Pastoral Dioceses

The Dioceses, Pastoral and Mission Measure 2007
INGRI D SLAUGHTER
Formerly Assistant Legal Adviser to the General Synod
The Dioceses, Pastoral and Mission Measure 2007 is the longest and widest-ranging piece of
legislation to come before the General Synod since the early 1980s. Like the recommendations
of the Review Group under Professor Peter Toyne, to which it gives effect, the Measure focuses
on the twin themes of mission and ministry. The Review Groups remit was to ensure flexible
and cost effective procedures which fully meet changing pastoral and mission needs, and the
Measure extends to areas of the life and legislation of the Church of England as diverse as the
Churchs provincial and diocesan structure, the delegation of episcopal functions, diocesan
administration, and the processes for making changes to local church organisation and
closing churches for regular public worship. The Measure also establishes a single central
Church source of information and advice on church buildings. Finally, it provides a very
practical example of the concept of a mixed-economy church by laying down the legal
framework for the new bishops mission orders, which are intended to provide endorsement,
supervision and support for a wide and growing variety of new mission initiatives, but
without undermining the traditional parochial structures. The article sets out to provide an
overview of the legislation, and to highlight the provisions that are likely to be of particular
importance in practice or of particular interest for the study of ecclesiastical law.
INTRODUCTION
The Dioceses, Pastoral and Mission Measure 2007
1
forms the central part of the
most substantial legislative package to come before the General Synod since
the 1980s. The 2007 Measure itself, with its 66 sections, divided into
eight Parts, and its seven fairly lengthy Schedules, has to be read with a new
Canon (Amending Canon No 27), amendments to the Vacancy in See
Committees Regulation, and the House of Bishops Code of Practice on
Bishops Mission Orders.
However, the sheer length of the 2007 Measure is by no means its most sig-
nificant feature. Its importance lies in the fact that it sets out to support and
enhance the most fundamental aspects of the work of the Church of England
the Churchs mission and ministry to the whole nation in ways that will
affect a very wide spectrum of different aspects of the Churchs life, and
many different areas of its legal framework. The changes that the Measure has
made to existing legislation range from detailed amendments on the one
1 2007 No 1, referred to throughout this article as the 2007 Measure or, for repeated references, the
Measure.
(2009) 11 Ecc LJ 435 #Ecclesiastical Law Society
doi:10.1017/S0956618X08001609
4
hand to the complete replacement of some long-standing provisions on the
other, as well as introducing a wholly new concept in the form of bishops
mission orders. Although it involved some substantial issues of principle, the
Measure commanded a broad consensus of support throughout its passage
through the Synod so much so that there was only a single vote against it
on Final Approval and the same was true of its consideration by the
Ecclesiastical Committee of Parliament and the two Houses of Parliament.
The work of putting the Measure and its accompanying provisions into effect is
now beginning, and it will certainly take several years before the Church is in a
position to assess its full significance and to review how successful it has been
in achieving its objectives. Even an attempt to summarise all the detailed pro-
visions of the Measure would be far beyond the scope of an article of this kind.
2
Thus what this article sets out to provide is a brief overviewof the broad objectives
of the Measure and of some of the provisions that attracted particular interest
during the legislative process or that are likely to be of particular importance in
practice, together with suggestions for some sources of further information.
A MEASURE FOR MEASURE: IN MISSION AND MINISTRY AND
A MISSION-SHAPED CHURCH
The origins of the 2007 Measure lay in reports by two Working Groups that were
considered, and welcomed, by the General Synod in July 2004. The first of these
was A Measure for Measures: in mission and ministry,
3
the Report of a Review
Group chaired by Professor Peter Toyne, which had been set up by the
Archbishops Council in 2000 to review the Dioceses Measure 1978 (the 1978
Measure), the Pastoral Measure 1983 (the 1983 Measure) and related legis-
lation. The second was Mission-shaped Church: church planting and fresh
expressions of church in a changing context, the report of a Working Group
chaired by the Bishop of Maidstone (the Rt Revd Graham Cray).
4
The Toyne Groups terms of reference made it clear that the purpose of the
review was to ensure flexible and cost effective procedures which fully meet
changing pastoral and mission needs. That was one of the core principles
underlying the Groups recommendations, and the twin imperatives of
mission and ministry were of course echoed in the title to its Report and later
in the short title of the 2007 Measure. In particular, the recommendations
were directed towards helping the Church to relate to present-day society,
2 For that, the reader may find it helpful to consult the full text of the report on the Measure which the
Legislative Committee of the General Synod submitted to the Ecclesiastical Committee of Parliament
in April 2007. (This can be obtained from the Legal Office of the National Institutions of the Church
of England.)
3 GS 1528, published London, 2004.
4 GS 1523, published London, 2004.
E CCL E S I AS T I CAL L AW J OURNAL 5
given that it is increasingly mobile and characterised by continuing rapid
change, that its understanding of community is often based less on a
common geographic location than on networks linked by common interests
or other common factors, and that a large proportion of its members have no
experience of or any real contact with the Church. All these features present
new challenges to the Church, and the Group recognised that the Churchs
legal structures had to facilitate the changes needed in order to meet them.
Nonetheless, the Toyne Group saw it as equally essential to preserve and
support some fundamental features of the Churchs historic structures,
without which it could not continue to fulfil its mission and ministry to the
nation. Moreover, the Group accepted that, if the new provisions were to be
effective in helping the Church to develop and revitalise itself without losing
all that is valuable in this inheritance from the past, they must be set within
an overall framework of order, including fair consultation processes and
proper checks and balances.
Dioceses
The Groups work was divided into three sections, dealing with dioceses, neigh-
bourhood and network and church buildings, although some of the main
themes of the report spanned two or all three of those sections. So far as dioceses
were concerned, one of the Groups main concerns was that the 1978
Measure had not provided effective machinery for keeping the Churchs dioce-
san structure under active review and in line with present-day conditions. Thus
the Group recommended that it should be completely replaced by new pro-
cedures spearheaded by a proactive central body. At the same time, the Group
wished to see functions that were carried out or controlled by the central
Church devolved to dioceses where that could be done efficiently and cost-
effectively. It also wished to empower dioceses to simplify and streamline
their own committee structures, and to encourage joint administrative arrange-
ments between neighbouring dioceses.
Church Buildings
Turning to church buildings, one of the main groups of issues that the Toyne
Group addressed related to what the 1983 Measure termed redundancy (an
expression that the Group itself saw as unhelpful and wished to see replaced
by closure of a church for public worship). In part, the Groups recommen-
dations were intended to simplify and streamline the process for taking
decisions about the future of those church buildings that had to be closed.
However, it also saw the need for another concept, that of extended use,
where regular public worship continued in part of the church building while
part was leased for other purposes, but without the need to go through the
formal process of closing the church or even part of it. A further set of
6 T HE DI OCE S E S , P AS T OR AL AND MI S S I ON ME AS UR E 2 0 0 7
recommendations was directed to rationalising the central Churchs specialist
advisory functions in relation to church buildings.
Neighbourhood and Network
The third area of the Groups work, neighbourhood and network, covered the
parish, benefice and pastoral reorganisation aspects of the 1983 Measure,
although it went well beyond them. One aspect of the 1983 Measure that the
Group emphasised was the factors that those who had responsibilities under
that Measure should take into account in discharging them. The Group recog-
nised that making better provision for the cure of souls must, of course, con-
tinue to be one those factors, but it recommended that the legislation should
at the same time make explicit the need to have regard both to mission and to
financial considerations.
A second main theme of the neighbourhood and network part of the Groups
report, flowing from the demands of mission, was that the national Church
needed to develop what the Archbishop of Canterbury has described as a
mixed economy.
5
This involves preserving and supporting the parochial
system as an essential and central part of the Churchs strategy for fulfilling
its role. Indeed, it helps to support the sense of neighbourhood and local attach-
ment that many value as providing stability and continuity, however mobile their
lifestyle. However, the concept of a mixed economy also involves developing
new ways of being church that collaborate with and complement the parochial
system, to bring the Churchs mission to the people and the parts of the national
life that the parochial system alone cannot reach.
