A Bishop’s Disciplinary Tribunal

A narrative of the law on this subject should be set in context.  Very few clergy discipline cases get as far as a tribunal.  According to the Church of England’s website there were only 5 tribunals each in 2021 and 2022, 2 in 2018, and just 1 each in 2014 and 2015.

There are unlikely to be significant factual disputes in most cases.  Minor grievances, however genuine, are dismissed in short order.  Criminal matters are turned over to the secular authorities.  Most clergy who misconduct themselves will admit their error and accept the bishop’s correction.  Conciliation is a favoured option.  A bishop’s disciplinary tribunal is a last resort, when the case, though not criminal, is too serious or too difficult to be resolved by other means.

Even at tribunal, there may be no dispute about the facts, merely about the appropriate penalty.  Sometimes accused clergy decline to appear, so the tribunal decides the case in their absence.

Disciplinary tribunals are currently regulated by the Clergy Discipline Measure 2003, and by Rules and a Code of Practice made under the authority thereof (s.45(1) and s.39).

It is likely that the 2003 Measure will be replaced in the next few years by a new Clergy Conduct Measure, which is currently being considered by the General Synod.  However, at the time of writing, the proposed new regime will retain tribunals to decide cases of serious misconduct.

Bringing a Complaint to Tribunal

A tribunal hearing is in effect the 3^rd investigation of a complaint of misconduct by a clergyman

(1)  The diocesan registrar makes a ‘preliminary scrutiny’ of the original complaint, and reports thereon to the bishop (s.11)

(2) The Designated Officer (‘the DO’) makes, or organises, a formal investigation of the complaint, and makes a report to the President of Tribunals (s.17).

(3) If the President of Tribunals decides that the clergyman has a case to answer, she refers the case to a tribunal for adjudication (s.17).

The bishop takes the decision to refer the complaint for formal investigation ((2) above).  This has the effect of removing the complaint from his jurisdiction, and from the diocese.

The DO and the President of Tribunals are national officials, whose offices were created by the 2003 Measure (s.43(1) and s.4).  The DO works for the Legal Office in Westminster, and may be contacted there (rule 101).  He is in effect the Church of England’s Public Prosecutor.  The President’s function is judicial (or quasi-judicial).  The current President of Tribunals is Dame Sarah Asplin, a justice of the Court of Appeal.

The President’s decision that there is a case to answer founds the tribunal’s jurisdiction.  Moreover, the complaint to the tribunal is as formulated by the President.  The President’s formulation may differ from the original complaint that was made to the bishop.  She may refer some allegations to the tribunal while rejecting others: ‘The President’s … decision will specify which allegations … are to be dealt with at the disciplinary hearing’ (code, para 231).

If the President of Tribunals decides that there is no case to answer, that is the end of the matter (s.17(4)).  No ecclesiastical authority is capable of overruling her decision.  A disappointed complainant’s only recourse is to apply to the High Court for judicial review of the decision.

However, a decision that there is a case to answer does not bring the President’s jurisdiction over the complaint to an end.  She can, in effect, change her mind later on, and direct that a complaint be withdrawn.  She can also stay the tribunal proceedings in favour of conciliation (s.18).

This continuing jurisdiction is consistent with the President’s oversight of the entire regime of clergy discipline.  It also makes sense that her jurisdiction should continue until the tribunal meets (which may be a long time after her decision that there is a case to answer), otherwise the complaint will be in limbo.  However, the President can intervene even after the tribunal hearing is underway.

No Right of Silence

The complaint starts or ‘institutes’ disciplinary proceedings (s.10).  However, the accused clergyman is not involved in the diocesan registrar’s investigation (investigation (1) above): ‘no formal response or detailed evidence is required from the Respondent at this preliminary stage’ (rule 10(1)(c)).

The purpose of the registrar’s investigation is to identify or clarify the complaint, i.e to establish what it is about, not whether it is true or false.  In effect, the registrar must presume that the allegations are true (cf code, para 104).

The clergyman only becomes involved in the proceedings after the registrar’s investigation has been completed.  If the complaint is not dismissed, the bishop must request the clergyman to submit a written Answer thereto.  This document must state ‘which … matters are admitted and which are contested’, and must be ‘accompanied by any written evidence … upon which the [clergyman] wishes to rely’.  It must include a statement of truth (rule 17).

The Answer is the accused clergyman’s notice of appearance in the disciplinary proceedings.

The requirement to submit an Answer indicates that an accused clergyman has no right of  silence.  He cannot reserve his position pending a tribunal hearing.  The Clergy Discipline Rules impose a ‘Duty to Cooperate … All parties [including the accused clergyman] shall cooperate with any person, tribunal or court exercising any function under the Measure’.  Failure to cooperate ‘may result in adverse inferences being made’, i.e that the clergyman has something to hide (rule 2).

This duty to cooperate indicates a difference between professional discipline (which the 2003 Measure sought to introduce for clergy) and criminal justice (on which the pre-2003 regime was based).  It was observed in the (secular) case of Salsbury v Law Society (2009) 2 All England Reports 487 that ‘the fundamental object of disciplinary proceedings is to maintain the reputation of the profession as a whole’, not the reputation of the accused.  The Court of the Arches made the same point in King (2009), a case which arose under the 2003 Measure.

The Court of Appeal observed in Kulkari v Milton Keynes NHS Trust (2010) Industrial Cases Reports 101 that ‘disciplinary proceedings … may well entail a mixture of adversarial and inquisitorial practice’ (p.115).

An accused clergyman is not required to file a specific statement in response to a formal investigation by the DO (investigation (2) above).  However, he is required to ‘cooperate with the DO … in particular by responding in writing … to any questions asked by the DO for the purpose of clarification’ (rule 28(3)).

On the positive side, the clergyman may quite properly seek to influence the DO’s investigation in his favour, by requesting him to ‘consider particular lines of inquiry, including the obtaining of evidence’ (Code, para 223).

It may be necessary to obtain documents held by a third party.  If the third party proves uncooperative, the President of Tribunals can issue a sub poena, to compel production of the documents, if they are ‘relevant and necessary for dealing fairly’ (rule 28A).

Legal Representation

The diocesan registrar may not give legal advice to the parties to a disciplinary case, because it may conflict with his duty to advise the bishop (code, para 105).  However, an accused clergyman is expressly permitted to seek legal advice from the registrar of a different diocese (para 113).  Indeed the clergyman may well end up being represented by a solicitor who is also a diocesan registrar.  (Ecclesiastical law is a very small world!)

