by Philip Jones
Ecclesiastical Offices (Terms of Service) Measure 2009
The 2009 Measure provides that all bishops, dignitaries, beneficed clergy and licensed officeholders, including stipendiary lay ministers, shall in future hold office under ‘common tenure’.
S.1 defines common tenure as terms of service specified by regulations made under the 2009 Measure. This means that the terms of service themselves constitute common tenure. Common tenure is defined and constituted by the terms of service regulations (TSRs) in force for the time being.
Tenure of ecclesiastical office was originally determined by common law. Bishops, dignitaries and beneficed clergy had a freehold, which meant a life interest in their offices. The tenure of licensed clergy, by contrast, could be terminated at the licensor’s pleasure.
However, from the 19th century onwards, both freehold and licensed tenure were increasingly regulated by statute. The effect of the statute law has been to limit or reduce the freeholder’s security of tenure, while enhancing the licensee’s security (albeit slightly).
Thus all freeholders are now subject to a compulsory age of retirement (Ecclesiastical Offices (Age Limit) Measure 1975). They can be removed for disciplinary offences under the Ecclesiastical Jurisdiction Measure 1963 or the Clergy Discipline Measure 2003. They can also be removed for medical incapacity and, in the case of parochial clergy, for a breakdown in relations with their parishioners (Bishops (Retirement) Measure 1986, Vacation of Benefices Measure 1977, Church Dignitaries (Retirement) Measure 1949).
Freehold offices, and therefore the officeholders, can be made redundant under pastoral schemes made under the authority of pastoral legislation, (legislation now principally contained in the Mission and Pastoral Measure 2011). Schemes of pastoral reorganisation can also have the effect of reducing the number of freehold offices by such devices as the creation of team ministries and the suspension of rights of presentation to a benefice.
Some licensed clergy, notably team vicars, were granted security of tenure limited to a term of years, though the bishop was still empowered to revoke the licence before expiry of the term (canon C12). The Clergy Discipline Measure provides that a clergyman’s licence cannot be terminated for ‘misconduct’ except under the disciplinary procedure provided by the Measure (s.8(2)). However, this did not preclude revocation of a licence for other reasons, including for an offence against doctrine (doctrinal offences do not constitute ‘misconduct’ under the 2003 Measure and the procedure under the 1963 Measure applies only to freeholders).
The 2009 Measure purports to abolish freehold tenure. S.9(2) provides that a freehold office held under common tenure / TSRs shall cease to be freehold. However, this provision may be of symbolic significance only, as the statutory reforms of the late 20th century had already rendered the common law freehold fairly nominal.
Moreover, the Measure does not abolish certain incidents of freehold tenure. The procedures for appointing bishops, dignitaries and beneficed clergy will remain the same. Former freeholders will remain corporations sole (s.9(3)). Beneficed clergy will remain the freeholders of their official residences (s.4(1)), and of their churches and churchyards, even though not of their offices.
Licensed tenure, unlike freehold tenure, is not abolished by the 2009 Measure. The modes of appointing team vicars and other licensed clergy, like those of former freeholders, will remain the same. The Measure expressly provides that an appointment under common tenure / TSRs may be of ‘limited duration’ (s.2(1)(a)). This suggests that the temporary, fixed-term character of many licensed offices will continue.
Licensed officeholders, like former freeholders, will still lack the legal status of employees. S.9(6) is careful to provide that ‘Nothing in this Measure shall be taken as creating a relationship of employer and employee between an officeholder and any other person or body’
So what will change as a result of this Measure? Common tenure may represent a further erosion of the security of tenure of senior clergy. It will be possible for an archdeacon or even a bishop to be appointed on a temporary basis only, if TSRs permit this. The Cathedrals Measure 1999 already makes provision for canons to be appointed on a fixed-term basis only (s.9(1)(b)). However, the report on the Measure to the Ecclesiastical Committee of Parliament suggests that fixed-term appointments are not envisaged for former freeholders (HL 35-II, p.21)
The 2009 Measure makes clear that the TSRs are capable of overriding any contrary provisions in cathedral constitutions (s.9(9)). It is therefore possible that the experiment in fixed-term canons, which was introduced in the wake of difficulties at Lincoln Cathedral in the late 1980s and 1990s, will be discreetly ended. The effect of this would, of course, tend to widen the class distinction between senior and junior clergy, rather than narrow it.
Clergy of all ranks will be required to submit to a system of performance appraisal known as ‘ministerial development review’, which is likely to follow secular employment practice. Parish clergy have always been subject to performance appraisal in the form of the archdeacon’s visitation, but now senior clergy, even the two Archbishops, will be appraised. It is hard to imagine how the Archbishops’ appraisal is going to be managed (cf HL 35-II, p.7).
It will be possible to remove senior clergy, as well as junior clergy, for inadequate performance, following a ‘capability procedure’. There are already procedures, referred to earlier, for removing senior clergy for medical incapacity and pastoral breakdown, but ‘inadequate performance’ suggests wider scope for removal. Moreover the capability procedure is likely to be less cumbersome than the existing procedures.
The ministerial development review and, where necessary, the capability procedure, are evidently the principal means of oversight under the 2009 regime. While they may limit the security of former freeholders, they should enhance the security of licensed clergy. S.3(4) of the Measure suggests that a licence may not be terminated prior to the expiry of any term of years, except under the capability procedure (thus overriding canon C12).
While denying the status of employees to clergy and lay ministers, the 2009 Measure enables TSRs to provide for the use of employment tribunals to adjudicate on disputes (s.2(1)(e)). Thus a licensed officeholder or a former freeholder who is dismissed following a capability procedure may be able to bring a claim of unfair dismissal.
However, the scope of this right will be determined by the TSRs, not by the general employment law. This will create the interesting constitutional position that, in the early 21st century, the jurisdiction of secular tribunals will, albeit in a very limited context, be determined by legislation and quasi-legislation issued by an ecclesiastical authority (cf s.8(5)).
It is not clear from the 2009 Measure how the capability procedure will interact with the disciplinary procedures provided by the Clergy Discipline Measure 2003. This difficulty is discussed separately.
The Terms of Service Measure was urged on the House of Lords in messianic terms, as ‘a new covenant between people and their clergy’ (Hansard (Lords) volume 2109, column 1229, Bishop of Chelmsford). The phrase ‘common tenure’ may have a fashionably egalitarian ring to it, but the degree of commonality of the tenure will depend to a large extent upon TSRs, which are likely to vary from time to time.
‘Common tenure’ might be more accurately described as common security of tenure, because, as we have seen, the 2009 Measure preserves many of the old distinctions between former freeholders and licensed clergy. Henceforward there will be a common procedure for assessing the performance of official duties and for removing those found incapable of discharging them. However, even the promised common security of tenure is not absolute, because of the retention of fixed-term appointments for some officeholders but not others, as well as the uncertain relationship between the capability procedure and the Clergy Discipline Measure.