That was very much an area of common ground with Mission-shaped Church,
which dealt in particular with the concept of fresh expressions of church. This
term covers the increasingly wide variety of new forms of church mission that
are emerging and being put into practice in the Church in an equally wide
variety of contexts. As well as experimenting with new ways of reaching out to
those who have no experience of traditional churchgoing, or who have
simply found little in it of relevance to their own lives, the fresh expressions
cater for communities based on networks linked by common interests or
other common factors, rather than on geographical location. Many of them
can and do operate within the legal structures that the Church has inherited
from the past. However, others operate across existing geographical boundaries,
and there may be deanery, archdeaconry and even diocesan boundaries as well
5 This expression has been used by the Archbishop on a number of occasions, but originally, so far as
the General Synod was concerned, in his first Presidential Address 14 July 2003. See (2003) 34(2)
Report of Proceedings of the General Synod, 235240, also available at ,http://www.cofe.anglican.
org/about/gensynod/proceedings/2003jul/rp2003julday4.pdf., accessed 25 June 2008.
as those of parishes. Some fresh expressions are not, and are simply not
intended to be, defined in geographical terms. The Toyne Group recognised
that, for this and other reasons, there were a substantial number of mission
initiatives for which a new legal structure was needed, providing support, rec-
ognition and accountability, and capable of undergirding new and imaginative
ventures as they made their appearance in the future. Thus it was this rec-
ommendation that gave rise to some of the most innovative provisions in the
2007 Measure.
The Legislative Programme
On any footing, the Toyne Groups report amounted to an ambitious legislative
programme. One item that was seen as particularly urgent was a new power to
lease part of a church for other purposes, without the need to close the whole
church or the part in question for regular public worship, and this was taken
forward separately in the Pastoral (Amendment) Measure 2006. There was
one major aspect of the Groups recommendations (namely consolidation of
the whole of the legislation on the main subjects covered by the 2007
Measure) that had to be left for the future in order to complete the bulk of the
work on the substantive changes as rapidly as possible. However, the 2007
Measure was able to implement, and in some cases develop, most of the
Toyne Reviews main recommendations. The paragraphs that follow provide a
brief account of how it did so, highlighting some of most important features
of the Measure.
THE SHORT TITLE AND PART I OF THE 2007 MEASURE: THE
GENERAL PRINCIPLE
Although Part 1 of the Measure contains only one section, that section was the
product of a great deal of careful thought, and attracted a fair amount of discus-
sion and debate during the Measures passage through the Synod. It evolved
from the Toyne Reviews recommendation in favour of an express provision
setting out relevant considerations for decisions in the area of neighbourhood
and network.
As the thinking on the Measure developed, it was decided that, to some
extent, that recommendation could and should be dealt with in Part VI of the
Measure. However, the importance of mission was such that there should
also be a signpost to it in the short title, along with Dioceses (from the 1978
Measure) and Pastoral (from the 1983 Measure). In addition, an introductory
section 1 was included; applying not merely to the neighbourhood and network
provisions but to the whole of the 2007 Measure and the 1983 Measure, it
imposed a duty on any person or body carrying out functions under this
8 T HE DI OCE S E S , P AS T OR AL AND MI S S I ON ME AS UR E 2 0 0 7
Measure or the Pastoral Measure 1983 to have due regard to the furtherance of
the mission of the Church of England.
One can find forerunners for this approach in the introductory sections to the
Care of Cathedrals Measure 1990, the Care of Churches and Ecclesiastical
Jurisdiction Measure 1991 and the Clergy Discipline Measure 2003. The drafting
of those earlier sections also provided at least a partial model for framing a
general duty that was to span a very wide range of functions, ranging from
those of the newChurch Buildings Council in relation to the Churchs built heri-
tage under Part VII to those of the bishop and others in relation to the new
bishops mission orders under Part V. The particular value of the expression
have due regard to here is that it requires the person or body concerned to
take the furtherance of mission into account alongside the other relevant
factors in relation to any given function, and to give each of them whatever is
the appropriate weight in that particular context. It is also essential to the
proper understanding of section 1 to recognise that mission in that section
does not simply refer to evangelism. This is because the term mission itself
is given a broad statutory definition, in section 62(1), referring to the whole
mission of the Church of England, pastoral, evangelistic, social and ecumenical,
which again echoes earlier legislation.
6
Thus the use of the have due regard to formula, and an appropriately wide
definition for mission, made it possible for section 1 to do what the Toyne
Group had wished, and more, without unbalancing the proper consideration
of the functions to which the section applies. Clearly, it has a symbolic signifi-
cance in underlining the importance of mission at the outset in the 2007
Measure; only the future will reveal how far it results in practice in substantially
different decisions from those that would have been reached without it.
PART II OF THE 2007 MEASURE: DIOCESAN AND PROVINCIAL
STRUCTURE
With more than twenty sections, together with two of the Schedules, this is the
longest Part of the Measure. It replaces the 1978 Measure but also goes further,
and it is made up of a number of different component groups of sections, linked
by the general objectives of Part II as a whole. It contains a good deal that readers
of this Journal may find of interest from the point of view of the constitutional
framework of the Church of England.
It may also be helpful to explain at the outset that although the new Dioceses
Commission is expected to produce guidance, in particular for bishops and
6 Beginning with the new section 2 inserted into the Parochial Church Councils (Powers) Measure
1956 by the Synodical Government Measure 1969, s 6.
diocesan secretaries, on the operation of Part II, that guidance was not in exist-
ence at the time this article was written.
Reorganisation Schemes under the 1978 Measure
Sections 210 of the 2007 Measure need to be read against the background of
sections 1 9 of the 1978 Measure. That Measure set out to allow for changes in
diocesan structure ranging from adjustments in diocesan boundaries to the
creation or dissolution of a diocese by means of reorganisation schemes,
which had to be passed by the General Synod but did not require the full
Measure procedure. It also established a wholly appointed Dioceses
Commission, which had some advisory functions but whose main role was to
deal with the reorganisation schemes and some other procedures under the
1978 Measure.
In order to begin the process for such a scheme, the diocesan bishop or
bishops concerned had to prepare proposals and then, with the consent of the
Archbishops Council,
7
submit them to the Commission. It was then for the
Commission to prepare a detailed assessment of the financial effects of the pro-
posals, in consultation with the Church Commissioners and, if it decided to take
the proposals further, to draft a scheme to give effect to them and carry out con-
sultation with specified interested parties. Following that consultation, the
Commission had a further opportunity to decide not to proceed with the pro-
posed changes; otherwise, it submitted the draft scheme, with any amendments,
to the diocesan synod of each diocese affected. The process could continue
beyond that, by submission of the scheme to the General Synod, only if each
of the diocesan synods consented. The sole exception to this rule was that,
where more than one diocese was involved, the Archbishops Council
8
could
decide that the interest of one of them in the scheme was so small that its dio-
cesan synod should not have such a veto. Assuming the process was to continue,
the scheme then had to be submitted to and approved by the General Synod and
finally receive formal confirmation by Order in Council before it could take effect.
The Dioceses Commission and Reorganisation Schemes under the 2007 Measure
Unfortunately, the 1978 provisions achieved very little in practice in the 20 or so
years before the Toyne Review was set up, much to the frustration of the
Dioceses Commission itself as well as of some who considered that a certain
amount of diocesan reorganisation was urgently needed. The Toyne Group
saw a new Dioceses Commission with a more proactive role as the key to
7 The Archbishops Council was given this function by the National Institutions of the Church of
England (Transfer of Functions) Order 1998, SI 1998/1715. Previously, it had been exercised by the
Standing Committee of the General Synod.
8 Again taking over a function of the Standing Committee of the General Synod under the Order
referred to in the previous footnote.
1 0 T HE DI OCE S E S , P AS T OR AL AND MI S S I ON ME AS UR E 2 0 0 7
progress. Section 2 of the 2007 Measure and Schedule 1 therefore establish the new
Commission, including some members elected by the General Synod fromamong
its own members, and section 3 places the new Commission under a duty to keep
the provincial and diocesan structure of the Church under review and report to the
General Synod with its findings and proposals. This role extends, in particular, to
the size, boundaries and numbers of provinces and dioceses, and also to the
number and distribution of episcopal offices and the arrangements for episcopal
oversight. Moreover, in addition to acting on proposals from diocesan bishops for
reorganisation schemes (which will no longer require initial approval from the
Archbishops Council), the Commission will be able to take the initiative in prepar-
ing schemes to implement its own proposals.
9
From that point, the process is similar in many respects to that under the 1978
Measure, although there are enhanced consultation provisions, including a power
for a diocesan synod to send representatives to make oral representations to the
Commission. However, in addition to removing the functions of the Archbishops
Council, there was one other significant departure from the earlier Measure a
reduction, albeit a very limited one, ina diocesansynods power of veto. If a diocesan
synod does not consent to the submission to the General Synod of a scheme
affecting the diocese, the archbishop of the relevant province may nevertheless
authorise that to be done, either on the same ground as under the 1978 Measure
(namely that the scheme affects more than one diocese and the interest of the
relevant diocese is too small to allow its synod a veto) or on the new ground that
there are wider considerations affecting the province or the Church of England as
a whole that require the scheme to go before the General Synod.
On the other hand, what remained the same as under the 1978 Measure in the
process from then on is perhaps even more important, namely that the scheme
always requires the approval of the General Synod, followed by formal confir-
mation by Order in Council. Although the 2007 Measure gives the Dioceses
Commission the power to initiate proposals, and it inherited its predecessors
power to decide at certain stages that proposals or a draft scheme should not
go forward, the only body with the power to decide that the scheme should be
made, however the proposals originated, remains the General Synod.
It was clear from the definitions in the draft Measure of the two grounds for
overriding a diocesan synods veto that they would and could apply only in excep-
tional cases. However, the introduction of the new ground was questioned in
principle in submissions to the Revision Committee, and also aroused strong
objections from a group who saw it as a threat to the continued existence of
one particular diocese.