The formal Answer which the clergyman is required to submit must include his contact address (rule 17(2)(a)).  If he wishes a solicitor to represent him, he can simply give the solicitor’s details as his contact address.  The solicitor is thereby put on the record of the disciplinary proceedings.  This follows the practice of the High Court.

Complainant and Respondent

The accused clergyman is the respondent to disciplinary proceedings.  The identity of the complainant may require clarification.  Although the 2003 Measure may suggest otherwise, the complainant will usually (though not always) be a Church official, and not the clergyman’s original accuser, i.e the person who came forward with the allegations in the first place. 

The code of practice states that ‘where the archdeacon is satisfied that there is a case of misconduct, they should bring the case, and not leave it to the private individual concerned’ (para 52).  The diocesan safeguarding adviser may bring an appropriate case (para 54).  The accuser will be a witness, rather than complainant.  The official complainant may resemble a ‘litigation friend’ to the accuser.

The 2003 Measure makes clear that the DO, or a person authorised by him, conducts the case for the complainant (s.18(1)).  The complainant / accuser has no choice in the matter.  This means that, while there is nothing to stop a complainant/accuser from consulting solicitors, they have no right to be separately represented in disciplinary proceedings. 

Constituting the Tribunal: Independence and Impartiality

Having decided that there is a case to answer, the President of Tribunals must constitute a tribunal to adjudicate upon it.  Every tribunal has 5 members (larger than most secular tribunals), consisting of a legally qualified chairman, and 2 clergy and 2 lay members (s.2 and s.22(1)).

The President may take the chair herself (s.22(1) – perhaps if the case is particularly important), but otherwise she appoints the 5 members from a provincial panel (1 each for Canterbury and York) of ‘persons available for appointment’ (s.21).  All panel members must be communicant Anglicans (s.21(4)).

The clergy discipline regime seeks to ensure that the tribunal will be independent (another indication of the smallness of the ecclesiastical world).  Panel members from the accused clergyman’s own diocese may not be appointed to his tribunal (s.21(1)).  The President must be satisfied of the impartiality of tribunal members. 

The accused clergyman cannot veto an appointment to a tribunal.  However, he does have the right to know the identity of the proposed tribunal members in advance, and ‘to make representations as to [their] suitability’ (s.22(2) – a wider criterion than ‘impartiality’).

For their part, the appointed tribunal members must be given details of the parties and their witnesses, and invited to disclose any personal acquaintance (code, para 236).  They are sternly instructed not to make ‘private enquiries’ about the case or discuss it with others (para 237).

The rules do not require tribunal members to take an oath concerning their responsibilities.

The description ‘bishop’s disciplinary tribunal’ is a complete misnomer.  The tribunal is appointed by a national official on a provincial basis.  The bishop has no say in the appointment of a tribunal, nor can he even refer a case to the tribunal. 

Preparing for the Hearing

While the President appoints the tribunal members, the preparations for the hearing are primarily entrusted to the Registrar of Tribunals (s.5).  Unlike the President and the DO, which are national offices, the Registrar of Tribunals is a provincial office (1 each for Canterbury and York).  He (or she) will usually be a solicitor in private practice, who may be contacted at his firm’s address.  He must not, of course, be confused with the diocesan registrar.

The Registrar of Tribunals is responsible for the ‘just disposal of the proceedings’ (rule 30).  This means he must ensure that the parties’ evidence – witness statements and documents – is disclosed to each other, and to the tribunal, in good time.  There must be no surprises at the hearing.  Each party files a brief statement of case (practice direction 2021).  The Registrar may refer matters of ‘difficulty or dispute’ to the tribunal chairman (rule 30(2)).

One document may not be disclosed in evidence (even to the tribunal).  The DO’s report of his investigation (i.e investigation (2) above) is for the President’s eyes only (code, para 229).  This suggests that, for the purpose of the investigation, the DO’s relationship to the President may be analogous to that of a solicitor and his client.

Sufficient time must be allowed for the hearing, and the Registrar may require time-estimates from the parties (rule 38), subject to the Chairman’s decision.  The Registrar arranges the time and place of the hearing (a tribunal can meet anywhere), having ‘due regard’ to the convenience of those involved.  The tribunal will require appropriate clerical support, especially as oral evidence to the tribunal must be recorded (rule 45).

The Hearing: Proof, Privacy, Publicity and Penalty

The tribunal starts off by settling a timetable or agenda for the hearing (rule 39).  Subject to the tribunal’s time management, both sides may call their own witnesses, cross-examine each other’s, and make submissions (rule 44).  Evidence is given on oath (or affirmation) (rule 45).

The tribunal may not wish to rely solely on witnesses and documents.  The author recalls a pre-2003 case where the ecclesiastical court found it necessary to inspect the principal bedroom of a cathedral deanery, following an allegation that the Dean had committed adultery therein.  (The Dean was acquitted.)

The DO is required to prove his case to the civil standard, i.e on a balance of probabilities (s.18(3)(a)).

An accused clergyman has the right to require the tribunal to hear his case in public.  The wording of s.18(3)(c) of the 2003 Measure, ‘if … the respondent so requests’, makes this clear.  A tribunal may also direct a public hearing of its own motion, ‘in the interests of justice’.

So hearings do not have to be held in private.  But the normal rule is that they are.  The clergyman and his accuser will therefore require the tribunal’s permission to be accompanied by a friend (cf rule 47).

However, while evidence and submissions are taken in private, ‘the determination of any matter before the tribunal … shall be pronounced in public together with its reasons therefor’ (s.18(3)(b)).  (Before 2003, the ecclesiastical court, like a jury, merely announced its verdict – guilty or not guilty.)  Disciplinary decisions taken by the bishop and by the President of Tribunals, though they must give reasons, and must be disclosed to the parties, do not have to be published.

‘Any matter’ means that all tribunal decisions must be given in public, not just the decision as to the clergyman’s guilt or innocence.  The tribunal may anonymise parties and witnesses in appropriate cases, but this again requires a public reasoned decision (rule 49). 

The tribunal’s decision is taken by majority vote.  If a decision is not unanimous, the dissenting minority’s reasons must be published along with those of the majority (code, para 249).

Although the tribunal must hear and decide the case collectively, its decision (or decisions) may be announced by the chairman sitting alone (rule 50).  This may be necessary in practice if the tribunal reserves a decision.

If the tribunal decides that the clergyman has misconducted himself, this will require a further decision on penalty.  Consideration of penalty will almost certainly require an adjournment of the hearing.  The clergyman and the DO are both entitled to make submissions on penalty (practice direction of 2008).  The tribunal may (not must) invite written representations from the clergyman’s bishop, unless the bishop has already given evidence in the case (s.19(2)). 

