My Lords, the exodus from your Lordships’ House somewhat indicates that ecclesiastical legislation may not be a majority interest. None the less, this Measure and others that will be introduced this afternoon are important, albeit fairly technical. They all arise from the Church of England’s intentions through the work of the General Synod to make sure that our processes and procedures are fit for purpose in this current age and enable the Church to make its contribution to the common good in the communities across our land.
It was almost a century ago that Parliament passed the Church of England Assembly (Powers) Act 1919. In moving the Second Reading of the Bill in your Lordships’ House, the then Archbishop of Canterbury, Randall Davidson, asked the House to give a Second Reading to a Bill to enable the Church of England to do its work properly. He spoke of,
“removing or diminishing, as we hope, hindrances which, by a kind of accident and not by anybody’s fault, have been at present constantly across our way”.—[Official Report, 3/6/1919; col. 974.]
Since 1919, 133 Measures have been enacted under the procedure contained in that Act. While some have subsequently been repealed, those that are in force constitute a substantial body of statute law relating to the Church of England. To these must be added several dozen Acts of Parliament predating 1919, when Parliament alone legislated on Church matters. The volume of Halsbury’s Statutes dealing with ecclesiastical law exceeds 1,400 pages, and that includes only legislation passed up to 2003.
The current situation as far as the Church is concerned presents some practical difficulties. Until very recently, far more detail was generally included in primary legislation than would be the case today. Today the practice is to leave much more of the detail to subordinate legislation or guidance. Since primary legislation, whether in the form of an Act or a Measure, can generally be amended only by further primary legislation, changes to Church legislation are time-consuming, costly and onerous. By way of illustration, it generally takes between two and three years for a Measure to complete all its stages in both the General Synod and Parliament. The period may then be further extended if, for example, a Dissolution of Parliament intervenes at some point.
For some legislation—for example, legislation that has constitutional implications or implications for the rights of individuals—it is, of course, absolutely right that there be a full legislative process, providing the opportunity, stage by stage, for careful consideration and revision. That is a necessary and proportionate way of doing things. But in the case of legislation to remove or reduce burdens of a financial or administrative
nature or that present minor obstacles to the efficient working of the Church, a legislative process taking two to three years is rather too slow.
The Legislative Reform Measure, which is now before your Lordships’ House, seeks to address that issue by making it possible to reduce or remove burdens resulting from ecclesiastical legislation without going through the legislative process that applies to Measures under the 1919 Act. It does so by providing, in a limited range of cases, for some provisions of primary legislation to be amended or repealed by way of order of the Archbishops’ Council—that is, by subordinate legislation. I realise that subordinate legislation is not necessarily flavour of the month in all circles, but I can give a certain assurance that this is very particular and that, despite the Church of England’s history, the fingerprints of Henry VIII are not to be found. The Measure confers the power to make orders on the Archbishops’ Council, the statutory body whose objects are to,
“co-ordinate, promote, aid and further the work and mission of the Church of England”.
The proposals in this Measure are that, before an order is made, the Archbishops’ Council must carry out a statutory consultation exercise. A draft order must then be laid before the General Synod, where it will be subject to a scrutiny process, after which the synod will choose whether to approve or reject the draft order or refer it back to the scrutiny committee. If the synod approves the draft order, the Archbishops’ Council may proceed to make that order. It must then lay it before both Houses of Parliament, where it is subject to the negative procedure, as for statutory instruments.
At that point the language of statutory instruments, I know, raises some questions. The noble Baroness, Lady Sherlock, has raised with me outside the Chamber the question of whether these orders fall within the scope of the convention whereby your Lordships’ House does not vote down statutory instruments. I am reliably informed that such an order does not fall within that convention, which relates mainly to government legislation and to the relationship between the two Houses. This is ecclesiastical legislation and, although it is like a statutory instrument, it is actually not a statutory instrument; it is an order of the Archbishops’ Council. Thus this House retains the power to annul a draft order.
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Further provisions to safeguard the role of Parliament and the constitutional position of the Church of England have been built into the Measure. First, the provision made by an order must be for removing or reducing a burden resulting specifically from ecclesiastical legislation. It is not a general power to legislate by order. Indeed, the power has been modelled to a large degree on the power that Parliament conferred on the Government to remove legislative burdens in the Legislative and Regulatory Reform Act 2006, but the model has been carefully adapted to meet the particular circumstances of the Church of England. Secondly, the order-making power can be used only to amend or repeal ecclesiastical legislation as defined in the Measure. Thirdly, a number of ecclesiastical statutes are expressly excluded from
the order-making power. These include Acts of Parliament relating to the appointment of bishops, the Act of Uniformity 1662 and the Church of England Assembly (Powers) Act 1919. They also include a number of key Measures that make provision for the constitution of the General Synod, the worship and doctrine of the Church of England and this proposed Measure. Over and above that, there is a general exclusion for provisions of a doctrinal nature, provisions relating to the application of the Church Commissioners’ general fund and provisions of constitutional significance.
Following an innovative procedure under which the members of the Ecclesiastical Committee of Parliament were given the opportunity to comment informally on the Measure early in the process, amendments to the Measure were made at the revision stage in the General Synod to provide three further safeguards. First, before beginning a statutory consultation on a proposed order under the Measure, the Archbishops’ Council will be required to lay the consultation documents before both Houses of Parliament. This will mean that a notice will appear in House of Lords Business under papers laid, with an equivalent notice being given in another place. Noble Lords will therefore receive advance notice of any proposals to make such an order and will have the opportunity to raise any concerns at a very early stage in the process.
Secondly, the scope of the order-making power was further restricted by the changes that were made during the General Synod process. This was achieved by adjusting the definition in the Measure of ecclesiastical legislation so that it clearly excludes provisions contained in Acts of Parliament that do not form part of the ecclesiastical law of the Church of England. The power will not therefore be available to deal with burdens arising from general legislation of a secular nature.
Thirdly, a sunset provision was inserted into the Measure. The order-making power of the Archbishops’ Council will expire five years after the first draft order is laid before the General Synod. The power can be continued in force after that five-year period only under a special procedure that involves an affirmative resolution in both Houses of Parliament. This sunset provision will in due course provide your Lordships’ House with the opportunity to consider how the order-making power has been used before deciding whether to agree to extend its life beyond the initial five-year period.
The Ecclesiastical Committee of Parliament expressly mentions these additional safeguards in its report and is of the opinion that, with these safeguards, the Measure is expedient. The order-making power that is conferred by this Measure will provide the Church with a procedure for making uncontentious legislative changes within what should be a maximum period of 12 months from start to finish. The existing procedure for passing Measures provided for in the 1919 Act will continue to be available and, indeed, will continue to be used for legislative change that goes beyond simply removing legislative burdens, and your Lordships’ House will, of course, continue to consider such Measures as it does now. The powers contained in the present Measure will nevertheless go some way to meeting
those concerns first raised by Archbishop Davidson in 1919 by making it easier for the Church to do its work properly. I beg to move.