Ecclesiastical Law Society Working Party, Interim Report (September 2020)
Strong criticisms have recently been made of the disciplinary procedure provided by the 2003 Measure, both by accused clergy and their accusers. The report cited above seeks to address these.
There seem to be 3 criticisms
(1) delays in processing complaints
(2) failure to communicate, i.e provide information, even about the particulars of a complaint and
(3) lack of support for both accused and accuser.
Such treatment naturally causes distress. It is, of course, a depressingly familiar feature of litigation and quasi-litigation.
The report observes that reform of clergy discipline has not been very successful in the past. From 1840 to 2020 ‘a series of statutes and Measures introduced new offences and new [disciplinary] processes … a repeated pattern over 180 years: dissatisfaction with the then current system led to the introduction of a new one, only for that itself to be the subject of criticism not long after it was brought into effect’ (para 10).
Another commentator took an even longer view of history: ‘devising a thoroughly satisfactory system of ecclesiastical courts … [is] a problem which has baffled the best brains of Christendom for more than 1000 years’ (Crockford Prefaces, OUP 1947, p.18).
The Ecclesiastical Jurisdiction Measure 1963 was the principal statute regulating clergy discipline prior to the 2003 Measure. 30 years later, Moore’s Introduction to English Canon Law drily observed that the 1963 Measure ‘swept away a number of tribunals and procedures … The machinery which has gone was complicated and cumbersome. The machinery which has taken its place is, unfortunately, no less so’ (3rd edition, 1993, pp119-120).
The protection afforded by the cumbersome 1963 Measure applied only to beneficed clergy. Licensed clergy were at the mercy of their bishops. Canon C12(5) originally provided that ‘Any bishop may revoke summarily and without further process, any licence … for any cause which shall appear to him to be good and reasonable …’. The bishop was required to hear the licensee first, and the licensee had a right of appeal to the Archbishop. However, the bishop did not have to prove misconduct, and the licensee had no right to an independent court or tribunal.
Sir Mark Hedley observed that ‘The Clergy Discipline Measure … whatever its defects … is at least better than what had gone before 2003’ (‘Practical Aspects of the Clergy Discipline Measure’ Lecture, October 2017). The report does not deny that the 2003 Measure is indeed an improvement on the previous 1963 regime. It provides a single disciplinary regime for both beneficed and licensed clergy (cf.s.8(2)). Disputed complaints have to be tried and punished by a tribunal, not by the bishop. As the report observes, ‘bishop’s disciplinary tribunals are, despite the nomenclature, truly independent bodies over whose decisions … the bishop has no control’ (para 9).
Not only the trial but also the prior investigation of the complaint is independent of the bishop. It is carried out by the designated officer, a national official. The holder of that office observed that the designated officer ‘is [not] counsel for the complainant … [but] is independent of the complainant … and the bishop … [like] counsel for the Crown in a criminal trial, [the designated officer] puts the case for the victim but … does not represent the victim, and … acts impartially throughout’ (Adrian Iles, ‘The Clergy Discipline Measure 2003’ (2007) 9 Ecclesiastical Law Journal 10, p.19)
Thus, by improving on its predecessor, the 2003 Measure has rather bucked the trend of the last 180 years (perhaps even the last 1000 years!). A proposal for changing it should therefore be treated with especial caution.
Nevertheless the report makes 2 criticisms of the Measure
(1) the wide ambit of ecclesiastical offences / misconduct
(2) the absence of a procedure for dealing with minor complaints and grievances, ‘a major error’ (para 7).
In practice, it seems that almost all disciplinary complaints are concerned with the vicar’s behaviour, rather than specific breaches of duty or disobedience. The Ecclesiastical Jurisdiction Measure 1963 provided an offence of ‘conduct unbecoming the office and work of a clerk in Holy Orders’ (s.14(1)). The Clergy Discipline Measure broadened this offence to ‘conduct unbecoming or inappropriate … ‘ (s.8(1)).
It may be doubted whether the word ‘inappropriate’ really adds anything much to ‘unbecoming’. However, the ambit of misconduct is undeniably very wide. The slightest clerical faux pas could be described as ‘inappropriate conduct’.