If the condemned clergyman is a cathedral dean or other dignitary appointed by the Crown, a penalty of removal from office must be confirmed by Order in Council (s.24(2)).

Leave to Appeal

The 2003 Measure originally gave an accused clergyman a right of appeal to the Provincial Court from any adverse finding or penalty (s.20(1)).  He now requires permission, or ‘leave’, to appeal.

An application for leave to appeal can be made to the tribunal itself during the hearing, when the decision or penalty has been pronounced (Clergy Discipline Appeal Rules 2005, rule 4A).  The tribunal has an apparently unfettered discretion to grant or refuse leave.

If the tribunal refuses leave, or is not asked for it, a written application must be made to the Provincial Court.  That Court must be satisfied that the appeal would have a real prospect of success, or that there is some other ‘compelling reason’ to hear it (rule 4D(3)).

A penalty cannot be implemented while appeal proceedings are pending.

The DO may also seek leave to appeal, but only on a question of law (s.20(1)).

After the Hearing: Records and Registers

A copy of the tribunal’s decision (or decisions) must be sent inter alia to the diocesan and provincial registrars (rule 50(5)), implying that these officials should file it in their respective registries.  However, there is no statutory register of tribunal decisions.  A tribunal is not a Court of Record.

The rules are silent about the fate of the record of oral evidence.  Is it destroyed when the case is concluded, in accordance with the general rule that a tribunal hearing is private?  If not destroyed, where is it kept?  Will its contents always remain private, or will posterity be able to read it one day?

However, there is detailed regulation of the notification and recording of penalties.  The penalty must be notified to the bishop, who will be primarily responsible for enforcing it, and to the provincial registrar. (The offices of provincial registrar and Registrar of Tribunals may well be held by the same person.) It must be filed in both the diocesan and provincial registries (s.35(1), Ecclesiastical Jurisdiction Measure 1963, s.78).

The provincial registrar, who is the Archbishop’s legal adviser, should see to it that the condemned clergyman’s name is entered on the Archbishops’ List (s.38(1)), formerly known as the ‘caution list’.  The List is not open to public inspection, but it is circulated to all diocesan bishops and registrars (rule 74), so that they are aware of which clergy are ‘under discipline’.

The tribunal can decide not to impose a penalty in a case of misconduct, on condition that the clergyman behaves himself in future (s.25).  Such a decision will be entered on a separate record of conditional discharges kept by the provincial registrar, which is also circulated to bishops and registrars (rule 53(1)). 

Paying for a tribunal

The tribunal chairman and the Registrar of Tribunals are entitled to fixed fees, paid by the Archbishops’ Council (Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2023, para 10).  The President of Tribunals seems to be unpaid, unless she officiates as tribunal chairman.  The DO is a salaried official.

The Archbishops’ Council should also be responsible for the reasonable expenses of tribunal members, staff and witnesses (s.35(1), Ecclesiastical Jurisdiction Measure 1963, s.62(1)).

A respondent clergyman becomes eligible for assistance with legal expenses when a formal complaint is laid against him, i.e when disciplinary proceedings are instituted (code, para 299).  His solicitor must apply to the Church of England’s Legal Aid Commission in Westminster (and do this before incurring any costs, because legal aid is not retrospective).

Legal aid is always discretionary.  The Legal Aid Commission must consider ‘the financial resources of the [clergyman] (including the financial resources of [his] spouse or civil partner …’.  Any legal aid granted will be subject to assessment of the solicitor’s bill. (Legal Aid Measure 1994.)

In practice, this is likely to mean that the entire cost of a tribunal is met by the Church Commissioners, since the Commissioners fund both the Archbishops’ Council and the Legal Aid Commission.

Safeguarding and Suspension: The Case of the Bishop of Lincoln

Safeguarding and Clergy Discipline Measure 2016

The Archbishop of Canterbury has recently announced that

‘[1] Following information provided by the police, I have suspended the Bishop of Lincoln …

[2] If these matters [i.e the ‘information’] are found to be proven … the Bishop would present a significant risk of harm by not adequately safeguarding children and vulnerable people …

[3] there has been no allegation that [the] Bishop … has committed abuse …’.

The police, for their part, announced that ‘investigation into non-recent sexual abuses … resulted in 3 men being convicted’.  However, ‘phase 2 of the investigation is continuing, into wider safeguarding issues and management decisions within the [Lincoln] Diocese …’.  This wording suggests that ‘phase 2’ is not investigation of an actual or alleged crime, but a police audit of the diocesan safeguarding regime, which may, or may not, produce evidence of some crime.

According to his entry in Who’s Who, the Bishop was appointed in 2011 (not all that long ago), and held no other office in the Lincoln Diocese prior to 2011.  He is said to be ‘bewildered’ by his suspension, but has obediently promised to ‘fully cooperate’.

The Lord Bishop is also a Cardiff canonist, i.e a graduate of the degree in ‘canon law’ (which might be more accurately described as ‘ecclesiastical governance’) awarded by Cardiff University and magisterially taught by Professor Norman Doe.  (A distinction shared with the author of this blog, who is, however, unacquainted with the Bishop.)  The subject of the Bishop’s thesis was ‘The Parson’s Freehold in the Church of England: legal fiction and psychological reality’ (Ecclesiastical Law Journal 2003, p.376).

The 2016 Measure cited above was passed in response to distressing cases of ‘non-recent’ sexual abuse by clergy.  It made significant amendments to the Clergy Discipline Measure 2003.

The words ‘suspend’ or ‘suspension’ occur no fewer than 97 times in this relatively short Measure, including the headings of 5 of its 12 sections.  (The Suspension and Clergy Discipline Measure?!)  Perhaps the Bishop should not have been  bewildered by the treatment that he has received.

S.37 of the Clergy Discipline Measure, as amended by the 2016 Measure, now provides that the Archbishop may (not must) suspend a bishop (with the concurrence of 2 other senior bishops), if satisfied ‘on the basis of information provided by a local authority or the police‘, (not from other informants) that the bishop presents ‘a significant risk of harm‘.  Thus it is the Archbishop who must be satisfied that there is a significant risk, not the police or the local authority.  S.36 of the Measure makes similar provision for lesser clergy.

S.1(2A) defines ‘significant risk of harm’ as a significant risk that the Bishop (or other officeholder) may

(a) harm a child

(b) cause a child to be harmed

(c) put a child at risk of harm

(d) attempt to harm a child

(e) incite another person to harm a child.

