GENERAL SYNOD

LEGAL ADVISORY COMMISSION

THE EFFECT OF ACTS BY WOMEN BISHOPS

OF CHURCHES IN COMMUNION WITH THE CHURCH OF ENGLAND

1.                  The Commission has been asked by the House of Bishops’ Working Party on Women in the Episcopate to give an opinion on the legal aspects of the issues regarding the recognition of women bishops and ordinations and confirmations carried out by them. These issues were addressed in the Presidential Statement made by Archbishop Runcie in November 1988. The relevant part of that Statement is reproduced as Annex A to this Opinion. The Statement was made after the General Synod had failed to give approval to the draft Women Ordained Abroad Measure which would have permitted women ordained priests elsewhere than in England to be given permission to officiate in the Province of Canterbury or York. At the time that draft Measure was considered, and at that time of the Archbishop’s Statement, women could not be ordained priest in England as has been possible since 1994.

2.                  Archbishop Runcie’s Statement is principally concerned with the question whether the non-recognition of the ministry of a woman bishop was compatible with the relationship of communion existing between the Church of England and the church in which she served. He touched on the legal issues in the following passage:

        In this case [of ordination by a woman bishop] it is clear enough that women priests so ordained would be unable to minister as priests within the Church of England. But it has been put to me that the same might not be the case for men ordained by a woman bishop. It might be argued that, on a strict interpretation of the [Overseas and Other Clergy (Ministry and Ordination) Measure 1967], they could be licensed simply because the Archbishops of Canterbury and York can give this permission to male clergy episcopally ordained overseas or in a Church in communion with the Church of England. I do not, however, think that I can accept and act upon such a theologically paradoxical understanding of the Measure because, as I have already indicated, the real grounds for archiepiscopal permission do not seem to be simply ordination within a Church in communion, since precisely the same permission may be given to clergy ordained in Churches not in communion. The implied ground is surely the recognition of orders. The other interpretation would involve the theological absurdity of being able to recognise and accept the ministry of male priests or deacons but not the ministry of the woman bishop who ordained them.

LEGAL PRINCIPLES

3.            A legal analysis of the issues addressed in this Opinion must begin with a recognition that the facts have connections with more than one system of ecclesiastical law, those of England and of the other relevant Church or province. That means that the cases fall within that branch of law known as the Conflict of Laws. This deploys techniques devised especially to deal with cases which have foreign fact-elements. The techniques are used to determine which system of law most appropriately governs a particular issue. This entails a recognition that any rule of law (statutory or not, ecclesiastical or secular) has a spatial limitation. So, the English definition of a crime applies only to acts taking place in England, in the absence of an explicit provision to the contrary. A well-known example in another context is the rule in what is now section 2 of the Marriage Act 1949, which provides ‘A marriage solemnized between persons either of whom is under the age of sixteen shall be void’. This is not read literally: if the parties have their domicile (roughly, permanent home) outside England and the marriage is celebrated abroad lawfully according to the law of that country, the marriage will be regarded as valid in England despite the express words of section 2. The courts have to examine the functional context of a rule: in effect ‘persons’ in this section of the 1948 Act is given a more restrictive meaning than it would bear in other contexts, even in the same Act.

4.                  In the case of the issues examined in this Opinion, it seems appropriate using these techniques to advance two propositions: the first is that the validity of any ecclesiastical act is governed by the law of the ecclesiastical jurisdiction in which it was done; the second, that the exercise of ecclesiastical functions is governed by the law of the ecclesiastical jurisdiction in which they are to be exercised. The rules of English law must be interpreted in the light of these principles.

THE 1967 MEASURE

5.                  Many of the legal issues that have been raised concern the Overseas and Other Clergy (Ministry and Ordination) Measure 1967, the full text of which forms Annex B to this Opinion. It must be interpreted in the light of the principles set out above. The Measure deals with

a      the performance of episcopal functions in England by ‘overseas bishops’;

b      the performance in England of episcopal functions by other bishops ‘consecrated in a Church not in communion with the Church of England whose Orders are recognised and accepted by the Church of England’;

c      the grant of permission to ‘overseas clergymen’ to officiate as deacon or priest in England;

d      the grant of similar permission to any person episcopally ordained priest or deacon in a Church not in communion with the Church of England whose Orders are recognised and accepted by the Church of England; and

e      ordinations in England at the request of an ‘overseas bishop’.

