Relinquishment and Relief: The Clerical Disabilities Act 1870

by Philip Jones

The Legal Office of the Church of England has issued a paper offering some reflections on the establishment of the Personal Ordinariate of Our Lady of Walsingham by Pope Benedict XVI (GS Misc 979, January 2011).

The paper suggests that ‘It is desirable that clergy leaving the Church of England [to join the Ordinariate] should relinquish their orders under the Clerical Disabilities Act 1870’

This suggestion is apparently made for the benefit of the Ordinariate clergy themselves:

‘Unless they take advantage of the procedure under the 1870 Act, they will, as a matter of English law, continue to be subject to the same jurisdiction as any other clerk in holy orders of the Church of England and therefore subject to the discipline of the Church of England (including the duty of [canonical] obedience) … as well as that of the Roman Catholic Church’ (emphasis supplied).

The reference to the Act of 1870 may not be quite accurate.  Clergy do not exactly relinquish their orders under that Act.  They relinquish ‘all rights, privileges, advantages and exemptions of the office [of priest or deacon]’ in the Church of England, as by law belong to that office (s.3(1), schedule 2).

The 1662 Ordinal provides that deacons and priests are ordained ‘in the Church of God’, but the 1870 Act refers only to the Church of England, and to the law of England.   Thus the clergyman only relinquishes the legal effects of his orders, not his orders per se.

The stated purpose of the 1870 Act is the ‘relief’ of clergy (subtitle).  The effect of relinquishment, as the Legal Office says, is that a clergyman is ‘discharged and freed from all disabilities, restraints and prohibitions … [attaching] to the office of minister in the Church of England and from all [ecclesiastical] jurisdiction’ (s.4).

Thus, on the positive side, the 1870 Act enabled an ex-clergyman to hold offices or engage in activities which were then forbidden to the clergy (schedule 1).  For example, the 1870 Act enabled an ex-clergyman to sit in the House of Commons.  On the negative side, it also conferred protection from clergy discipline.

The ‘relief’ promised by the 1870 Act was directed at Canon 76 of 1603, which was then in force.  Canon 76 provided that no deacon or priest should ‘voluntarily relinquish [his orders] nor … use himself … as a layman, upon pain of excommunication’. 

However, Canon 76 was replaced in the 1960s by Canon C1(2) of the revised Canons.  Canon C1(2) is permissive in character.  It provides that ‘a minister may … by legal process [i.e under the 1870 Act] voluntarily relinquish the exercise of his orders’.  This wording suggests that such a course is for the individual clergyman to decide.  There is no threat of excommunication.  Canon C1(2) also states explicitly what is implicit in the wording of the 1870 Act, that an ordained minister ‘can [n]ever be divested of the character of his order’. 

Ordinariate clergy, of course, do not wish to be ‘divested’ of their orders or to ‘use themselves as laymen’.  On the contrary, they wish to continue their priestly ministry, but in the Roman Catholic Church rather than in the Church of England.

Thus Ordinariate clergy would only need the protection of the 1870 Act if the Church of England authorities decided to discipline them.  

The question is, therefore, whether it is a disciplinary offence for a clergyman to become a Roman Catholic and work as a Roman Catholic priest.

In the case of Barnes v Shore (1846) 163 English Reports 1074, the Reverend Mr Shore was disciplined by the ecclesiastical court for officiating in a dissenting chapel, contrary to his bishop’s instructions. 

The Court of the Arches held that ‘a clergyman can[not] divest himself at pleasure of his orders’ (p.1077),  having been ordained and promised canonical obedience (of his own free will).

However, there are two distinctions between the Reverend Mr Shore and the clergy of the Ordinariate:

(1) Mr Shore was officiating in a dissenting Protestant Church that did not have an episcopally ordained ministry, hence the Court’s reference to his ‘divesting’ himself of his orders.  By acting as if he was a dissenting minister, he was acting as if he was not an ordained priest.

The Roman Catholic Church, of course, does have an episcopally ordained ministry.  An Anglican priest who joins the Ordinariate will not therefore be ‘divesting himself’ of his orders.  As Lord Brougham noted, ‘Our Church recognises the Roman Catholic … ordination … on account of the Apostolic Succession’ (R v Millis (1844) 8 English Reports 841 at p.916).

(2) The report of the case records that Mr Shore had officiated against the express instruction of his bishop.  He was therefore guilty of disobedience.  However, there is no suggestion in the Legal Office’s paper (or from any other source) that Church of England bishops have forbidden their clergy to join the Ordinariate, even though fully aware of their intention to do so. 

It is therefore hard to argue that Ordinariate clergy could be disciplined for disobedience under s.8(1) of the Clergy Discipline Measure 2003.

S.8(1) of the 2003 Measure provides that clergy may be disciplined for ‘neglect or inefficiency in the performance of the duties of … office’.  However, if an Ordinariate priest has resigned all his ecclesiastical offices before joining the Ordinariate he could not be disciplined on this ground, since he would have no official duties to neglect.

S.29 of the 2003 Measure provides that it is misconduct if a clergyman ‘performs in the Church of England any function’ that he has been forbidden to perform as a result of previous disciplinary proceedings.  On its wording, this restriction could not apply to functions performed in the Roman Catholic Church.  Moreover, it would not apply to an Ordinariate priest who has not previously been subject to disciplinary proceedings.

Thus it seems very unlikely that an Ordinariate priest could be at risk of proceedings under the 2003 Measure.  Even if a complaint were made it would still have to have ‘sufficient substance’ to justify further action (s.11(1)).  The bishop also has a power to order no further action on a complaint (s.12(1)).

There are, of course, considerable differences of religious belief and practice between the Roman Catholic Church and the Church of England.  Perhaps an Ordinariate priest might be liable to proceedings under the Ecclesiastical Jurisdiction Measure 1963 for ‘an offence against the laws ecclesiastical involving matters of doctrine, ritual or ceremonial’ (s.14(1)). 

However, the risk of proceedings under the 1963 Measure is also very remote.  No such proceedings have ever been brought since the 1963 Measure was passed.  Even if proceedings were commenced, the 1963 Measure provides that proceedings may be dismissed if there are unspecified ‘extenuating circumstances’, or if further proceedings ‘would not be in the interests of the Church of England’ (s.42(7)).

It should be fairly obvious that disciplinary proceedings against Ordinariate clergy simply for joining the Ordinariate would not be in the Church of England’s interests. 

No sentence or penalty could be effective against an Ordinariate priest who has already resigned and has no intention of seeking office in the Church of England in the future.  It is arguable that any disciplinary proceedings would conflict with the ecumenical duty imposed by Canon A8, which obliges all Church members and authorities ‘to do their utmost not only to avoid occasions of [sectarian] strife, but also to seek in penitence and brotherly charity to heal such divisions’.

Last, but not least, any disciplinary action would raise ‘human rights’ issues.  An Ordinariate priest might well argue that he would not receive a fair trial in any ecclesiastical court or tribunal, since all the judges are required to be communicant Anglicans.  It is also arguable that disciplinary action against a priest who has already left the Church of England is an unjustified infringement of his right to manifest his religion.