(This definition comes from the Safeguarding Vulnerable Groups Act 2006.)

On their wording, (a), (d) and (e) require risk of some positive harmful act by the suspended person.  (b) can include risk of a negligent omission which causes actual harm.  The Archbishop’s statement makes clear that the ‘risk’ alleged against the Bishop does not fall within the scope of (a), (b), (d) or (e).

So the suspension can only be justified (if at all) on ground (c).  Clearly ground (c) is much broader than the others.  There must be a huge number of acts or omissions that are potentially capable of risking harm.

Ground (c) therefore requires

(1) a risk of harm and

(2) an act or omission that puts the child at that risk.

To put is defined in the dictionary as ‘move [child] so that it comes into some situation’.  The act or omission must be one that moves the child into a position of risk.

If a hypothetical bishop were to appoint a vicar whom he knew possessed child-harming tendencies, that could indeed put the children of the vicar’s parish at risk of harm.  However, it may be difficult to decide when the link between (1) the risk of harm and (2) the bishop’s act or omission is so tenuous and remote, or speculative, that it does not fall within ground (c).

For example, there may be information in diocesan records about a vicar who transferred out of the diocese some time ago.  A new bishop is appointed, is made aware of the information, but takes no action.  He has never been responsible for the oversight and discipline of the vicar.  The vicar may indeed constitute a risk to children in his new diocese.  But it could be argued that the children were ‘put’ at risk by those who managed the vicar’s transfer, not by the bishop who was only appointed after this happened.

The allegation against the Bishop of Lincoln, of ‘not adequately safeguarding children’, is vague, and much wider than the statutory ground of suspension ‘put[ting] a child or vulnerable adult at risk of harm’.  (Particulars of the allegation are not being disclosed.)  Not every failure of safeguarding procedure will amount to putting a child at risk.

It should also be remembered that suspension speaks to the future, not the past.  It is concerned to protect children from being harmed, not to punish past harm.  A past safeguarding failure will not always establish a significant risk of future harm, if failure is acknowledged and lessons learned.

As its title implies, the 2016 Measure is concerned with (1) the safeguarding of children etc and (2) clergy discipline.  These 2 functions are distinct.  Clergy discipline is particular to the Church.  Safeguarding children is a duty that the Church shares with the secular state.

The power of suspension engaged in this case is concerned with safeguarding (1), not with clergy discipline (2).  As mentioned, it may only be exercised on the relation of the secular authorities, not by the Church of its own motion.  It is an emergency, interim power.  Its purpose is to assist the secular state to fulfill its duty to protect children.  If the feared risk of harm to children proves substantial, it is the responsibility of the secular authorities to take further legal action, under the secular law, to ensure that the children are safeguarded.

Clergy Discipline is addressed elsewhere in the 2016 Measure.  S.5(1) of the Measure introduced a new and specific safeguarding duty.  This provides that bishops and other clergy ‘must have due regard to guidance issued by the House of Bishops on matters relating to … safeguarding’.  S.8(1)(aa) of the 2003 Measure (as amended by the 2016 Measure) now provides that failure to have ‘due regard’ to this guidance now constitutes misconduct.

The Church of England’s internet website refers to no fewer than 18 statements of guidance: 3 ‘policy statements’, 13 ‘practice guidances’, plus ‘Q and As’, and 2 items of ‘joint practice guidance agreed with the Methodist Church’.  It warns that ‘All the policy and practice guidance on this page has been approved by the House of Bishops [under s.5(1)] and must … be followed’.  It suggests that ‘due regard’ to the guidance means that the subject ‘is required to follow it unless there are cogent reasons for not doing so’.

The specific safeguarding duty is recent.  It cannot be imposed retrospectively.  However, there has always been a disciplinary offence under the 2003 Measure of ‘neglect or inefficiency in the performance of the duties of … office‘ (s.8(1)).  At least one case brought under the 2003 Measure indicates that disciplinary tribunals are willing to interpret ‘duties of office’ to include a common law duty to take care (or something resembling it), as well as duties specifically prescribed by ecclesiastical law.  (See ‘Armstrong v Robinson: The Cares of Office‘, filed below in this category.)

The Bishop has not (not yet, anyway) been charged with failure to comply with the s.5(1) duty, or with any breach of clergy discipline.  Any disciplinary proceedings would be subject to the 1 year limitation period, as provided by s.9(1) of the 2003 Measure.

(Websites accessed 18th May 2019.)

Clergy Doctrine and Same Sex Marriage

In an earlier blogpost entitled ‘Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?’, we argued that for a clergyman to enter into a same sex ‘marriage’ would not constitute disciplinary misconduct as the law now stands.  Clergy who enter such marriages should be safe from the Clergy Discipline Measure 2003 unless and until the General Synod changes the law to make it a specific disciplinary offence to do so.  (This post is filed below.)

However, it has been argued elsewhere that same sex marriage by clergy would or might constitute an offence against doctrine, a so-called ‘reserved matter’, cognisable under the unrepealed provisions of the Ecclesiastical Jurisdiction Measure 1963.

The informative ‘Thinking Anglicans’ website has reported (3rd August 2014, drawing on an article in The Guardian newspaper) that this argument is favoured by supporters of gay marriage, in the belief that the 1963 Measure will afford greater protection for clergy than the 2003 Measure.  The 1963 procedure for reserved matters is cumbersome, and has never been used to date.  The penalties are also milder: ‘no censure more severe than monition shall be imposed unless the court is satisfied that the accused has already been admonished … in respect of another [similar] offence’ (s.49(3)).  (Perhaps this means that a clergyman could only be removed from office after entering a second gay marriage!)

Nevertheless, if the Thinking Anglicans / Guardian report is correct the said supporters are gravely mistaken.  They forget why the Clergy Discipline Measure 2003 was passed in the first place.  Far from protecting clergy, the 1963 jurisdiction, if it applies, will render them much more vulnerable.

Before the Clergy Discipline Measure, only beneficed clergy enjoyed the protection of the ecclesiastical courts.  They could not be removed from office, or penalised in any way, unless the courts found them guilty of an offence.  Licensed clergy, by contrast, were at the mercy of their bishops.  If the bishop was satisfied that a licensed clergyman had misconducted himself, he could simply revoke the licence, without reference to the courts.  The bishop was both prosecutor and judge.

Licensed clergy were understandably unhappy about this (especially as the secular law also denied them protection from unfair dismissal).  They started to join trade unions.

