Andrew Goddard writes: Yesterday’s debate at Synod on LLF/PLF raises some important and potential serious issues. These include:
- The bishops’ refusal to give Synod advice from the Legal Office breaks with precedents
- The Bishop of London’s statement suggested members had the foundation of the theological and legal basis in GS 2328 but there is a 22 page Annex on the former, “legal advice” is a phrase which appears only twice in the whole document (para 10 of Annex A)
- Although “nothing is being hidden” we know there exists legal advice which “sets out both sides of the argument” (Annex A para 10) as to the prayers’ legality but we don’t know what those contrasting legal arguments said or if the lawyers’ evaluated them
- “Legal advice” was made an amorphous category by the Bishop of London – it “comes in many forms” including “conversations” which are “not recorded” and so “impossible” to show Synod
- The bishops by commending PLF are pinning the legal target on the backs of clergy using the prayers despite previously acknowledging the need to provide them with more legal protection
- The legal advice they are not issuing now appears to be much less certain than that issued in January and to have a totally different legal basis
- This may also be creating problems for what is in the unreleased part of the draft Guidance concerning clergy entering into same-sex marriages
- The Pastoral Principles point to publishing the legal advice and the only apparent reason not to do so seems to be some degree of political embarrassment.
I explore these in detail in the article that follows. But I should say at the outset: considering questions about legality is not about legalism. The Church of England is a church ‘established by law’, and that means that our canon law is the place where our doctrine is expressed. And the rigour needed to formulate, discuss, and possibly revise these laws provides the needed disciplines for thinking carefully about doctrine without causing unnecessary division.
For the last two days I have been serving as an additional chaplain offering pastoral support at General Synod. Having spent quite a lot of time in recent months immersed in papers and arguments it has been good but also challenging and painful to be present with those who have been called to represent us all as they seek to understand what is being said and done and what God is saying to us all through this process.
Understanding what is being said and done is far from easy. This is likely to be the case today in relation to the Bishop of Oxford’s amendment concerning standalone services (is this looking to use B5A even though it is not mentioned and is the House of Bishops now reversing its vote on October 9th? Why is reference made to the timetable in the February motion and how does that and its reference to five years impact the B2 process?). Yesterday the focus of a fair degree of confusion and frustration was the question of legal advice and an amendment from Clive Scowen which called on the House of Bishops
To take no further steps towards implementing that motion until this Synod has considered the full legal advice received by the House prior to agreeing the proposals in GS 2328.
His speech received prolonged applause but was lost in all three Houses (10-22-2 among bishops, 88-99-0 among clergy, and 93-98-6 among laity) but the comments from the Bishop of London resisting the amendment raise a number of questions about what is being said and done and whether Synod members and others watching may be confused or even feel misled by what has happened. Before turning to those it is important to give a few points of background.
What has happened? (See Appendix for more details and links).
Historically the bishops have shared legal advice in various ways but unprecedentedly this time a number of bishops have publicly dissented and warned that legal advice suggests the House’s decisions in the Synod papers may fall short. Those papers also fail to repeat the argument concerning civil marriage in previous legal advice published and suggest that there may now be legal problems with the planned Guidance.
What was Synod told by the Bishop of London?
Clive Scowen’s amendment was resisted by the Bishop of London on two main grounds. One was that it was simply trying to delay what needs to proceed which would be hurtful. This ignored the fact that, as he had pointed out, there would only be delay if the House decided to delay as it could release the legal advice immediately so Synod could consider it during this session. The more substantial argument, however, was that it was unnecessary as Synod already had what was required in GS 2328. What exactly is being claimed here is, however, far from clear both in terms of its substance and its accuracy.
Looking for Legal Advice in GS 2328
The Bishop of London, in her brief response to the amendment being moved (which would have been a prepared statement not an off-the-cuff reply as she had to offer in Monday’s Question Time), made a number of claims about GS 2328:
- That GS 2328 is “the foundation of the House of Bishop’s theological and legal basis for how we are going [through] forward” and contains “our theological workings…along with the legal foundation of the proposals for us moving forward”.
- “The proposals GS 2328 reflect the legal advice that we have received. It is clear and it is transparent”.
- Clive Scowen (and by implication any minded to support him) simply need to “go back and reread GS 2328 and you will see the legal…the foundation of the legal advice that we have been given”.