10
The Revision Committee gave these concerns careful
9 The Measure recognises that a reorganisation scheme could not be used to change the number of
provinces.
10 The Diocese of Truro.
consideration, and also examined possible amendments to remove the power to
override the diocesan veto completely, or to exclude it in cases where the diocese
concerned was to be abolished, or to create further hurdles to its operation.
However, the Revision Committee finally rejected all of these suggested
changes, and agreed that, in this respect, the draft Measure should remain in
its original form. One of the arguments put forward in favour of the very
limited overriding power was that a negative vote in a diocesan synod was not
necessarily representative of views throughout the diocese, or even of the
views of significant bodies and office holders in the diocese. However, a
further and perhaps stronger argument was that, as explained above, the arch-
bishops only power is to authorise the submission of the scheme to the
General Synod notwithstanding the objection. The final decision will always
rest with the General Synod, on which the diocese or dioceses concerned will
be represented and able to express any objections to the scheme, and it was
thought to be unlikely that the General Synod would approve a scheme in the
face of an objection from one of the dioceses concerned unless it was satisfied
that there were very strong grounds for doing so. The issue of the power to over-
ride the diocesan synods objection was raised again in debate in the full Synod
but no further amendments were tabled, and the Synod thus accepted the
Revision Committees decision.
The 2007 Measure also introduced a number of detailed changes regarding
the contents of reorganisation schemes. The provisions on this are to be found
in Schedule 2, and perhaps the most innovative are those relating to cathedrals.
In particular, they make it possible, in a case where dioceses are being amalga-
mated or partly amalgamated, for the resulting diocese to have more than one
cathedral, so that the cathedrals of both the original dioceses can retain that
status. Conversely, where the object of the scheme is to establish a new
diocese, Schedule 2 does not require the diocese to have a full cathedral immedi-
ately but allows for it to be established with a pro-cathedral, which will be the seat
of the bishop, and with a body to discharge the functions of the college of canons
under the Appointment of Bishops Act 1533. That will be coupled with a provision
enabling a full cathedral to be established later, subject to specified consents and
consultation. This means that sensitive issues regarding cathedrals need not
stand in the way of an appropriate diocesan restructuring.
Linked to the provisions on reorganisation schemes in the Measure is a com-
pletely new set of provisions in a separate instrument
11
amending the Vacancy in
See Committees Regulation 1993. They will apply where there is a vacancy in a
diocesan see at a time when the Dioceses Commission has decided to prepare a
scheme that would abolish the diocese, or would affect it so significantly that the
11 The Vacancy in See Committees (Amendment) Regulation.
Commission thinks it desirable for the archbishop to give a direction in effect
putting the steps toward filling the vacancy on hold. In those circumstances,
the archbishop has a discretion (although not a duty) to give such a direction.
However, he does have a duty to revoke the direction in certain cases where
the need for it has passed, for example because the scheme has been approved
by the General Synod and confirmed by Order in Council, or because the
General Synod has rejected it, or because the Dioceses Commission has
decided not to proceed with it.
Changing the Name of a Diocesan or Suffragan See
Before the 2007 Measure, the requirements that a diocesan bishop had to satisfy
before he petitioned Her Majesty in Council for approval of a change in the
name of a diocesan or suffragan see were laid down by section 6 of the
Church of England (Legal Aid and Miscellaneous Provisions) Measure 1988.
The procedure did not involve the Dioceses Commission, and the Toyne
Group saw that as anomalous. It therefore recommended that this process
should come within the same legislation as other processes relating to dioceses.
Section 11 of the 2007 Measure gives effect to that recommendation; under it,
the bishop must consult the new Dioceses Commission, which prepares a
report on the proposal, before he goes on, as under the 1988 Measure, to seek
the approval of the diocesan synod and the General Synod. If he obtains
both, the petition can then be laid before Her Majesty in Council for approval.
Duty of the Diocesan Bishop to Keep Episcopal Ministry in the Diocese under
Review
Section 12 of the 2007 Measure, the first of the group of sections on episcopal
ministry, is a wholly new provision. It requires the diocesan bishop to keep
under review the provision of episcopal ministry and oversight in his diocese
and, in doing so, to consult widely such persons or bodies as he thinks fit.
This is intended to provide the diocesan bishop both with a detailed understand-
ing and a broad overall view of the current position and with ideas about future
developments. These in turn will help to equip him to discharge his roles under
the 2007 Measure regarding the delegation of episcopal functions and the
appointment of suffragan and assistant bishops, as well as to contribute effec-
tively to the reorganisation scheme process.
Delegation of Episcopal Functions
Turning to the exercise and delegation of episcopal functions themselves, the
position before the 2007 Measure was a complex one. Section 8 of the
Church of England (Miscellaneous Provisions) Measure 1983 provided for a
temporary (in the sense of short-term) delegation of a diocesan bishops
functions in certain circumstances where he had resigned or was unable to
discharge some or all of those functions, or where the see was vacant. Section 10 of
the 1978 Measure also provided for temporary delegation by a diocesan to a suf-
fragan bishop. However, this was potentially for a longer term than under
section 8, as the delegation would normally continue until the end of any
period fixed by the instrument of delegation, or until two months after
another diocesan bishop took up office, or until the suffragan bishop to
whom the delegation was made ceased to hold office. The instrument of del-
egation normally required the consent of the diocesan synod, and could be
varied or revoked by another instrument under the same section.
A separate set of sections, beginning with sections 11 and 12 of the 1978
Measure, provided for area schemes that divided a diocese or part of it into
areas, and gave functions to a suffragan bishop (known as the area bishop)
in relation to a particular area. The Dioceses Commission was given a mandatory
role in the process of framing the terms of the scheme, and the scheme had to be
approved both by the diocesan synod and by the General Synod before it could
take effect. These delegations were permanent in the sense that they bound
both the diocesan and suffragan bishops who held office when they were
made and their successors. Moreover, subject to a procedure under section 13
for the Dioceses Commission to direct that the diocesan bishop could make
certain types of minor alterations to a scheme merely with the consent of the dio-
cesan synod, an existing scheme could be varied or revoked only by using the full
procedure outlined earlier in this paragraph, which thus required the approval of
both the diocesan synod and the General Synod.
The 2007 Measure has repealed all three sections or groups of sections
(subject to transitional provisions in Schedule 6 that leave existing delegations
in force but, in the case of an area scheme, make it possible for the diocesan
bishop to vary or revoke the scheme with the consent of the diocesan synod
and without the need for approval from the General Synod).
12
It has replaced
them, in sections 1316, with a simpler pair of provisions, which put the
diocese (rather than the central Church) in control of delegations wherever poss-
ible. It has also placed assistant bishops on the same footing as suffragans for
this purpose, so that the diocese has the freedom to decide how best to use its
episcopal manpower. A further advantage of bringing in assistant bishops
arises in cases under the Clergy Discipline Measure 2003 where it would not
be right for the diocesan bishop to discharge his normal role because of a per-
sonal interest or previous involvement. Normally that problem could be over-
come by delegating the role to a suffragan. However, where the diocese has
no suffragan or where the suffragan is similarly unable to act, the delegation
provisions of the 2007 Measure, reinforced by an amendment to rule 106 of
12 It has also repealed the provisions in the 1978 Measure and elsewhere for area synods, which were no
longer being used in practice.
the Clergy Discipline Rules 2005 in section 63(7) of the Measure, open up the
possibility of solving the problem by delegation to an assistant bishop.
One of the new pair of provisions in the 2007 Measure (to be found in section
14) is a somewhat revised version of section 8 of the 1983 Miscellaneous
Provisions Measure. The other, and more important, provision (in section 13)
is a broad power for the diocesan bishop to delegate any of his functions,
subject to a very few exceptions, to a suffragan or assistant bishop, or to share
them with the suffragan or assistant bishop, either for the whole diocese or
for a particular area. This normally needs the approval of the diocesan synod,
but if the bishop considers that it is not practicable to obtain the diocesan
synods consent because of the urgency of the matter, he may obtain the approval
of the bishops council and standing committee instead. The delegation may be
for a fixed period, but whether or not that is the case, the bishop may revoke or
vary the delegation by another instrument made using the same procedure.
Subject to that, it will come to an end when any fixed period for which it is
granted expires, or when the diocesan bishop who made the delegation or the
suffragan bishop to whom it was made ceases to hold the office concerned.
There is one exception to this in section 13(6), under which, provided the full
diocesan synod agrees, the delegation can be made in terms that provide for
it to continue for a specified period after either the diocesan or the suffragan
concerned has ceased to hold office. In the case of the suffragan, this means
that the delegation will continue in favour of his successor.
Suffragan Sees
One object of section 17 was to fulfil a recommendation by the Toyne Group that
any proposal for filling a suffragan see should not be implemented until it had
received appropriate consideration on behalf of the central Church and until
the case for filling it had been adequately made out.
