THE MEANING OF CONSCIENCE

Conscience is a moral quality before it is a legal one.Footnote ² It is closely associated not only with right and wrong but also with knowledge, awareness, perception and experience.Footnote ³ Its derivation implies knowing with, not simply absorbing factual information, suggesting that there is something inherently communal as well as personal in its meaning. Legal dictionaries tend to use rather than define ‘conscience’, so that it is perhaps more frequently apprehended through its cognates and adjectival use. Thus, a ‘conscience clause’ is one recognising moral sensibility, and ‘conscientious objection’ describes protest in relation to personal ethical consideration, leading to a relaxation of a legal duty.Footnote ⁴

In legal and moral terms, conscience has a long-standing connection with religion. Their association sits comfortably within a natural law framework, where natural law is ‘a form of divine law’ through which

The principles of natural law are universal. For humanity, they are discoverable through the use of reason and the exercise of conscience, and should be used in the conduct of life, providing criteria against which to assess the legitimacy of behaviour.Footnote ⁶ The history of the relationship between natural law, reason and conscience is beyond the scope of this article but certain developments are worth noting. These include, albeit briefly, the work of St Thomas Aquinas, which marks a very different approach to that of later thinkers considered below, as well as the writing and judgments of certain early lawyers whose work invokes conscience.

For Aquinas, the principles of natural law are discerned by synderesis.Footnote ⁷ Synderesis is a habit; conscience, by contrast, is an act, the act by which we apply the principles discerned by synderesis.Footnote ⁸ Conscience acting on the principles of natural law is normatively binding, but human laws also bind because of conscience: ‘If they are just, they have binding force in the court of conscience from the Eternal Law from which they derive.’ Among the reasons for which laws are said to be just, Aquinas includes ‘when they are ordered to the common good’.Footnote ⁹ However, he also discusses circumstances in which conscience does not bind, including some instances in which conscience errs,Footnote ¹⁰ and cases in which human law forbids less than natural law.Footnote ¹¹ It is for this second reason that human law can neither prescribe all virtue nor prohibit all vice.

Laws are made for the whole variety of people, but

Law therefore focuses its prohibitions on what ‘the average man can avoid’ but its precepts cannot compel action ‘being done in the virtuous style of a good man’.Footnote ¹³ As human law cannot regulate the ‘interior habit’, a separation arises between the forum externum governed by human law, and the forum internum, which is not so governed.Footnote ¹⁴ For Aquinas, the two fora are intimately joined, the externum being to all intents and purposes the expression of the internum. Nevertheless, his distinction paves the way for a chasm which human rights law later encounters: if matters of conscience are not bound by human law as long as they remain private, conscience may not – indeed cannot – be the most appropriate faculty whereby to regulate public action for the common good.Footnote ¹⁵

Aquinas was concerned with moral, rather than legal, matters, but reasoning comparable to his appears in the fifteenth-century legal work of Christopher St German.Footnote ¹⁶ For St German, conscience consists in the application of moral knowledge to particular situations, and the best application of ‘any law of cunnynge’ to ‘any partyculer acte of man: foloweth the most parfyte the most pure and the moste beste conscience’.Footnote ¹⁷ Conscience is a moral faculty, dependent on the law of God that is found both in and beyond Scripture:

Such a combination of legal and moral thinking is not unique to St German. It also appears in case law, such that the co-inherence of law, morality and conscience can almost be described as a working assumption of the courts. This may be particularly claimed for the Chancery casesFootnote ¹⁹ but, as the words of a chancellor cited below indicate, was also true of the common law.Footnote ²⁰

Evidence has been adduced of judicial decisions in the common law courts ‘preferring to apply conscience over the requirements of law’.Footnote ²¹ Conscience was also drawn into the common law in the formation of substantive and administrative legal rules.Footnote ²² It is perhaps hardly surprising that it was significant in legal self-regulation, not least because of the severe salvific consequences for those at whose hands justice miscarried.Footnote ²³ Mediaeval lawyers across courts shared with writers from the New Testament onwards the assumption that conscience is resourced by the prescripts of reason and natural law and by the doctrines of the Church. They assumed a harmony between conscience and what is judicial, principled and faithful. During the seventeenth century, however, this consensus broke down, both at law and in religious and philosophical thought.Footnote ²⁴

