Parliament and the law of the Church of England, 1943-74

[A much-abbreviated version of my forthcoming chapter in Thomas Rodger, Philip Williamson and Matthew Grimley (eds.), The Church of England and British politics in the twentieth century (Boydell and Brewer, Woodbridge, forthcoming).
It is due in late 2019 or early 2020; in the meantime, I should be happy to share the draft privately.]

In almost all its aspects – liturgical, pastoral, doctrinal – the post-war Church of England was imbricated with the law. A vast body of statute law, built up over centuries, touched the Church, symbolized by the fact that the 1662 Book of Common Prayer had formed an annexe to the Act of Uniformity of the same year, with the effect that its text had statutory authority. This body of law related to strictly ecclesiastical matters and also to many other less spectacular issues involving finance, property and a multitude of other things.

In recent years historians have been interested in the Church of England and the law, but largely in one particular aspect: that of the law on public morality and its piecemeal liberalisation during the late 1950s and the 1960s. The significance of this emptying of the ‘moral law’ of its Christian content has been understood largely in its relation to secularization, whether as cause, consequence or both. (On this, see Michael Ramsey and the Sexual Offences Act 1967).

However, these three decades saw a profound shift in the legal status of the established Church, obscured by the apparently unchanging appearance of the relationship of Church and state. During this period there was no material change in the relationship between the Church and the monarchy; in the place of the bishops in parliament, or the appointment of those bishops in the first place; in crown appointments, of bishops and other church dignitaries.

However, even though the facade of the relationship between Crown, parliament and Church remained unaltered, a host of changes both large and small between 1943 and 1974 combined to hollow out the structure behind that facade. By means of a long sequence of legislation presented to parliament, the state ceded to the Church greater control of its worship and doctrine, the discipline and deployment of its clergy, its organizational structure of parishes, and of its buildings and other property. Taken together, these changes constitute a profound shift in the nature of the Church-state relationship in England.

The House of Commons.
UK Parliament, CC BY 3.0 (https://creativecommons.org/licenses/by/3.0), via Wikimedia Commons.

However, despite the coherent shape the changes take when viewed in retrospect, there was no controlling strategic direction behind them from the leaders of the Church. This is not to say that there was no body of opinion within the Church that desired greater independence; this there certainly was, but it did not hold sway. The period is best understood as one in which several different processes unfolded, according to their own logic and on differing timetables. Each strand of reform implicated each of the others, however, and so the process was iterative and piecemeal, with the effect of one change in the law often being found to demand another.

Three contexts

The immediate context that served to force the Church of England to consider its internal organization with fresh impetus was the effects of the Second World War. Church buildings up and down the land had been damaged or destroyed by enemy bombing; populations had been dispersed from the cities to new areas, which required fresh provision of buildings and clergy; in the countryside, increased mobility, agricultural change, and the closure of village schools all lessened the self-contained nature of the parish. As well as all this, the Church faced an acute financial crisis. The clergy were often in the wrong places, in unsuitable homes, and were paid unequally and often very poorly. There was a need to put the house in order, and this could not but involve the law and parliament.

As the historian Paul Welsby observed, it seems extraordinary that given the immensity of the challenges it faced, the post-war Church of England should also have embroiled itself in the overhaul of its canon law: a process that occupied many hands for two decades, but so it did. A third context was ecumenical contact between the churches, in which the relationship of the Church of England and the law became a complication – if not indeed an obstacle – in moves towards reunion. How could a united church settle its doctrine if the doctrine of one partner was subject to parliamentary approval? How could local schemes of co-operation and sharing of buildings proceed if such re-use of Anglican churches was restricted by the law? At every turn the Church of England was less free to move than the churches with which it was in dialogue.

Church and parliament

At the Church’s request, parliament had in 1919 passed the so-called Enabling Act. The Act provided for the formation of the body that became known as the Church Assembly, in which the Church could decide what it wished to change in the law, and draft ‘measures’ to effect the change, a new kind of legislation by which statute law could be amended or repealed. Yet, it was still for parliament to accept or reject such measures as were presented to it.

Parliament was accustomed to dealing with bills, which passed through several stages and which could be amended before becoming acts. Although the line between the two was not always clear, there was a different procedure for measures. The Ecclesiastical Committee of parliament was made up of fifteen members from each House. In consultation with its counterpart, the Legislative Committee of the Church Assembly, it was to consider each measure brought forward and report on its ‘expediency … especially with relation to the constitutional rights of all His Majesty’s subjects’. Once the report from the Committee was in hand, both houses had the opportunity to accept or reject the measure, but not (crucially, and in contrast to the procedure for bills) to amend it.

