Senior lawyers launch devastating critique on church law reform plans

Reuters

Senior church lawyers have issued a devastating critique of plans to reform established Church law by a radical process of deregulation.

They have condemned the proposals as "inchoate" and urged the Archbishops of Canterbury and York "not to pander to the false narrative that law is a malign force which stifles the mission of the Church."

They have also raised fears that the proposals represent an attempt "to move legislative authority" away from the General Synod, the Church's parliament, and to the Archbishops' Council, the policy body at the heart of Church management.

Some even fear that the proposals are a "clandestine means" of removing legal constraints and "ceding untrammeled authority to the bishops and to the Archbishops' Council," according to the critique.

The lawyers spoke out after the Archbishops' Council and the Church's bishops welcomed a proposal for an "enabling measure" to simplify centuries of canon law contained in what it calls the "extensive rule book" of the Church of England.

Currently, the Church's legal framework is complex because many of its structures were created in the first millennium of the Christian era and involve both statutory and common law of the land.

The Church is affected by charity and property law as well ecclesiastical law, which is itself a branch of public law. Ecclesiastical law consists of common law, which predates the Reformation, canon law, which has its roots in pre-Reformation canon law and statute law, passed by Parliament during and in the centuries since the Reformation.

Since 1920 the Church of England has had its own legislative assembly, initially the Church Assembly and since 1970 the General Synod, which has power to pass measures and also amendments to Acts of Parliament. Once Measures have received parliamentary approval and Royal Assent, they become part of the law of the land.

Much legislation debated at the synod, which meets twice or three times a year, in London and York, concerns changes to liturgy but also vast amounts of time are spent modifying arcane structures in attempts to fit them for the modern world.

"An institution that engages in excessive internal regulation is generally one where creativity is stifled and where there is insufficient trust," says a General Synod paper on the issue by secretary general William Fittall.

"In a fast changing world institutions need, without compromising their core values, to be adaptable and fleet of foot. That is much harder if the surrounding framework of law is unduly onerous," Fittall writes.

It has proved impossible to shorten the legislative process that can see apparently simple changes, such as to clergy freehold, take years to get through.

The Archbishops' Council now believes that the better "and more radical" solution is to cut the categories that can only be changed by measure, allowing changes to be made by "order" instead as they are in secular law.

"This would greatly facilitate the task of pruning and simplifying the Church's over-elaborate statute book," the synod paper says.

Any changes to Church-State relations or worship and doctrine would still need to go through the normal legislative process at synod.

Professor Mark Hill QC, vice chairman of the Ecclesiastical Law Society, is among those who have condemned the proposals.

In his response to the consultation, endorsed by the society's committee, he laments that a 1987 "urgent" proposal by the late George Spafford to repeal 30 acts and measures of obsolete ecclesiastical statute law, some of it more than 400 years old, was never acted upon.

He accuses Fittall of "downplaying" the issue by referring the the centuries of law as the Church's "rule book". He writes: "Whether this is merely infelicitous short-hand or conscious trivialising is unclear."

The Church is more than a "members' club" because it ministers to the entire population, he adds, regretting that the consultation document "seems to perpetuate the misleading narrative of law as an oppressive and negative force."

They say: "The most pressing need, as was recognised by the Spafford Working Party 30 years ago, is the immediate repeal of moribund, otiose, obsolete and arcane legislation."

Few deny that action needs to be taken to reform centuries of Church law.

Anthony Archer, a former member of General Synod and a member of the Ecclesiastical Law Society, told Christian Today: "The Church of England is burdened with 1,400 pages of primary legislation and no means of modernising or changing it without yet more measures being debated on the floor of the General Synod. It is not served well by this arcane and immensely time-consuming process. The priority of the church is mission, not law making Reformation style."

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