Atkins v Temple (1626) concerned the ploughing of ancient meadow and pasture. The argument turned not to conscience but to precedent to find a basis for equity. The court ‘directed precedents to be produced’ and the chancellor

As if to extract the general principle behind these and other cases, in Cook v Fountain (1676), Lord Nottingham Ch declared that ‘with such a conscience as is only naturalis et interna, this court has nothing to do; the conscience by which I am to proceed is merely civilis et politica, and tied to certain measures’.Footnote ²⁶ Lord Nottingham was not immune from a forum internum conscience-based approach to equity. He rejected precedent in Lawrence v Berney, declining ‘to build upon such ill Foundations, and charging his own Conscience with promoting an apparent Injustice’.Footnote ²⁷ Nevertheless, these cases contribute to the emergence of a different consensus from that of earlier years, one prescient of later developments. The harmony previously assumed between conscience and what is judicial, principled and faithful can no longer be taken for granted, either in law or in religious and philosophical thought.Footnote ²⁸ This divergence continues in later centuries and may be exemplified through the work of two authors with legal connections: John Locke and Joseph Butler.Footnote ²⁹

John Locke discussed conscience in his Essay Concerning Human Understanding (1690). He separated it from its natural law and spiritual background, in part by denying that such principles as Aquinas would have discerned, by synderesis, exist. Locke conceded that people agreed on moral rules, but argued that they did so for a variety of reasons, ‘from their Education Company, and Customs of their Country’; ‘Conscience’, then, is ‘nothing else, but our own Opinion or Judgment of the Moral Rectitude or Pravity of our own Actions’.Footnote ³⁰ Locke's scepticism seems a long way from Aquinas’ trust in a conscience that acts ‘to witness, to bind, to incite, and also to accuse, to torment, or to rebuke’ in accordance with values which, if not themselves innate, were discernible by innate human faculties.Footnote ³¹

Joseph Butler, later Bishop of Bristol and Dean of St Paul's and subsequently Bishop of Durham, was influenced by Locke but also expounded a quite different approach to conscience, familiar from the natural law thinking noted above. In his Rolls Chapel sermons (1726), he cited Romans 2:15 to establish ‘what it is in man by which he is naturally a law to himself’: ‘the superior principle of reflection or conscience in every man, which distinguishes between the internal principles of his heart, as well as his external actions’.Footnote ³² Butler's ‘internal principles’ were proper ‘to each particular person's heart and natural conscience’.Footnote ³³ Conscience ‘carries its own authority’ as one of the ‘chief or superior principles’ in human nature.Footnote ³⁴ Butler did not reject but rather recast a theological view of conscience, for he concurred with older, natural law, thinking that conscience is given to us by God.Footnote ³⁵ After Butler, as the next section shows, conscience remained firmly in the provenance of religious thought and practice. Even so, just as Aquinas arguably anticipated a relegation of conscience to private life, so Butler's Sermons presaged developments whereby the rights of the human person whom conscience informs would of themselves constitute the grounds for its protection.

Changes in religious and philosophical thought were, however, no more linear and immediate than the changes in the legal world were undeviating and instantaneous. Forty years before Butler became Bishop of Bristol, Edward Stillingfleet, Bishop of Worcester, published A Discourse Concerning Bonds of Resignation of Benefices, in Point of Law and Conscience. Stillingfleet challenged the view that clergy could appropriately secure a benefice upon promise of its resignation; anyone ‘who pretends to a conscience’ should consider it inappropriate, he declared, even if they are told that the acquisition may be ‘fit to be condemned in Equity, but not in Law’.Footnote ³⁶ Stillingfleet might have taken a dim view of the diminution of the role of conscience in the courts of law but he called Edward Coke as his witness that:

Nearly two hundred years later, and writing as a Roman Catholic in the 1870s, John Henry Newman would also acknowledge the waning of what we might call a natural law view of conscience. Somewhat trenchantly, Newman argued that

Newman, however, continued to see that ‘conscience is the voice of God’, and he was sure that Anglicans, and indeed Wesleyans, shared his view.

