Legislative Reform Measure

Thursday 22nd March 2018 Lords Chamber

Motion to Direct

16:53

Moved by

[The Lord Bishop of Rochester]

That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Legislative Reform Measure be presented to Her Majesty for the Royal Assent.

[The Lord Bishop of Rochester]

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 While some have subsequently been repealed, those that are in force constitute a substantial body of statute law relating to the Church of England.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.

17:00

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.

[Baroness Butler-Sloss (CB)]

My Lords, I am chairman of the Ecclesiastical Committee. As the right reverend Prelate has said, we have declared that this Measure is expedient, but I have to tell the House that that was after a prolonged process.

The most reverend Primate the Archbishop of Canterbury informally told members of the Ecclesiastical Committee that he was extremely anxious to deal with obsolete and unnecessary legislation within the Church that had been running for years and years and was quite simply impeding the modernisation process. We took the extremely unusual course of inviting members of the Ecclesiastical Committee to come informally—not as the committee, because we are a statutory committee—to discuss with the members of the Church of England what they really wanted from us. They produced for us a draft that was not quite the same as the present, which was quite simply too wide. I made it very clear to the most reverend Primate the Archbishop of Canterbury that I could not get it through the House and nor should it get through the House. That was totally understood by the Church of England, and the lawyers took it away and tidied it up. They reduced that part, as the right reverend Prelate has explained to noble Lords, which, at the start, made it possible for the synod to change our laws that were not ecclesiastical laws, which is not of course ever what they intended. Consequently, we held some further informal meetings and the absolutely splendid secretariat of the Ecclesiastical Committee—particularly the lawyer advising and the House of Lords clerk of our very large committee—took a lot of trouble to discuss this. We were satisfied that what was required by the individual members of the committee, not sitting as a committee, was in fact found within this present draft.

I am extremely happy to tell the House that we took this very unusual, rather interesting step and that it turned out to be most successful. I hope that we might repeat it with other important pieces of legislation to make sure that we are all, if I may say so, singing from the same hymn book. I am very happy to say to the House that the committee at its most recent meeting, within just 10 or 15 minutes of discussion, said that this was expedient.

[Lord Cormack (Con)]

My Lords, I would like briefly to support what has just been said by the noble and learned Baroness, Lady Butler-Sloss, who is an admirable chairman of the Ecclesiastical Committee. I am not sure about singing from the same hymn book—in Lincoln Cathedral we have two; some days it is ancient and modern and on others it is the English hymn book—but the point that she made is entirely valid.

I have served on the Ecclesiastical Committee for 42 of the last 48 years, during 36 of which I have been a church warden of three separate churches, so I know a little bit about these matters. I also served on the General Synod for 10 years. I approached this initially with a degree of real apprehension, because I was extremely concerned that the most reverend Primate the Archbishop of Canterbury should not be seen—not that it was his intention—to be taking on the mantle of Henry VIII. That, in the Church of England, would not necessarily be the most appealing stance for an archbishop to take. The representations that we made—informally, as the noble and learned Baroness described—were taken on board. There was a degree of sensitivity over a series of controversial proposals that could well point the way to the Government of the day on another issue that is frequently occupying your Lordships’ House at the moment—but I will leave it at that.

The right reverend Prelate introduced this Measure with thoroughness and clarity, for which we are grateful. We have to beware, as I said in that very different context yesterday, of authority taking power unto itself. But the General Synod has a continuing role here and, as the right reverend Prelate has indicated, so does Parliament. Because of that, I am very glad to give strong support to our admirable chairman and I hope that, the committee having deemed this measure expedient, the House will not take a contrary view.

[Baroness Harris of Richmond (LD)]

My Lords, I too thank the right reverend Prelate for a very clear exposition of this Measure. I echo the noble Lord, Lord Cormack, in saying how fortunate we are in having the noble and learned Baroness, Lady Butler-Sloss, as our chairman. She can indeed cut through obfuscation.

We on these Benches are extremely happy to deem this Measure expedient. My concern was exactly that expressed by the noble Baroness, Lady Sherlock, about the possibility of having Henry VIII clauses. I was concerned at the extent to which the preservation of power by way of special order made by the Archbishops’ Council could be regarded, in effect, as negating a sunset provision. However, I was happy to be assured that an order cannot be made by the Archbishops’ Council unless a draft of the order has been laid before both Houses of Parliament subject to the affirmative procedure. On that note, I am very happy to support this Measure.

[Baroness Sherlock (Lab)]

My Lords, before I begin, I should draw the attention of the House to my registered interest. I am an ordinand in the Church of England, so I have an interest in these matters, but in fact my interest today is about the role of Parliament and not about the role of the Church.

I have no intention of opposing this Measure and am not seeking to get in its way, but I want to put a couple of points on the record. When I first read these provisions, on the face of it they looked rather like Henry VIII powers—in fact, they are Henry VIII powers. However, I am reassured by the work done and the comments made by the noble and learned Baroness, Lady Butler-Sloss, and I thank her and the Ecclesiastical Committee for the work they have done.

I can see that there are a number of safeguards. Obviously, there is a limitation on the types of Acts to which the Measure can be applied. Certain key Acts are excluded. There are a series of checks and balances to make sure that orders do not remove protections or take away rights and benefits. All of these are good safeguards which make this just about palatable at a time when, normally, I think we would not want to see these kinds of powers come through. It is worth having that on the record.

I was left with a question as to whether or not this House could annul an order. I cannot imagine it would wish to, but one never knows what these kind of orders are going to be until they come forward. It is a novel procedure. I heard what the right reverend Prelate said about the convention not applying, but I do not quite understand his argument. I think he made reference to the fact that it would not apply because the convention that this House does not strike down secondary legislation was about the relationship between us and another place. In fact, secondary legislation is not about the relationship between us and another place; it comes to both Houses from the Executive at the same time. Either House may strike it down; if so, it goes nowhere else.

One might argue that orders of this type would not be of the category of thing to which that convention would apply, should circumstances ever mean that it were applicable. However, I do not know that, and I do not know who does. I have thought to get some advice, but it really occurred to me only late this afternoon, so I have not given anyone the opportunity to think about it. I wanted to clarify that that was the nature of my question, and any light that could be shed on it would be appreciated.

[The Lord Bishop of Rochester]

I am very grateful to noble Lords and noble Baronesses for their contributions. I am particularly grateful to the noble and learned Baroness, Lady Butler-Sloss, for her assurances on behalf of the Ecclesiastical Committee and for the way in which she enabled that process to take place in such a novel but constructive way. I share her aspiration that maybe this provides a model for other engagements as well.

I am grateful for the various comments, particularly around the safeguards and their adequacy. This is intended to deal with relatively non-controversial matters. Anything of any substance would need to be in the form of a Measure, which would still be subject to the full process through the General Synod and both Houses of Parliament.

On the final point, I too am not an expert in these matters, but I think that part of the distinction lies in the fact that the so-called Cunningham convention explicitly dealt with statutory instruments with a capital S and a capital I. These are not statutory instruments with a capital S and a capital I. They may be similar to statutory instruments, but they are not. They are a different animal, namely an order of the Archbishops’ Council, which is a thing in its own right and would not, therefore, be caught by that convention which was established at that time. Certainly, the intention is that this House, together with the other place, would still have the right to annul an order. If it did so, that order would not take effect.

I am grateful for all those contributions and for the support of noble Lords. In closing, I invite and encourage the House to approve this Motion.

Motion agreed.