Wednesday, June 4, 2014

Church of England Empowering Act 1928

May be useful to read this Act sometime.

Here are the thoughts of an eminent bush lawyer and QC (Quite Capable)!

1. The Act defines the powers of the General Synod, on the one hand affirming by civil law a presumption of a church no longer an established church of England and Ireland that it may make decisions about Formularies and about versions of the Bible which are authorised for use and on the other hand limiting those powers which may not be exercised in contradiction of clause 1 of the constitution. Thus we read:

"
Power to alter Formularies for use in any part of the Province
  • It shall be lawful for the Bishops, Clergy and Laity of the Church, in General Synod assembled, from time to time in such way and to such extent as may to them seem expedient, but subject to the provisions in this Act contained, to alter, add to, or diminish the Formularies, or any one or more of them, or any part or parts thereof, or to frame or to adopt for use in the Church or in any part of the Province or in any Associated Missionary Diocese new Formularies in lieu thereof or as alternative thereto or of or to any part or parts thereof and to order or permit the use in public worship of a version or versions other than the Authorised Version of the Bible or of any part or parts thereof:
    provided that the provisions of this section shall not empower or be deemed to empower the General Synod to depart from the Doctrine and Sacraments of Christ as defined in clause one of the Constitution.
    Section 3 was repealed and substituted, as from 28 September 1966, pursuant to section 3 Church of England Empowering Amendment Act 1966 (1966 No 1 (P)).
"

2. The Act sets out in a Schedule what is also in the constitution, the key determination of what constitute the Doctrine and Sacraments of Christ, clause 1:

"The fundamental provisions of the Constitution of the Church
  • 1This Branch of the United Church of England and Ireland in New Zealand doth hold and maintain the Doctrine and Sacraments of Christ as the Lord hath commanded in His Holy Word, and as the United Church of England and Ireland hath received and explained the same in the Book of Common Prayer, in the Form and Manner of Making, Ordaining, and Consecrating of Bishops, Priests, and Deacons, and in the 39 Articles of Religion. And the General Synod hereinafter constituted for the government of this Branch of the said Church shall also hold and maintain the said Doctrine and Sacraments of Christ, and shall have no power to make any alteration in the authorized version of the Holy Scriptures, or in the above-named Formularies of the Church.
  • 2Provided that nothing herein contained shall prevent the General Synod from accepting any alteration of the above-mentioned Formularies and Version of the Bible as may from time to time be adopted by the United Church of England and Ireland, with the consent of the Crown and Convocation.
  • 3Provided also that in case a license be granted by the Crown to this Branch of the Church of England to frame new and modify existing rules (not affecting doctrine) with the view of meeting the peculiar circumstances of this colony and native people, it shall be lawful for this Branch of the said Church to avail itself of that liberty.
  • 4And whereas opinions have been expressed by eminent legal authorities in England that the property of the Church in New Zealand might be placed in jeopardy unless provision were made for the contingency of a separation of New Zealand from the Mother-country, and for that of an alteration in the existing relations between Church and State: It is hereby further declared that, in the event of a separation of the Colony of New Zealand from the Mother-country, or of a separation of the Church from the State in England and Ireland, the General Synod shall have full power to make such alterations in the articles, services, and ceremonies of this Branch of the United Church of England and Ireland in New Zealand as its altered circumstances may require, or to make such alterations as it may think fit in the Authorized Version of the Bible.
  • 5There shall be a representative governing body for the management of the affairs of the Church, to be called the General Synod of the Branch of the United Church of England and Ireland in the Colony of New Zealand, which shall consist of 3 distinct orders—viz, the Bishops, the Clergy, and the Laity, the consent of all of which orders shall be necessary to all acts binding upon the Synod, and upon all persons recognizing its authority.
  • (6)The above provisions shall be deemed fundamental, and it shall not be within the power of the General Synod, or of any Diocesan Synod, to alter, revoke, add to, or diminish any of the same.
"

3. The Act does not state a modification post the 1989 publication of A New Zealand Prayer Book conveyed within the revised constitution of 1990/1992 which reads:

"FURTHER PROVISIONS
PART B
Subject to the provisions of the Church of England Empowering Act, 1928 and to the Fundamental Provisions-

1. This Church holds and maintains the Doctrine and Sacraments of Christ as the Lord has commanded in Holy Scripture and as explained in
The Book of Common Prayer 1662
Te Rawiri
The Form and Manner of Making, Ordaining, and Consecrating Bishops, Priests and Deacons
The Thirty Nine Articles of Religion
A New Zealand Prayer Book - He Karakia Mihinare o Aotearoa."

