Women in the episcopate consultation: the basics

By David Pocklington, Law and Religion UK

[…]  Annex B provides a general description of the various forms of “black letter law” and “soft law” that might be included in a package of measures to address these objectives, the former comprising: Measures; Canons; and Secondary Legislation, (Rules/Regulations/Orders); and the latter: Codes of Practice; and Acts of Synod.

Importantly, it notes, [Annex B, para.10],
“ . . .  the need to pass secondary legislation under the Measure would run directly against the general desire for the content of the “whole package” to be known when the Synod comes to vote on final approval, since any secondary legislation can only be made after the measure has received final approval and the Royal Assent. Instruments made under a Measure require the approval of the General Synod and, if they affect legal rights, also have to be laid before Parliament and be subject to approval, or at least annulment, in each House.”
Although not as concisely stated, the problem with “soft law” is that it is generally unenforceable and provides insufficient certainty, [Annex B, paras. 16 and 17]
“Codes do not create directly enforceable, legally binding obligations in the same way as measures, regulations or canons, though actions that do not have regard to the provisions of statutory codes may be invalidated by the courts. The uncertainties around the enforceability of the statutory code – as well as uncertainties over what its provisions would eventually be – undoubtedly played a part in the defeat of the legislation.”
“ . . . . . Acts of Synod . . . . . are not, in fact, a form of legislation at all and cannot create legally enforceable rights or duties. They have strong persuasive force, having been “affirmed and proclaimed” as “the embodiment of the will or opinion of the Church of England as expressed by the whole body of the Synod”.
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