Conciliation and Clergy Discipline
by Philip Jones
The Clergy Discipline Measure 2003 provides, at s.12, that if the bishop decides to proceed with a disciplinary complaint against one of his clergy, there are 4 possible courses open to him. He can
(1) ‘direct that the matter remain on the record conditionally’, but only with the accused clergyman’s consent.
(2) attempt to resolve the dispute by a process of conciliation
(3) impose a penalty, again with the clergyman’s consent
(4) refer the complaint for ‘formal investigation’, which means turning it over to a disciplinary tribunal for adjudication.
Conciliation (option (2) above) is regulated by s.15 of the 2003 Measure. The conciliator is appointed by the bishop, but the terms of the conciliation must be agreed by both the clergyman and the complainant. The bishop must also be satisfied that the conciliator is impartial.
It is not easy to see how the conciliation option fits into the scheme of clergy discipline. Indeed it is arguable that conciliation has no real place in the Clergy Discipline Measure. It may be an appropriate means of resolving private disagreements. However, if applied to the public order and professional discipline of the Church then it blurs the important distinction between right and wrong. An accused clergyman has either misconducted himself or he has not. If he has misconducted himself then he should be penalised, or at least warned. But if he has not misconducted himself then he should not be troubled further. Disagreement and discipline are two different subjects. Disagreements are private, civil matters. Discipline is a public, quasi-criminal matter.
In an article for the Ecclesiastical Law Journal jauntily entitled ‘A Canter’ through the disciplinary procedure, Adrian Iles, a barrister with responsibility for administering the 2003 Measure, suggested that conciliation ‘may be particularly useful where there has been a pastoral breakdown in relations between the parties …’ (January 2007, p.16). However, when he wrote this, the Incumbents (Vacation of Benefices) Measure 1977 already provided a procedure for resolving a breakdown in pastoral relations, albeit only for incumbents, not other clergy. The 1977 Measure was passed in the wake of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 , when the Rev Mr Bland was cleared of any serious misconduct even though his behaviour had clearly alienated his parishioners.
The 1977 Measure does not apply to the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009. However, the 2009 regime provides for a ‘capability procedure’, similar to that operated in most secular employment (see Terms of Service Regulations, regulation 31). The capability procedure is arguably the appropriate forum to address personal or pastoral difficulties between clergy and their colleagues or parishioners.
Mr Iles has recently contributed a second article to the Ecclesiastical Law Journal, to commemorate the 10th birthday of the Clergy Discipline Measure (January 2014, p.3). This article further illustrates the confusion over the role of conciliation in disciplinary proceedings. While giving a generally positive account of how the Measure has worked in practice, Iles regrets that ‘the most disappointing aspect of the Clergy Discipline Measure … has been the relatively rare use of conciliation to resolve complaints’ (p.6). Apparently only 6 cases have been resolved by conciliation.
However, the article itself reveals the reason for this, even if the learned author seems unaware of it. It states firmly that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters … Bishops are encouraged … to take a fairly robust approach at the preliminary scrutiny stage and to be alert to the possibility of resolving a complaint … by non-disciplinary means outside the Clergy Discipline Measure where appropriate’ (p.5).
‘Disagreements and grievances’ do indeed fall outside the scope of the Clergy Discipline Measure, because the function of the Measure is to correct and penalise misconduct, not to settle disputes. Hence complaints which indicate no more than a disagreement are rightly rejected at the preliminary stage. Only allegations of misconduct go forward to the second stage of the procedure, as provided by s.12.
This renders the conciliation option superfluous under the present structure of the 2003 regime. The option is provided only at stage 2 of the disciplinary procedure, but matters suitable for conciliation will already have been dismissed at stage 1. If conciliation has any place in the Clergy Discipline Measure, its proper place is at the preliminary scrutiny stage, not at stage 2. A disagreement or grievance that does not amount to misconduct should be dismissed at the preliminary stage, but it may be appropriate to recommend an attempt to resolve it by conciliation.