CONSCIENCE IN CHURCH OF ENGLAND AND ROMAN CATHOLIC LEGAL NORMS

The canon law of the present-day Church of England would seem to vindicate Newman. Conscience has an internal but not privatised role. If it is to be quietened, its dictates must be in accordance with the Word of God. It is precisely because conscience is not only personal that Canon B 29 prescribes ‘the duty of all baptized persons at all times to the best of their understanding to examine their lives and conversations by the rule of God's commandments’. Where they have offended ‘by will, act, or omission’, they are ‘to bewail their own sinfulness and to confess themselves to Almighty God with full purpose or amendment of life’, that they may receive from him the forgiveness of their sins’.Footnote ³⁹ The Canon regards the general confession of the congregation in the liturgy as the most appropriate place for this repentance and absolution. However, it also acknowledges that not all will find comfort in this way and so instructs: ‘any who by these means cannot quiet his own conscience, but requires further comfort or counsel, let him come to some discreet and learned minister of God's Word’.Footnote ⁴⁰ This duty of the examination of conscience is imposed also on ministers, who are to be ‘diligent’ in its exercise. By this means, all Christian people can be assured that they live in accordance with the law of God.Footnote ⁴¹

Roman Catholic canon law also treats conscience as the faculty whereby to discern what is right and wrong in the Christian life. For example, seminarians are advised to seek spiritual directors to whom they may confidently open their consciences (Canon 246(4)) and religious are frequently to examine their conscience (Canon 664) for the conversion of their inner life. Laity are to confess their grave sins after diligent examination of conscience (Canon 988(1)). At law, a judge must appraise proofs in accordance with his or her conscience, in order to find moral certitude before sentencing (Canon 1608(3)).Footnote ⁴²

In both the Roman Catholic Church and the Church of England, conscience, as rooted and grounded in the Word of God and the teaching and law of the Churches, continues to direct Christian behaviour. In secular law, however, and particularly in human rights law, as the historic trends considered above predict, conscience is increasingly seen as pertinent to the private person and independent of public religion. Religious concerns may be (but do not need to be) a facet of private conscience.

THE PROTECTION OF CONSCIENCE

Article 9 of the European Convention on Human Rights (ECHR) makes the protection of conscience axiomatic for human rights law:

However, human rights case law shows that the way in which conscience is understood in a human rights context has changed. In 1974, Hynds v Spillers Bakery held ‘that “grounds of conscience” involved a belief or conviction based on religion in the broadest sense or on intellectual creed as contrasted with personal feeling’.Footnote ⁴⁴

Hynds pre-dated both the ECHR and the UK Human Rights Act. Nevertheless, its view is clear that, to quote Locke, conscience must be grounded on something other than ‘our own Opinion or Judgment of the Moral Rectitude or Pravity of our own Actions’ if it is to merit protection.Footnote ⁴⁵ Some forty years later, in Eweida v United Kingdom, the European Court of Human Rights (ECtHR), arguably softened this, holding that ‘the right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance’.Footnote ⁴⁶

Although Sahin v Turkey noted that ‘Article 9 does not protect every act motivated or inspired by a religion or belief’,Footnote ⁴⁷ there is an increasing tendency, not evident in Hynds, for religious freedom to be subordinated to that of conscience, rather than for religion to be the guide and guarantor of conscience.Footnote ⁴⁸ Sahin v Turkey, Kosteski v Former Yugoslav Republic of Macedonia and Eweida v United Kingdom all hold that ‘religious freedom is primarily a matter of individual conscience’.Footnote ⁴⁹ Sahin v Turkey explicitly based Article 9 freedoms on the subjective person:

The convictions may be based on shared or (it would seem) unique assumptions. They may need to be cogent and communicable, but they are essentially private. This is a very different view from that taken in Hynds: for Hynds, conscience depended upon religion, but for Sahin there is an important independence.

Human rights cases are fought for the freedom not only to hold but also and more particularly to manifest deeply held and often religious beliefs. Indeed, the court itself demands evidence of such manifestation. Thus, Kosteski v Former Yugoslav Republic of Macedonia sought evidence of life lived in accordance with the religious belief claimed: ‘it is not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation when that claim concerns a privilege or entitlement not commonly available’.Footnote ⁵¹ The court agreed that ‘the notion of the state sitting in judgment on the state of a citizen's inner and personal beliefs is abhorrent’, while maintaining that it was nevertheless not ‘unreasonable that an employer may regard absence without permission or apparent justification as a disciplinary matter’.Footnote ⁵² In a manner reminiscent of the place of conscience in the Christian life, in which inner belief and moral dictate give rise to external act, the court looks, in part, to exhibited behaviour as evidence of belief if it is to protect either conscience or religion.