- “What you have in GS 2328 is the legal foundation upon which we have given you the decisions. It is there clear and transparent in that document”.
- “You have the legal foundation upon which our discussions have occurred”
- “The paper that you have in GS 2328 is the formation of the legal advice that we have been given”
Earlier in her opening of the debate she had said “You may not agree with our legal advice” again implying that Synod had been supplied with that advice in some sense so as to be able to make such a judgment.
If one looks in GS 2328 then “the foundation of the House of Bishops’ theological basis” and “our theological working” is easily found – this is given in Annex H which is a 22-page paper “shared with the House and College of Bishops ahead of the meeting of the House of Bishops on 9 October 2023”. There is nothing anywhere near like this in relation to “the foundation of the House of Bishops’ legal basis” or “the legal foundation of the proposals”.
So what were Synod members to re-read last night in GS 2328 and what would they find if/when they did? The central theme in the quotations above is that of “legal foundation” (It is unclear what is meant by “formation” in (6) and whether that should be “foundation”). I think the answer can only be found in Annex A which comes from the Bishop of London and her Co-Chair.
Para 10 (the only place “legal advice” appears as a phrase in the whole document) and Para 11 tell us that the bishops “received” and “considered” legal advice concerning the prayers’ compliance with Canon B5.
Here it is noteworthy that it “set out both sides of the argument” unlike the legal advice released in January. In other words it would appear that the legal advice is now less certain than it was then: there are significant legal arguments for and against PLF being legal. It was left to the bishops “to exercise our legally- and theologically-informed judgement in coming to a view on whether proposed prayers and other material met the requirements as to doctrine” (para 10).
Para 11 sets out what were seen as significant points “in the light of the legal and theological advice we have received” but these mainly highlight the prayers do not treat a same-sex couple in a marriage differently from any other same-sex couple. It gives few details on matters of law and is shorter than para 14 even though that is a summary of the fully published theological advice set out in Annex H.
Para 12 discusses whether being in a sexual relationship is relevant (as previous legal advice suggested it would be if sexual intimacy was meant to be only for marriage which the bishops have reaffirmed as set out in para 13) and says the bishops “have considered relevant theological and canonical issues”.
Paras 16-21 also seem to “reflect the legal advice that we have received” (quote 2 above) as they note “we have been advised…we have also been advised…”. Here there is the significant statement that this advice included that “it would be difficult to say that making the PLF available for same-sex couples without there being an assumption as to their sexual relationships was not indicative of any departure from the Church’s doctrine” (para 17). In other words, part of the legal advice appears to be that the proposal found in GS 2328 does not implement the February motion as amended.
On the looser canonical requirement that anything indicative of a departure must not be “in any essential matter” there is a clear drawing on legal advice (paras 19 and 20) but ultimately only a very brief sketch of questions asked (para 21) in the light of Annex H (para 22) with nothing obviously drawing on legal advice in relation to the judgment (“we consider….”) the canon is being upheld (paras 23-26). It would appear here that this is an episcopal judgment (“we have therefore come to the view that….”, para 26) based on Annex H (which I have argued is itself not a strong foundation on which to build) rather than a summary of the legal advice. This presumably is because the legal advice was inconclusive which is why it set out two views.
If this is “the legal foundation upon which we have given you the decisions” (quote 4 above) then (in marked contrast to Annex H’s theological rationale) it is not particularly “clear and transparent” (2 and 4 above). The “legal foundation of the proposals” (1 above) looks incredibly weak if “the foundation of the legal advice that we have been given” (3 above) simply “set out both sides of the argument”.
What counts as legal advice?
One part of the Bishop’s response to the amendment elicited a strong negative reaction from the floor. After telling Clive Scowen to “go back and reread GS 2328” she continued:
It is fair to say that the legal advice that we have given comes in many forms. You can imagine the College and the House talk quite a bit and therefore there are conversations where theology and the law have spoken and worked together. It is impossible to show you the detail of that because that is not recorded. But what you have in GS 2328 is the legal foundation upon which we have given you the decisions. It is there clear and transparent in that document.
This appears to argue (with some similarities to the argument then used to critique the next amendment by arguing ‘the complete Pastoral Guidance’ cannot be considered as it will be a constantly evolving document) that “the full legal advice received by the House” requested in the amendment is something “impossible to show you” because “legal advice that we have [was “been” omitted here?] given comes in many forms”.
