Commentary on the Fulcrum Press Statement: Women Bishops and the Church of England
(to read the Press Statement click here)
(first published in July 2010)
In our statement we support the legislation as proposed by the Revision Committee as providing the best framework for a practical way forward. This is a commentary explaining our serious questions about the Archbishops’ proposed amendments.
This effectively revives a form of statutory transfer from a female bishop to a nominated male bishop who will have co-ordinate jurisdiction with the diocesan but it does so by means of the Measure and without legally divesting the diocesan bishop of any functions. The national code of practice and local diocesan schemes will specify arrangements for co-ordinating episcopal ministry between the diocesan and the nominated bishop.
This proposal raises a number of important questions that need to be clarified and adequately answered:
1.The Revision Committee had many months to work on their proposals. It took the option of vesting or transfer (rather than delegation) with the utmost seriousness but could not agree on how to proceed under this method after agreeing to adopt it. Does this intervention by the Archbishops (notwithstanding their seniority and leadership role in the church) not simply disregard and over-turn the committee’s careful work and short-circuit debate on its proposal?
2.As is evident from many examples in government – for example John Major’s Dangerous Dogs Act 1991 - does rushed legislation in a complex area not often create unforeseen problems rather than resolving difficulties?
3.The Archbishops claim to have found, in “co-ordinate jurisdiction”, a “third way”, avoiding the pitfalls of either a “delegated jurisdiction” model (ie the diocesan bishop delegates some of his/her authority to an alternative bishop) or an “ordinary jurisdiction” model (ie some diocesan authority is removed and exercised by an alternative bishop in his own right). Questions remain, however, as to whether and how this will work in practice and no attempt has been made to address these. Can Synod responsibly approve this alternative with these important areas still unaddressed, especially as the Revision Committee tried and failed to determine what powers might be transferred?
4.The Archbishops note that “concurrent jurisdiction” (as it is usually called in legal circles although they prefer the term co-ordinate jurisdiction) is not uncommon in law. They cite the High Court and the Charity Commission having concurrent jurisdiction to reorganise charities. The overlapping jurisdiction of the Employment Tribunal and the County Court in cases of breach of employment contract is probably another example. However, in such cases either a) one body is, in fact, superior to the other body, so that its decision overrules the other; or, b) resort to the jurisdiction of one body excludes the jurisdiction of the other. Concurrent jurisdiction cannot exist without very clear rules about what happens when the overlapping jurisdictions conflict with each other. How will these problems of conflict between overlapping jurisdiction be addressed under the Archbishops’ proposals?
5.The proposed legal framework appears to suggest one thing in law (ie that the diocesan bishop retains unfettered authority in any parish) while “in practice” under the code of practice and diocesan schemes something entirely different will happen (women bishops will have to withdraw from certain parishes). Is this difference between law (de jure) and practice (de facto) not inherently self-contradictory?
6.It remains unclear what happens if, for example, the diocesan bishop decides that they do not “in practice” want to withdraw from certain parishes but exercise the jurisdiction they retain. Do the amendments not create a legal fiction which is hiding, rather than defining, the reality of the situation, obfuscating rather than – as good law ought to - clarifying the position?
7.The Archbishops’ answer would seem to be that a national Code of Practice and a Diocesan Scheme will define what happens in these situations. Although we won’t know until the Code and Scheme are published, presumably a diocesan bishop will not be able simply to ignore the request of an objecting parish and exercise episcopal functions there in the normal way. In short, they MUST nominate an alternative bishop and then MUST allow him to function in areas where he is requested. If this is so, then how, in practice, is the Archbishops’ amendment different in reality from the automatic transfer of episcopal authority (TEA)?
8.In summary, on the one hand, we have a proposed Measure stating that a female diocesan bishop’s authority is full and intact – she can exercise episcopal function in any parish in the diocese. On the other hand, we have a proposal for a Code and/or a Scheme appearing to state the opposite: that the diocesan bishop must nominate an alternative bishop and refrain from exercising authority in certain areas. Even though it is well expressed, does the Archbishops’ proposal achieve anything new? Is it not, in effect, a measure which requires female diocesan bishops to relinquish part of their authority in favour of a male bishop whenever this is requested, a case of “More TEA, Synod?”?
