The present document has been written in the context of the lead-up to the November 2023 meeting of the General Synod. It will be updated as new information emerges. At the moment, we are still awaiting detailed papers for the forthcoming General Synod debate, and when these are published, this document will be updated.
A lot of people on the inclusive side of the discussions which have followed the LLF process have expressed, at various points, frustration and anger, often directed at the House of Bishops. I have observed that their criticisms have tended to be based on assumptions about the power bishops wield in the Church of England, which are incorrect or partial. This is not to deny the reality of that frustration and anger, nor to dismiss it, but some of the social media criticism has been based on accusations that the bishops could have done things which they legally cannot do. This document seeks to provide information about the systems which are legally in place and which shape the ways proposals arising from LLF can, and must, proceed.
Who has the power to do what in this situation?
In the Church of England, bishops are not all-powerful. Their power is strictly controlled by church law, which is part of the wider law of England. As far as Prayers of Love and Faith (PLF) are concerned, any form of service contained in its final form must be ‘authorised or allowed by Canon’. (1) Worship in the CofE is controlled by the law, and has been since the year 1549. So what does ‘authorised or allowed by canon’ amount to? The various ways services are authorised are set out in the Canons of the Church of England, sections B1 to B5A. Prayers of Love and Faith,although welcomed by the Synod of February 2023, still need to be legally authorised if they are to be used. Of the Canons which could be used to do this, these are:
- Canon B2 – authorisation by the General Synod
- Canon B4 – authorisation by Convocations (bishops and clergy) of the Provinces of
Canterbury and York, or the Archbishops, or the Ordinary (Diocesan Bishop)
- Canon B5A – temporary, experimental authorisation of material which is envisaged to pass through the Canon B2 process in due course, by the Archbishops after they have consulted with the House of Bishops.
Authorisation under Canon B2 envisages forms of service (including prayers) which are authorised for long-ish term use, and the Synodical process is set out in the Standing Orders of the General Synod, which are guided by the General Synod’s Constitution and the Worship and Doctrine Measure 1974 (which forms part of English law and was approved by Parliament). The process requires several stages of debate, and the final authorisation requires 2⁄3rds majorities in the three houses of the General Synod: Bishops, Clergy and Laity. If you look at any of the links in this paragraph, you will see how complex the process is. This is why it would take about 2-3 years to complete, especially given the intensity of opinion in any of the debates which could result in several repetitions of the revision stages. The final stage would involve getting the necessary 2⁄3rds majorities, which nearly all Synod-watchers believe would not happen in the current, more conservative, House of Laity of the Synod.
Prayers of Love and Faith: the House of Bishops’ legal basis
In July 2023, following February’s debate in the General Synod, legal advice was sought by opponents of PLF from Edward Morgan, KC, who advised that ‘the only safe, effective, and legitimate means by which the Prayers of Love and Faith can be adopted is by means of a resolution of the General Synod in accordance with Canon B2.’ He also stated that ‘any alternative route is likely to expose the Church of England, the Archbishops and the Diocesan Bishops to significant legal challenge.’ (2) This must have caused the House of Bishops to seek their own legal advice on the possibility of a successful legal challenge, and that advice almost certainly lies behind their decision to use Canon B2 as the instrument of authorisation in their October 2023 statement. Nevertheless, the Canons only refer to forms of service, rather than to individual prayers and readings – components of forms of service, but not the forms themselves. (3) Hence the House of Bishops have agreed to “commend” these components. However, as yet, it’s unclear what legal status this “commendation” would give the material. The press release of 11th October does not go into details, and may suggest that there is no formal canonical status to their ‘commendation’.
I suspect that the Bishops’ advisors regard a successful legal challenge of this approach as less likely since it is not in obvious direct contravention of Canon B1 and the Declaration of Assent, (which says you can only use forms of service authorised or allowed by Canon). This would allow any parish priest to use the prayers and blessings of PLF as components within an existing form of service already authorised under Canon B2, including A Service of the Word, and Holy Communion Order One, for example. These services would be little different from the ‘structures for special services’ contained in PLF, pp. 20ff. but would not lead to the priest/minister breaking their Declaration of Assent.
