gsmisc764b by HC120913153719


									                                             GS Misc 764B


                 A background note

The current position

1. The current position as regards the election addresses of
   candidates in elections to the House of Laity of the
   General Synod is regulated by Rule 39(6) Church
   Representation Rules. Incorporating the changes given
   Final Approval by the Synod at the July 2004 group of
   sessions (referred to in paragraph 3 below) it reads:

           “If any of the candidates so request the
           presiding officer shall despatch to every elector
           election addresses from those candidates being
           not more than one sheet of A4 paper. One copy
           of the address shall be provided by the
           candidates at their own expense and be
           delivered or sent by electronic mail to the
           presiding officer by such date as he shall
           determine being not less than seven days after
           the close of nominations. The presiding officer
           shall be under no obligation to despatch to
           electors election addresses which are received
           after the due date or which are not in the
           prescribed form.”

   Substantially the same provision is made by Rule 20(4)
   Clergy Representation Rules in the case of the
   proctorial elections.

2. Thus, as matters stand, candidates in both the lay and
   proctorial elections are under no obligation to produce
   an election address. And if they do, there are no
   requirements as to the contents of the election address.
   Nor do presiding officers appear to have any powers to
   enable them to give directions as to the contents of
   election addresses (subject, probably, to an implied
   power to require the removal of any material which
   they reasonably consider to be defamatory or otherwise

3. The issue of election addresses was considered in the
   course of the revision of the recent Synodical
   Government legislation. As a result, responsibility for
   the copying of election addresses was transferred to the
   presiding officer and provision was made for the
   submission of an address in electronic form. However,
   no proposals were made to the Revision Committee for
   any changes as regards the content of addresses.

The proposals made by Durham Diocesan Synod

4. The effect of the motion, if passed, would be to require
   the introduction of a resolution, in the form of a
   statutory instrument, to amend Rule 39(6) Church
   Representation Rules so that election addresses of
   candidates in lay elections to the General Synod should:

          include details of any “Church related”
           organisation, society, movement or association:

               o to which a candidate belongs or which
                 they support or to which they are
                 affiliated (either directly or “through
                 parochial links”); and
               o “which could affect their voting
                 intentions in General Synod in matters
                 of doctrine or ecclesiology”; and

         include “a brief resume” of the “aims or
          policies” of such organisation etc.

5. A number of comments can be made on this, as

         The stated aim of the proposed disclosure
          requirement is “to ensure transparency for
          electors”. However, that aim might be thought
          to be frustrated if candidates remained free to
          decide not to produce an election address at all.
          That being so, the question would seem to arise
          of whether Rule 39(6) should be further
          amended to require candidates to produce an
          election address.

         Imposing any disclosure requirement could
          increase the scope for appeals against the result
          of an election, on the ground that a candidate
          had failed to make the required disclosure and
          that such failure could have affected the
          outcome of the election. Any increase in the
          number of election appeals would of course
          have cost implications.

   The more broadly any disclosure requirement
    was expressed, the more likely it would be that
    it would be breached inadvertently (eg, if the
    requirement were as proposed in the motion,
    because the candidate was simply unaware that
    a parish in which they worshipped was affiliated
    to a particular organisation or because they
    described its “aims or policies” inaccurately).

   Similarly, the less clearly any disclosure
    requirement was expressed, the greater the
    potential for appeals would be. In that
    connection, a number of issues of interpretation
    would seem to arise on the requirement
    proposed in the motion. (They include what is
    meant by a “Church related organisation” and
    “matters of doctrine or ecclesiology”, and the
    relationship between a candidate’s membership
    of an organisation and their “voting
    intentions”.) Any uncertainty could also, of
    course, present presiding officers with
    difficulties in seeking to enforce the disclosure
    requirement in the course of an election.

   Presiding officers would in any event have to
    give consideration, as election addresses were
    submitted, to whether there was any ground for
    believing that the obligation had not been fully
    complied with (eg by reference to any
    information they possessed as to a candidate’s
    membership of Church organisations or the aims
    of any organisation of which a candidate
    declared themselves a member).

          Finally, as the briefing paper prepared on behalf
           of the Durham Diocesan Synod makes clear, the
           question arises of whether, if the provision it
           proposes for lay elections were accepted,
           corresponding provision should be made for
           proctorial elections.

   Implementation of the Durham DSM

6. As to the implementation and timing of the changes
   proposed in the motion, any Resolution to amend Rule
   39(6) Church Representation Rules would require the
   approval of the Synod by a two-thirds majority: see
   Standing Order 35(d)(i)(4). It would then have to be
   laid before both Houses of Parliament under the
   ‘negative resolution’ procedure (under which either
   House could resolve, within 40 days of the laying of the
   Resolution, that it should not take effect).

7. Any change to the position in the case of proctorial
   elections would need to be made by a separate
   instrument, amending the Clergy Representation Rules
   That would only require a simple majority and would
   not need to be laid before Parliament.

8. Were the Synod to approve a Resolution to amend Rule
   39(6) at the July 2005 group of sessions, it would not
   seem to be possible in practice for it to come into force
   in time for it to apply to the 2005 elections to the
   Synod. The provisional timetable for those elections
   envisages that the current Synod would be dissolved on
   12th July, with electors being notified of the election
   timetable and issued with nomination papers no later
   than 19th July. The position as regards election

          addresses would accordingly need to have been settled
          by the latter date at the very latest. (In fact, guidance
          has already been issued to dioceses about the conduct
          of the elections, on the basis of the current legal
          position, which would accordingly have to be re-
          circulated if the position as regards election addresses
          were changed.) But, because the Parliamentary
          processes would not have been completed until the end
          of the 40-day period referred to above (which would
          not run whilst Parliament was adjourned over the
          summer break1), the status of the change proposed to be
          made by the Resolution would remain uncertain until
          much later.

Stephen Slack
Church House
Chief Legal Adviser

London SW1

January 2005

    By virtue of s.7(1) Statutory Instruments Act 1946


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