by Philip Jones
The Ecclesiastical Offices (Terms of Service) Measure 2009 suggests 3 procedures for removing clergy on account of their unfitness for office:
(1) the prosecution of ‘reserved’ offences against doctrine, ritual and ceremonial, under the unrepealed provisions of the Ecclesiastical Jurisdiction Measure 1963
(2) proceedings under the Clergy Discipline Measure 2003 and
(3) the capability procedure, or procedures, provided under the 2009 Measure itself (s.3(3) and (6)).
The capability procedures are described as ‘procedures to assess the performance of office holders, including remedies for inadequate performance’ (s.2(2)(d)). Under the Terms of Service Regulations 2009, capability procedure takes the form of ‘an inquiry into the capability of an office holder to perform the duties of his or her office’ (reg 31(1)). The bishop may instigate an inquiry ‘if he considers that the performance of an office holder affords grounds for concern’. Any inquiry must be conducted in accordance with a statutory Code of Practice (reg 31(3)).
The 2009 Measure does not completely abolish the old class distinction between beneficed and licensed clergy. However, it seeks to provide that, once they are beneficed or licensed, all clergy will enjoy the same security of tenure and be subject to the same professional discipline. This point is made by describing the terms of service under which beneficed and licensed clergy hold office as ‘common tenure’ (s.1(3)).
However, it has been argued elsewhere in this blog that ‘common tenure’ is endangered by the confused relationship between the Clergy Discipline Measure and the capability procedure, i.e procedures (2) and (3) above (see posts filed below under this category).
The statutory Codes of Practice concerning the 2003 Measure and the capability procedure are not reassuring on this point. The Clergy Discipline Code suggests, ominously, that the boundary between discipline and capability procedure
‘will need to be determined on a case by case basis. It is in the interests of justice for there to be flexibility between the capability procedure under the [Terms of Service] Regulations and disciplinary proceedings under the  Measure, so that cases are dealt with in the most appropriate way’. (paras 259-60, emphasis supplied).
It is argued that this view is mistaken. On the contrary, ‘the interests of justice’ demand consistency and certainty. Clergy discipline, like all professional discipline, is a penal, quasi-criminal jurisdiction which exists to maintain professional standards and public confidence. This demands that everyone, both the subjects of the jurisdiction and the public, should know what to expect and that the subjects of the jurisdiction should be treated the same.
The Clergy Discipline Code suggests that it is for the bishop to decide whether a complaint should be pursued under the 2003 Measure or under the capability procedure (para 261). The Capability Code provides that the person appointed by the bishop to oversee a particular case (usually the archdeacon) may suspend a capability inquiry if he decides that the matter should be dealt with under the 2003 Measure or the Ecclesiastical Jurisdiction Measure 1963 (para 22.1).
Neither Code provides for the accused clergyman to have a say in the matter. The only protection afforded to him is that both Codes agree that he should not be subject to disciplinary proceedings and capability inquiry at the same time.
The danger is that the ‘flexibility’, or rather, the arbitrary ‘case by case’ approach which results from the uncertain boundary between the Clergy Discipline Measure and the Terms of Service Measure will undermine the common professional discipline that was the raison d’etre of both Measures. Different clergy will be treated differently in respect of the same alleged misconduct. Worse, accused clergy will only be able to defend themselves in the ecclesiastical courts if their bishops and archdeacons permit them to do so. The uncertain boundary may cause the capability jurisdiction to become larger and larger as that of the ecclesiastical courts becomes smaller and smaller.
What is the correct purpose of the capability procedure, if it is not to trespass on proceedings under the Clergy Discipline Measure? One obvious use for a capability procedure is to assess an office holder’s medical fitness. It is not misconduct to be in poor health. The Terms of Service Regulations expressly provide for a medical capability procedure (cf reg 28). Another use of the capability procedure is to address pastoral difficulties between an office holder and his parishioners.
In the case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 the Court of the Arches firmly held that disciplinary proceedings cannot be used to resolve a difficult pastoral situation by removing an incumbent who has alienated his parishioners but cannot be got rid of by other means. In the wake of that case, the Incumbents (Vacation of Benefices) Measure 1977 was passed.
The 1977 Measure introduced a procedure whereby incumbents and team vicars could be removed from office or subject to special restrictions, if it was found on inquiry that their conduct had contributed over a substantial period of time to a serious breakdown in pastoral relations. ‘Serious breakdown’ was defined as a situation which impedes the promotion of the Church’s mission in the parish (s.19A).
Unfortunately the inquiry procedure provided by the 1977 Measure was so lengthy and expensive that it was hardly ever used. The case of Cheesman v Church Commissioners (1999) Privy Council 12 records that the Bishop in the case was forced to abandon proceedings against the Rev Mr Cheesman on account of their sheer length and expense (p.20). The Bishop complained bitterly that the 1977 Measure was ‘a deeply flawed piece of legislation’ (quoted at p.22). The Privy Council itself acknowledged that ‘It is [the Measure’s] structure which makes the implementation of the 1977 proceedings so cumbersome and uncertain in outcome’ (p.6).
As mentioned, the 1977 Measure applied only to incumbents and team vicars. This was long before common tenure was introduced. Licensed clergy who fell out with their parishioners would simply have their licences terminated.
However, s.11(6) of the Terms of Service Measure provides that the 1977 Measure does not apply to any clergy who are subject to common tenure. This means that the 1977 Measure will soon become obsolete (to the extent that it is not already!) as all clergy will eventually be subject to common tenure.
The effective repeal of the 1977 Measure under s.11(6), and the decision in Bland, imply that pastoral breakdown will in future be addressed by the capability procedure.
This may have implications for clergy who take advantage of the Marriage (Same Sex Couples) Act 2013 to enter into homosexual ‘marriages’. We have argued elsewhere that such clergy are safe from the ecclesiastical courts as the law now stands. However, they may not be so safe from the capability procedure. It is arguable that the procedure could be used to remove them from office if inquiry were to show, at least to the satisfaction of the Church authorities, that their status had caused pastoral difficulties.