13
This was a completely
newrequirement: under the 1978Measure, there were no controls onfilling a suf-
fragan see except where it had been vacant for at least five years. In that case the
same procedure applied as for a petition for the creation of a new suffragan see,
requiring consultation with the archbishop of the relevant province and the
consent of the Archbishops Council, a report by the Dioceses Commission
(after consultation with the Church Commissioners) on the financial effect of
the proposal, and then approval by the diocesan synod and the General Synod.
Making all proposals to fill suffragan sees subject to central Church control
might appear to run counter to the Groups normal policy of devolving as
much as possible to the dioceses. However, the Toyne Group argued for the
change on the basis that the suffragan bishop is a bishop of the whole
13 The exceptions are the See of Dover and the sees of the Provincial Episcopal Visitors under the
Episcopal Ministry Act of Synod 1993.
Church, part of the national and provincial college of bishops, and has a key role
in the mission of the whole Church as well as of the Church in his own diocese.
The Group also drew attention to the concern that had often been expressed
about the number and distribution of suffragan sees, although there were
widely different and indeed inconsistent views on how to improve the position.
The fact that stipends, staff costs and expenses of suffragans are paid by the
Church Commissioners (on a discretionary basis) also gives the central
Church a further interest. However, the financial aspects go further than this:
because the corresponding costs of archdeacons are not met by a central
Church body, there was an obvious incentive before the 2007 Measure for a
diocese to keep any suffragan sees filled, as to do otherwise would reduce the
level of financial support from the Church Commissioners for the dioceses
ministry. Finally, the Toyne Group argued that replacing a set of controls that
applied only to filling suffragan sees after they had been vacant for over five
years with a common set of controls for filling all suffragan sees, irrespective
of how long they had been vacant, would remove the incentive for a diocese
to fill each suffragan see at once, even if the need to do so had not been
clearly demonstrated at that stage, in order to avoid the statutory controls later.
In broad outline, the process under section 17 is that, where the diocesan
bishop is aware that a suffragan see is or is about to become vacant, it is for
him to form a view, taking account of his duty under section 12, on whether a
proposal to fill the see should be considered. If so, he must consult the diocesan
synod (or, if the urgency of the matter makes that impracticable, the bishops
council and standing committee). If he then decides that the vacancy should
be filled, he must inform the archbishop of the province and the Dioceses
Commission, giving his reasons. If either of them agrees, the bishop may
proceed with the normal steps for filling the vacancy. If both the Commission
and the archbishop take the view that the proposal to fill the vacancy requires
further consideration, the Commission will prepare a report on the effect that
the proposal would have on the mission of the Church and, in consultation
with the Church Commissioners, on the financial effect of filling the vacancy.
Assuming the diocesan bishop still wishes to proceed, the proposal will
require the approval of both the diocesan synod and the General Synod, both
of which will have the Dioceses Commissions report before them.
The process, under section 18 of the 2007 Measure, before a bishop is able to
petition for the creation of a new suffragan see begins with consultation with the
archbishop and then submission of the proposal to the Dioceses Commission.
The provision requiring the consent of the Archbishops Council that figured in
the 1978 Measure has disappeared and, in keeping with the Toyne Groups
general approach, the Dioceses Commission must prepare a report as under
section 17, dealing with both the proposals effect on the Churchs mission
and its financial effect. The proposal must then be approved by the diocesan
synod and the General Synod; if both of them do so, the bishop may then peti-
tion Her Majesty in Council for the creation of the new see.
Clearly, the impact of these provisions, and in particular the impact of section
17 and the way in which it will operate in practice, will depend to a considerable
extent on how far it discourages diocesan bishops from asking for existing suf-
fragan sees to be filled or new ones to be created, and on how the Dioceses
Commission approaches proposals from diocesan bishops to fill vacant sees
when it begins its task. If the Commission were to take a stringent approach
in the early days of the 2007 Measure and decide that a substantial number
of the proposals should undergo synodical consideration, and if the archbishops
were to support the Commission in this, the section could clearly have a substan-
tial effect in practice on suffragan appointments. However, one of the main
factors at present in a bishops decision must, as explained above, be a financial
one, and the Dioceses Commission will presumably also take that into account
even at the initial stage of deciding whether the proposal needs further scrutiny.
If it proved possible to revise the arrangements for financial support from the
Church Commissioners so as to decouple the amount that the diocese receives
from the Church Commissioners from the number of suffragan bishops (if any)
in the diocese, that might simplify matters, and allow consideration of the
number of suffragan sees in a diocese and appointments to them to focus on
the need for specifically episcopal ministry in the diocese without the present
distractions in terms of finance.
Shared Administration by Dioceses
The final major set of provisions in Part II of the 2007 Measure consists of sec-
tions 19 and 20, which replace the provisions in the 1978 Measure for two or
more diocesan bishops, with the approval of their diocesan synods, to agree
on schemes for shared administration between the dioceses concerned. There
is increasing interest in setting up such arrangements in practice, and the
Toyne Group wished to encourage them.
The 1978 Measure provided a fairly wide range of possible models for shared
administration, which could apply to any diocesan bodies other than the dioce-
san synod and the bishops council and standing committee. The possibilities
included setting up a single body to discharge specific functions for two or
more dioceses; authorising the relevant diocesan bodies to set up a joint com-
mittee; or giving the relevant body in one diocese power to arrange for its func-
tions to be discharged by the corresponding body in another diocese, or by a
committee or sub-committee of that body. In the event, these provisions were
carried over without any substantial changes into the 2007 Measure, as were
the basic provisions for schemes to be made by the diocesan bishops concerned,
with the approval of their diocesan synods.
What was changed was that, on the one hand, the 2007 Measure removed the
need for the dioceses to obtain the consent of the Archbishops Council or to
consult the Church Commissioners. On the other hand, it added a new provision
ensuring that, where the scheme would affect a charitable body, the Charity
Commission would be consulted and the scheme could not proceed in the face
of an objection from it. After some discussion, a further requirement, to obtain
the Dioceses Commissions consent, was also included. This was done in part
because, since 1978, a number of new statutory diocesan bodies had been
created, with very carefully drafted mandatory provisions regarding their
constitutions, and especially as regards membership. It was therefore seen as
important to ensure that the shared administration powers were not exercised
in a way that undermined those provisions. In addition, the very fact that this
area was growing increasingly important in practice made it all the more desirable
to bring a national perspective to bear, rather than leaving the matter entirely
to local decision by individual dioceses. In particular, the new requirement
was intended to ensure that the dioceses did not enter into legally binding
shared-administration arrangements that might (even if unintentionally) frustrate
reorganisation proposals, based on different groupings, that the Dioceses
Commission might wish to bring forward.
PARTS III, IV, VI AND VII OF THE 2007 MEASURE: THE PASTORAL
MEASURE 1983, DIOCESAN MISSION AND PASTORAL COMMITTEES,
AND THE CHURCH BUILDINGS COUNCIL
Unlike the 1978 Measure, the 1983 Measure has not been completely replaced by
the 2007 Measure. However, it has been substantially amended, and there also
are two sets of new free-standing provisions that have an impact on the 1983
Measure and how it operates, as well as a wider significance. The following para-
graphs concentrate on the broad outlines of the major changes; for those who
need further details, the Church Commissioners have produced a marked up
copy of the 1983 Measure, showing all the amendments.
14
Diocesan Mission and Pastoral Committees
Sections 1 and 2 of the 1983 Measure as originally enacted, together with
Schedule 1, dealt with the constitution, functions and procedure of the diocesan
pastoral committees, which had a major role in relation to the pastoral scheme
and order procedures under that Measure. Very much further on in the 1983
Measure, section 42 and part of Schedule 5 provided for a diocesan redundant
churches uses committee for each diocese (unless it was unlikely to have any
14 See ,http://www.ccpastoral.org., accessed 18 August 2008.
redundant churches); that committees sole duty was to make every endeavour to
find suitable alternative uses for redundant church buildings.
Part VI of the 2007 Measure (sections 5253) and Schedule 3, implementing
recommendations by the Toyne Group, set out to replace those two committees
with a single new body with broader functions. Reversing the trend in some
other fairly recent Church legislation, the 2007 Measure does not stipulate the
membership of the new body in any great detail, but gives the individual dioceses
greater flexibility then the original 1983 Measure in this respect. Indeed, so far as
membership is concerned, the only mandatory provisions in the 2007 Measure
are that all the archdeacons of the diocese must be members; that the diocesan
bishop may be a member if he wishes and must either chair the committee
himself or appoint the person to chair it; and that the diocesan synod is to
decide how many other members there are to be and how they are to be chosen,
although it must ensure that the number of clergy and laity are as near equal as
possible. The committee is to have very wide powers to function through sub-
committees and to make use of expert advisers, and there is also express power
for the committee to carry out consultation. The diocesan synod may decide on
the name by which the committee for the diocese concerned is to be known,
although the legislation itself, in keeping with the general emphasis of the
Toyne recommendations, refers to it as the mission and pastoral committee.
