Terms of Service and the Canons
by Philip Jones
As its title implies, the Ecclesiastical Offices (Terms of Service) Measure 2009, and the regulations made thereunder, are concerned to regulate the terms of service of the Church’s clerical and lay ministers. There is a distinction between
(1) terms of service and
(2) the service (i.e the ministry) which is the subject of the terms.
It is therefore quite possible, in principle, for terms of service regulations to co-exist coherently with the revised canons of the Church of England. The regulations are concerned with (1) above. The canons are primarily concerned with (2).
However, the distinction between (1) and (2) is not absolute. There may be an unavoidable overlap between them. Residence in the parish, for example, is both a personal need of the incumbent (1) and part of the incumbent’s ministry to the parishioners (2). (See canon C25).
A more serious difficulty is that there is no reference to the canons either in the 2009 Measure or in the present terms of service regulations. Terms of service regulations and the canons can indeed co-exist, but there ought to be some co-ordination between them.
The regulations make provision for the ‘continuing ministerial education’ and ‘training’ of officeholders (regulations 19-20). This rather begs the question, education and training for what? If the canons are not referred to in the regulations, it is not clear that the education and training enjoined by the regulations will be appropriate to the ministry as defined by the canons. The Archbishops’ Council may issue ‘guidance’ (regulation 19), but the Council is not required to refer to the canons either.
The same difficulty applies to the performance appraisal or ‘ministerial development review’ of officeholders (regulation 18). An officeholder must submit to a review of his or her ministry at least every two years, but the standard or criteria against which this ministry is reviewed is not made clear.
The danger is that the canons (at least the common law canons, those not made under the authority of ‘parent’ Measures), while not being formally repealed, will be ignored. The ministry of officeholders will be arbitrarily determined by those who control the education, review and capability procedures under the 2009 regime.
It may be that the relationship between the common law canons and modern statute law has always been a little confused. The canons tend to be based on the assumption that all ministry is carried out in the context of traditional parishes, one parish with one incumbent. They were mostly written before team and group parishes became widespread. Thus a group ministry or a team ministry is likely to be regulated by its constituting pastoral scheme (which has statutory authority under the pastoral legislation) rather than by the canons. Cathedral ministry will be likewise be regulated by the Cathedrals Measures and the cathedral constitutions (which also have statutory authority).
Still, it is unsatisfactory that a comprehensive, modernised code of terms of service, which the 2009 regime seeks to provide, should be unaccompanied by any corresponding clarification of the service itself.
The lack of c0-ordination means that canons and regulations may, indeed, regulate the same matters. The canons are not exclusively concerned with ministry ((1) above). They regulate tenure and discipline as well, to some extent. At common law, the visitation was the primary means of oversight, and this is regulated by canon (canon G5). The visitation canons have not been repealed. This means that officeholders under the 2009 regime will be subject to two forms of oversight, common law visitation and statutory ‘ministerial development review’.
The canons also regulate the select and training of ordination candidates, albeit in very brief and general terms (canons C6-C7). The present terms of service regulations make no provision for the training of ordination candidates (or of candidates for lay ministry). It is arguably anomalous that the regulations should provide for post-ordination training, while being silent as to pre-ordination training.
The 2009 Measure provides that regulations apply to ‘persons holding office under common tenure’ (s.2). Ordination candidates (i.e persons preparing for ordination) do not, as such, hold office. However, it is argued that the use of the present tense (‘holding office’) does not preclude regulations for the preparatory training of officeholders. It is reasonable that ‘holding office’ should be subject to threshold conditions as to competence. It also makes sense for pre-ordination training and post-ordination training to be governed by a single regime, not two different regimes.