It was therefore one of the principal ‘selling points’ of the Clergy Discipline Measure that it granted the same disciplinary rights to licensed clergy as those enjoyed by beneficed clergy.  Thus s.8(2) of the Measure provides that ‘In the case of a minister licensed to serve in a diocese by the bishop thereof, the licence shall not be terminated by reason of that person’s misconduct otherwise than by way of [disciplinary] proceedings’, i.e the proceedings provided by the Measure.

This means that, if same sex marriage is not a conduct matter governed by the 2003 Measure but a reserved doctrinal matter governed by the 1963 Measure, the protection afforded by s.8(2) will be lost.  S.8(2) only applies to misconduct alleged under the 2003 Measure, not to offences against doctrine under the 1963 Measure.  Beneficed clergy may be alright, but licensed clergy will again be at the mercy of their bishops, just as they were before the 2003 Measure.

However, it is argued that a clergyman entering a same sex marriage is plainly not a reserved doctrinal matter.  Offences against doctrine under the 1963 Measure are intellectual in character.  They concern the expression of religious opinions that are contrary to the Church’s teaching.  Getting married is obviously not an expression of opinion, even though it may be motivated by religious opinion.  It is an act, a matter of conduct.

Almost any serious misconduct alleged under the 2003 Measure ‘unbecoming or inappropriate to the office and work of a clerk in holy orders’ (e.g committing adultery, getting drunk, being rude to people) will involve some contravention of the Church’s teaching.  That is precisely why the conduct is unbecoming and inappropriate.  However, contravention of the Church’s teaching by misconduct does not turn a conduct case into a doctrinal case.

The ecclesiastical jurisdiction over doctrinal offences is discussed in another post entitled ‘The Court of Ecclesiastical Causes Reserved: England’s Inquisition’, filed under the category ‘Ecclesiastical Jurisdiction’.

Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?

‘it would not be appropriate conduct for someone in Holy Orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives’  (House of Bishops’ Pastoral Guidance)

‘Disciplinary proceedings under this Measure may be instituted against any [ordained minister] alleging … conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders’ (Clergy Discipline Measure 2003, s.8(1)).

Although the Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church, it does not forbid clergy from entering into same sex marriages.  However, the House of Bishops of the General Synod has just issued a robust statement entitled ‘Pastoral Guidance on Same Sex Marriage’, affirming that ‘the Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged’.  The statement was published, appropriately enough, on St. Valentine’s Day, 14th February 2014 (accessed on the Church of England’s internet website the following day).

The statement does not explicitly threaten disciplinary action against clergy who take advantage of the 2013 Act to enter into same sex marriages.  However, the assertion quoted above, that to do so ‘would not be appropriate conduct’, may contain a broad hint (reinforced by being printed in bold text on the internet).  The words ‘appropriate conduct’ echo s.8(1) of the Clergy Discipline Measure 2003, also quoted above.

Of course, the House of Bishops is not able to decide authoritatively if making a same sex marriage constitutes misconduct under the 2003 Measure.  The Measure confers that power on the disciplinary tribunals constituted by the Measure, and on the higher ecclesiastical courts (cf s.17 and s.20).  The House can only express the collective or majority opinion of its members.  Nor is the House even in a position, collectively, to institute disciplinary action against clergy.  That is the individual responsibility of each diocesan bishop (cf. s.12).

Criminality and Immorality

As the accompanying Code of Practice points outs, the Clergy Discipline Measure provides no further definition of ‘unbecoming or inappropriate’ conduct (para 28).  However, the legislative history of s.8(1) may give some indication of its intended scope.

In the presecular era there was probably little distinction between law and morality.  Behaviour considered immoral was generally also illegal, at least if done in public.  The 1662 Ordinal (and its predecessors) give opportunity to object to the ordination of a deacon or priest on the ground of a ‘notable crime‘.  Writing in the early 18th century, John Ayliffe suggested that ‘All the causes of deprivation [of clergy] may be reduced to these three heads … want of capacity, contempt [of the ecclesiastical court] and crimes‘ (cited in Combe v De la Bere (1881) 6 Probate Division 157 at 163).

Clergy lifestyles were regulated by canon 75 of 1603.  Canon 75 provides that clergy ‘shall not give themselves to any base or servile labour, or to drinking or riot, spending their time idly … playing at dice, cards or tables, or any other unlawful games’.  Canon 109 deprecates ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life’, whether by clergy or laity.  In the early modern period, the ecclesiastical courts were known affectionately as ‘the bawdy courts’, because they exercised criminal jurisdiction in respect of such behaviours.

In the late 19th century ecclesiastical law was amended to take account of the growing divergence between secular law and Christian morality, in order to preserve clergy discipline.  The Clergy Discipline Act 1892 was passed ‘for better enforcing discipline in the case of crimes and other offences against morality committed by clergymen’ (recital).  It provided that clergy were liable to ecclesiastical discipline for ‘an immoral act, immoral conduct or immoral habit’ (s.2).  It further provided that these forms of immorality ‘shall include such acts, conduct and habits as are proscribed by [canons 75 and 109]’: ‘shall include’ suggests that immoral behaviour is not limited to that suggested by canons 75 and 109.

Then the Ecclesiastical Jurisdiction Measure 1963 provided an ecclesiastical offence of ‘conduct unbecoming the office and work of a clerk in holy orders’ (s.14).  ‘Unbecoming’ may be a rather broader term than ‘immoral’.  The Clergy Discipline Measure 2003 seems to broaden the scope of clergy discipline still further, with its phrase ‘conduct unbecoming or inappropriate’, in s.8(1).

Is the wording of s.8(1) broad enough to discipline a clergyman for entering into a same sex marriage?  The purpose of the 2003 Measure was to provide a disciplinary regime for clergy similar to that of secular professions such as doctors or lawyers.  The old terminology which suggested that the ecclesiastical courts exercise a ‘criminal’ jurisdiction over clergy was dropped.  The standard of proof of misconduct was also lowered from the high criminal standard to the civil standard (s.18(3)).  Nevertheless, the Clergy Discipline Measure is still penal, or quasi-criminal, in character.  This means that s.8(1) must be interpreted restrictively or narrowly.

Homosexual acts may be capable of constituting misconduct under s.8(1).  This is clear both from the plain wording of s.8(1) and its legislative history.  However, it does not follow from this that entering into a same sex marriage would contravene s.8(1).  Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal.  The law has permitted or tolerated homosexual acts for many years now.  However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates.  It is a status that is positively conferred by law.

It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

Doctrine and Discipline

Such an argument is also contradicted by the Court of the Arches’ decision in Banister v Thompson (1908) Probate 362.  The decision, like the House of Bishops’ pastoral guidance, concerned a marriage that was valid in English law but contrary to the Church’s teaching, in that case marriage to a deceased wife’s sister.  Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had made such a marriage.  When disciplined for this, he relied on the ecclesiastical jurisdiction to refuse the Sacrament to an ‘open and notorious evil liver’.

