Ecclesiastical Discipline: the Williams case

by Philip Jones

R v Provincial Court of the Church in Wales ex parte Williams (1998) EWHC Admin 998

The High Court rejected the Rev Mr Williams’ application to ‘quash’ a decision of the Church’s Provincial Court finding him guilty of misconduct.

Mr Williams’ principal complaint was that the Church in Wales Court had found him guilty according to the civil standard of proof, even though it was agreed that the criminal standard of proof applied in English ecclesiastical law.  (This was before the Clergy Discipline Measure 2003.)

The High Court replied that the constitution of the Church in Wales entitled the Provincial Court to apply the civil standard of proof.  It noted two provisions of the constitution:

(1)  a provision which expressly disapplied the Clergy Discipline Act 1892 to the Church in Wales after Disestablishment.  The High Court held that this Act ‘forms the basis of the principle that the criminal standard …applies’ (para 21)

(2) a provision that Church in Wales courts are not bound by decisions of the English courts in matters of ‘discipline’.

However, the Clergy Discipline Act (now repealed) did not make express provision for the standard of proof to be applied to disciplinary proceedings against clergy.  It merely assumed the pre-existing, common law standard of proof.  Therefore it does not form the ‘basis’ for the criminal standard in ecclesiastical law.  It did not impose the criminal standard, it merely applied that standard to the proceedings that it regulated.

There are also difficulties with point (2).  The word ‘discipline’ admits of different meanings.  It is an old word for ‘governance’.  In the Church of Scotland, ‘discipline’ apparently refers to the entire constitutional structure of the Church (The Constitution and Laws of the Church of Scotland, ed James L Weatherhead, Edinburgh, 1997, p.62).

However, the use of the word in the constitution of the Church in Wales must be understood according to its context.  The relevant section of the constitution states that

‘The [English] ecclesiastical law [pre-Disestablishment] … with the exception of [certain statutes, including the Clergy Discipline Act 1892] shall be binding on the members (including any body of members) of the Church in Wales and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the constitution …’ (now found in Chapter 1, s.5).

The effect of this provision is that English ecclesiastical law, with the exception of the named statutes, is incorporated into the constitution, subject to any contrary provision in the constitution.

Then comes the proviso:

‘the Courts of the Church in Wales shall not be bound by any decision of the English courts in relation to matters of faith, discipline or ceremonial’.

Thus the proviso must be understood in the context of the general rule that immediately precedes it.  The general rule is that English ecclesiastical law is incorporated into the constitution, and is to be applied to any question or dispute between Church members and authorities.

If too broad a meaning is given to the proviso this will have the effect of overriding or ignoring the general rule.  If ‘discipline’ is understood in the Scottish sense, to refer to any constitutional matter whatsoever, English ecclesiastical law would not have the binding force accorded to it by the general rule, since any question or dispute is likely to involve some issue of governance.  Too broad a meaning would also have the absurd consequence that ecclesiastical law should bind all members and governing authorities of the Church in Wales, but not its courts.

The general rule is concerned with ecclesiastical law, the proviso with ecclesiastical courts.  Their wording indicates that ‘discipline’ refers to something which, according to ecclesiastical law, is the subject of judicial decision.

Moreover, two of the statutes exempted from incorporation into the constitution were the Church Discipline Act 1840 and the aforementioned Clergy Discipline Act 1892.  The ‘discipline’ that was the subject of these Acts was the professional discipline of clergy.  This indicates that the word ‘discipline’ in the proviso refers to clergy discipline.

The phrase ‘faith, discipline or ceremonial’ suggests that the proviso was primarily intended to liberate public worship from unpopular and impractical judicial decisions taken in the 19th century to forbid ‘ritualism’, certain liturgical practices which had, nevertheless, become widespread by the early 20th century.

(The phrase ‘English courts’ in the proviso may be somewhat careless, since the most important decisions were taken by the Privy Council, which is not strictly a court.)

‘Discipline’ therefore refers to the personal or official conduct of the clergy.  The effect of the proviso is that Church in Wales courts are not bound by what the English courts consider to be misconduct or indiscipline by clergy.  Likewise, in faculty case, the Church in Wales courts may permit an ornament which English courts have held to be illegal.  The intention was probably to protect ‘ritualist’ clergy and discourage petty liturgical disputes.

However, the proviso does not refer to the standard of proof to be applied in disciplinary cases (or in faculty cases).  It refers only to ‘faith, discipline or ceremonial’, not to ‘faith, discipline, ceremonial or evidence’.  It entitles the Church in Wales courts to decide for themselves whether the proven facts of a case amount to misconduct or indiscipline by the accused person.  It does not entitle them to decide how the facts shall be proved in the first place.  The High Court understood the word ‘discipline’ to include ‘evidence’, but the wording and context of the proviso do not admit of such a broad, loose interpretation.

The constitution of the Church in Wales provides for the appointment of a rule committee, composed of ecclesiastical judges, which has power to issue rules ‘for regulating … the administration, practice and procedure’ of the Chruch courts (now found in Chapter 9, s.38).  Any rule concerning the standard of proof should be sought either in the constitution or in the procedural rules made under the authority of the constitution.  If both constitution and rules are silent, the standard of proof must be determined by the English ecclesiastical law as at the date of Disestablishment.  This law will bind the courts of the Church in Wales, unless and until overridden by the constitution or by procedural rules made by the rule committee.

If the proviso concerning ‘discipline’ entitled the Church in Wales courts to disregard the standard of proof laid down by English law, this would allow the possibility that different Church courts, or even different constitutions of the same court, might apply different standards of proof in different cases.  One clergyman’s guilt might be decided according to the criminal standard, another’s according to the civil standard.