Despite the apparent criticism, the report does not propose a narrowing of the ecclesiastical offence. It wisely rejects a regime of ‘detailed rules and regulations and fleshing out of principles’ of what does or does not constitute inappropriate behaviour (para 42). Such a regime would be ‘too interventionist in [clergy] personal lives and too restrictive of their practice of ministry’ (para 42). It would create an undesirable bureaucracy or ‘industry’ of ‘professional expertise’ (para 46).
Hedley pointed out in his lecture that ‘standards of behaviour required of the clergy are necessarily high’. But it is necessary to distinguish minor, though genuine, grievances about a vicar’s lapses of tact and courtesy from more serious matters.
Therefore, despite its professed caution about legislative reform (‘We are acutely aware of the risk …’ (para 10)), the report proposes 2 quite radical changes to the Clergy Discipline Measure:
(1) a new preliminary stage for assessing complaints when they are first made and
(2) the creation of 2 ‘tracks’ for processing misconduct case – 1 track for ‘lesser’ misconduct, another for ‘serious’ misconduct.
At present, the 2003 Measure provides that a complaint is referred to the registrar for preliminary scrutiny (s.11). This scrutiny is limited to ‘forming a view as to whether or not …
 the [complainant] has a proper interest … and …
 there is sufficient substance in the complaint to justify proceeding with it’.
The report proposes that the complaint should instead be referred, not to the registrar, but to an assessor. The assessor may be ‘a lay person who from their own secular work experience has [appropriate] skills’. Or the bishop could appoint an archdeacon to be the assessor (para 91).
The assessor’s complaint handling function will be considerably greater in scope than the registrar’s preliminary scrutiny. The assessor will not merely scrutinise the written complaint, but actually institute an enquiry on the basis of it. He will speak to both the complainant and the accused clergyman (para 94). Both parties ‘would be asked to provide the assessor with evidence in support of their respective contentions’ (para 95).
Having completed this enquiry, the assessor will report to the bishop. The bishop may then proceed as follows
(1) attempting conciliation / resolution
(2) dismissing the complaint
(3) to ‘having concerns about the health of the cleric’
(4) or ‘having concerns about the capability of the cleric’ or
(5) finding misconduct.
Thus the enquiry will not necessarily be limited to the specific complaint. It extends to the accused clergyman’s health and general capability for office.
(1) is evidently the preferred course. The assessor will be expected to settle the dispute between the parties, as well as investigate it, if possible (para 98).
However, if misconduct is found (per (5)), the bishop will then have to decide ‘whether it is serious or lesser misconduct, and allocate it to the appropriate ‘track’ (para 111).
Serious cases will continue to be dealt with by reference to a tribunal. However, lesser misconduct cases that cannot be settled by agreement will be decided by the bishop alone, on the basis of the assessor’s report (para 115).
The report proposes that ‘the bishop should have the power to impose penalties, without consent, penalties falling short of prohibition … principally rebuke and injunction, and might also include conditional deferment’ (para 116). (At present, conditional deferment is only possible with consent.) An administrative rather than a judicial procedure. Inquisitorial not adversarial. No tribunal and no lawyers. The report candidly admits that ‘our proposal [is] to keep out lawyers’ (para 118). However, the penalised clergyman would have a right of review or appeal (para 119).
These proposals are hardly favourable to accused clergy. The assessor’s enquiry is bound to take longer than the registrar’s scrutiny. The activism of the assessor’s function may result in additional complaints to the one which prompted the enquiry. It may even start a bandwagon rolling, positively encouraging parishioners to complain.
Empowering the bishop to impose penalties unilaterally, without consent, is a major reversal of the policy of the Clergy Discipline Measure. This proposal would repatriate powers from the tribunal to the bishop. It is a chilling echo of the pre-2003 regime over licensed clergy.
It is true that the bishop could not actually remove an accused clergyman from office. But an injunction is still an interference with the clergyman’s tenure. Conditional deferment of a complaint will also prejudice tenure if a subsequent complaint is made. The clergyman’s career and reputation will be damaged.
Hedley suggested in his lecture that, when processing complaints, ‘the question of threshold needs to be addressed’ i.e the ‘threshold’ from minor to serious misconduct. It is not clear how a 2 track procedure will identify this threshold, any more than the present 1 track procedure. As mentioned, the report eschews detailed definitions of misconduct.
But the procedure (as proposed) would certainly alter the threshold. Under the 2003 Measure, serious misconduct is any misconduct that would attract any penalty. Minor misconduct is conduct that would not attract a penalty.
