Book of Order and Judicial Reference Group

Terms of Reference

To advise on judicial procedure, to examine papers and to consider the facts and circumstances which may be laid before it in cases of indictment, or any difficulty, and to give such counsel as may be expedient.

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1.1 The Group has continued to provide advice to the Church on legal and judicial matters, including the interpretation of the Book of Order.

1.2 The Group made submissions to the Judicial Commission of the Church on an appeal against a decision of the National Assessment Work Group not to accept a candidate for assessment as a student for the Ministry on the basis of her sexual orientation. The Group adopted a neutral stance on the appeal but made its submissions to assist the Commission, and to ensure that relevant information was put before the Commission.

1.3 The Group has prepared a statement on the Barrier Act 1697 and its application to Assembly decisions on the issue of the licensing, ordination or induction of practising homosexuals. A copy of this statement, dated 27 May 2004 is attached.

John Marshall
Convenor

<typohead type="2">A Statement from the Book of Order and Judicial Reference Group Regarding the Barrier Act 1697 – Appendix A-3 in the Book of Order (page 114)</typohead>

This statement is provided in response to correspondence received following the recent Judicial Commission decision delivered in October 2003 on an appeal by Deborah Gordon against a decision of the National Assessment Work Group.

The Barrier Act was adopted from the Church of Scotland and has been part of the Book of Order since the Presbyterian Church of Aotearoa New was constituted (see regulation 374 and Appendix A-3).

In summary it provides that certain legislative decisions of the Assembly cannot become binding until they are subsequently approved by a majority of Presbyteries, and passed by the next General Assembly.

The reasons given in the Act itself for this provision are: "that it will mightily conduce to the exact obedience of the Acts of Assemblies, that General Assemblies be very deliberate in making of the same, and that the whole Church have a previous knowledge thereof, and their opinion be had therein, and for preventing any sudden alteration or innovation, or other prejudice to the Church, in either doctrine or worship, or discipline, or government thereof, now happily established".

The Constitution and Laws of the Church of Scotland by James Weatherhead states: "This gives formal recognition to the fact that it would be bad practice to enact legislation which was liable to be ignored and disobeyed. Its purpose is not to prevent alteration and innovation as such, but to ensure that "General Assemblies be very deliberate in making of the same"."

The Assembly makes administrative, judicial and legislative decisions. (see regulations 371ff). The Barrier Act applies only to legislative decisions in matters of doctrine, worship, discipline and government of the Church which are to be "binding Rules and Constitutions of the Church".

Any proposed new legislative decision which falls into any of these categories must be made by the Assembly and then sent to Presbyteries for approving or not approving. If a majority of Presbyteries approve (not just a majority of those who may vote), the next General Assembly has the power to pass the measure into legislation. This means Barrier Act legislation cannot be binding until the next Assembly passes it into legislation, unless the Assembly adopts it ad interim. Obviously the next Assembly is not bound to pass the measure, even if it has been approved by a majority of Presbyeries. Once passed by the Assembly legislative decisions are then incorporated in the Book of Order.

The usual practice is for the Clerk of Assembly or the Book of Order and Judicial Reference Group to advise prior to or at Assembly that a recommendation containing a proposed legislative change is a "Barrier Act matter". The Assembly receives this advice and decides whether the change should be considered by Presbyteries under the Barrier Act. The final decision about what are Barrier Act matters rests with the Assembly.

The following paragraphs outline how the Barrier Act process applies to Assembly decisions about homosexuality.

In 1994 the Assembly made a statement about the existing approach of the Church in relation to homosexual persons in leadership. That statement included the following confirmation of the Assembly´s position:

"(3) For the sake of clarifying the current position of the Presbyterian Church of Aotearoa New Zealand and without prejudice to the decisions of the 1995 Assembly, Assembly confirms that:

(i) to date no Assembly of the Presbyterian Church of Aotearoa New has specifically endorsed the ordination of practicing homosexuals;
(ii) there are currently no specific regulations barring the ordination of homosexuals
(iii) there are procedures for objection prior to the licensing, ordination or induction of any person (p.87 1994 minutes)."

As this statement purported to state an existing approach, and was not legislative in nature, the Assembly did not send it down under the Barrier Act.

Throughout the 1990s the General Assembly approached the matter of the licensing, ordination or induction of practising homosexuals as a Barrier Act matter.

The recent Judicial Commission decision stated " that the view of the 1994 General Assembly viz that the Church has no policy on the licensing, ordination, or induction of practising homosexuals remains in force..."

Some correspondence has highlighted that the recent Judicial Commission decision is inconsistent with an earlier Commission decision given in 1995. The recent decision, while noting the earlier decision, appears to have decided not to follow it. Commissions are not bound by previous decisions but matters referred to a Commission are determined on the particular circumstances.

The Reference Group does not have a role in resolving apparent inconsistencies between Commission decisions. However it has advised the Assembly Executive Secretary that it would be wise to follow the reasoning of the recent Judicial Commission and its interpretation of the 1994 Assembly decision.

In light of the recent Judicial Commission decision and to assist with the deliberate decision-making of the General Assembly it is the opinion of the Book of Order and Judicial Reference Group that any decision which sought to establish a binding Rule for inclusion in the Book of Order on this matter should be referred under the Barrier Act.

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John Marshall
Convener