this – society is not always tolerant of differences and therefore clergy and lay ministers will come under pressure from within and outside the Church. We will ask all bishops to commit to supporting all clergy and lay ministers whether they use the PLF or not.

6. Prayers – we are committed to the experimental use of standalone services of PLF, with legal protection and support for those who opt-in to using them as well as those who don’t. This includes completing the Pastoral Guidance and Pastoral Reassurance work before enabling the use of the standalone PLF.

7. Same-sex marriage – we will not begin any discussions about same-sex marriage in this quinquennium, and we make no commitments beyond this quinquennium. Rather we will learn from the use of the PLF and allow General Synod to decide when and if to begin any discussions about SSM.

8. Ministry – we commit to exploring the process for clergy and lay ministers to enter same-sex civil marriages. We recognise that not all bishops would be content to ordain or licence such ministers, and bishops must be allowed freedom of conscience in relation to LLF in the same way as clergy (point 5). This inevitably means that there may be different approaches across dioceses until such time as changes to Canons are considered (acknowledging a change of doctrine). In this scenario, bishops would need to commit to being transparent with candidates for ministry about their own personal approach and commit to exploring alternative national approaches for candidates who they, in conscience, could not sponsor. Bishops would also need to agree to resist attempts to use disciplinary processes to force deviation from these commitments.

9. Episcopacy – we will explore an approach to episcopacy which enables us to live well with difference and provides pastoral reassurance to all across the spectrum of views on LLF. We are committed to learning from the ‘1994 settlement’ and the ‘2014 settlement’, where (in the latter case) it was only the pain of the 2012 crisis that forced more serious cooperation across divides. We seek this cooperation now, and therefore we commit to exploring the minimum formal structural changes necessary to enable as many as possible to stay within the Church of England.

10. Communion and unity– we commit to seeking the highest possible degree of communion between ourselves, other Provinces of the Anglican Communion, and our ecumenical partners. As we seek a settlement within the Church of England, we will explore the idea of ‘degrees of unity’, recognising that there are ways of staying in relationship and working together even where there are fundamental disagreements.’

There are also three Annexes,  A, B and C.

Annex A:  ‘provides a summary of the differing Canonical routes that have been requested to be explored as a means of introducing PLF in Standalone Services. It summarises the processes these require and an assessment of primary advantages and disadvantages.’

Annex B: ‘outlines considerations around removing restrictions for clergy to enter into samesex civil marriages. It summarises background information previously discussed in the LLF  process and highlights additional work that has already been called for to support  discussions and decisions in the House of Bishops on this, and related, matters.’

Annex C:  ‘summarises the workstreams in the next phase of implementation of LLF. This overview illustrates the inter-connected and interdependent nature of this work that the commitments invite continued action to pursue. An updated indicative timetable is included.’

The reason the paper reminded me of the story about archbishop’s sermon is because having read it I was left feeling that nothing of real significance had been said.

In specific terms, this is because there are three key issues that the paper fails to address.

The first issue is whether the issues covered by Living in Love and Faith are adiaphora. The unstated assumption underlying the paper is that they are. Issues concerning marriage and human sexuality, it appears to say, are ones on which faithful Christians can legitimately agree to disagree, the only question is whether they disagree well or badly.

However, as the Anglican Communion’s Windsor Report of 2004 explains, it is not legitimate to simply assume that a matter upon which there is disagreement can be placed into the category of adiaphora.

To quote paragraphs 87-89 of the Windsor Report:

‘As the Church has explored the question of limits to diversity, it has frequently made use of the notion of adiaphora: things which do not make a difference, matters regarded as non-essential, issues about which one can disagree without dividing the Church. This notion lies at the heart of many current disputes. The classic biblical statements of the principle are in Romans 14.1-15.13 and 1 Corinthians 8-10. There, in different though related contexts, Paul insists that such matters as food and drink (eating meat and drinking wine, or abstaining from doing so; eating meat that had been offered to idols, or refusing to do so), are matters of private conviction over which Christians who take different positions ought not to judge one another. They must strive for that united worship and witness which celebrate and display the fact that they are worshipping the same God and are servants of the same Lord.