According to the report’s penalties-based definition, ‘serious misconduct’ is misconduct that would justify a prohibition or loss of office. ‘Minor misconduct’ is misconduct that may justify either a less serious penalty or no penalty. There are 2 possible consequences of this definition
(1) an allegation of serious misconduct will be treated as if it was minor misconduct, with the accused being denied the protection currently provided by the 2003 Measure to defend the allegation and / or
(2) minor misconduct will be dealt with more severely than it is at present.
Admittedly the boundary between serious and minor misconduct is not absolute under the 2003 Measure. The mildest penalty available to a tribunal is a rebuke. The report Under Authority (1996), whose proposals formed the basis of the 2003 Measure, acknowledged that ‘a prosecution that leads only to a rebuke is probably a prosecution which should not have been brought’ (p.98). However, it is certainly the policy of the Measure that any alleged misconduct that would attract a penalty more serious than rebuke should be dealt with by the tribunal.
Such proposals to reform the Clergy Discipline Measure are undesirable in themselves. It is further argued that reform of the Measure is not necessary to distinguish between serious and minor cases. Common sense and experience should suffice to determine whether a complaint is concerned with the vicar’s shortage of interpersonal skills or with something more serious.
Iles notes that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters, and the [Clergy] Discipline Commission urges bishops to dismiss them, along with complaints alleging acts or omissions amounting to minor misconduct. Bishops are encouraged to take a fairly robust approach … and to be alert to the possibility of resolving a complaint … by non-disciplinary means … where appropriate’ (‘The Clergy Discipline Measure 2003: A Progress Report’ Ecclesiastical Law Journal, January 2014, p.5.). An eminently sensible policy.
There is nothing in the 2003 Measure to prevent the bishop from taking advice from others, in addition to the registrar, on what to do with a complaint. Nor does the Measure prevent the bishops collectively from agreeing a common approach.
When disposing of a minor complaint, the bishop does not need statutory powers to rebuke a tactless incumbent, or to suggest, and facilitate, conciliation. (Conciliation is, by definition, consensual, requiring the acquiescence of both parties to the dispute.)
A minor complaint may indeed give rise to concerns about a clergyman’s general capability, including his health. But the report itself admits (para 105) that a statutory capability procedure already exists, under the Terms of Service Measure 2009 and the rules made thereunder. The 2009 regime also provides for regular performance appraisal of clergy (‘ministerial development review’) and for continuing education.
It is likely that the silence of the 2003 Measure concerning minor misconduct was based on the assumption that this would be dealt with by what became the Terms of Service Measure 2009. Serious misconduct to be dealt with by the 2003 Measure. Minor misconduct by the 2009 Measure.
It is further argued that the Clergy Discipline Measure per se is not to blame for the current criticisms of the disciplinary procedure. There is nothing in the 2003 Measure that necessitates delay or prevents communication with, and support for, the parties to a disciplinary case. Reforming or repealing the Measure would therefore not cure these shortcomings.
The Measure actually includes provisions that are intended to avoid delay. It prescribes time limits of 28 days for processing complaints, though allowing for extensions (ss11 and 12). A busy registrar is expressly empowered to delegate ‘any or all of his functions [of preliminary scrutiny] to such person as he may delegate’ (s.11(6)).
The 2003 Measure makes provision for disciplinary cases that also involve the secular authorities – the police, the courts, ‘safeguarding’ authorities. These authorities may well take a very long time to process a case, and this will inevitably place an accused person under great strain. But of course secular procedures are outwith the scope of any ecclesiastical legislation.
So what should the Church do to address the admitted criticisms of its own procedures? (The report evidently accepts that the criticisms are justified.)
It is argued that the correct response is, not legislative reform, but administrative or managerial reform. It may be embarrassing to say so, but responsibility for the admitted shortcomings lies, not with the Clergy Discipline Measure per se, but with the persons whose duty it is to administer the Measure. The solution therefore lies in the management of such persons. This requires a company doctor, not a legislative draftsman.
The report obliquely refers to the difficulty. It remarks, somewhat feebly, that ‘the current capability procedures [under the 2009 Measure] … are not well understood and appear to be rarely used’ (para 105). The answer to that problem is effective managerial action to ensure that the procedures do become well understood and properly used, not to legislate for yet more procedures.
The report itself is interesting to read and provides welcome food for thought (after many hungry months for this blog). But still, its conclusions are, with respect, on the wrong track.