Sentenza 28 ottobre 1993
Regno Unito: Ambito di applicazione dell'Enabling Act e ordinazione femminile nella Chiesa di Inghilterra
High Court of Justice – Queen’s Bench Divisional Court. Sentenza 28 ottobre 1993.
Mr Justice Tuckey: I agree, but because of the importance of the case and in deference to the full arguments presented by Counsel, I think I should state shortly my reasons for doing so.
The Court’s task is to interpret the statute, that is to say what did Parliament intend by using the words in question, having regard to their ordinary and natural meaning, their statutory context, and the purpose for which the statute was passed.
So, firstly, what is the ordinary and natural meaning of the words “a measure may relate to any matter concerning the Church of England”? There is no dispute that the proposed Ordination of Women Measure is a measure “concerning the Church of England”. The words “any matter” are wide enough to include any and all matters; that is their ordinary, natural and quite unambiguous meaning in my judgment.
Secondly, is there anything in the rest of the statute which leads to the conclusion that the words should be given a more restricted meaning? The answer to that question is. I think, no. Section 3 makes it clear that measures may affect people’s constitutional rights. Section 3 makes it clear that a measure may amend or repeal any Act of Parliament, including the 1919 Act itself, subject to the entrenched position of the Ecclesiastical Committee and Parliament. These provisions do not support the contention that the acts enabling provisions were only intended to cover minor changes. The Constitution of the Church Assembly, which was annexed to the Act and the 1969 Synodical Government measure which replaced it, strongly support the contention that Parliament intended that the words “any matter” meant just what they said. Confining oneself to the position in 1919, one can see that the Assembly was empowered to discuss any proposal concerning the Church and make provision for it by seeking Parliamentary sanction in the way laid down by the Act, provided that any measure concerning doctrine, or the services or ceremonies of the Church, had first to be approved by a majority of each of the three houses of the Assembly, that is to say, the Parliament of the Church. This procedure allowed the Church to consider, debate and decide what it wanted, but recognised the State’s pre-eminent position by giving Parliament the right of veto. There is no reason to suppose from this legislation that any restriction was intended to be placed upon the uses to which this procedure could be put.
At various stages in his argument for the applicants Mr George asked or appeared to be asking the rhetorical question whether Parliament in 1919 could have intended the Church to make so fundamental a change as the ordination of women under the procedure laid down in this Act. With respect that is not the right question. What Parliament was doing was enabling the Church to decide who was eligible to be ordained subject to its veto. The ordination of women was not something which the Church considered then. All that Parliament intended was that the Church should have the right to consider, debate and decide such a question if and when they wished to do so, and to put that decision before Parliament for its approval or rejection.
Finally, does a consideration of the mischief at which the statute was aimed, (the cause and necessity of making the Act), justify a more restricted interpretation? The terms of the 1916 report which make it clear that, because Parliament lacked the time to do so, the Church should be given full power to legislate on Ecclesiastical affairs subject only to Parliament’s veto, provide a simple answer to this question, in my judgment.
Those, therefore, are my reasons for agreeing that this application should be dismissed.