 This principle of ‘adiaphora’ was invoked and developed by the early English Reformers, particularly in their claim that, in matters of eucharistic theology, specific interpretations (transubstantiation was particularly in mind) were not to be insisted upon as ‘necessary to be believed’, and that a wider range of interpretations was to be allowed. Ever since then, the notion of ‘adiaphora’ has been a major feature of Anglican theology, over against those schools of thought, both Roman and Protestant, in which even the smallest details of belief and practice are sometimes regarded as essential parts of an indivisible whole.

This does not mean, however, that either for Paul or in Anglican theology all things over which Christians in fact disagree are automatically to be placed into the category of ‘adiaphora’. It has never been enough to say that we must celebrate or at least respect ‘difference’ without further ado. Not all ‘differences’ can be tolerated. (We know this well enough in the cases of, say, racism or child abuse; we would not say “some of us are racists, some of us are not, so let’s celebrate our diversity”). This question is frequently begged in current discussions, as for instance when people suggest without further argument, in relation to a particular controversial issue, that it should not be allowed to impair the Church’s unity, in other words that the matter in question is not as serious as some suppose. In the letters already quoted, Paul is quite clear that there are several matters – obvious examples being incest (1 Corinthians 5) and lawsuits between Christians before non-Christian courts (1 Corinthians 6) – in which there is no question of saying “some Christians think this, other Christians think that, and you must learn to live with the difference”. On the contrary: Paul insists that some types of behaviour are incompatible with inheriting God’s coming kingdom, and must not therefore be tolerated within the Church. ‘Difference’ has become a concept within current postmodern discourse which can easily mislead the contemporary western church into forgetting the principles, enshrined in scripture and often rearticulated within Anglicanism, for distinguishing one type of difference from another.’ [2]

Furthermore, to quote paragraphs 92-93 of the Windsor Report:

‘Even when the notion of ‘adiaphora’ applies, it does not mean that Christians are left free to pursue their own personal choices without restriction. Paul insists  that those who take what he calls the “strong” position, claiming the right to eat and drink what others regard as off limits, must take care of the “weak”, those who still have scruples of conscience about the matters in question – since those who are lured into acting against conscience are thereby drawn into sin. Paul does not envisage this as a static situation. He clearly hopes that his own teaching, and mutual acceptance within the Christian family, will bring people to one mind. But he knows from pastoral experience that people do not change their minds overnight on matters deep within their culture and experience.

 Whenever, therefore, a claim is made that a particular theological or ethical stance is something ‘indifferent’, and that people should be free to follow it without the Church being thereby split, there are two questions to be asked. First, is this in fact the kind of matter which can count as ‘inessential’, or does it touch on something vital? Second, if it is indeed ‘adiaphora’, is it something that, nevertheless, a sufficient number of other Christians will find scandalous and offensive, either in the sense that they will be led into acting against their own consciences or that they will be forced, for conscience’s sake, to break fellowship with those who go ahead? If the answer to the latter question is ‘yes’, the biblical guidelines insist that those who have no scruples about the proposed action should nevertheless refrain from going ahead.’ [3]

Like previous papers emanating from the House of Bishops, what  GS 2346 fails to explain is either (a) why issues of marriage and human sexuality can rightly be placed in the category of adiaphora, or (b) why it might be legitimate to go down the route of allowing the blessing of same-sex sexual relationships, marrying same-sex couples, and ordaining those in same-sex sexual relationships given that a large number of Christians in the Church of England, and a large majority of those in the Anglican Communion find this ‘scandalous and offensive.’  Until a convincing explanation can be given on both these points the approach taken in GS 2346 lacks theological legitimacy. Simply treating issues as if they are adiaphora does not make them so.

The second issue is that GS 2346 fails to explain how allowing  the blessing of same-sex sexual relationships, marrying same-sex couples, and ordaining those in same-sex sexual relationships is in line with Church of England doctrine, or if it is not, why that doctrine needs to be changed. 