The Court did not deny that Mr Banister’s marriage contradicted the Church’s teaching.  It even admitted the difficulty: ‘the recent Act [legalising marriage to a deceased wife’s sister] seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.389).

Nevertheless, the Court firmly rejected Canon Thompson’s defence and upheld Mr Banister’s right to receive Holy Communion.  It was ‘impossible to say that these persons [Mr and Mrs Banister], lawfully married … can … be so described [as open and notorious evil livers] merely because they are living together as man and wife’ (p.390).  The Church’s teaching per se was not sufficient to justify the legal sanction.

It is true that the facts of Banister v Thompson were different from those addressed by the House of Bishops.  The case concerned a lay parishioner’s right to the Sacrament, not a clergyman’s tenure of office.  However, it makes the point that the law cannot very well condemn someone for making a lawful marriage, even if the marriage contradicts the Church’s teaching.  The accusation ‘conduct unbecoming or inappropriate’ is couched in milder language than that of ‘open and notorious evil liver’, but the potential consequences (removal from office, prohibition for life from officiating as a clergyman) are still severe.

The House of Bishops’ statement suggests that ‘The effect of the Marriage (Same Sex Couples) Act 2013 … [is that] there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer’ (para 9).  Banister v Thompson, which is now more than 100 years old, reminds us that this is not the case.  The 2013 Act has undoubtedly widened the ‘divergence’ between Church and state concerning marriage.  However, the divergence  began at least as early as 1857.  By permitting the dissolution of the marriage contract by divorce, and remarriage after divorce, the Divorce and Matrimonial Causes Act 1857 effectively denied the Church’s teaching that the marriage contract, once validly made, is indissoluble except by the death of one of the spouses.

Ecclesiastical law responded to the divergence by imposing disciplinary penalties on clergy who became involved in divorce proceedings.  Today the Clergy Discipline Measure makes clear that clergy who are divorced or separated for adultery or unreasonable behaviour are liable to penalties (ss.30 and 31).  Clergy are also required to disclose divorce and separation orders involving them (s.34).

However, there is still no law to forbid a clergyman who has been divorced from marrying again, even though his former spouse is still alive, or from marrying a divorced person.  There is a general rule that a person who has been divorced and remarried etc may not be ordained, but still nothing to prevent a divorced person who has already been ordained from remarrying.  Even the general rule forbidding ordination is no longer absolute.  A bishop may now obtain a faculty from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)

Thus, if a clergyman is to be disciplined for making a same sex marriage, the court may want to know why such a marriage constitutes ‘inappropriate conduct’ under s.8(1) of the Clergy Discipline Measure, when a second marriage following divorce apparently does not.

For these reasons it is suggested that s.8(1), despite its broad wording, is still not broad enough to discipline clergy for making a same sex marriage that is lawful under English law.

This conclusion does not deny the force of the House of Bishops’ statement qua pastoral guidance.  As the statement says, ‘[clergy] getting married to someone of the same sex would … clearly be at variance with the teaching of the Church of England’ (para 26).  The teaching is found in Canon B30 and in the Book of Common Prayer, which are cited in the statement.

Thus for clergy to make same sex marriages is indeed unbecoming and inappropriate in the context of Canon B30 and the Prayer Book.  However, the disciplinary offence of ‘conduct unbecoming or inappropriate’ must be understood in the context of the Clergy Discipline Measure, and not (at least not directly) in the context of Canon B30 and the Prayer Book.  The Clergy Discipline Measure itself must be understood in the context of English law, of which it is a part.

Discipline and Pastoral Care

The case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 makes clear that disciplinary proceedings should not be used as a device for resolving a pastoral difficulty, however genuine and serious.  The Rev Mr Bland was found guilty of various ecclesiastical offences and sentenced to be deprived of his benefice.  His cantankerous behaviour had alienated the parishioners to such an extent that his Sunday services were attended only by his housekeeper.  The chancellor therefore held that ‘it is my duty to pass sentence pro salute animarum, for the good of souls, which includes both [Mr Bland] and the souls of [his parishioners] … the convicted clerk and the cures where he was working [should] part company now for ever’ (p.1021).

However, the Court of the Arches strongly disapproved this decision, as based on ‘a wholly wrong approach’.  It held that ‘The paramount consideration in selecting the appropriate sentence for an [ecclesiastical] offence … should be the gravity of the offence.  Censure of deprivation … should never be pronounced in respect of an offence which does not merit such censure merely because it is highly desirable to part an incumbent from his parish and there is no other administrative method of removing him from his benefice’ (p.1021-22).

Of course, the Bland case was not concerned with the Church’s teaching.  However, it was concerned with the relationship between ecclesiastical discipline and pastoral care.  Clergy who enter into same sex marriages create a pastoral problem, for the reason identified by the House of Bishops.  They may not drive their parishioners from the Church as the Rev Mr Bland apparently did, but they still cause the Church’s teaching on marriage to be misrepresented or obscured (cf Pastoral Guidance, para 24).

The Court of the Arches’ dictum in Bland, emphasising that an ecclesiastical penalty must be determined according to the gravity of the offence, reinforces its decision in Banister v Thompson.  How can a lawful marriage be regarded as a ‘grave offence’, or indeed as any offence?

The obvious legal solution to the pastoral difficulty is to amend the law, and so bring clergy discipline into alignment with the Church’s teaching.  This would require new legislation making it a specific ecclesiastical offence for clergy to enter into same sex marriages.

Any amendment of the Clergy Discipline Measure to include such an offence would, of course, require the approval of Parliament, which might not be forthcoming in the present climate of opinion.  However, the General Synod has a common law power to legislate by canon, inherited from the Convocations, which does not require parliamentary approval (see Synodical Government Measure 1969).

It has been suggested that canons made under this common law power are not binding upon lay people, but there is no doubt that they are capable of binding the clergy.  The Marriage (Same Sex Couples) Act 2013 also confirms that ‘No Canon of the Church of England is contrary to s.3 of the Submission of the Clergy Act 1533 [ie. no Canon is contrary to the secular law] … by virtue of its making provision about marriage being the union of one man with one woman’ (s.1(3)).  The phrase ‘provision about marriage’, not being limited to the Church’s teaching on marriage, would seem to be broad enough to encompass a new disciplinary canon forbidding clergy to enter into same sex marriages.