Here the church has added A New Zealand Prayer Book as an additional aid in understanding the Doctrine and Sacraments of Christ, albeit subject to the Fundamental Provisions. However, because the publication of this prayer book as agreed via General Synod's proper and legal process failed to generate a legal challenge (i.e. failed to generate a successful challenge to its status as a formulary in respect of the Fundamental Provisions) it effectively has the status of the Book of Common Prayer etc.

4. Thus for our church to proceed with blessings of same sex partnerships it will need to make some decisions, according to recommendations of the working group set up by our recent General Synod. Here are probable decisions to be made:

A. To promulgate a formulary or not as the vehicle for such blessings

B. (Depending on A) To promulgate a formulary which is in accord with the doctrine and sacraments of Christ as this church understands them. The standard here is very high (cf. some comments being made on this blog by Ron and Gail Young re application of the Thirty Nine Articles, including the Homilies approved by the Articles). Essentially such a formulary would need to not contradict Holy Scripture nor to make change to our doctrine of marriage.

C. (Depending on B and any assessment of whether a proposed formulary could meet the standards of the current constitution) To restructure our church into two parts, one whose constitution maintains the Fundamental Provisions (because they are unalterable, according to our constitution) and one which has a different constitution. But here is the kicker ...

The part which operated according to a new constitution could not have access to the funds entrusted to the part sticking with the current constitution.

Or, is this opinion wrong?

In which case I want my money back ... that bush lawyer's fees are QH (Quite High).

18 comments:

Jean said...

So Peter does this by consequence mean in colloquial language that were specific doctrines/official liturgy drawn up by a working party and passed by General Synod in favour of Same Sex Blessings it in affect can be challenged as being illegal according to Anglican Canon Law.

Peter Carrell said...

Hi Jean
I am trying to leave open the possibility that the working group finds a way through the legal maze.

Nevertheless you are right in respect of any decision of General Synod: it may be challenged by due legal process and both our canons and the 1928 Act provide for that challenge.

The possibility of that challenge generally has meant that the GS has made decisions thoughtfully and carefully so as to avoid legal challenge. In colloquial terms, generally General Synod gets things right!

Father Ron Smith said...

Thankyou, Peter, for opening up to us these fundamental provisions for ACANZP, as a Church with its own Constitution and polity.

These are snippets from the test you have provided:


"The fundamental provisions of the Constitution of the Church
1: This Branch of the United Church of England and Ireland in New Zealand doth hold and maintain the Doctrine and Sacraments of Christ as the Lord hath commanded in His Holy Word, and as the United Church of England and Ireland hath received and explained the same in the Book of Common Prayer, in the Form and Manner of Making, Ordaining, and Consecrating of Bishops, Priests, and Deacons....."

" this Branch of the said Church shall also hold and maintain the said Doctrine and Sacraments of Christ, and shall have no power to make any alteration in the authorized version of the Holy Scriptures, or in the above-named Formularies of the Church."

n.b: ACANZP has already changed those rules which forbade any change to male-only ordination!

2: Provided that nothing herein contained shall prevent the General Synod from accepting any alteration of the above-mentioned Formularies

3: Provided also that in case a license be granted by the Crown to this Branch of the Church of England to frame new and modify existing rules (not affecting doctrine) with the view of meeting the peculiar circumstances of this colony and native people, it shall be lawful for this Branch of the said Church to avail itself of that liberty."

The question here might be: 'When did The Crown authorise ACNAZP to ordain women as clergy & bishops? Is this a 'change in doctrine' - albeit, not the doctrine of Christ, himself?

I do note the concession to the:
" meeting (of) the peculiar circumstances of this colony and native people, it shall be lawful for this Branch of the said Church to avail itself of that liberty."

IS THE THE 'GET-OUT' CLAUSE?

Peter Carrell said...

