Church of England (Miscellaneous Provisions) Measure

Lord Elton Excerpts

Tuesday 13th May 2014 Lords Chamber

[The Lord Bishop of Oxford]

My Lords, every few years, the General Synod produces a miscellaneous provisions Measure in order to excite the general population. Its purpose is to sweep up all those small and uncontroversial legislative changes that would not in themselves justify stand-alone legislation, but which appear to be either necessary for the purposes of clarifying or simplifying the law or administratively or practically convenient. This is the 11th such Measure. It covers a wide range of topics, and I do not propose to cover them all, but only to highlight a few of the most important.

There are several provisions in the Measure relating to clergy. Clause 8 inserts new provisions in the Overseas and Other Clergy (Ministry and Ordination) Measure 1967, enabling the archbishop of the relevant province to revoke a permission granted to an overseas priest or deacon. The Measure also provides for the grant of general permissions in circumstances where large numbers of overseas clergy are visiting England at the same time—for example, the Lambeth Conference every 10 years. Clause 11 inserts a new appeal procedure into the Incumbents (Vacation of Benefices) Measure 1977 to ensure that the proceedings under the Measure are fair to incumbents. The amendment in Clause 12 to the Patronage (Benefices) Measure 1986 simplifies the procedure for appointing a priest in charge as the incumbent of a benefice where the patron does not object to the proposal to use the simplified procedure.

There are some practical changes in relation to the faculty jurisdiction. Clause 6 makes new provision for the qualifications necessary to become the chancellor of a diocese or the Dean of the Arches and Auditor, because the old provisions have simply become obsolete. Clause 7 makes new provision enabling the chancellor of a diocese to grant a faculty authorising works to a monument which has become dangerous, even if the owner of the monument withholds consent. That resolves the present unsatisfactory provision, which requires the court to choose between allowing the monument to be removed from a church by an owner who will not consent to works but indicates that he or she is willing to remove the monument and, on the other hand, allowing the monument to remain in the church in a dangerous state.

The Measure also includes a number of provisions relating to the Church Commissioners. Most of those are for administrative convenience in the management of their own affairs or small extensions to their existing powers, such as the amendment of Section 6 of the Endowments and Glebe Measure 1976, to enable them to pay the expenses of office of an archdeacon, in addition to their existing power to pay an archdeacon’s stipend.

However, one provision that perhaps requires additional comment is Clause 4, which inserts provisions into the Church Commissioners Measure 1947 and the Clergy Pensions Measure 1961 confirming that both the Church Commissioners and the Church of England Pensions Board have power to enter into derivative contracts. The need for this provision has arisen because in recent years both bodies have had increasing difficulty in persuading potential counterparties that they have the necessary powers to buy derivatives. It is important to say that neither body proposes to speculate in derivatives; they wish to use them purely as a way of managing risks arising in their investments—for example, by hedging against changes in interest rates. This does not represent a shift in investment strategy but an enabling of it.

Clause 16 makes some amendments to the powers of the Dioceses Commission to deal with some small lacunae that were discovered in the Dioceses, Pastoral and Mission Measure 2007 when the scheme for the new diocese of West Yorkshire and the Dales was prepared.

Finally, at Clause 14, the Measure makes provision amending the Cathedrals Measure 1999 to confer power on cathedrals to resolve to adopt a total return basis for the investment of their endowment funds. This provision brings cathedrals into line with charities regulated by the Charity Commission, which have power to make such resolutions in accordance with regulations made by the Charity Commission under the Trusts (Capital and Income) Act 2013. The power conferred on cathedrals is very similar to that conferred on other charities, save that cathedrals will not have the power that other charities have to borrow a portion of their permanent endowment and repay it into the investment fund at a later date, as there were concerns that that might be controversial.

As I intimated, the Measure may not be the highlight of your Lordships’ week, but I beg to move.

[Lord Elton (Con)]

My Lords, I wonder whether I may briefly intervene to echo a word of caution that I uttered when this Measure was before the Ecclesiastical Committee. It concerns Clause 4, to which the right reverend Prelate alluded. I accept absolutely that the church has successfully and necessarily dealt in derivatives in the past without mishap. However, I noticed that provision is also made for the commissioners, in subsection (3) of new Section 6A of the Church Commissioners Measure 1947—and by similar means, in Clause 4(2) of this Measure, for the clergy pensions board—to empower the commissioners and the clergy pensions board to change the provisions that are now before your Lordships to widen the terms, the definition of derivatives that we have before us to approve, to embrace an undefined group of instruments which do not yet exist.

Your Lordships will remember that such an extension was made not so very long ago by very senior, highly respected and successful bankers in the international community about derivatives composing third-rate American unsecured mortgages. The result of that was catastrophic. It very nearly destroyed the whole world’s banking system and did a great deal of harm to a great many people. Those were wise, experienced, sensible people—at least, a large number of them must have been because there were so many. It is no reflection on the financial abilities of the board, the commission and their advisers to say that these things can be very dangerous. It is rather like going into a shop where there is a basket full of toys, but one or two of them are hand grenades. The great danger is that people do not spot the difference.

Although one is reassured by the undertaking given in the discussion of the Measure before the Ecclesiastical Committee that the church’s representatives will never deal in instruments that they do not understand, one must recognise that the bankers of the world could have said exactly the same thing a week before they actually caused the catastrophe. I am saying this because, if a measure is proposed within the Church of England to avail itself of that extension, I hope that this warning shall be read by those doing so, so that they will be reminded of what these things can do and treat them with very great care.