As I pointed our in my previous paper ‘Mr Facing Both Ways,’[4] the Church of England officially continues to adhere to (a) the traditional Christian doctrine of marriage and sexual ethics, and (b) the traditional Christian doctrine that  visible holiness of life should be required of Christian ministers and this is simply incompatible with the blessing of same-sex sexual relationships, marrying same-sex couples, and ordaining those in same-sex sexual relationships. This means that the only way that these things can legitimately happen would be if the Church of England were to officially change its doctrine. Even assuming that the necessary 2/3 majority in all three Houses of General Synod could be obtained for such a change (which at present seems unlikely), for such a change to be legitimate it would have to be shown that it was in line with the teaching of Scripture, since, as Article XX declares: ‘it is not lawful for the Church of England to ordain anything that is contrary to God’s word written.’  Thus far in the LLF and PLF processes no one has shown that the necessary change would meet this requirement and GS 2346 itself does not even address the issue. It simply assumes that since a small majority in Synod has voted for change therefore change must be right.

The third issue is that GS 2346 does not engage at all with  what those opposed to the House of Bishops current approach have stated would be required in order for there to an agreed ‘settlement’ of the current divisions within the Church of England. The paper states that its ‘Ten Commitments are being offered in the hope that they will be a basis for a settlement,’ but unfortunately, they do not provide the basis for that goal.

The ninth of the ten commitments in GS 2346 declares ‘we commit to exploring the minimum formal structural changes necessary to enable as many as possible to stay within the Church of England.’ The problem is that the bishops know perfectly well what traditionalists in the Church of England have said is the minimum requirement for a long-term settlement in the Church of England. Namely, the creation of a third province within the Church of England in which the Church of England’s traditional teaching and practice with regard to marriage and human sexuality can continue to be upheld.[5]

 As CEEC has explained, there is no ecclesiological barrier to the creation of such a province. What is blocking its creation is the unwillingness of the bishops to engage constructively with this proposal and GS 2346 continues to take this approach.

GS 2346 talks vaguely about holding meetings with ‘stakeholders’ in order to move forward towards a settlement. Such vagueness is unhelpful. What it should have said is that the Bishops will meet with representatives of CEEC and the Alliance to discuss details of a third province so that a concrete proposal can then be brought forward to Synod. If they did this, it would unblock the current impasse within the Church of England. Liberals could have their own provinces in which they could implement those changes in doctrine and discipline they are seeking, while traditionalists could have what they need to remain in good conscience within the Church of England.

The failure of the GS 2346 to say anything useful in these three areas indicates the need for the bishops collectively to exhibit the ‘humility and repentance’ they are calling for from others by engaging in a genuine ‘reset’ of their own approach. Their current approach is untheological, goes against the doctrine of the Church of England, and will not produce the kind of settlement that they say they want. They need to go away and think again, and when it meets later this month that is what Synod needs to tell them to do.

A final point to note is that the words in Commitment 4,  ‘We will seek a commitment to avoid using the civil courts to settle our disputes’ is concerning because it potentially gives unchecked power to the authorities in the Church of England to act as they see fit without the potential for any external remedy should they act in an unjust or illegal fashion. It also goes against the principle set out in Article XXXVII that the Civil Magistrates do have legitimate authority in ecclesiastical matters.

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[1] The House of Bishops, GS 2346 , ‘Living in Love, Faith and Reconciliation’ at gs-2346-llf-synod-paper-feb 2024.pdf .

[2] The Lambeth Commission on Communion, The Windsor Report (London: The Anglican CommunionOffice, 2004), pp.38-39.

[3] The Windsor Report, pp.39-40.

[4] Martin Davie,  ‘Mr Facing Both Ways,’ at: https://wordpress.com/view/mbarrattdavie.wordpress.com

[5] See the Church of England Evangelical Council, Visibly Different, at https://ceec.info/wp-content/uploads/2022/10/visibly_different__an_introduction_for_the_next_steps_group.pdf.