A Fair-Minded and Informed Observation of Cooper v Gair

Decision of a bishop’s disciplinary tribunal given in November 2008, Chancellor Rupert Bursell presiding.  Unreported, but a copy of the decision is available on the website of the Church of England, accessed 18th June 2012.

S.22 of the Clergy Discipline Measure 2003 contains provisions that are designed to ensure the impartiality of disciplinary tribunals:

(1) the members of the tribunal must be drawn from outside the diocese  whence the case originated

(2) the President of Tribunals must be ‘satisfied that there is no reason to question the impartiality’ of any member of the tribunal

(3) the accused clergyman has the right ‘to make representations as to the suitability’ of each member of the tribunal.

S.23 of the 2003 Measure contains similar provisions concerning the Vicar-General’s Court, which decides disciplinary complaints against bishops and Archbishops.

Provision (1) above was introduced to avoid a repetition of the unfortunate case of Burridge v Tyler (1992) 1 All England Reports 437.  A clergyman, Tyler, was convicted by the consistory court of his diocese of adultery with two women of his parish.  One of the assessors who decided the case was a friend both of Tyler and of one of the women and her husband.  Before the case came to trial, the assessor even visited Tyler on two occasions to discuss the case, and formed a preliminary view of his guilt.

The Court of the Arches was therefore obliged to order a retrial, at considerable expense to the Church.  It made the obvious point that, if disciplinary cases were to be determined within the diocese, ‘it is highly likely that clerical assessors will inevitably have some acquaintance with an accused [clergyman]’ (p.439).

Provision (1) therefore seeks to protect the tribunal from any lack of impartiality arising from personal acquaintance or connection between the tribunal members and the parties to the case and their witnesses.  But a tribunal’s impartiality may be endangered by other factors than personal acquaintance.

Provision (2) may also reflect the experience of Burridge v Tyler.  It emphasises the impartiality of the individual members of the tribunal, but not of the tribunal as a whole.  The assumption is that, if each member is impartial, the full tribunal must also be impartial.

However, it could be argued that impartiality may sometimes require a certain balance or composition of members of a tribunal.  Employment tribunals normally include one trade union representative and one representative of employers’ organisations.  It is thought that representation of the interests of both sides of the employment relationship enables employment tribunals to decide disputes impartially.

The President of Tribunals is required to satisfy himself that the tribunal members are impartial, but impartiality per se is determined by law, not by the President.  Case law suggests that impartiality is lost if

‘a fair-minded and informed observer … would conclude that there was a real possibility that [the tribunal] might be … biased’ (AWG Group Ltd v Morrison (2006) 1 Weekly Law Reports 1163, Court of Appeal, p.1167). 

This test of apparent bias therefore resembles a ‘reasonable bystander’ test.

Provision (3) refers to the suitability of tribunal members.  ‘Suitability’ is, of course, a broader criterion that impartiality.  A tribunal member can be unsuitable even if impartial.  The Code of Practice issued under the 2003 Measure suggests that the President should accept an objection to a tribunal member based on unsuitability if the objection has ‘any substance’ to it (para 187). 

In Cooper v Gair, the Rev Mr Gair was accused of sexual misconduct.  A disciplinary complaint was made by the archdeacon, who was a woman (Ms Cooper).  One of the clerical members of the disciplinary tribunal was also a woman. 

Mr Gair informed the President of Tribunals that he ‘[held] to the integrity that does not recognise the validity of women’s priestly orders’, in other words he was opposed to women priests.  He therefore requested that

(1) both the clerical members of the tribunal (though not the lay members) should be male and

(2) one of them should be a member of a priestly society that shared his views on female ordination.

When pressed to explain the reason for this request, Mr Gair stated

‘I have yet to meet one woman in orders who accepts my integrity in the matter of believing her orders invalid … I cannot believe that my view on this would fail to aggravate her impartiality …’.

The tribunal acknowledged, correctly, that it was a public authority under the Human Rights Act, and therefore subject to Article 6 (the right to an independent and impartial tribunal).  However it rejected Mr Gair’s request:

‘the tribunal as a whole, and the [woman priest member of the tribunal] in particular … gave very careful preliminary consideration to the possible impartiality [sic – presumably ‘lack of impartiality’] suggested by Mr Gair … we were each satisfied that neither the tribunal as a whole nor any individual member lacked any impartiality’.

This conclusion indicates that the tribunal failed to apply the proper test of impartiality, as described in the case law cited earlier.  Of course, the tribunal members were satisfied in their own minds that they were impartial.  We all think that we are impartial.  However, the proper test is what a fair-minded and informed observer would think, not what the tribunal itself thinks. 

It is argued that, if the correct test had been applied, a different conclusion would have followed.  An informed observer would know that

(1) female ordination is a controversial and divisive issue in the Church of England, a cause of ill-feeling, and has been so for many years, and

(2) opponents of female ordination are a small minority.

If a woman priest sits in judgment on a clergyman who is a known opponent of women priests, a real possibility of bias must occur to a fair-minded observer.  That is not to accuse the woman priest of actual bias.  The mere possibility of bias in the mind of an observer is enough.

Indeed there is a real possibility of bias on the part of any tribunal appointed to judge an opponent of women priests, because he belongs to a small and unpopular minority.  It is therefore argued that the requirement of impartiality demands that a tribunal appointed to judge such a person should include at least one member who is also a known opponent of female ordination (as Mr Gair requested).

The Code of Practice suggests that, where a disciplinary case concerns a person from a ‘minority ethnic background’, the tribunal should include ‘at least one member … from a similar ethnic group or background’ (para 186).  There is also a general obligation to be ‘sensitive to relevant gender and ethnic backgrounds’.  This wording suggests that an accused woman priest would be entitled to insist that another woman priest be appointed to the disciplinary tribunal.  However, no similar allowance is made for an opponent of female ordination. 

The only reference to the women priests controversy in the clergy discipline regime would seem to be in the Code of Practice, which provides that the diocesan bishop ‘may’ consult the provincial episcopal visitor (or ‘flying bishop’) if the accused clergyman is from a parish that is under the visitor’s oversight (para 95).

Sex v Conscience: Clergy Discipline and Ecclesiastical Law

Cases under the Clergy Discipline Measure 2003 are likely to fall into one of two broad categories, which may be conveniently described as sex cases and conscience cases.

In a typical sex case, a lady parishioner may allege that she and the vicar have jointly offended against the Seventh Commandment, or that the vicar has otherwise been guilty of some gross personal misbehaviour.  The vicar denies any wrongdoing.