Eweida v United Kingdom concerned the demonstration of belief through behaviour. Eweida joined four separate United Kingdom cases, involving British Airways, the Royal Devon and Exeter NHS Foundation Trust, Islington Borough Council and Relate, Avon. The ECtHR upheld only the claim of the first applicant, Ms Eweida, in relation to Article 9. It held that the right to inner freedom of religion was absolute, encompassing the more limited freedom to manifest that religion within the constraints necessarily imposed by law for the well-being of a democratic society. The court stated that if the cogency requirements were satisfied, the state's duty of neutrality and impartiality is incompatible with any power on its part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.Footnote ⁵³

However, this is arguably disingenuous. The court does take a view on ‘the ways in which those beliefs are expressed’; were it not to, it could not find in favour of, or against, petitioners who argued that their expression of their beliefs were compatible with Article 9. In this instance, supported by the fact that British Airways had changed its uniform policy, the court found the expression of beliefs that offered no ‘real encroachment on the interests of others’ to have been entirely within ‘the first applicant's right to manifest her religion’ and ‘in breach of the [State's] positive obligation’ to protect that right.Footnote ⁵⁴ The basis on which freedoms of thought, conscience and religion are protected under modern human rights law may be that of subjective human identity. The actual operation of the court in affording that protection, however, demonstrates that the exercise of conscience is not expected to be without effect in the public domain.Footnote ⁵⁵

This, together with the evidence of a dissenting judgement in Eweida, intimates the delicate relationship now subsisting between conscience and religion. Two judges in Eweida spoke of the ‘fundamental difference between the two’. ‘Conscience – by which is meant moral conscience—is what enjoins a person at the appropriate moment to do good and to avoid evil.’ It ‘may be nurtured by religious beliefs’, but ‘is not necessarily so’. Rather, it is ‘a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed’.Footnote ⁵⁶ The judges then cited Cardinal Newman to claim the superiority, and indeed anteriority, of conscience over religion: ‘Conscience may come into collision with the word of a Pope, and is to be followed in spite of that word.’Footnote ⁵⁷ It is hard to see Aquinas disagreeing – but impossible to imagine his condoning the implied discarding of religious faith.

WOMEN'S ORDINATION

The General Synod of the Church of England voted in favour of legislation to enable the ordination of women as priests on 11 November 1992.Footnote ⁵⁸ Conscience featured surprisingly rarely in the debates and reports leading up to this decision, but substantially shaped the final legislation and supporting quasi-legislation. In this, the Church of England differed from other provinces of the Anglican Communion which passed specific resolutions concerning the place and protection of conscience in the response to women's priestly ordination. The General Synod of the Anglican Church of Canada resolved in 1975 that none of its clergy or laity

In 1977, the House of Bishops of the Episcopal Church in the USA asserted: ‘no Bishop, Priest, or Lay Person should be coerced or penalized in any manner, nor suffer any canonical disabilities as a result of his or her conscientious objection to or support of … the ordination of women’.Footnote ⁶⁰ However, these conscience clauses did not last; both were gone within a decade. That of the Episcopal Church was not adopted beyond the House of Bishops and so never possessed canonical authority. That of the Canadian Church was revisited in 1982.Footnote ⁶¹ In 1986, its General Synod ceased application of the conscience clause to those new into ministry and dropped the word ‘conscience’ from its resolution altogether.Footnote ⁶² It is tempting to suggest that conscience was becoming as charged a concept for the Church in North America as it was in England.

The Church of England noted what had happened elsewhere. In 1986, the same year in which the Anglican Church of Canada moved away from special provision for the newly ordained, the Church of England published what might be appropriate provision for England – and did so before conscience dominated its own debates. The Ordination of Women to the Priesthood (GS738) reviewed the North American experience and ‘deliberately used the term “safeguards”’, in part ‘to get away from the emotive language of “conscience clauses”’.Footnote ⁶³ In the eventual English legislation, care would be taken to protect the consciences of those for whom women's ordination would be unacceptable. By the provisions of the supporting quasi-legislation, the Episcopal Ministry Act of Synod 1993, provincial episcopal visitors (additional suffragan bishops for each province) would be consecrated to give extended episcopal care to traditionalist parishes, people and priests who could not accept women's ministry.Footnote ⁶⁴ Financial arrangements were made for those who felt compelled to leave the Church of England once its bishops ordained women as priests.Footnote ⁶⁵ These provisions felt hard-won,Footnote ⁶⁶ yet, as GS738 suggests, it had already been clear some eight years before the vote both that they would materialise and that there would be no talk of ‘conscience’ arrangements – although it is now a principle of canon law throughout the Anglican Communion that ‘special provision may be made for parishes which in all conscience cannot accept the ministry of their own bishop’.Footnote ⁶⁷ Indeed, it is possible that the language of conscience reappeared in the Church of England's debates in the light of parliamentary usage rather than at the Church's own instigation for, where the Church feared to tread, Parliament walked.