There is a potential snag, however. If the House of Bishops ‘commendation’ does not have a basis in canon law, then any priest using this commended material, even in a currently commended form of service such as Holy Communion Order One or A Service of the Word, still would be liable for proceedings to be instituted against them under the Ecclesiastical Jurisdiction Measure 1963, a venerable bit of church law which remains the only legal way to pull clergy into line over matters of worship and doctrine. Under the terms of that Measure, if a complaint were brought against the priest, the case could be swiftly dismissed by their diocesan bishop. However, we know (as of 12 October 2023) that some diocesan bishops have dissented from the decision of the House of Bishops. (4) Within those dioceses, clergy could be vulnerable for the proceedings against one them to go forward towards a ‘test case’ under the Measure. Now, it seems unlikely that any diocesan bishop would expose one of their clergy in this way, no matter how out of sympathy they were with the Commended Prayers.
However, such a dissenting diocesan bishop could issue an ad clerum forbidding all clergy in his/her diocese from using the Commended Prayers. Disobedience could then be regarded as a discipline matter falling under the Clergy Discipline Measure, which is easier to prosecute, and less legally expensive for all parties. This would essentially mean those dioceses could become ‘no-go areas’ for the Commended material. But again, suppose a priest were to act in disobedience to the ad clerum? The diocesan bishop would then be personally exposed, in the diocese and in the locality, as persecuting a local gay-friendly parish priest for wishing to pray over a gay married couple, using the very prayers commended by the House of Bishops. Such a bishop would never recover their pastoral reputation in the wider diocese or the wider community.
To summarize, the division of PLF into components to be ‘commended’ by the House of Bishops, and the ‘Structures of Service’ under Canon B2 (a 2-year process) is a legal workaround to enable the House of Bishops to permit use of the material, without producing an obvious reason for them to face a legal challenge for breaching the Canons. How the components are used will be determined by the rubrics of existing services, such as Common Worship Holy Communion Order One and A Service of the Word which already permit the use of additional material (such as intercessions and blessings) which have not been specifically authorised. Nevertheless, at present there remains a spectre of clergy being prosecuted under the Ecclesiastical Jurisdiction Measure 1963, but this would only be damaging if their diocesan were to face their own personal reputational damage of “throwing one of their clergy under a bus” by refusing to dismiss the complaint at an early stage in the proceedings, or by using a combination of an ad clerum and the Clergy Discipline Measure to attack one of their diocesan clergy who opts to use material commended by the House of Bishops, but forbidden by their local diocesan. This aspect of the process, however, remains the least clear aspect of the House of Bishops press release, and may be clarified as we proceed towards the November General Synod.
The Pastoral Guidance, and how this bears on gay clergy couples who wish to marry
So much for PLF. What about the other matter: the replacement of Issues in Human Sexuality? Issues was always a policy document drawn up by the House of Bishops to interpret and regularise their pastoral approach (by ‘pastoral’ is included the exercise of their discipline, what is and what is not allowed) in the case of gay clergy who may, or may not be in active sexual relationships. In their response to the Living in Love and Faith process, the Bishops stated that they would develop new Pastoral Guidance which would replace Issues. The status of the new Pastoral Guidance would be equivalent to that of Issues: a guidance document for the bishops themselves, but bearing on the wider Church through their authority as senior pastors, responsible for church discipline. This means that although the bishops have committed themselves to ‘engaging with a wide diversity of people’ (5) they do not have to run it past the General Synod to come into force. (In that same way that Issues did not pass through General Synod either.) So the timetable for this is a matter for the Bishops, and for that they may be held to account by the wider Church.
So what do the Bishops think they are doing?
