Legislative Reform Measure

Lord Bishop of Rochester Excerpts

Thursday 22nd March 2018 Lords Chamber

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 While some have subsequently been repealed, those that are in force constitute a substantial body of statute law relating to the Church of England.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

--- Later in debate ---

[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.