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C of E proposes to repeal obsolete Medieval laws

Posted on: November 17, 2015 3:48 PM
The Original Act Room in the Palace of Westminster stores originals of all Acts of Parliament. Until the 1950s these were written on vellum rolls.
Photo Credit: UK Parliament
Related Categories: consultation, England, Legal, Synod

[ACNS, by Gavin Drake] British Acts of Parliament dating back to the 1500s could be repealed under a Statue Law reform process that is detailed in a Church of England consultation.

The C of E is an established church and much of its internal rules and regulations are part of the statute law of the United Kingdom. The C of E is currently undergoing a review of its procedures as part of a programme of reform and renewal – and the repeal of legislation that is now “spent, obsolete, unnecessary or otherwise not now of practical utility” is now being considered.

The consultation document prepared by the General Synod’s Secretary General, William Fittall, details a number of laws that have already been identified for repeal.

The oldest of these is the Suffragan Bishops Act 1534. Section 5 of the Act requires a diocesan bishop who has nominated a candidate for appointment as a suffragan bishop – or the candidate themselves – to provide the two bishops to act as co-consecrators with the Archbishop and to bear their reasonable expenses.

In practice, today, “arrangements for the presence of co-consecrators are made by the Archbishop and their reasonable expenses are borne by the Church Commissioners,” William Fittall – who stands down at the end of this month after 13 years in the post – said in the consultation document. “This provision would therefore appear to be unnecessary.”

Another ancient Act that could face the chop is the Tithe Act 1536. This provides that a new incumbent would be entitled to receive the tithes that had accrued during the vacancy.

This stems from the period when incumbents were entitled to receive – in the language of Medieval English – “tithes, fruytes, oblacions, obvencions, emoluments, commodities, advauntages [and] rentes”. As such rights have long-since been repealed; a provision that accrues such rights during a vacancy to the successor priest are clearly obsolete.

The consultation also proposes that parts of the Simony Act 1588 could also be repealed. This Act imposes penalties, based on the value of the livings, where a corrupt presentation has been made of a priest to a benefice. But as glebes and other endowments were transferred to Diocesan Boards of Finance in a 1976, “livings no longer have a monetary value,” Mr Fittall says. “That being so, the provisions of the Act concerned with penalties are obsolete and are not now of practical utility.”

But the consultation proposes retaining that part of the Act which results in “livings to which corrupt presentations are made automatically becoming vacant.”

The proposal does not merely propose dealing with ancient or complex legislation. The Churchwardens Measure 2001 is a short 16-Clause piece of legislation detailing the number, qualification and election of Churchwardens.

One clause, and a short two-clause schedule, states that, for the period in which they were chosen, the Measure did not apply to churchwardens already in post. The consultation document says that this transitional provision is now spent.

Prior to 1920, legislation affecting the Church of England had to be passed as a full Act of Parliament; but the Church of England Assembly (Powers) Act 1919 passed the right to legislate for the Church of England to the Church Assembly, which later became the General Synod. This gives the Synod the power to make Primary Legislation – the only body in England with this power apart from Parliament.

C of E legislation, known as Measures, has to be approved by the Synod in a formal process. Once approved by the General Synod, new Measures are sent to Parliament where they are studied by a joint committee of both houses before separate votes are taken in the House of Lords and the House of Commons. It then receives Royal Assent and becomes law once “promulgated” by the Archbishops of Canterbury and York at the next meeting of the Synod.

A separate consultation on the creation of an Enabling Measure has closed. Such a Measure would make it possible to make changes or repeal some primary legislation by secondary legislation. This would enable new laws to be made by a shorter process as Orders in Synod rather than full Measures. In a report to the Synod, Mr Fittall says that the Measure would exclude some matters from its provisions, including those relating to constitutional or doctrinal matters.

This new power would, in essence, mirror a power that the UK Parliament gave itself in the Legislative and Regulatory Reform Act 2006.