The 2007 Measure is more prescriptive over the committees functions,
which fall into three main groups. The first includes making or assisting in
making better provision for the cure of souls in the diocese, reviewing arrange-
ments for pastoral supervision and care, and preparing strategies and proposals
on these matters. It also includes the committees functions in relation to
schemes and orders under Part I of the 1983 Measure. The second main
group begins with maintaining an overview of matters relating to church build-
ings, other than matters that are the responsibility of the consistory court or the
Diocesan Advisory Committee. The 2007 Measure then goes on to functions in
relation to buildings closed for regular public worship, which are explained in
more detail below. The third group consists mainly of a variety of other statutory
functions; these include functions in relation to bishops mission orders, which
again are discussed later in this article.
What is also significant is the list of matters to which the committee must
have regard in carrying out its functions. In addition, of course, to the general
duty under section 1 of the 2007 Measure to have regard to the furtherance of
the mission of the Church, these include factors that had appeared in the orig-
inal 1983 Measure as ones that the diocesan pastoral committee had to take into
account, notably the traditions, needs and characteristics of individual parishes,
and other aspects of diocesan policies that the diocesan synod has called on the
committee to take into account. However, the new committee is also expressly
required to have regard to the financial implications of its decisions, both for
the diocese and for the Church as a whole. This again was a specific recommen-
dation by the Toyne Group, and the committees may need to give some thought
to the relative weight to be given to each of the statutory factors in different con-
texts and different cases. One context where financial implications may be par-
ticularly relevant is in dealing with the new provisions, explained later in this
article, on the future of churches that are not of particular heritage value and
have been closed for regular public worship.
Pastoral Schemes and Orders and Pastoral Church Buildings Schemes
As many readers will already be well aware, schemes made under Part I of the
1983 Measure are legal instruments that affect local church organisation, for
example in relation to the status of parishes and benefices, team and group min-
istries, and church buildings. Under the 1983 Measure as originally enacted, the
term pastoral scheme was used for all schemes under Part I relating to these
matters; for example, such a scheme could close a church that was no longer
required for normal public worship by a declaration of redundancy. On the
other hand, pastoral orders dealt (and still deal) with less important matters,
such as changes in parish names or boundaries; and they cannot be used to
close a church.
The initial stages in the procedure under the 1983 Measure as originally
enacted were that the proposals for the scheme or order originated in the
diocese, but (with one exception explained below) the scheme or order itself
was always drafted and published by the Church Commissioners. The Church
Commissioners then served copies of the draft on the persons and bodies
listed in the Measure as interested parties, who would already have been con-
sulted at an earlier stage. Each of the interested parties had the right to make
written representations, which the Church Commissioners were required to
consider. (In addition, the Church Commissioners have recently introduced a
non-statutory procedure, under which those who have made written represen-
tations may seek an opportunity to make oral representations also.) It was
then for the Church Commissioners to decide whether to make the scheme
or order; if so, in the case of a scheme, anyone who had made written represen-
tations could apply for leave to appeal to the Privy Council.
The procedure for orders was lighter in some respects, and there was no
possibility of an appeal to the Privy Council. In some cases, where all concerned
consented or could be regarded as consenting to the proposals for an order, it
could be drafted by and dealt with in the diocese.
Some of the changes made by Part III of the 2007 Measure (sections 2339)
are essentially ones of terminology. In particular, there was a good deal of criti-
cism of the expressions redundancy, declaration of redundancy and redun-
dant church, because they were seen as unduly negative and not a wholly
accurate description of the outcome of the process. The 2007 Measure therefore
refers instead to closure for regular public worship. Likewise, schemes that
involve a proposal for closure of a church have been renamed pastoral
church buildings schemes, so that, in practice, pastoral scheme or order will
now be confined to instruments that do not involve church closures.
The procedure for pastoral church buildings schemes remains broadly the
same as the original 1983 Measure procedure for pastoral schemes. However,
the 2007 Measure introduced substantial changes in the process for
schemes and orders that do not involve the closure of a church. These will
now be drafted and published by the dioceses, with the Church
Commissioners checking that they are in the correct form and within the
powers conferred by the 1983 Measure and that there has been full compliance
with the procedural requirements up to that stage. After publication of the
scheme or order and service of copies on the interested parties, the procedure
remains substantially as in the original 1983 Measure. The special shortened
procedure for non-controversial orders also remains, with some detailed
changes. All this has produced an interesting and unusual feature in the draft-
ing of the amended 1983 Measure, in that there are now two separate and differ-
ent versions of Part I of that Measure, one applying to pastoral schemes and
orders and the other to pastoral church buildings schemes.
Church Buildings Closed for Regular Public Worship
The 1983 Measure in its original form distinguished between those cases where
closing the church and deciding on the future of the building was a one stage
procedure, so that the buildings future could be dealt with at the same time
and by the same legal instrument as the declaration of redundancy, and
those where the two stages were dealt with separately, with a redundancy
scheme under Part III of the 1983 Measure to settle the future of the building
as the second stage. In some cases, although not all, the two-stage procedure
involved a minimum waiting period of six months between the declaration
of redundancy and preparing the redundancy scheme; the normal maximum
period for settling the future of the building, although that again was subject
to exceptions, was two years.
Here too, Part IV of the 2007 Measure (sections 4046) makes changes in
terminology. What the original 1983 Measure termed redundancy schemes
are now to be knows as pastoral (church buildings disposal) schemes, and
the waiting period is renamed the use seeking period, again in the interests
of providing a more accurate description. However, there are also a number
of substantive changes, of considerable practical importance, which arise
from recommendations by the Toyne Group for streamlining and speeding
up the process while not removing any essential safeguards, in particular for
buildings of significant heritage value.
Among these are some significant relaxations of the restrictions in the orig-
inal 1983 Measure on the use of the one stage procedure in cases where the
closed church will not be replaced by a new place of worship. The general pro-
hibition on using the one stage procedure in those circumstances for listed
buildings or buildings within conservation areas has been removed by the
2007 Measure, and the prohibition on using it to provide for the demolition
of a building will now apply only if the building is listed or within a conservation
area. Thus, if suitable proposals for the future of the building have been worked
out at the stage when is it closed, there will now be much greater scope for
implementing them without delay.
Similarly, for the two stage procedure, the normal maximum use seeking
period has been reduced from three years to two, and the normal minimum
period of six months will apply only to a proposal to demolish a listed building
or one within a conservation area. Even there, it will not be necessary to wait for
six months if the Church Commissioners are satisfied, after consulting the new
Church Buildings Council, that there is no objection to the demolition.
One aspect of this, again recommended by the Toyne Group, is that if the closed
building is not listed or in a conservation area, it will not be necessary to exhaust
all possibilities for finding another suitable new use for the building before decid-
ing that the best course is to demolish it. That is reflected in the functions of the
new diocesan mission and pastoral committee, which (as already explained) will
take over the old diocesan redundant churches uses committees role of bringing
forward proposals for the future of a closed building. Under the original 1983
Measure, that committee had to use every endeavour to find a suitable alternative
use or uses for what were then termed redundant buildings, and it was only
when and if the committee was satisfied that this was impossible that it could
report to that effect to the Church Commissioners. The amended 1983 Measure
still requires the diocesan mission and pastoral committee to use every endeavour
to find a suitable alternative use or uses for a church building that has been closed
or is proposed for closure if it is listed or within a conservation area. However, in
other cases, its remit is now to find a suitable alternative use or uses or to develop
proposals for demolishing the building and disposing of the site. Here, the new
committees duty under the 2007 Measure to have regard to the financial impli-
cations may be of particular importance.
Of course, none of this affects the other possibilities for the future of a closed
church building. Quite apart from replacing it with another church or place of
worship, or incorporating part or all if it into a new place of worship, these
include the possibility of a building continuing in church ownership, with the
diocesan board of finance as the owner. In addition, where a building is of
such historic or archaeological interest or architectural quality that it ought to
be preserved in the interests both of the nation and of the Church, and a suitable
alternative use cannot be found for it, the 1983 Measure will continue to provide
the possibility of transferring it to the Churches Conservation Trust (which is
funded in part from public funds) if the Trust will have the resources to meet
the cost of repairing and maintaining it.
15
The Church Buildings Council
This leads into the significant set of provisions in Part VII of the 2007 Measure
(sections 5457 and Schedule 4) that establish a newbody, the Church Buildings
Council, as the single unified central Church source of advice on church build-
ings, whether in use or closed, other than cathedrals.
Before the 2007 Measure, the Council for the Care of Churches was of course
the central Church body responsible for advice on churches in use other than
cathedrals. It also had an advisory function at a very early stage in a potential
church closure when the diocese was considering whether to put forward
draft closure proposals. After that, however, the 1983 Measure as originally
enacted provided for a separate body, the Advisory Board for Redundant
Churches, which had been set up under the Pastoral Measure 1968, to be the
source of information and advice to the Church Commissioners on what
might broadly be termed the heritage interest, quality and importance of a
church. This applied both at the stage of deciding whether to close a church
and when decisions were taken on its future if it was closed. The Board also
advised the Churches Conservation Trust in a limited range of cases.
The Toyne Group recommended bringing these functions together in a single
advisory body that would provide expert advice throughout the closure process
and also on churches in use. One object was to improve the closure process
itself, and to ensure that it produced the best-informed result in each case.