The most generous reading of this in the light of Annex A as summarised above is that during the House’s discussion legal officers contributed by answering questions or by offering comments on what bishops said as they discussed the legal advice. Given the bishops had to “exercise our legally- and theologically-informed judgment in coming to a view” and consider “both sides of the argument” what we therefore have in those paragraphs of Annex A in GS 2328 is where they ended up in the light of that discussion.
The difficulty of course is that how papers are brought together and signed off after a meeting is not always simple.
Is something being hidden and why is this important?
The comment that “legal advice comes in many forms” some of which “are impossible to show you the detail of” could give the impression that there was in fact no clear “full legal advice received by the House prior to agreeing the proposals in GS 2328” (amendment) that could now be considered by the Synod. But it is clear from para 10 of Annex A that there was a written piece of legal advice shared with bishops presumably similar in form but clearly not in content to that summarised for Synod members in January in GS Misc 1339. This would likely be similar in length and depth to the theological foundation which has been fully released in Annex H.
Given that this is the case (and the only other option is that the bishops received no prior papers from the Legal Office before their meeting but simply had a verbal presentation) then a twice-stated assurance to Synod is intriguing:
I want to assure you there is nothing that is being hidden…..I want to reassure you that we are not hiding anything….
It appears clear that this legal advice now sets out two views on the legality of the prayers rather than affirming their current form to be legal. The Bishop of London continued by saying “We have been transparent to you about our differences and disagreements in the House of Bishops”. The serious problem is that there has however been no transparency about the nature of the different views and the disagreement concerning the legality of the prayers which was seemingly expressed by the Legal Office in their legal advice.
This is crucially important especially for clergy because if prayers are commended by the bishops they are commended for use under Canon B5 and at the discretion of the minister having the cure of souls. It is the minister who has to determine that the prayers “shall be neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter” and who could face “proceedings under the Ecclesiastical Jurisdiction Measure 1963”.
In July the bishops reported to Synod (in GS 2303) that alternatives to Canon B5 commendation were being seriously considered not least as they “may provide more legal protection for those ministers who choose to use the Prayers” (para 13).
The situation if the motion passes and the bishops commend is that they have not given clergy more legal protection which they said in July they were considering but they have signalled that their legal advice is now less certain. Despite this they are not willing to publish that advice in any form or to “set out both sides of the argument” as the lawyers did for them so that clergy can make their own legally informed judgments. Instead, they are simply saying “trust us and our legally and theologically informed judgments”.
This is also potentially important for the amendment which followed that relating to the Legal Advice and is still being debated. This asks for Synod to be able to consider “the complete Pastoral Guidance replacing Issues in Human Sexuality” which will pronounce concerning clergy and same-sex marriage.
This matter is therefore most likely also part of the legal advice that the House has received. If the legal advice is no longer appealing to the distinction between civil marriage and holy matrimony then as noted above it appears much more difficult to permit clergy to enter a civil same-sex marriage. This may be why “more work still needs to be completed in this area” and this crucial part of the Guidance is also being held back from Synod. It may be that, as with the prayers, the legal advice is creating episcopal headaches (particularly in the light of past legal advice which has been shared in GS 2055 and the reaffirmation of the doctrine of marriage including in relation to sexual intimacy). It could, as with the prayers, now be offering “both sides of the argument” rather than supporting what has been reported as being written into the draft guidance or even advising that what has been drafted, and is sought by the 44 bishops who felt compelled to go public, is simply not legally possible given the theological rationale set out in Annex H.
What are the options for the bishops now?
The failure of the amendment means that, assuming the final motion passes, the bishops are free to continue to commend the prayers without releasing the legal advice. It is, however, not impossible that the advice will leak or be released by someone who believes confidentiality is being misused in the refusal to share its contents or become public if there is a legal challenge to a priest using the prayers.
The history of past practice suggests two other possible options. Following the precedent of GS 2055 and GS Misc 1339, there could be a new document which faithfully reproduces the advice and in particular sets out the two arguments the bishops considered so that Synod members and clergy in parishes deciding whether to use PLF under Canon B5 can make their own judgments as to their legality. Alternatively, following the precedent set with the Implementation Groups, the full advice could be shared in confidence with, for example, the Chairs of the Houses of Clergy and Laity for them to advise the bishops whether they believe more legal information needs to be made available to Synod members in the light of seeing the full legal advice.