Hi Ron
I am not familiar with all the details of debates at the time that legislation was passed to permit ordination of women. I imagine there were some concerns at the time about how such change fitted with 'the doctrine of Christ'. But I am also wondering if there was a view that to so ordain did not affect the doctrine of Christ as understood by this church. In the end, because the legislation has taken effect, our church has agreed that the doctrine of Christ is not thereby changed.

We now have a different matter and surely you must recognise that the strength of opinion for and against makes it highly unlikely that change would be able to proceed without a legal challenge and that such legal challenge must have some chance of success.

Father Ron Smith said...

Let's hope, Peter, that any challenge to our Church's right to amend legislation will not be wasting resources that should be used for mission.

Peter Carrell said...

Hi Ron and commenters,
For the sake of clarity, let me say clearly that I am not arguing for the mounting of legal challenges, which do waste resources etc.

I am arguing for our church to get whatever it is trying to do right and according to its own mandated process.

Jean said...

Hmm interesting...

Having never read the formulatories or 39 articles I just had a quick gander. Surpisingly Ron they don't appear to include anything contrary to the ordination of or preaching by women.

Perhaps the most significant article in determining the churches approach to issues of morality appears to be:
THE Church hath power to decree Rites or Ceremonies, and authority in Controversies of Faith: And yet it is not lawful for the Church to ordain any thing that is contrary to God's Word written, neither may it so expound one place of Scripture, that it be repugnant to another. Wherefore, although the Church be a witness and a keeper of holy Writ, yet, as it ought not to decree any thing against the same, so besides the same ought it not to enforce any thing to be believed for necessity of Salvation.

I am one who does not automatically see the issue of WO or preaching as being associated with the discussions of homosexuality. So I was intrigued when reading the following blog post:
http://www.psephizo.com/biblical-studies/unhitching-women-from-gays/

Most insightful to me was whereas the treatment of women has biblically moved towards improving their status, whereas the nature of homosexual activity biblically was not condoned, contrary to the culture of the time where it was largely accepted. So the precedent of the two issues are quite seperate.

Father Ron Smith said...

"So the textual, contextual and interpretative questions in relation to the two issues are quite different." - Ian Paul -

This sentence from Jean's source article here is, to say the least, debatable.

Problems with patriarchy are quite common to both issues - those of the ordination of women and the acceptance of male homosexuality as a natural phenomenon for a minority of human beings.

Important for the Jewish race - right from the beginning, was the issue of perpetuation of the race.

A woman's job, therefore, was to bear children. And a man's job to provide the (active) seeding component of this transaction.

For a woman to seek headship over a male was, therefore, a threat to male dominance that was cultural.

Also cultural, was the fact that the male must always accept the role of progenitor of the race.

Commonality between the issues of women's liberation into the area of leadership, and of maintenance of the male role as progenitor, are both linked to patriarchy.

However, it is not surprising that, while a conservative puritan Christian may eventually come around to accepting women as leaders; the other patriarchal and primitive reaction to acceptance of homosexuality is to reject it; on grounds of (a) ritual impurity and (b) subversion of dominance in the male of the species.

The effects of the patriarchal mind set - from this simple demonstration - can be seen to have affected both the cultural & contextual aspects of writing and interpreting the scriptures.

Peter Carrell said...

Hi Ron,
Equally, if you want to argue in that way, a modern Christian could be against same sex relationships because in a non-patriarchal world women have a right to expect a man to nurture and support them through life in a partnership of mutual equality ... and those men are in short supply if they start pairing up with each other.

Perhaps that looks like a stupid argument. In which case, take care, because the word 'stupid' could also apply to attempts to understand the Bible solely through the lens of patriarchy!

liturgy said...

“In colloquial terms, generally General Synod gets things right!” Peter Carrell

Greetings Peter

I am not as sanguine as you are about General Synod getting things right, especially when it comes to liturgical legislation – which this is. Just one example: The most recent General Synod meeting passed Bill 4 which in essence is finally the admission that there is no foundation for Title G Canon VI – our authorisation of services alternative to BCP. In colloquial terms: much of our liturgical life these past many years has been illegal. In colloquial terms: General Synod stuffed up really badly.

I would look forward to your explaining the relationship between the Empowering Act and our Constitution [your post hints at this issue]. Whenever I have raised this I have always been firmly told that our Constitution replaces the Empowering Act. I have yet to be convinced.

As to your suggestion: “To restructure our church into two parts” – as far as I can see that is just describing what happened in USA.