            It does not apply to clergy from other Anglican Provinces in the British Isles. The effect of a grant of permission is that the priest or deacon concerned can exercise his or her orders as if ordained in the Church of England, and in so doing is subject to the rules and obligations applying to all other clergy so ordained.

6.                  “Overseas bishop” is defined (s. 6(1)) to mean

a bishop of the Church of England or a Church in Communion with the Church of England having a diocese or office elsewhere than in the province of Canterbury, the province of York, Ireland, Wales or Scotland.

7.                  “Overseas clergyman” is defined in the same sub-section to mean

a clergyman who has been ordained priest or deacon by an overseas bishop or under section 5 of this Measure [which enables an English bishop to ordain at the request of an overseas bishop].

8.                  The ‘strict interpretation’ to which Archbishop Runcie referred is presumably the simple argument that a male priest is a ‘clergyman’ and a woman bishop in another Anglican province falls within the definition of ‘overseas bishop’. On the plain meaning of the words, that is clearly correct; but there are other considerations, and an earlier legal opinion (though not of the Commission itself) addressed analogous issues.

9.                  The opinion was given in 1976 by the then Dean of the Arches (Sir Harold Kent) and others, and is reproduced as Annex C to this Opinion. This addressed the question of women ordained priest in overseas provinces. The authors noted that the Interpretation Act provided that words importing the masculine gender include the feminine gender unless the contrary intention exists. On the ground that no woman could be a priest in England, the authors rejected the suggestion that the masculine term ‘clergyman’ in the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 could be read as including the feminine: a contrary intention did exist.

10.              Since that opinion was issued, it has become possible for women to be ordained to the priesthood in England, but the masculine language of the 1967 Measure has not been amended. ‘Clergyman’ in the 1967 Measure is now assumed to refer to both men and women: the original ‘contrary intention’ has dissolved. This illustrates a principle of statutory interpretation under which an Act or a Measure can be regarded as ‘always speaking’: if it is designed to deal with practical issues, its interpretation is ‘ongoing’ and must reflect current circumstances and is not fixed by reference to the circumstances existing when it was first enacted.

11.              In the cases with which this present Opinion deals, the principal issue concerns the definition of ‘overseas bishop’, not that of ‘clergyman’. Given that there are no women bishops in the Church of England, it is possible to construct an argument as to the meaning to be given to the term ‘overseas bishop’ which parallels that advanced in the 1976 Opinion.

12.              In considering this, it is important to examine more closely the various provisions in the 1967 Measure which concern ‘overseas bishops’:

Ordinations in England at the request of an overseas woman bishop

13.              Section 5 deals with the case in which an overseas bishop requests a bishop in the province of Canterbury or York to ordain a named person as priest or deacon with a view to that person exercising his or her ministry in the overseas diocese. The ordination is necessarily by a male bishop, and the candidate may be male or female. The overseas bishop is acting in his or her official capacity but is not the minister of ordination. The request is an ecclesiastical act done under the law of the women bishop’s own jurisdiction, and she is to exercise no function in England. There seems therefore to be no reason to give the term ‘overseas bishop’ in section 5 anything other than its natural meaning, which would include a woman. It follows that a bishop of a diocese in England may under section 5 accede to a request from a woman bishop. He is not obliged to do so.

Performance of episcopal functions in England by an overseas woman bishop

14.              Section 4 enables an ‘overseas bishop’, subject to certain approvals and consents, to perform episcopal functions in England. This is the case most clearly analogous to the matters considered in the 1976 Opinion, and the argument accepted in that Opinion would indicate that a woman bishop could not be given permission so to act. The exercise of episcopal functions in England must be governed wholly by English law.