The Priests (Ordination of Women) Measure 1993 was debated at length in both Houses. The Second Church Estates Commissioner, Mr Michael Allison, told the Commons of its ‘elaborate and comprehensive set of safeguards’ to ensure that opponents of women's priesting ‘are not asked to act against their conscience’.Footnote ⁶⁸ Parishes could prevent women being appointed as an incumbents, priests-in-charge or team vicars. The Church of England ‘uniquely among these provinces of the Anglican Communion who have ordained women as priests’ would compensate clergy who resigned their office.Footnote ⁶⁹ Not all MPs were convinced. The Rt Hon Tony Benn, MP for Chesterfield, inquired: ‘if it is a matter of conscience, how many people have gone to the stake for exercising their consciences?’ The majority, however, supported the attempts ‘to make sure that the rights and liberties of Her Majesty's subjects were protected’ without any need for extensive suffering.Footnote ⁷⁰

The Lords, too, were supportive. Lord Marlesford spoke in favour of both Measures and on the basis of conscience:

He explained his distinction between ‘moral’ and ‘conscience’ by analogy. Conscience issues were comparable to cases of people who preferred a doctor of their own gender. ‘Arrangements can be made, have been made, and must be made to meet those feelings.’ It would be unthinkable, morally, to suggest that there should not be male and female doctors but entirely appropriate to ‘adapt to the conscience of those who disagree with us’. His words are reminiscent of the ‘emotive’ anxiety of 1986 and associate conscience with feeling, sentiment, even passion, but not with morality or, except as the specific case required, religion.

The emotive note was struck again when the General Synod debated the question of women bishops. There were clarion calls for the protection of the conscience of those dissenting. In 2004, David Banting, fighting prospective ‘tyranny’ against opponents, had asked

Prebendary David Houlding spoke more in sorrow than in anger in November 2012 but there is no mistaking his awareness of the emotional power of conscience:

The tone is reminiscent of that which GS738 sought to avoid in 1986. Dr Rosemarie Mallet, in favour of women's episcopal ordination, noted not only the emotional pain associated with conscience but also the power of another's conscience to cause an individual pain:

In July 2013, Miss Prudence Dailey, like the Church nearly thirty years before, reflected on the experience of the Anglican Church of Canada:

Aching hurt had become conscience's new normative association. A faculty or habit which once governed an individual's action seemed now rather to feel the individual's response to the actions of others. By the time of these speeches, however, it was clearly a matter of ‘when’ not ‘if’ the Church of England would consecrate women bishops. It was much less clear by what means it could be a fully valid position, in a Church of England with bishops of both genders, to be unable, in conscience and on theological grounds, to receive the priestly and episcopal ministry of women.Footnote ⁷⁶

The concerns of scriptural and traditional truth required Synod to effect ‘a fair balance between competing interests’ comparable to that discussed in Eweida.Footnote ⁷⁷ Both those supporting, and those opposing, women's ordination as bishops, also needed to accept that the exercise of jurisdictional authority by the diocesan bishop, whether male or female, should actually remain intact while not divesting himself or herself of any of his or her functions.Footnote ⁷⁸ Emotionally charged appeals to conscience did not initially enable Synod to achieve this jurisdictional clarity; in 2012, the draft Measure fell. Furthermore, and in keeping with the argument of this article concerning the changed relationship between conscience and religion, the final legislation and accompanying House of Bishops’ document made no explicit mention of conscience at all.

