Yesterday’s votes at the General Synod on the Clergy Conduct Measure were inevitable. Once the Ecclesiastical Committee concluded that the Measure was “not expedient”, the Legislative Committee had little realistic choice but to amend clause 31(3) so that tribunals sit in public by default.
The amendment was always going to pass. It did. But inevitability does not mean that the underlying constitutional concerns have been resolved.
Indeed, the debate itself illustrated the deeper problem: how much of the system Synod and Parliament are being asked to approve is not contained in the Measure at all.
Parliament’s principal concern — but not its only concern
The Ecclesiastical Committee’s principal objection was the presumption of private hearings. The amendment reverses that presumption. That addresses the headline issue.
But the Committee raised further concerns: the absence of draft Rules, the lack of visibility over operational safeguards, and whether Parliament had sufficient information to judge expediency.
Those concerns were not technical. They go to the heart of the 1919 constitutional settlement.
Under the Church of England Assembly (Powers) Act 1919, the Ecclesiastical Committee must report on the Measure’s “nature and legal effect” and on its “expediency”. That duty cannot be discharged in the abstract. It requires understanding how the Measure will function in practice.
The Rules remain unpublished. The operational detail remains unseen. Parliament has still not been given what it repeatedly requested.
“Informal discussions” and constitutional silence
Speakers referred repeatedly to “informal” meetings between the Legislative Committee and the Ecclesiastical Committee. Such discussions may be convenient, but they are not provided for in the 1919 Act.
The 1919 Act establishes a formal legislative pathway: Measure, report, parliamentary scrutiny, approval motions in both Houses, and Royal Assent. It does not provide for private pre-legislative negotiation to substitute for formal scrutiny.
In UK constitutional culture, legislative scrutiny is conducted publicly. Evidence is published. Draft material relied upon by committees is ordinarily placed on the record. Opaque reassurance is not a substitute for visible accountability.
If draft Rules were shown formally to Parliament, they should be available publicly. If they were shown informally, Parliament should not be expected to legislate on that basis.
“Not within the function of the Ecclesiastical Committee” — and why that misses the point
Sir Robert Buckland told Synod: “Presenting a full set of rules to the Ecclesiastical Committee of Parliament risks usurping the vital role of this body in receiving, scrutinising and amending those rules before they go to Parliament.”
He continued: “Strictly speaking, the consideration of rules and other secondary legislation is not actually within the function of the Ecclesiastical Committee in any event.”
He further argued that rules: “can only ever be in draft as a matter of law, because the power to make them does not come into force until Royal Assent is given to the primary legislation.”
Formally, that has surface force. The Ecclesiastical Committee scrutinises Measures, not statutory instruments.
But that is not the Committee’s concern.
The Committee has stated that it must have sufficient information about how Measures are intended to work before it can declare them expedient. Where a Measure defers substantial operational content to Rules, those Rules are not peripheral. They are the mechanism through which the Measure takes effect.
The Clergy Conduct Measure is skeletal. It establishes offices, stages, and powers. But it leaves to Rules:
- the gateway requirements for complaints,
- the mechanics of investigation,
- the participation of safeguarding actors,
- the structure and content of reports,
- the detail of procedural protections,
- and the practical operation of hearings.
When Parliament is asked to determine whether legislation affecting legal rights is expedient, it must understand how that framework will function in practice.
If the practical safeguards, investigatory mechanics, confidentiality architecture and protections against vexatious complaints reside primarily in unpublished Rules, Parliament cannot realistically assess the Measure.
This is not Parliament intruding on Synod’s jurisdiction. It is Parliament attempting to discharge its statutory duty under the 1919 settlement. Framework legislation without operational visibility undermines meaningful scrutiny.
Read it all at Church Abuse