What, then of the problem of more permanent authorisation under Canon B2? The House of Bishops programme there sets up a ‘show-down’ moment in 2025, which will take place several years after the services have effectively begun. But in the meantime, an additional component will come into play: consultation on the prayers at diocesan level. A similar process happened when an earlier, conservative, General Synod House of Laity was set to fail to get a necessary 2⁄3rds majority to approve women as bishops. The vast majority of diocesan synods passed motions in support, but the measure still failed in the House of Laity. One year later, a General Synod election returned a much more progressive House of Laity, and the motion duly passed. An almost identical set of circumstances will occur in 2025, so if the ‘structures for special services’ don’t get approval (probably in the House of Laity) after being overwhelmingly welcomed by the Diocesan Synods, then we can expect a similar showdown by an electorate who feel the current House of Laity are unrepresentative of opinion in the dioceses.
There’s a final wrinkle in this story: if there is a more liberal General Synod elected in 2026, there would be nothing stopping that new General Synod from bringing forward legislation to permit priests and parishes to conduct same sex marriages in the Church of England.
Far from ‘dragging their feet’ as some on social media have accused the House of Bishops of doing, their recent proposals in terms of liturgy indicate a clear intention by the majority to proceed with services praying for God’s blessing on same-sex couples who have married in a civil ceremony as swiftly as possible, whilst avoid the risk of a successful legal challenge which would stop the process in its tracks. In 2025, with hundreds of blessings already having taken place in churches, and after an extensive diocesan consultation exercise (which is more likely to result in wide approval rather than disapproval) the General Synod will be asked to give the Outline Services in PLF approval under B2. If the process fails to gain a 2⁄3rds majority in one or more of the Houses, the resulting furore across the wider Church of England is likely to lead to a heavily contested, but big swing in favour in the elections of 2026. This, in turn, would result in another vote which approves the services under Canon B2 and also could open the way to more radical proposals, resulting in equal marriage being allowed within the Church of England.
A final irony
Of course, it is still possible that opponents of PLF may yet mount a legal challenge in the courts to the Bishops’ proposals. Let us finally turn to the scriptures. Opponents of homosexuality amongst Christians point to 1 Corinthians 6: 9-11 in support of their biblical case:
‘Do you not know that wrongdoers will not inherit the kingdom of God? Do not be
deceived! Fornicators, idolaters, adulterers, male prostitutes, sodomites, thieves, the greedy, drunkards, revilers, robbers—none of these will inherit the kingdom of God. And this is what some of you used to be. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and in the Spirit of our God.’
Immediately before these verses, in 1 Corinthians 6:1-8, St Paul writes:
‘When any of you has a grievance against another, do you dare to take it to court before the unrighteous, instead of taking it before the saints? Do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels—to say nothing of ordinary matters? If you have ordinary cases, then, do you appoint as judges those who have no standing in the church? I say this to your shame. Can it be that there is no one among you wise enough to decide between one believer and another, but a believer goes to court against a believer—and before unbelievers at that?
In fact, to have lawsuits at all with one another is already a defeat for you. Why not
rather be wronged? Why not rather be defrauded? But you yourselves wrong and
defraud—and believers at that.’
Let’s just leave that there.
1 The Declaration of Assent, which all authorised ministers in the Church of England make on taking up their appointment.
2 Leaked letter from various to the Archbishops, College of Bishops and key officers of the Church of England. 3rd July 2023.
3 Although Canon B1 mentions that its remit includes ‘any other matter to be used as part of a service’ (§3. (iii)) the permissive rubrics typical of authorised Common Worship services allow a considerable flexibility in the components (eg. intercessions, blessings) to comply with this part of Canon B1.
4 Dissenting bishops speak out on same-sex blessings www.premierchristianity.com (Accessed 12 October 2023)
5 Living in Love and Faith: a response from the Bishops of the Church of England about identity, sexuality, relationships and marriage. p.10