15.              It is this question, of the performance of episcopal functions in England, which is the subject of the first question formulated on behalf of the House of Bishops’ Working Party:

        If it is desired that a woman bishop from another Anglican Province (other than Scotland, Wales and Ireland) should perform episcopal functions in the Church of England under section 4 of the Overseas and Other Clergy (Ministry and Ordination) Measure 1967, what constraints, if any, are placed upon such performance by section 6(2) of the Measure where the Archbishops of Canterbury and York would appear to have power to determine conclusively whether a Church is in communion with the Church of England or whether the orders of any church are recognized and accepted by the Church of England.

16.              Section 6(2) provides as follows:

      If any question arises whether, for the purposes of this Measure, a Church is in Communion with the Church of England or whether the Orders of any Church are recognised and accepted by the Church of England, it shall be determined by the Archbishops of Canterbury and York, whose decision shall be conclusive.

17.              Despite its heading, which refers to ‘overseas bishops’, section 4 deals with two different cases,

a      the performance of episcopal functions in England by ‘overseas bishops’, who are bishops in a Church in Communion with the Church of England; and

b      the performance in England of episcopal functions by other bishops ‘consecrated in a Church not in communion with the Church of England whose Orders are recognised and accepted by the Church of England’.

18.              Section 6(2) also deals with both cases, enabling the Archbishops to determine conclusively the issues of Communion with the Church of England (relevant to case a) and of the Orders of a Church being recognised and accepted (relevant to case b). It is only case a that is relevant to the question posed by the House of Bishops’ Working Party. The answer to that question must be that section 6(2) places no additional constraint on the performance by a woman overseas bishop of episcopal functions in England. It follows from the argument advanced in paragraph 14 above, that the Archbishop could not grant permission, but that arises independently of section 6(2).

19.              Were the Archbishops to declare that a particular member church or extra-provincial diocese of the Anglican Communion was not in communion with the Church of England – and the issue must be answered in those terms, not by reference to any individual – then the woman bishop concerned would cease to be an ‘overseas bishop’ within the Measure. She might claim, in those circumstances to be a bishop ‘consecrated in a Church not in communion with the Church of England whose Orders are recognised and accepted by the Church of England’ and so fall within case b above. Again the Archbishops could rule whether the Orders of the Church in which she was consecrated – and again it is a question of the Orders of a Church not an individual – were or were not ‘recognised and accepted’ (the Commission would take that phrase as a whole, and not distinguish between ‘recognition’ and ‘acceptance’). But for the reason already given, permission under section 4 could not be given.

Deacons and priests ordained by overseas bishops

20.              The questions from the House of Bishops’ Working Party include a number relevant to this case. The first is as follows:

        What bearing if any does section 6(2) have on the application of the Measure to priests ordained by a woman bishop from another Province (other than Scotland, Wales and Ireland)?

21.              Section 1 of the 1967 Measure regulates the position of deacons and priests ordained by ‘overseas bishops’. As has already been stated, whether a woman bishop is an ‘overseas bishop’ for the purposes of the Measure depends on whether her Church is in Communion with the Church of England, and section 6(2) enables the two Archbishops to rule on that question. If it is assumed that the Province concerned is in Communion with the Church of England, section 6(2) has no further significance. The more important issue concerns the principles developed in this Opinion as to the proper field of application of the Canon Law of different Provinces. In this context, the relevant function of the overseas bishop in that context is the act of ordination, carried out in her own jurisdiction under the Canons of the relevant Province. She exercises no functions in England. The validity of the ordination is therefore a matter for the law of the overseas Province.

22.              It follows that permission may as a matter of law properly be given in such cases under section 1 of the Measure. The giving of permission is a matter of discretion, though the manner in which that discretion has been exercised hitherto is principally concerned with the suitability of the priest or deacon. Any exercise of discretion must give proper weight to the sensitivities of the relevant issues, but were the discretion under section 1 to be exercised in a way which questioned the validity of the ordination, it is arguable that would be open to challenge as seeking to apply English law to an issue properly governed by the law of another Province.

23.              It might be argued that English ecclesiastical law is relevant to the recognition of an overseas bishop’s orders; this is close to Archbishop Runcie’s theological approach. However, as he observed

        In [the 1967] Measure there is an implicit assumption, correct at the time of its being passed, that the orders of clergy of overseas Anglican provinces were indeed recognised by the Church of England. This is made clear by the explicitly stated ground for the granting of archiepiscopal permission to minister for clergy ordained in Churches not in communion with the Church of England: namely, that their orders are recognised and accepted by the Church of England.