The use of the word ‘conscience’ in debate suggests two reasons for this silence. First, in debate (although as discussed above, not in the Church's liturgical and prayer life) conscience had accrued almost too much emotional currency to be discussed in ways amenable to legislative or quasi-legislative expression. Second, and not unrelated, the word was used almost exclusively by those opposed to the ordination of women. This imbued it with connotations of pain, oppression and exclusion which subtly changed its moral valence. Within the Anglican Communion, such a possibility was also seen in relation to the Anglican Covenant, which seemed to some to risk ‘achieving uniformity at the expense of conviction and conscience’.Footnote ⁷⁹ In the Church of England's debates on women's episcopacy, to respect conscience came to mean allowing a minority to flourish, not only because that minority's arguments satisfied the claim to ‘a certain level of cogency, seriousness, cohesion and importance’,Footnote ⁸⁰ but also and perhaps primarily because the mission of its conscience ‘to witness, to bind, to incite, and also to accurse, to torment, or to rebuke’ was deployed as effectively externally against the majority as it was internally by the members of that minority. This led, at least within the General Synod debate (and again in disjunction from the Church's liturgical and prayer life), to an ecclesial understanding of conscience as a faculty of feeling and even passion belonging to a minority, rather than one of ‘knowledge ordered towards something’ for and within the whole Body of Christ.Footnote ⁸¹

As with other fluctuations in the meaning of conscience considered in this article, this ecclesial shift was neither immediate nor total. A sense of the inner moral challenge posed by conscience remains. In November 2014, for example, the Archbishop of York spoke of the need to act equitably towards the poor, describing the increase in food poverty and malnutrition in the north of England, ‘which disgrace us all and leave a dark stain on our consciences’.Footnote ⁸² Conscience also, occasionally, appeared for those supporting women's episcopal ordination: in 2009, Kevin Carey asked, ‘Have we who support this Measure not got consciences too?’Footnote ⁸³ There were even some attempts to offer a basis of meaning for conscience that was less rooted in pain. In 2012, the Bishop of Chichester described Synod's commitment ‘to hearing all the voices of theological conscience’, whether minority or not.Footnote ⁸⁴ In a completely different debate, the Bishop of Chelmsford made a speech which, incidentally for his purposes, demonstrates an older understanding of conscience as a guide to one's own behaviour whether or not one succeeds in influencing others. The Bishop cited Bishop George Bell's opposition in the House of Lords to allied bombing:

These are, however, relatively isolated examples. While some voices criticised the Church of England's continued exemption from the Equality Act in regard to women's ministry, others consciously sought to avoid the secular language of rights and bias, and thus potentially depriving the conversation of its lessons, rejecting any sense that ‘we are discriminators when we hold theological views as a matter of conscience’.Footnote ⁸⁶ In the end, the quasi-legislative document, the House of Bishops’ ‘Declaration on the ministry of bishops and priests’, accompanying the final Bishops and Priests (Consecration and Ordination of Women) Measure 2014, spoke not of theological conscience but of theological conviction in its arrangements for parochial church councils (PCCs) to pass a resolution whereby, ‘on grounds of theological conviction’, ministry arrangements would be made.Footnote ⁸⁷ Conversation between the bishop and the PCC would establish that ‘the nature of the theological conviction that had prompted the PCC to pass the resolution’ pertained ‘to gender and ordained ministry’.Footnote ⁸⁸ Group protection was not afforded to the same extent as when women were ordained priests, and perceptions of ‘group’ largely gave way to those of ‘minority’.

Considerable parliamentary time was given to the question of women in the Church of England's episcopate. Concerns of conscience were not absent. During an emergency House of Commons debate following the defeat of draft legislation in November 2012, the MP for Hertsmere, James Clappison, asked whether the Church should make ‘every effort to accommodate those of faith and conscience who have a long-standing doctrinal view’, even one that seemed old-fashioned.Footnote ⁸⁹ The Rt Hon Ben Bradshaw MP replied that ‘the Church should make every reasonable effort to accommodate those views, but the feeling of the overwhelming majority, both of Synod and of the Church of England, is that concessions have gone far enough’.Footnote ⁹⁰ The debate reflected a marked change in attitudes since the ordination of women as priests in the 1990s: ‘when a resurrected Women Bishops Measure comes before the House, the main danger for it is not that it will contain insufficient safeguards for its opponents but that it will contain too many’.Footnote ⁹¹

When the House of Lords debated the approved Measure in 2014, both they and the Commons conceded that the Church's premises were not necessarily those of secular human rights law: ‘this is not in the end about gender discrimination. It is not about society's view on equality; the church has made its decision for its own reasons. It got there for theological and ecclesial reasons.’Footnote ⁹² It was clearly a relief that the Church of England had, for whatever reasons, come down on the side of ‘the right thing to do’.Footnote ⁹³

