Law Report: Women's ordination measure lawful: Regina v Ecclesiastical Committee of the Houses of Parliament and another, ex parte Church Society - Queen's Bench Divisional Court (Lord Justice McCowan and Mr Justice Tuckey), 28 October 1993

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The words 'any matter concerning the Church of England' in section 3(6) of the Church of England Assembly (Powers) Act 1919 meant any matter at all, however fundamental in doctrinal terms; and the power conferred by the section was wide enough to enable the General Synod to pass, and for Parliament to approve, a measure providing for the ordination of women.

The Queen's Bench Divisional Court refused an application by the Church Society for judicial review of a decision by the Ecclesiastical Committee of members of both Houses of Parliament, on 12 July 1993, that the draft Priests (Ordination of Women) Measure was expedient. The applicants had sought an order quashing the decision and a declaration that the measure was ultra vires the 1919 Act, under section 2 of which the Ecclesiastical Committee had been established.

Section 3 provided that measures passed by the Assembly should be submitted for consideration by the Ecclesiastical Committee, which then reported to Parliament, under section 3(3), 'stating the nature and legal effect of the measure and its views as to the expediency thereof, especially with relation to the constitutional rights of all His Majesty's subjects'.

By section 3(6), 'a measure may relate to any matter concerning the Church of England, and may extend to the amendment or repeal in whole or in part of any Act of Parliament, including this Act. . .'

In 1970, the National Assembly of the Church of England was replaced by the General Synod pursuant to the Synodical Government Measure 1969. The presidents at the General Synod were joined as second respondents to this application.

Charles George QC and Philip Petchey (Cumberland Ellis Peirs) for the applicants; Sheila Cameron QC, Nicholas Ainley and Timothy Briden (Winkworth & Pemberton) for the respondents.

LORD JUSTICE McCOWAN said the applicants had argued that the power conferred by section 3(6) of the 1919 Act was a limited power and it could not be used to change the fundamental doctrines of the Church of England. The ordination of women was contrary to a fundamental doctrine of the Church of England. Therefore, it was said, the decision to ordain women was ultra vires the power conferred by the 1919 Act. But, in his Lordship's judgment, 'any matter' in section 3(6) meant what it said: any matter at all.

The applicants also relied on section 3(3), submitting that in reporting on a measure's 'expediency' the Committee was expressing a view as to its lawfulness. But, in his Lordship's judgment, the words 'legal effect of the measure' meant the legal results the measure would have, if passed in law, not whether it was lawful, and the word 'expediency' was not concerned with lawfulness. Moreover, it was clear from the final words of section 3(3) that a measure might be of sufficient importance to affect constitutional rights.

It was also argued, relying on the words of Lord Riddel in Viscountess Rhondda's Claim (1922) 2 AC 339 at 405, that it was 'inconceivable that Parliament should have made such a wide and far-reaching constitutional change by general words of vague and doubtful import.' But the words of the 1919 Act, though general, were not of vague or doubtful import. It was difficult to imagine plainer language.

The respondents argued that it would have been easy for Parliament in enacting section 3(6) to have included the words 'unless fundamental'. His Lordship found the applicants' riposte, that this was so obvious that it did not need to be stated, wholly unconvincing. Who was to decide whether a change was fundamental? The courts might find it possible to form a view on that, but his Lordship did not believe such a task had been placed on them by the 1919 Act.

MR JUSTICE TUCKEY agreed. To ask whether, in 1919, Parliament could have intended such a fundamental change was not the right question. Parliament intended the Church of England should have the right to consider and debate such a decision when it wanted and then put it before Parliament to approve.

The application should be dismissed.

Paul Magrath, Barrister.