24.              He is contrasting the language used in the definition of ‘overseas bishop’ with that in section 3 of the Act. It is only in section 3, dealing with those episcopally ordained in churches not in communion with the Church of England, that a requirement of recognition of orders is included. See also paragraph 1 of Canon C1 which does not draw the same distinction and paragraph 5 of Canon C8 which (in the directly relevant context) does. So far as the Measure is concerned, the natural meaning of the words in the definition of ‘overseas bishop’ is that the term includes any bishop of another Anglican province or of another church in communion with the Church of England. In other words it assumes that in these cases the validity of orders is a matter for the Canon Law of the province or church in which they were conferred.

25.              The second question from the House of Bishops’ Working Party relevant to this issue is:

Was the Statement to the General Synod in 1988 by Archbishop Runcie a statement of policy at that time, before the ordination of women had been decided in the Church of England, rather than a determination of recognition of orders under section 6(2) of the Overseas Clergy Measure?

26.              In the Commission’s view, neither description of the Statement is correct. It is clear from its opening words that Archbishop Runcie was addressing issues of ecclesiastical law and not of policy. In part, Archbishop Runcie was relying on a legal Opinion which cannot be relied upon in the changed circumstances of today. As has already been explained, in the context of the acts of ‘overseas bishops’ the question of Orders being ‘recognised and accepted’ does not arise. The Statement was less than clear on the relationship between the two issues of Communion and the validity of the acts of a woman bishop as the minister of ordination. The South India example used in the Statement does not assist, for the priests concerned were not ordained by a bishop, and on that ground did not satisfy the requirements of section 1 of the Measure. The principles developed in this Opinion were not considered, and it is the view of the Commission that the Statement cannot now be relied upon.

27.              The third question from the House of Bishops’ Working Party relevant to this issue is:

        What bearing, if any, does section 1 of the Priests (Ordination of Women) Measure 1993 have on any exercise of recognition by the Archbishops under section 6(2) of the Overseas Clergy Measure?

28.              The Commission has already explained that since promulgation of Canon C4B under the 1993 Measure, permission has been granted to women ordained in overseas Provinces despite the 1976 Opinion. Where permission is given under the 1967 Measure, Resolution A or B under the Priests (Ordination of Women) Measure 1993 may limit the scope of the ministry a woman priest may exercise. It is difficult to answer the question as posed: the 1993 measure is part of the background to the whole set of issues but has had no direct bearing apart from the points just noted.

29.              On the general issue of priests ordained abroad, the approach adopted in this Opinion makes it easier to deal with some fact-situations which otherwise present further difficulties:

a      A man is ordained deacon by a woman bishop and priest by a male bishop;

b      A man is ordained deacon by a male bishop and priest by a male bishop; one or both ordinations is by a bishop who is either a suffragan or assistant bishop commissioned by a woman bishop or a bishop acting under letters dimissory from a woman bishop; cf section 4(2) of the 1967 Measure, deeming a person ordained by an overseas bishop in England on the request and by the commission in writing of an English bishop to have been ordained by the bishop making the request.

c      A man is ordained at an ordination presided over by a woman bishop but another, male, bishop joins in the laying on of hands and the accompanying words. It is not clear whether letters of orders would necessarily make this participation clear, or indeed the gender of the bishops.

        In all these case, the validity of the ordination will fall to be assessed by reference solely to the law of the ecclesiastical jurisdiction in which it takes place.

30.              To summarise, the position in law appears to differ from that set out in 1988 by Archbishop Runcie. The validity of ordinations carried out under the Canon Law of a province of the Anglican Communion or of another church in communion with the Church of England is treated by the 1967 Measure as a matter for that law, and the assumption is that those ordinations are valid. A bishop acting under that law is an ‘overseas bishop’ under the Measure, whether male or female. However, there are reasons – in  legal terms, of public policy – under which this approach cannot be followed in the case of section 4 of the Measure, so that a woman bishop cannot be permitted to exercise episcopal functions in England.