The Church of England's final arrangements for women bishops and their opponents rose above the emotivism of its debates and succeeded, in affording collective protection of conscience for a minority religious organisation within itself exceeding the protection offered by Article 9, despite eschewing any talk of rights and resisting a secular human rights agenda. The final legislation and associated documents showed the Church of England disagreeing more constructively than had been possible in the past. Conscience, despite all the vicissitudes to which history had subjected its meaning, did seem to have retained, however invisibly and inchoately, a role in directing behaviour in accordance with moral probity. Its remaining strength, however, arguably came as much from remaining unnamed and unidentified as from an appreciation of its long pedigree in directing Christian action.

SINCE WOMEN BISHOPS

The Bishops and Priests (Consecration and Ordination of Women) Measure 2014 was accompanied by the House of Bishops’ ‘Declaration on the ministry of bishops and priests’. This contains five guiding principles which, accompanied by ‘simplicity, reciprocity and mutuality’, aim to help the Church of England live in harmony even though some of its ministers, including bishops, and some of its laity cannot accept the ordination of women as priests and bishops.Footnote ⁹⁴ The House of Bishops commended the five guiding principles to the General Synod in May 2013, when it submitted legislative proposals for women's episcopal consecration. The Synod welcomed the principles in its resolution of 20 November 2013. In November 2014, the House of Bishops also made Regulations to establish a dispute resolutions procedure with regard to their Declaration and its principles. This is now included as supplementary material in the Canons of the Church of England, and the Regulations themselves are made under the authority of Canon C 29. The Regulations require the archbishops to appoint an independent reviewer to consider grievances brought against an office-holder in the Church of England in relation to the House of Bishops’ Declaration. Legitimate grievance includes action taken or failure to act in accordance with certain specified paragraphs of the Declaration. In hearing grievances, the independent reviewer is to ‘act impartially and fairly’ and ‘have regard to the “five guiding principles”’ of the Declaration.Footnote ⁹⁵ There have been two independent reviewers appointed, each of which has published a report on a grievance he has heard.

The first reviewer, Sir Philip Mawer, considered the appointment to the See of Sheffield. The bishop initially appointed did not ordain women and withdrew his candidacy after widespread opposition to his appointment became apparent. Sir Philip's report is almost entirely silent on the question of conscience. It notes that significant numbers within the Diocese of Sheffield could not in conscience accept women's ministry and cites the diocesan profile: ‘as a diocese we recognise that these different views are reasonably held in good conscience and for good theological reasons within the spectrum of Anglicanism’.Footnote ⁹⁶ It draws out five themes raised by four authors, including that, while diocesan bishops who did not ordain women

It explains why the bishop in question, Bishop Philip North, could not ordain women, citing his own words:

Finally, it cites Professor Martyn Percy's claim that he is

but takes issue with Professor Percy's understanding of ‘mutual flourishing’.Footnote ⁹⁹

For the purposes of this article, the report demonstrates the extent to which the Church of England has left ‘conscience’ behind as a means whereby to determine the right course of action in particular circumstances. The report notes that

The silent space aching to be filled by ‘conscience’ is eloquent. Its replacement by ‘conviction’ clearly does not do justice to the Church's need for theological grounds for guiding human endeavour.

The absence of conscience as an active faculty of ongoing discernment in the Sheffield nomination review is echoed in the Faith and Order Commission's publication, The Five Guiding Principles: a resource for study, and in the report of the second independent reviewer. In the Resource, conscience takes a stand rather than discerning a route. Thus, the Resource accepts that ‘not every member of the Church of England may, in conscience, feel able to receive the sacrament at every celebration of the Eucharist’.Footnote ¹⁰¹ It recognises that conscience might demur in certain circumstances, but references the House of Bishops’ Declaration in which such demurring is arguably of no effect: ‘all ministers of the Church of England will be able, in good conscience, to take the oath’ of canonical obedience to the bishop, because ‘doing so adds nothing legally to the duty of canonical obedience, which already exists in law’. It is perhaps not surprising that the second independent reviewer's report does not even mention ‘conscience’, speaking once of ‘conscientious reasons’ but preferring in the main to stay with the language of conviction and theological conviction.Footnote ¹⁰²