Though the personnel changed over time, there was usually a small number of peers and MPs, often themselves members of the Church Assembly or the Ecclesiastical Committee, who spoke on debates on Church measures. In most cases the debates were not long, and the numbers of parliamentarians who voted on them were small, if indeed the houses divided at all. A good share of the measures brought to parliament passed without debate, due not least to the habit of those in charge of parliamentary scheduling of placing these debates late at night, at the very end of the day’s business.

As well as pressure on parliamentary time, there were other reasons why parliament sat loosely to the Church business with which it was asked to deal. One was a reluctance on the part of parliamentarians, both from other Christian churches and from none, to be dealing with what they regarded as essentially private matters of the Church of England. Members affiliated to the other churches in England often expressed their sympathy that Anglicans should have the internal workings of their Church subject to such scrutiny. Chuter Ede, Labour home secretary (but speaking personally, as a Unitarian) thought it ‘an anachronism that still these intimate domestic details of a spiritual entity should be subject to the approval of this House, in which sit Nonconformists, agnostics, atheists, Jews, and persons of the most diverse religious persuasions’. It would, he thought, ‘be to the advantage of the Church herself, and more in keeping with modern views on these matters, if the Church were disestablished’.

MPs from time to time wondered aloud whether it was in fact a rule, or at least a convention, that Anglicans alone ought to speak and vote in such debates. On occasion, there was a similar reticence from Welsh and Scottish MPs, representing constituencies where the Anglican church was not established. As a result, members from outside England spoke relatively infrequently.

Amongst parliamentarians of all parties and of all varieties of churchmanship, there was a constant undertone of discontent with the process that the Enabling Act had put in place. There was frequent disagreement over whether there were any circumstances in which parliament should reject the settled wishes of the Church. Had the spirit of the 1919 Act been that the parliamentary stage should be a final debating stage, akin to the report stage for a bill? Or, was it a mere formality, the application of a rubber stamp (arguably the effect of the words of the Act)? If the latter was the case, and parliament ought never to reject a measure if the Ecclesiastical Committee commended it, why should it spend time debating them? Since parliament was, in effect, presented with nothing concrete to decide, debates were often circuitous and vague, and wandered far from the specific matters at hand.

There was also some discomfort with being asked to approve sometimes lengthy and miscellaneous measures while having no power to amend them: the Ecclesiastical Jurisdiction Measure of 1963 ran to some 89 sections. ‘It has been truly said’ argued one Conservative MP in 1944, ‘that Parliament can do anything except turn a man into woman. There is one other thing which it cannot do, and that is amend a Measure brought down from the Church Assembly’. Though parliament had powers to divide measures into shorter ones to be considered individually, they were seldom used. So, objections and concerns were often raised about particular matters, but divisions were not forced, due to a reluctance to send a whole measure back to the Church for the sake of a single section or clause. In an increasing range of cases, parliament was content to rely on assurances given in debate, where once it would have exercised control.

While there was never any significant move to have the Act amended, or even repealed, the discontent with its operation was a constant from the 1920s until well into the 1970s. Though discontent was regularly voiced about the substance of particular measures, there was insufficient pressure in parliament either to reform the process by amending the Act, or to repeal it, or to move in the opposite direction towards a more wholesale freeing of the Church from parliamentary oversight. The effect of this discontent was instead to militate towards greater and greater autonomy by omission. Seeing in the Act a job half-done, parliament (in a fit of absence of mind) completed the job of giving the Church autonomy by a series of small steps.

The sequence of individual measures and bills examined here (passed between 1943 and 1974), more than three dozen in total, when taken as a whole amounted to a highly significant loosening of parliamentary control over the Church. Almost none of them tightened that control; it was a long series of small steps, miscellaneous in themselves, but all in the same direction. Perhaps most well known was the granting of independence in liturgical revision and the settling of doctrine by the Worship and Doctrine Measure of 1974 (which is dealt with in the full version of this article, along with clergy discipline). Here I want to focus on just two out of several aspects of the changes: parishes and people, and money and buildings.

Parishes and people

The physical destruction of the war, and the population shifts to which the bombing gave rise, brought into relief the stability of the parish and the rights of clergy in relation to their bishop, patron, and parishioners. The clergy were not to be regarded as employees, who could be moved from post to post by their managers the bishops; the relative autonomy that their freehold provided was an important component of the parochial system, which was in turn a key part for some of the ordering of English society. A sequence of measures during and immediately after the war seemed to undermine that freehold, and shift the balance of power from the clergyman to his bishop. Some in parliament regarded this as an instance in which constitutional rights – of the clergy themselves – needed to be protected.