Moreover, by the time the 2007 Measure was passed, the Toyne recommen-
dations for extended use that were embodied in the Pastoral (Amendment)
Measure 2006 had already blurred the previous apparently rigid demarcation
line between churches in use for regular worship and ancillary purposes on
the one hand and former churches used in other ways on the other, and had
built a connecting bridge between them. This too contributed to the logic of a
unified source of advice.
It was also recognised from the outset that others outside the Church have an
interest in ensuring that the Church receives expert and impartial advice on this
area of its work. They include central and local government, amenity groups and
the public at large, all of whom have an interest in the proper preservation of the
churches that are so prominent among the gems of this countrys heritage. This
obviously applies to churches in use, but also to what happens to the buildings
that the Church is no longer able to use for their original purpose. Taking what
15 Schedule 5 to the 2007 Measure also makes some amendments to the provisions on the Trust in the
1983 Measure, so as to increase its powers and the possible membership of its governing body.
are no more than two examples, there is a clear government interest as well as a
general public interest in ensuring that former churches for which no suitable
alternative use can be found, but which ought to be preserved in the interests of
the nation and the Church, are transferred into the care of the Churches
Conservation Trust. On the other hand, there is also a government and public inter-
est in ensuring that the Trusts financial resources, part of which are provided by
central government, are not diluted by calling on it to care for buildings of lesser
quality and importance. The second example is that when a church which is a
listed building ceases to be used for worship, it comes within the scope of the stat-
utory listed building controls operated by the local planning authority. Thus, if the
plans for the buildings future involve making alterations once that stage is reached,
it is important that expert advice is provided to ensure that the proposals are ones
that the local planning authority can properly accept under the listed buildings
legislation and will also be acceptable to the relevant amenity bodies.
To ensure that the new arrangements not only provide but are seen to provide
this expert and impartial source of advice, the 2007 Measure abolished both the
existing bodies and replaced them by the Church Buildings Council, which is a
permanent commission of the General Synod. A great deal of care was taken
over the membership of the new body. Of the maximum membership of
24 people, the chair is to be appointed by the archbishops after consulting
the Appointments Committee of the Church of England. In addition, four of
the members are to be appointed by the archbishops on the nomination
of the Secretary of State, and are to have between them special knowledge of
or expertise in history, architecture, archaeology and aesthetics. They will
form what the Toyne Group termed the independent strand of membership;
they are to be chosen by a person wholly outside the Church, and members
or employees of the Church Commissioners, the Archbishops Council or the
Churches Conservation Trust, or members of any of the Commissioners com-
mittees, are disqualified from appointment, as are member of the General
Synod and diocesan bodies. The archbishops are to appoint 14 other members
on the nomination of various bodies within the Church, and a number of
them must have special knowledge of or expertise in specified matters. Of the
remainder, three are to be elected by the General Synod from its members
with knowledge of or expertise in matters relevant to the Councils work, and
the Council is to have power to co-opt up to two members to reflect special inter-
ests that are not otherwise represented among its membership. In addition to
the special disqualifications that apply to the independent strand members, any
member or employee of the Church Commissioners or the Churches
Conservation Trust, and any member of any of the Commissioners committees,
is completely disqualified from membership of the Council.
In a further move to ensure that the work previously carried out by the
Advisory Board for Redundant Churches is carried out in a way that is and is
seen to be impartial, the 2007 Measure assigns that work to a special statutory
committee, which is to carry it out on the Councils behalf, as well as carrying out
any other, delegated, functions or advising the Council if the Council wishes.
The Chair of the Council is to be the non-voting Chair of the committee and,
of the seven other members of the committee, four are to be the independent
strand members of the Council. Thus the independent strand members
together will always be able to command a majority vote. Having said this,
they are also to be very much members of the main Council and involved in
its work on an equal footing with all the other members.
Part VII of the 2007 Measure provides (echoing section 1 of the Care of
Churches and Ecclesiastical Jurisdiction Measure 1991) that, in carrying out its
functions, the Council must have due regard to the role of the church as a local
centre of worship and mission. Where appropriate, it must also have due regard
to the provisions of the 1983 Measure. Part VII then goes on to set out the
Councils functions at length and in detail, taking three sections in which to do so.
For those who wish for a fairly broad overview, section 55 relates to churches and
places of worship in use (other than cathedrals), their contents and articles belong-
ing to them, and their curtilage or churchyard, and also other parochial burial
grounds. The Councils very broad functions under section 55 include a duty to
advise the Archbishops Council and the General Synod on such matters on
request, to consider and respond so far as appropriate to consultation and requests
for advice fromthe ecclesiastical courts and Diocesan Advisory Committees, and to
maintain regular contact with the Diocesan Advisory Committees. Moreover, the
Councils duties include promoting standards of good practice regarding the use,
care, conservation, repair, planning, design and development of churches. It also
has power to liaise, co-operate and exchange information with government depart-
ments, local authorities and others about those matters (in relation both to Church
of England churches and to corresponding buildings of other Churches). One par-
ticularly noteworthy feature of this function is that it specifically extends to work in
relation to formulating policy and proposed legislation, which is clearly of import-
ance at a time whenfurther government legislationabout the built heritage is under
consideration. Finally, there is another significant and far-reaching duty:
to promote the care and conservation of churches and greater knowledge,
understanding and enjoyment of and artistic activity relating to churches
both within the Church of England and more widely among the general
public or sections of the public on its own or in conjunction with other
persons or bodies.
Next, section 56 sets out the Councils functions in relation to the closure of
churches, extending throughout the process from the stage when the diocese
first considers putting forward formal proposals to the task of settling the
buildings future, and including advice in relation to such buildings after
closure. Again it includes the churchs contents and churchyard or curtilage.
In that context the section lists a number of statutory functions under the
amended 1983 Measure, most of them taken over from the Advisory Board for
Redundant Churches, as well as new (albeit limited) general advisory functions.
Finally, section 57 covers some other general functions, including collabor-
ation with the Cathedrals Fabric Commission for England on matters of
common concern and on the maintenance of their joint library,
16
and making
an annual report on the Councils activities to the General Synod (again with
the possibility of combining this with the annual report of the Cathedrals
Fabric Commission).
PART V OF THE 2007 MEASURE: BISHOPS MISSION ORDERS
The Legislations Objectives
Turning to Part V of the 2007 Measure, it contains only five sections (sections
4751). However, those sections, with the new provisions in the Canons and
the guidance material that accompany them, would be quite sufficient, taken
on their own, to justify a separate article. Indeed, framing the legislation and
the guidance on this subject presented what was probably the greatest challenge
in developing the complete legislative package to give effect to the Toyne
Groups recommendations.
Part V is headed Mission but sub-headed Mission initiatives, and the legis-
lation uses the latter term rather than fresh expressions of church. The two
expressions are not wholly synonymous but they are clearly closely linked.
Some mission initiatives can and do flourish within the parochial system,
given the wide range of possibilities under the 1983 Measure, or operate on
the basis of other concepts already embedded in the Churchs legal framework.
17
However, others cannot, and thus the Toyne recommendations called for a new
legislative means of supporting a very wide variety of mission initiatives, existing
and future, many of them radically different from the Churchs existing insti-
tutions in important respects. They are often based on network rather than a
common geographical location, and indeed they may have no fixed geographical
base; they may well operate across existing boundaries or with no defined
boundaries; and they often (although not invariably) tend to prefer experimental
16 Members of the Ecclesiastical Law Society, and other readers of this article, who wish to visit or
consult this interesting and useful collection should contact [email protected].
17 Appendix 1 to the Code of Practice on Part V, referred to below, outlines a number of the other poss-
ible legal structures that were available even before the 2007 Measure. One example is a chaplaincy
under section 2 of the Extra-Parochial Ministry Measure 1967; however, this has as a pre-requisite the
existence of a charitable institution with a base in premises that have a geographical location, and
that limits its usefulness for some fresh expressions of church.
forms of worship to the more traditional ones. Indeed, the range and variety of
these new developments within the Church, and the likelihood that they will be
even greater in the future, made it a particular challenge to identify the essential
features of what the new legislation should cover.
Moreover, the legislation had to support these varied initiatives in working
alongside and supplementing the Churchs well-established institutions, and
particularly the parochial system, in the mixed-economy church referred to
near the beginning of this article. To succeed in that, the new legislation had
to leave flexibility and space for innovation and experiment but at the same
time provide a clear framework in which legal authority was affirmed and
accepted, and which anchored the initiative firmly within the Church of
England. Other essential features of the new concept were proper and suppor-
tive supervision and review, and proper safeguards for those whose rights and
existing ministries might be affected. Finally, the legislation had to help suc-
cessful initiatives to move on to a more permanent base as and when the
time was right, and also to provide for closure without a sense of failure
where experiments that had been tried with enthusiasm had not prospered.