WOMEN BISHOPS IN SCOTLAND IRELAND OR WALES

31.              The House of Bishops’ Working Party asks a number of questions concerning the possibility of women bishops in the other Anglican provinces in the British Isles. There is no reason why the legal principles set out in paragraph 4 of this Opinion should not apply equally as between the different Anglican Provinces in the British Isles. The first question posed by the Working Party in this context is:

        What legal constraints, if any, are there upon any eventual women bishops in the Episcopal Church of Scotland functioning episcopally in the Church of England, or from the Church in Wales should it change its legislation to allow for the provision of women bishops?

32.              A woman bishop, were there to be any, of the Episcopal Church of Scotland, the Church of Ireland or the Church in Wales would not be an ‘overseas bishop’ for the purposes of the 1967 Measure, which therefore would have no application. There is therefore no question of the consent of the relevant Archbishop being required were such a bishop to be asked to ‘function episcopally’ in England. The phrase appears to mean ordain or confirm, and it is clear from the Canons that these acts are within the control of the bishop of the diocese. It would be misconduct for a woman bishop to act without the diocesan bishop’s authority, and the application of the principle expounded in this Opinion suggest that the diocesan bishop could not lawfully invite a woman bishop to act.

33.              The second question on this issue is:

        Does the Episcopal Church (Scotland) Act 1864 give an English Diocesan absolute discretion to institute to a benefice, or licence, a priest ordained by a Scottish woman bishop, or to refuse to do so?

34.              Section 5 of the 1864 Act is set out in Annex D to this Opinion. It seems, consistently with the approach taken above, to assume the validity of ordinations carried out in Scotland and Ireland under the ecclesiastical law of the churches there. Section 5 does appear to give the bishop wider powers of refusal than are available to him under Canon C10, paragraph 3 in the case of priests ordained in England. Despite the emphatic language of the statutory provision, the courts might entertain an application for judicial review were the bishop to act in an obviously unreasonable way. The bishop’s power to institute or licence is in other respects governed by the normal rules; section 5 does not add to those powers.

35.              The third question on this issue is:

            Does the Episcopal Church (Scotland) Act 1964 give an English Incumbent (or equivalent) absolute discretion to invite a priest ordained by a Scottish woman bishop to officiate without consent of the bishop? Could this apply to a bishop ordained in Scotland in terms of Episcopal functions such as Confirmation or Ordination?

36.              Section 6(1) of the Episcopal Church (Scotland) Act 1964 has the effect of enabling a priest ordained in Scotland to be invited to officiate in England under Canon C8, paragraph 2, on the same terms as one ordained in England. So the short answer to the first part of the question is ‘yes’. An incumbent cannot authorise services of confirmation or ordination, so this provision cannot have the effect envisaged in the second part of the question. An opinion prepared by a former Dean of the Arches (the Revd Kenneth Elphinstone) and others addressed this legislation in the context of women priests. It is reproduced at Annex E to this Opinion. It is mainly of  historical interest, but the view expressed by Sir Harold Kent and quoted at paragraph 7 of that opinion shows a functional analysis being used to give an interpretation of the clear words of the 1964 Act to restrict their meaning, so giving effect to the public policy considerations prevailing at that time concerning the exercise of ministry by women.

THE LAMBETH CONFERENCE

37.              Finally, the House of Bishops’ Working Party asks:

        Do invitations to the Lambeth Conference by the Archbishop of Canterbury (with or without conditions) have any formal bearing on legal recognition of Episcopal or other ministry?

            The Lambeth Conference is not mentioned in any relevant legislation or in the Canons. Given that the question whether a church’s Orders are recognised and accepted by the Church of England for the purposes of the Overseas Clergy Measure is a matter for the two archbishops acting jointly, the acts of one archbishop cannot have any binding effect in that context. However, invitation to the Conference by the Archbishop of Canterbury is of very great symbolic significance to those concerned; and the approach taken by Archbishop Carey in relation to women bishops in 1998 (when women bishops were invited to the Conference, but were asked not to undertake any Episcopal functions during their stay in the Province of Canterbury) illustrates the policy underlying the legal analysis set out in this Opinion.