The process began innocuously enough, with the New Parishes Measure of 1943, which rationalized the process of creating new parishes and the associated issues of patronage to benefices, land transactions and the like. It passed through both houses of parliament without debate or a division. Hard on its heels, however, was the Reorganisation Areas Measure of 1944. In blitzed areas, there were churches and clergy without populations to which to minister; elsewhere there were displaced people without access to the sacraments or pastoral ministry. The Church needed the powers to reorganize parishes to reflect the change. So much, so efficient; but what of the rights of the incumbent minister in a parish set to disappear? Surely (it was argued) one unwilling minister ought not to be allowed to frustrate the necessary reorganization of a whole area. The measure provided for the expropriation of the rights of incumbents to endowments of property as part of a reorganisation, for which they would be compensated. Though one MP thought it a ‘great constitutional change’, the measure nonetheless passed without a division, late at night with few MPs present.

The process continued with the Pastoral Reorganisation Measure of 1949, which took the freedoms of the 1944 Measure and applied them to the whole country (at the diocesan level), allowing the creation of team ministries in groups of parishes, the equalization of stipends and the better alignment of men with the size of the population. The Labour MP Tom Driberg thought it ‘a decisive further step in the destruction of the parochial system of England’. However, again, the House did not divide and the Measure passed. The Pastoral Measure of 1968 rationalized and extended these powers, and in 1977 the Dioceses Measure took the logical next step by the creation and dissolution of dioceses without reference to parliament.

Money, land and buildings

Among the later measures that passed through parliament were those that related to the freedom of the Church to deal with its monies, lands, and buildings. The same impetus came to bear as with parishes, concerning the ability of the Church to adapt and redirect its resources in line with changing pastoral circumstances. Of these, the issue of monies was the least difficult, and during the earlier part of the period there were a succession of small adjustments in the law, largely unremarked and undisputed, all of which gave the Church greater discretion within the law. Even such minutiae as the Parochial Church Councils (Powers) (Amendment) Measure of 1949 were part of the same process, as it widened the range of activities for the pursuance of which local churches could hold property.

However, in its local context the Church was not only the giver of pastoral care and its buildings places of worship; it was also both a neighbour, and the custodian of buildings about which many people had strong feelings. And many of these disputes had to be settled in Parliament. No-one thought the oversized church of St. Saviour, Paddington was of particular architectural merit; the proposal in 1968 to demolish and replace it was opposed on the ground that it formed part of an architectural whole with the neighbourhood. The 1968 case of St. Mary’s church in the north London suburb of Hornsey exposed the complexities of the law relating to burial grounds. The sale of a disused burial ground belonging to St. George’s, Hanover Square, as building land was opposed in 1964 by local residents as a diminution of the open space in the neighbourhood. In 1968, in the context of increasing ecumenical hopefulness, Mervyn Stockwood, bishop of Southwark, needed to come to parliament for permission to sell a redundant church to local Roman Catholics, in the face of Protestant opposition.

Despite these sensitivities, the bulk of the restrictions were swept away in three pieces of legislation in two years, all of which passed with little difficulty. The Pastoral Measure of 1968 dealt with the issue of churchyards and redundant churches, such that parliament would no longer be called upon to deal with them singly, though the state retained some powers. Despite some unease about placing more matters in the discretion of the bishop, the measure passed both houses without a division. The Redundant Churches and Other Religious Buildings Act of 1969 progressed through parliament in a similarly smooth fashion. The sharing of church buildings with other Christian denominations was enabled by the Sharing of Church Buildings Act of 1969.

Conclusion

The Worship and Doctrine Measure 1974 was by no means the last on which parliament had to adjudicate, or an end to debate about its role. Some in parliament thought that some of the changes of the previous years had been steps too far, and had been allowed to pass too easily, and that there had been a high-handedness in the Church’s exercise of its new freedoms.

Despite this, neither before 1974 nor after was there any concerted attempt from either Church or state to amend or repeal the Enabling Act, whether to streamline the process, to repatriate powers to parliament, or to alienate them entirely. Though dissatisfaction was often expressed with both principle and process, those with the power to instigate fundamental change did not do so.

Despite the semblance of continuity, during the three decades after the Second World War there was a subtle but profound hollowing-out of parliamentary control of the Church of England. The unwieldy and unsatisfactory nature of the process instituted by the Enabling Act left parliament both unsure of its role, and as time went on, increasingly reluctant to perform it. By a sequence of several dozen unco-ordinated but nonetheless related measures and bills, the Church secured greater discretion in the handling of parish organisation, the deployment and discipline of clergy, the management of financial and other assets, not least buildings, and the freedom to determine its own forms of worship and its doctrine. Whatever the term ‘establishment’ had been understood to mean, by 1974 parliament no longer believed that it entailed detailed oversight of the working of the Church.

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