Measure, Canon and Code of Practice
It was recognised fromthe outset that the legislation must contain both provisions
by Measure and some amendments to the existing Canon law. The latter were
embodied in Amending Canon No 27. Moreover, it had to avoid being a straight-
jacket for the initiative or enmeshing it in a mass of detail that would stultify its
development . On that basis, the legislation itself could be only half the story, and
full and very practical guidance would be needed to complement the Measure
and Canon Law and to set out how they were to operate; that guidance would
not in any way be an optional extra, but would have a vital role to play in
helping the legislation to achieve its objectives. Thus, the 2007 Measure
required the House of Bishops to issue guidance in the form of a Code of
Practice on the exercise of the statutory functions, which would also need the
approval of the General Synod. In addition, it gave the Code a degree of statutory
authority by providing that certain of those with key roles the bishop himself,
the diocesan mission and pastoral committee, and also the leader and the Visitor
(both referred to below) must have regard to the Code in exercising their func-
tions under Part V. The Code issued by the House of Bishops and approved by
the General Synod in 2008 can be found at ,http://www.ccpastoral.org..
The Bishops Mission Order and the Process for Making It
The concept that the 2007 Measure devised as the foundation on which to build
all that is set out above is a bishops mission order, accepted by those leading
the initiative. It therefore makes episcopal authority and the acknowledgement
of that authority the key to the structure as a whole. (Where more than one
diocese is involved, the order will be a bishops mission order, which will be
made jointly by the bishops of all the dioceses concerned, and each of the
bishops will need to comply with the requirements set out below. All that
follows about Part V should be read in the light of this possibility, and on the
basis that, where it applies, references to the bishop will have to be read as
the bishops.)
The bishops mission order (the order) itself endorses the initiative and sets
out the legal framework within which it is to operate. The 2007 Measure also
stipulates that it is to contain some mandatory provisions examples include
provisions specifying the objectives of the initiative and the area within which
it is being or is to be carried out (even if the only boundaries that can realistically
be laid down are, say, those of a deanery or archdeaconry or the diocese itself).
Others are mentioned below.
However, quite a number of the possible provisions referred to in the
Measure are optional ones. The length of the provisions and the amount of
detail needed for a particular initiative will vary widely, and the 2007 Measure
therefore provides that the order may be accompanied by a supplementary
instrument containing some of the material. Where a supplementary instru-
ment is used, it would seem to be the proper place for matters of detail,
as opposed to the basic principles, which would be set out in the order. Thus
it would bear something of the same relationship to the order as that of the
articles of a company to its memorandum or that of the statutes of a cathedral
to its constitution.
Beginning with the basic essentials for making an order, contained in section
47, the bishop must be satisfied that a person or group of people is carrying out an
initiative in the diocese or any part of it, or proposes or wishes to do so, and that
the initiative is likely to promote or further the mission of the Church again, in
the broad and inclusive sense explained in relation to section 1 of the 2007
Measure through fostering or developing a form of Christian community.
Within this set of requirements lie three essentials for the making of an order,
namely an initiative; that the initiative is one that will build and work through a
Christian community; and the likelihood that it will take forward the Churchs
mission. The person or group already mentioned may request the order, as
may any person or body exercising ecclesiastical functions within the diocese,
although it is of course for the bishop to decide whether to accede to that
request. Alternatively, the bishop himself may decide to make the order without
any such request, and whether purely on his own initiative or as a result of sug-
gestions or other input from any source he thinks fit.
What is necessary in all cases, irrespective of who if anyone requested an
order, is that there must be full consultation before the order is made, carried
out by the bishop or on his behalf. Because of their importance, not least in
the context of developing a mixed-economy church, these consultation
requirements are set out in some detail. The diocesan mission and pastoral com-
mittee must always be consulted, in order to ensure that the impact that the
initiative may have on the Churchs existing work in the diocese is assessed
and taken into account in deciding whether the order should be made. The con-
sultation must also extend to such other Churches and religious organisations as
the bishop thinks fit. Likewise, it must extend to those people or groups of
people who, in the bishops view, have a significant interest in the order or
are likely to be significantly affected by it (although, instead of consulting
some or all of them directly, it is possible to consult a body whom the bishop
considers would adequately represent their interests). The 2007 Measure
enlarges on this last requirement by specifying that certain people or groups
are to be regarded as having an interest in the order namely a person who
has or shares in the cure of souls in a benefice affected by the order, and any
other person or body, including a parochial church council or registered
patron, who may have an interest in the cure of souls there. However, it is for
the bishop to decide whether the interest is significant, in the light of the objec-
tives of the initiative and any other circumstances that he thinks relevant, and
the same applies to the bishops task in deciding whether the potential effect
of the initiative on a person or group is likely to be significant. Depending
on the terms of the order, other specific consultation requirements may also
apply, and they are referred to later.
In addition to what appears in the Measure itself, the Code of Practice sets out
to provide practical guidance on the process, including the initial steps when a
request for an order reaches the bishop or he wishes to investigate that possi-
bility; the consultation requirements; the decision whether to make an order;
and the terms of the document itself. It also deals in some detail with a
number of the provisions of the Measure that are mentioned in the following
paragraphs, but for which this article can give no more than a very brief
outline. Thus those who deal with bishops mission orders in practice will
find the Code essential reading. A skeleton order is also being prepared to
assist those who have the task of drafting the orders, although it may well
need to be refined in the light of early experience with the new legislation.
The Leader or Leaders and Other Ministers Working in Support of the Initiative
The order must specify one or more persons, or a group of people, who are to
lead the initiative and be responsible to the bishop for its conduct. The 2007
Measure refers to them as the leader or leaders, and they are key people in the
initiative. The Measure lists a number of different types of provisions that it
may be appropriate to include about them in the order or supplementary instru-
ment for example, regarding their stipend or remuneration, and how they are
to be replaced if necessary. There may also be other clergy or lay people working
in support of the initiative.
Another important provision in the 2007 Measure requires any member of
the clergy, lay worker or reader who is to officiate in any place in accordance
with the order, whether as a leader or in some other capacity, to have separate
authority to do so from the bishop under Canon law. Assuming that the
person concerned is not beneficed in the place in question, this will need to
be by the bishops licence or permission to officiate. Linked to that requirement
is a new provision added to paragraph 1 of Canon C 12 by Amending Canon No
27, under which the bishop may license a minister to serve in the diocese for the
purposes of or in connection with a mission initiative endorsed by a bishops
mission order. This adds a third option to the two possible forms of licence
that were already specified in the Canon (namely a licence to perform a particu-
lar office, or a general licence to preach or minister in any parish or ecclesiastical
district).
In addition to the bishops authority, the other normal requirement under
Canon law for a minister to exercise his or her ministry in any given place is
that the minister must have the cure of souls there or to obtain the permission
of the person who has the cure of souls. This is one of the reasons why some
initiatives did not fit within the law as it stood before the 2007 Measure and
may need to make use of the new legal structure offered by the Measure. Even
assuming that none of those who at present hold office as incumbent or
priest-in-charge in the area that the initiative is to cover have any objection to it,
the size of the area may be such that requiring express permission from each
person with the cure of souls would make it impracticable or at least very difficult
to establish the initiative. Even where the area concerned is less extensive, leaving
open the risk that a single newly appointed incumbent or priest-in-charge who
takes up office after the initiative is set up might object to it, and thus bring it
to an end or require it to undergo substantial change, could make it impossible
for the initiative to go forward with any sense of security.
The 2007 Measure therefore gives the bishop power to include in the order an
express provision authorising a minister to exercise his or her ministry for the
purposes of or in connection with the order, in any place and in any manner that
the order specifies, without the permission of the person with the cure of souls
there. This is clearly a significant power in principle as well as in practice, and it
was never intended for use as a matter of course. Indeed, before the bishop
makes an order including it, he must satisfy additional consultation require-
ments, in order to ensure that the incumbents and priests-in-charge concerned
are consulted individually or, depending on the size of the area in which
the initiative is to operate, through the House of Clergy of the deanery or dioce-
san synod.
However, even when this power needs to be and is used, it should not be
looked at in isolation. In particular, the 2007 Measure gives the bishop power
to include provisions in an order or supplementary instrument regarding the
relationships between those involved with the initiative and those who have the
cure of souls in the area covered by the order. It is for the bishop to decide in
each case whether and, if so, how to make use of this power, but where he
decides to dispense with the normal requirement regarding permission from
those with the cure of souls he may well wish to consider it as a possibility.
The Visitor
Another key role under Part V of the 2007 Measure is that of the Visitor for the
initiative. The order must name him or her, and his or her role is laid down, in
particular, by section 48. The Visitor is, in effect, to act as guide, counsellor and
friend to the initiative, to advise and encourage it and, so far as is practicable, to
provide support for it. At the same time, the Visitor is to exercise oversight of the
initiative on the bishops behalf and be the bishops eyes and ears in relation to
it. He or she is also to be available for anyone who wishes to draw matters relat-
ing to the initiative to the Visitors attention, although it is then for the Visitor to
decide what action, if any, to take on the information. The Visitor is required to
carry out reviews of the initiative at intervals of not more than 18 months and
report to the bishop, although these regular reviews are in general intended
to be fairly light-touch exercises. A further duty is to conduct fuller reviews
at longer intervals, under the provisions explained below in relation to the dur-
ation of the order. The leader or leaders must also consult the Visitor regularly
about the general direction and development of the initiative, and the Visitor is
to advise the leader or leaders and the bishop on setting up and developing
appropriate methods of governance for the initiative, as well as ensuring that
it keeps proper accounts.
