Legal implications of the ordination of women to the episcopate

Will Adam

The decision to permit the ordination of women to the episcopate in the Church of England will be based primarily on theology. Many believe (including Forward in Faith) that the decision to go ahead was made in principle when the General Synod requested that legislation be drawn up and brought before them

However, lurking behind any decision based on theology, principle and justice there lie a number of decisions that need to be made on how that decision can be put into practice. Much depends on the legislation itself. There are different options before the group drafting legislation ranging from a single clause measure simply removing the bar to women priests being ordained as bishops to more complex scenarios allowing their ordination but preventing their appointment as either diocesan bishops or archbishops.  We will not know the shape of the legislation until the report is published.

The first legal issue that will undoubtedly arise is the question of whether or not the General Synod and Parliament has the authority to permit the ordination of women as bishops. A spate of litigation questioning this authority followed the decision to ordain women priests. None of the challenges were successful and it is therefore very unlikely that anyone will be able to mount a successful challenge this time.

The second issue that I would like to point out is about the recognition of ordination. The Church of England consistently states that the orders of all those who are lawfully ordained should be recognised. Yet the legislation bringing in the ordination of women to the priesthood provided a mechanism for the ministry of lawfully ordained female clergy to be refused by PCCs and (at the time) by Diocesan Bishops. The refusal to accept the ministry of a woman bishop has further-reaching consequences as it could mean that some might refuse to recognise the efficacy of confirmation and ordination when conferred by her. Great care will need to be taken that the rights of female bishops and supporters, as well as opponents, of women’s ministry are adequately protected.

The courts are notoriously unwilling to pronounce on questions of the recognition of holy orders, most recently in the case of Blake v Associated Newspapers.1 The recognition or otherwise of the ministry of female bishops also has knock-on effects in such areas as canonical obedience, submission to lawful authority and acceptance of the direction of the bishop in matters such as liturgy. There are already calls for the setting up of a third province free of women bishops and priests. Detailed proposals have been published by Forward in Faith.2 Such a move would have huge legal implications in terms of the synodical structure of the church, the parish system, the training and discipline of clergy and, possibly, such areas as ecclesiastical courts.

The Church is entering a minefield first of legislation and then, assuming the change is brought about, of dealing with the consequences of that change. These consequences include practical, legal matters and great care will need to be taken to ensure that the Church gets it right.

1 [2003] EWHC 1600 QB.
2 www.forwardinfaith.com

Will Adam is Priest in Charge of Girton, Ely Diocesan Ecumenical Officer, and a
Research Student at Cardiff Law School

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