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Women Priests the Legal Background

Published online by Cambridge University Press:  31 July 2008

David McClean
David McClean
Affiliation:
Professor of Law, University of Sheffield, Chairman of the House of Laity of General Synod
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In the coming months, the General Synod and then the diocesan synods will be considering legislation enabling bishops of the Church of England to ordain women to the office of priest, and making related provisions as to the manner and effect of this change in the law and practice of the Church of England. The purpose of this article is not to examine that draft legislation, which at the time of writing is still being subjected to line-by-line scrutiny in a Revision Committee of the General Synod, but to sketch in some of the legal background against which it was prepared. In particular, there is a fundamental issue: why is legislation needed? To which may be added: why is Parliamentary authority, expressed by the approval of a Measure, required for any necessary change in the Canons?

Type
Articles
Information
Ecclesiastical Law Journal , Volume 1 , Issue 5 , July 1989 , pp. 24 - 29
Copyright
Copyright © Ecclesiastical Law Society 1989

References

1. The Ordination of Women to the Priesthood (GS 104), paras. 332-333. Mr Woodeforde is identified as the source of the advice in an Opinion of Sir Harold Kent and others set out in GS Misc. 88 (1978), para. 149.

2. Bursell, R., “What is the Place of Custom in English Canon Law?” in issue no. 4 of this Journal at p. 15Google Scholar, citing Westbury, Lord in Bishop of Exeter v Marshall (1868) L.R. 3 H.L. 17.Google Scholar

3. August 1985. The opinion cited is a dissenting one, but the dissent rested on a different point.

4. See GS Misc. 88, para. 149.

5. For the opinion, see Appendix A to GS 415, Women Lawfully Ordained Abroad (1979)Google Scholar; for the presumption see Interpretation Act 1978, ss. 6, 22(1)(3) and Sched. 2, para. 2.

6. Report of Proceedings, vol. 19, p. 702.Google Scholar

7. Ibid., p. 703.

8. (1889)23 Q.B.D. 79.

9. At p. 95.

10. Olive v Ingram (1739) 7 Mod. 263Google Scholar, cited in the great case of Chorlton v Lings (1868) L.R.4 C.P.374, 381Google Scholar. (a woman could not register to vote)

11. GS Misc. 198, The Ordination of Women to the Priesthood: Further Report (1984), pp. 94–5.Google Scholar

12. GS 415, paras, 17-20, drafted by the present writer, and reproduced in GS Misc. 198 (1984), pp. 93-4.

13. Chancellor Calcutt's opinion is reproduced in GS Misc. 198 (1984), pp. 112-120.

14. See to similar effect Chancellor Calcutt, in para, 2(f) of his opinion; but Garland v British Rail Engineering Ltd [1983] 2 A.C. 751Google Scholar which he cites can no longer be relied upon on the relevant point: Duke v G.E.C. Reliance Ltd [1988] 1 All E.R. 626, H.L.Google Scholar

15. Directive, Article 1(1).

16. Directive, Article 2(2). Cf. Case 165/82 Commission of the European Community v United Kingdom [1984] C.M.L.R. 44Google Scholar (European Ct.) (male midwives).

17. Directive, Article 2.

18. Official Journal No. C172/80 of 2 July 1984.

19. Official Journal No. C343/1 of 24 December 1984.

20. See Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] Q.B. 401Google Scholar (European Ct.); Duke v G.E.C. Reliance Ltd [1988] 1 All E.R. 626, H.L.Google Scholar

21. Works (ed. Scott, ), vol. 3, p.90Google Scholar, Remarks on a Book entitled The Rights of the Christian Church.