What is left of 'proper provision' in the Women Bishops Measure?

My pre-breakfast reading this morning was GS 1708-09ZZZ, the background paper for General Synod describing the process by which the House of Bishops decided on the revised Clause 5(1)c which the Synod will vote on in November.

It is hardly a rivetting read. Indeed the three ‘z’s seem particularly appropriate. But it is important because it illustrates how difficult the legislation is to interpret. 

My eye was particularly caught by the section attached as an annex, which sets out the legal advice given to the bishops. Of particular importance is paragraph 4. As many readers will know, the ‘phrase which pays’ in Clause 5(1)c is now that the Code of Practice (yet to be written) will give guidance as to “the selection of male bishops and male priests in a manner which respects the grounds on which parochial church councils issue Letters of Request under section 3” (emphasis added).

The crucial question is the meaning of the word ‘respect’, and the analysis in the annex by Stephen Slack, the Chief Legal adviser, attempts to explain what this means. He writes,

The effect of the use of the word ‘respect’ ... can be helpfully contrasted with the effect of other expressions which have been canvassed in discussion of possible amendments:

            •          Guidance under which those making the selection were to ‘respect’ the relevant grounds of theological conviction would have a less prescriptive effect than guidance under which they were to select a male bishop or priest in a manner ‘consistent with’ such grounds: in the latter case, they would need to select a bishop the selection of whom would be compatible with those grounds.

This means, however, (if I’ve understood it correctly) that a selection which ‘respects’ the theological conviction of a petitioning parish need not be done in a manner compatible with those grounds.

So far, so slightly confusing. But at least Mr Slack points out that another worry I have had is well-grounded. In his second bullet point he observes that,

            •          Guidance under which those making the selection were to ‘respect’ the relevant grounds of theological conviction would have a more prescriptive effect than guidance under which those making the selection were to ‘take account of’ or ‘have regard to’ such grounds: in either of the latter cases, whilst those making the selection would have to take the grounds of conviction into account, they could nonetheless lawfully select a male bishop or priest the selection of whom would be incompatible with those grounds provided they had ‘cogent reasons’ for making that selection. (Underline added)

In short, where the legislation requires someone to ‘take account of’ or ‘have regard to’ certain factors concerning selection, those wielding authority can ultimately make decisions contrary to those factors.

And this is a worry, because the legislation actually contains those same phrases at several other points:

2(9) When making, amending or reviewing a scheme made under this section the bishop shall, without prejudice to section 6, take account of the Code of Practice issued under section 5 and consult the diocesan synod of the diocese.

3(9) Any person exercising functions in relation to the appointment of an incumbent of or priest in charge for a benefice shall take account of any Letter of Request under subsection (3).

6 Duty to have regard to Code of Practice
Any person who exercises any functions, whether episcopal or other functions, shall be under a duty to have regard to any Code of Practice issued under this Measure.

So if I’ve got this right, sections 2(9), 3(9) and 6 can also be nullified in the final decisions, provided those bishops or other persons concerned have ‘cogent’ reasons for doing so.

Clearly the word that needs defining now is ‘cogent’. And the way in which that could be defined, we are being told, is in the courts. So hands up now all the PCCs willing to take their bishop to court.

I thought so. I don’t really need to bother saying ‘Hands down’, do I?

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