If the legal advice’s release would
- reveal the bishops to be “hiding” important material
- demonstrate that GS 2328 is less than “clear and transparent” in relation to legal matters
- undermine the bishops’ case in some way
- raise serious doubts as to the wisdom of their “legally and theologically-informed judgments”
- or question the veracity of some of their public statements
then their resistance to its publication makes political if not moral sense.
But if none of these are the case then there would appear they have nothing to lose—and potentially quite a lot to gain in terms of rebuilding trust and showing they are paying attention to power—by taking one of these two steps or, better still, simply releasing the advice in full as quickly as possible and so help cast out fear by paying attention to power, speaking into silence, and addressing ignorance.
Appendix: What has happened?
Firstly, back in January 2017 when bringing proposals to General Synod after the Shared Conversations, the bishops’ paper (GS 2055) had an annex dated November 2016 which was “an extract from a note from the Legal Office which was provided for the Bishops’ Reflection Group on Sexuality & the House of Bishops; and is made available as a background resource for the General Synod” (p.16).
Secondly, the original papers from the House of Bishops before the February Synod also failed to provide the legal advice they had received. When this led to protests, GS Misc 1339 appeared as “a note from the Legal Office”. This stated that what it contained “sets out legal advice for the General Synod which is to the same effect as the advice which was given to the College and House of Bishops”.
Thirdly, those of us involved in the PLF Implementation Groups (many of whom were Synod members) were given in May an analysis of Legal Issues from the Legal Office to help resource our conversations.
Fourthly, after the House of Bishops met on October 9th to finalise papers for General Synod, 12 of them issued a dissenting statement which expressed concern that Synod would not be able to “determine whether the bishops have fulfilled their intention (supported in February) that the final form of the prayers should not be “indicative of a departure from the doctrine of the Church of England”” and noted that “legal and theological advice the House has received suggest clearly to us that the decisions of the House may fall short of this commitment”.
Fifthly, the arguments found in GS Misc 1339 shared with Synod in January focussed on a new legal position concerning the distinction between civil marriage and holy matrimony. This significantly altered some of the earlier lines of argument that had been set out in GS 2055 in 2017 (and which had been repeated in subsequent legal advice offered on at least two occasions including during the LLF process). This distinction was essential to arguments relating to the legality of the prayers in February and appeared also to undermine the prohibition on clergy from entering civil same-sex marriages as those entering a same-sex civil marriage now “do not need be treated as doing more than obtaining a civil status, and in particular they do not need to be considered simply by obtaining that civil status as rejecting or challenging the definition of Holy Matrimony in Canon B30” (para 7). This argument was subject to significant legal critique (most fully here) and significantly is missing from the argument in the paperwork given to this November Synod (GS 2328) but with no explanation for its disappearance. It is also clear from answers to questions yesterday that FAOC has offered some (also unpublished) theological assessment of this proposed legal distinction which appears to have at least weakened the stronger versions of it and perhaps made it unusable.
Sixthly, the bishops have decided not to release the part of the Pastoral Guidance that effectively replaces Issues and which will clarify whether or not clergy can now enter same-sex civil marriages. It has explained this on the basis that “given the complexity of these topics, more work still needs to be completed in this area”. It also noted that, rather than appealing to the argument quoted above from the January legal advice as providing a clear basis for allowing clergy to be in same-sex marriages, “The House of Bishops’ intention is that this further work will consider whether the rationale of pastoral provision might provide a basis for allowing clergy to be in same-sex marriages”.
Seventhly, it has nevertheless been reported that “Pastoral guidance that would allow priests to enter into same-sex marriages was drafted before the College of Bishops meeting at the end of September” and that votes in the College show “a large majority of CofE bishops support a move towards allowing priests to enter into same-sex marriage” with the House also voting in favour of this on October 9th by 18 votes to 15. This course of action has also been publicly supported by 44 bishops.
Revd Dr Andrew Goddard is Assistant Minister, St James the Less, Pimlico, Tutor in Christian Ethics, Westminster Theological Centre(WTC) and Tutor in Ethics at Ridley Hall, Cambridge. He is a member of the Church of England Evangelical Council (CEEC) and was a member of the Co-Ordinating Group of LLF and the subgroup looking at Pastoral Guidance.