Christ is Risen!

Bosco

Father Ron Smith said...

I would hesitate to call your last argument stupid, Peter. But when one compares the number of men who are just aching to procreate with available women, the 'problem' of non-productive eunuchs is rendered minimal in the total scheme of populating our over-populated world.

Christ IS Risen indeed! Alleluia!.

Peter Carrell said...

Hi Bosco
I have covered my backside by using the word "generally" :)
Agreed, GS does not always get it right, and has been through a long season of getting liturgical matters wrong, according to our own rules!
I think the relationship between the Act and the Constitution could be this: if we wanted to change the unchangeable aspects of the constitution [an action, incidentally, which I believe would lead to schism, unless part of a "two structures" approach, see below] then we would be wise to pave the way for that by amending the Act first. (This is the bush lawyer speaking, not my honourable and learned friends among the chancellors!)

Two parts: I have heard one view which goes some of the way with where you go with your comment about North America but also makes an important distinction. It goes like this (and I honestly can't remember who mentioned it to me): what if we ended up with two Anglican churches in these islands (like North America, 2 per Canada, 2 per USA, 3 in total, excluding all the other ones :)) joined in some formal way, with no property disputes (unlike North America) and (presumably) some agreed manner of representation in formal Communion bodies.

Some might even say we all but have the model already sorted with three tikanga churches headed each by a separate archbishop ...!!

Glen Young said...

Hi Peter, Bosco makes a valid point when he questions the relationship between the Constitution and the Church of England Empowering Act 1928.
My understanding is, that the CoEE Act was necessary to clarify the powers contained in the Fundamental Provision 2,3 and
4;should there be any political change between England and N.Z.
The CoEE Act sec 11 also protects the identity of the Church and title of assets; should that change eventuate.
So,in effect,the two need to be read side by side.I am yet to read anything in the Act which conflicts with the Constitution.
Rather they reinforce each other.
I am sorry Ron, but the Act also refers one back to the BOCP,the Ordinals and the 39 article as being the Formularies by which one will receive and explain the Word of God.
Whether one likes it or not,Bishop Selwyn tied up all loose ends pretty neatly. Again I will reiterate that I am not commenting on that exegesis as being the one that all Churches should have but it certainly appears as the only one that the ACANZP can have.I await with anticipation,as to how General Synod will get past the 18th Homily of the 35th Article which starts [The Word of Almightie GOD doth testifie and declare,whence the originall of Matrimony commeth,and why it is ordained.It is instituted of God,to the intent that man and womam should liue lawfully in a perpetuall friendship,to bring foorth fruite,and to auoide Fornication.] Does not sound too much like recognising,blessing or saying good morning to Right Ordered same-gendered relationships [whatever that could mean].

Glen Young said...

Hi Peter, Would have to disagree with the notion , that the three tikanga model we have at present has any relevance to the possible ramifications of Motion 30Developing the three tikanga model did involve the Doctrine. If the aspirations of the proponents of blessing same-gendered relationships ,cannot be legitimatley accommodated within the Doctrine of clause 1;then it does not fit into the ACANZP-period.I feel ,if such is the case;those who have been advocating and promulgating doctrine which inconsistent with the Doctrine of Clause 1:have never been under genuine adherence and submission to the authority of General Synod.The Church cannot be split into a lawfull and a unlawfull factions.In actuallity,we could finish up with 9 tikanga.

Peter Carrell said...

Hi Glen
I am always happy to be proved wrong ... and I am going to use your comment for a new post!

Father Ron Smith said...

There's nothing like marshalling forces for a good argument. Go boys I don;t think you';ll get very far, but the testosterone has to be used up somehow!

Glen Young said...

"Go to it boys, I don't think you'll get very far"... Ron,

Ha,- Actually we don't intend going anywhere! - Guess what; the Doctrine as defined in the Constitution is here to stay as well!
It is the liberal revionists who will have to move on with their humanistic religious institution which they have instead of the true Church.

Father Ron Smith said...

I think you'll find, Glen, that the institution stays with those who are already legally ensconced therein.

No amount of tussling from active dissidents can take away the extant provenance of ACANZP. Sorry to disappoint you. However, you could always be encouraged by the GAFCON experiment. There are one, or perhaps two people in our diocese who are known to have consulted them for inspiration.