All this amounts to a very wide-ranging role that, for at least some initiatives,
is likely to be a time-consuming one. However, it was seen as essential in order
to ensure that initiatives that had the bishops endorsement, but lay outside the
parochial system, would be subject to effective but also constructive oversight on
a regular and consistent basis, and receive the support that they needed to
achieve their objectives and their full potential.
Ecumenical Co-operation
Under the 2007 Measure, the order may provide for the initiative to participate
in a local ecumenical project (now generally known as a local ecumenical part-
nership) under Canon B 44, or for other forms of ecumenical co-operation.
Particularly in view of the existing initiatives that are working ecumenically, it
was seen as important for the legislation to deal expressly with this possibility,
even though it involved some fairly detailed provisions, notably those in
Amending Canon No 27 which make it possible to use Canons B 43 and 44
in conjunction with bishops mission orders.
Clearly such ecumenical co-operation can only succeed if there is full consul-
tation with the other Churches or religious organisations concerned, and the
Measure expressly provides for that.
Worship and the Administration of the Sacraments
Not least because the existence or development of a Christian community is to be
one of the core requirements and central features of the initiative, the order must
make such provision as the bishop thinks fit for the administration of the sacra-
ments, in accordance with the legal rules that govern their administration within
the Church of England. The reference to those legal requirements springs from
the need to make clear that an initiative operating under a bishops mission
order has chosen to operate within the Church of England and must accept
and abide by the legal rules to which the Church is subject. There are also
some other non-mandatory provisions, which are nevertheless likely to be
useful in practice, by which the bishop is able to authorise the performance of
divine service, including Holy Communion if that is expressly mentioned, in
any building. However, in the case of a parochial place of worship, the minister
having the cure of souls there must consent.
Another provision that may also be important in practice makes it clear that
the legislation does not authorise any contravention of resolutions A or B passed
under the Priests (Ordination of Women) Measure 1993. During the 2007
Measures progress through the General Synod questions arose as to the
effect of Resolution A in relation to those acting under bishops mission
orders, and the legal position on this was explored in an opinion that is repro-
duced in Appendix 4 to the Code of Practice.
In addition, Appendix 3 to the Code contains a section on the ordering of
worship in fresh expressions of church under bishops mission orders, which
builds on material on worship in Mission-shaped Church.
Organisation, Governance and Financing of the Initiative and Other Property
Matters
The Measure deals only briefly with these matters, in particular by making it
clear that the order or supplementary instrument may make provision for
them, and also through the Visitors duty to give advice on the initiatives govern-
ance. It seems likely that the initiative will almost always be set up as or as part of
a charity, but it will still be necessary to obtain professional advice on which of
the various forms of legal structure available for use by charities is the most
appropriate one in any individual case.
18
18 A limited amount of guidance on this will appear in the notes to the skeleton order referred to
above.
So far as finance is concerned, the Code of Practice also refers, albeit briefly,
to the importance of establishing a discipline of giving as the initiative develops,
and to the fact that the bishop will wish the initiative to be clear about his expec-
tations regarding its financial planning and viability and its contribution to dio-
cesan finances.
Representation on a Deanery Synod
This last point leads on to the possibility of synodical representation for the
initiative, under the new rule 27A that the Measure adds to the Church
Representation Rules. Under it, the bishop may request the diocesan synod to
make a scheme for the representation on a particular deanery synod of specified
persons to whoma bishops mission order relates. The newrule therefore allows
a good deal of flexibility in dealing with different types of initiative; however, it
will, of course, be for the bishop to decide whether the particular initiative has
reached the stage in its development when synodical representation would be
appropriate.
Review and Duration of the Order
There is one final topic, namely the duration of an order and the system of
formal reviews, that the 2007 Measure covers in much greater detail than
some of the matters outlined in the previous paragraphs. These fairly elaborate
provisions spring from the recognition that, during its early years, even a suc-
cessful initiative needs careful evaluation at suitable intervals; indeed, its very
success may suggest that the time is right to put it onto a more permanent
footing, using one of the possibilities under the 1983 Measure or other
pre-2007 legislation. The 2007 Measure also makes it clear that the series of
stages in the potential life of an initiative under a bishops mission order
which are described in the following paragraphs nevertheless leave it open to
the bishop to revoke or vary an order, after consultation, in accordance with
the terms of the Measure itself.
The initial order made by the bishop for an initiative cannot continue for
more than five years. Near the end of its life, the Visitor must conduct a full
review, involving full consultation, and report to the bishop with his or her rec-
ommendations. It is then for the bishop to decide whether the initiative should
continue; if so, following consultation, he may make a second order. This may
take one or other of two possible forms: the first applies if the bishop decides
that the initiative or its objectives should be continued but by some means
other than a bishops mission order. In that case he may make a temporary
further order for up to 18 months to allow time for the necessary arrangements.
The second possibility is for the initiative to continue on the basis of a second
bishops mission order for up to five years, again with a full review by the
Visitor, involving full consultation, near the end of its life.
At the end of the life of the second order, even if the bishop decides that the
initiative or its objectives should continue, he will need to move the initiative on
to some other legal basis if possible. This is because he has power to make a
third order for it only if he is satisfied, after consultation, that there is no
other suitable means of achieving the initiative or its objectives. However, if
that is the case and a third order is made, it will not be subject to a fixed
expiry date but will continue indefinitely, subject to the bishops general
power to vary or revoke it.
All this means that, for most initiatives, the bishops mission order will be a
temporary legal structure for its early, formative years, and that only in excep-
tional cases will the initiative continue to operate on that basis beyond the life-
time of two orders, amounting a maximum of ten years. However, where an
exceptional case arises and the bishop makes a further order, it can continue
without limit of time.
Further Reading
A good deal has been published about fresh expressions of church, in addition to
the material available on the websites at www.freshexpressions.org.uk and www.
sharetheguide.org, and there is already some published material about bishops
mission orders under the 2007 Measure. The reader who would like to explore
the subject further may wish to obtain a copy of Bishops Mission Orders:
a beginners guide
19
and to consult the helpful bibliographies in that booklet
and the House of Bishops Code of Practice, as well as the resources referred
to on the two websites.
PARTS VII AND VIII OF THE 2007 MEASURE: MISCELLANEOUS
PROVISIONS
In addition to the provisions in Part VII on the Church Buildings Council, which
are referred to above, sections 5861 in Part VII, taken together with Part VIII
(sections 6266 and Schedules 57), contains a number of amendments to the
1983 Measure and other legislation on a variety of subjects. Some are linked to
earlier parts of the 2007 Measure; some did not figure in the original Toyne pro-
posals but were suggested later. To take only a few examples, these provisions
include the quite complex amendments needed to make it clear beyond doubt
that the bishop may re-suspend presentation to a benefice a second time
during the same vacancy, a subject on which the law had been (or had appeared
to be) sufficiently uncertain to engage a number of learned members of the bar
in writing opinions to express differing conclusions. Other provisions add yet
further refinements to the law on appointments to team ministries, and also
19 P Bayes and S Croft, Bishops Mission Orders: a beginners guide (London, 2008).
give the bishop power, after consultation with those who have or share in the
cure of souls in the benefice concerned, to authorise an office of assistant
curate (a term that now carries less dignified overtones than in the past) to be
known by some other description.
After a series of transitional provisions, laid down by section 64 and Schedule
6, and a fairly lengthy list of repeals in Schedule 7, introduced by section 65,
section 66 deals with an important subject in practice, that of commencement
dates. As is normal in Measures passed by the General Synod, it provides for the
dates on which different provisions are to come into force to be fixed by the arch-
bishops. After 1 September 2008, almost all of the legislation will have come into
operation, leaving only a few provisions in Part II (sections 3(1) (4), section 6(3)
and sections 12 and 17), which it is thought may be brought into operation in the
first quarter of 2009.
THE FUTURE
As indicated early on in this article, the task of consolidating the 1983 Measure
(already much amended before 2007) and the other fields of legislation covered
by the 2007 Measure remains to be carried out. It may be that, in the light of
experience, some adjustments will be made to the more innovative parts of
the 2007 Measure or at least to the Code of Practice on Bishops Mission
Initiatives. In any case, the framers of legislation inevitably have to await the
judgment of those who have to use it on their efforts, even if what they
produce escapes the attentions of the courts. However, the hope is that, in
this case, they have achieved at least a good part of the vision of the Toyne
Group, as encapsulated in Professor Peter Toynes Preface to their report,
when (quoting Timothy Dudley-Smiths hymn Lord of the Years) he said that
the Group believed that their proposals will facilitate the development of our
mission-shaped church, take us with confidence for the future and last
effectively for the years.

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The Dioceses, Pastoral and Mission Measure 2007

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