The outcome of such a case will, of course, depend entirely upon the evidence.  An accused clergyman may therefore be wise to employ an experienced criminal lawyer, skilled in the art of cross-examination, to represent him.  Knowledge of the obscurer points of ecclesiastical law is unlikely to be of much assistance.

Most disciplinary cases are likely to be sex cases, and sex cases are likely to incur the most severe penalties.  However, a conscience case is always possible.

In a conscience case, a clergyman with strong opinions on a particular matter (e.g homosexuality, female ordination) will ostentatiously do some act, or perhaps refuse to do some act, in order to make a point.  If this conduct annoys or alarms the Church authorities, the clergyman may then be disciplined for neglect of duty or disobedience to ecclesiastical law.

In such a case, there is unlikely to be much dispute about the facts.  The difficulty will lie rather in identifying the relevant law.  What was the nature and scope of the ‘duty’ that the clergyman is alleged to have neglected?  If the complaint is disobedience, did the Church authority have the legal power to make the order that the clergyman disobeyed?  A detailed knowledge of ecclesiastical law may therefore be very important in a conscience case.

Armstrong v Robinson: The Cares of Office

Decision of the Bishop’s Disciplinary Tribunal, Diocese of Chester, August 2008.  Unreported, but the transcript of the decision is available on www.ecclaw.co.uk, the informative website of Mr Mark Hill QC, accessed 12th April 2012.

S.8 of the Clergy Discipline Measure 2003 identifies three species of misconduct by clergy, as follows:

(1) doing any act in contravention of the laws ecclesiastical, or failing to do an act required by the laws ecclesiastical (i.e disobedience to lawful authority)

(2) ‘neglect or inefficiency in the performance of the duties of … office’

(3) unbecoming or inappropriate conduct.

Thus, in order to succeed, a disciplinary complaint under the Measure must fall fairly and squarely into at least one of these three boxes.

Canon Robinson appointed as a ‘youth worker’ in his parish a man who had been convicted of manslaughter, imprisoned and later released on licence (para 1).  As a youth worker, the man would obviously have had close contact with children.  

However, Canon Robinson did not obtain ‘clearance’ from the Criminal Records Bureau (CRB) before appointing the youth worker (para 11).  When the conviction was discovered, he then ignored advice to dismiss him.  When the parochial church council (PCC) resolved that the youth worker be dismissed or suspended pending the outcome of a ‘risk assessment’, Canon Robinson attempted to reinstate him.

The diocesan child protection adviser brought a complaint against Canon Robinson (para 4).  The complaint was one of negligence or inefficiency in the performance of the duties of his office (box (2) above).

Particulars of the supposed neglect included ‘failing to prioritize the well-being of children’ (para 24), also ‘failing to appreciate the potential relevance of [the youth worker’s] conviction’ (para 25).  The Canon was also accused of ignoring the Church’s policies and guidance on the protection of children (para 109).

It was acknowledged that, although the youth worker was a convicted killer, there was no evidence that he constituted a risk to children (para 6).  No child had been hurt in any way as a result of his appointment.

The Tribunal found that parts of the Church’s child protection guidance were inconsistent with each other, to a degree which was ‘markedly unhelpful’ (para 40).  Also, the guidance was not expressed in mandatory terms (112). The Bishop himself had said that he could only ‘offer advice’ to Canon Robinson and his PCC on the matter (para 68). 

Above all, the child protection guidance lacked the force of law (para 110).  No law required the Church authorities to issue such guidance.  No law required Canon Robinson to follow it, or even to consider it.  The Tribunal admitted that ‘there is no prescribed legal mechanism for the transition of such child protection policies into legal duties’ (para 120).

Yet the Tribunal still found Canon Robinson guilty.  It held that his cure of souls brought duties towards children and young people, which included observing the child protection guidelines.  By neglecting to follow these guidelines, Canon Robinson neglected his duty (para 120). 

The Tribunal also held that, for the purposes of the Clergy Discipline Measure, duties of office ‘are not restricted to offences against ecclesiastical law (para 117) … the phrase [in s.8] should be read broadly (para 118) … The matter [of duty] will be fact-sensitive …’.  Thus Canon Robinson could be guilty of neglect of duty, even though the duty was not a duty under ecclesiastical law.

These conclusions strongly suggest that Canon Robinson’s ‘duty of office’ resembled a common law duty to take care.  His neglect of that official duty corresponded to breach of a common law duty.

In the case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012, the Court of the Arches specifically disapproved the equation of neglect of duty with breach of a common law duty of care.  It held that

‘This comparison of ‘neglect of duty’ with negligence at common law was unnecessary and irrelevant and was likely to confuse and mislead … A duty to take reasonable care was not the duty which [the Rev Mr Bland, the defendant in the case] had to perform and failure to perform that duty was not the offence charged.’ (p.1015)

The Bland case was, of course, decided before the 2003 Measure.  Clergy discipline was formerlyregulated by the Ecclesiastical Jurisdiction Measure 1963.  The Tribunal concluded that the 2003 Measure introduced a new concept of neglect of duty, with the consequence that Bland is no longer good law (para 117).

This is hard to accept.  The 1963 Measure referred to ‘serious, persistent or continuous neglect of duty’ (s.14(1)).  The 2003 Measure refers to ‘neglect or inefficiency in the performance of the duties of … office’.  This wording suggests that the 2003 Measure lowered the threshold of neglect, in two respects:

(1)  a clergyman can be guilty of misconduct, even if the neglect is not serious or persistent and

(2) an inefficient perfomance of a duty is misconduct, as well as complete failure to perform a duty.

However, while it does broaden the concept of neglect, the Clergy Discipline Measure does not alter the concept of duty in any way.  There is nothing in the 2003 Measure which suggests that the ‘duties’ which a clergyman is required to perform efficiently are any different from those referred to in the Ecclesiastical Jurisdiction Measure and discussed in Bland.  These duties remain duties of office imposed by ecclesiastical law, not a duty to take care imposed by secular common law. 

The Tribunal’s interpretation also does some violence to the word ‘performance’ in the 2003 Measure.  ‘Performance’ denotes a positive and specific act.  A duty to take care is non-specific and, as the Tribunal said, fact-sensitive.  It is owed and discharged, rather than performed.  It is also negative in character, being concerned to avoid harm rather than to do good.  It is slightly absurd to say that clergyman ‘performs’ a duty to take care that his appointees are suitable to work with children.

A clergyman may well owe a duty of care to his parishioners (and their children), and may act in breach of this duty.  However, that is a matter for the secular civil court to decide, not the ecclesiastical court.  In this case, of course, Canon Robinson would have had no common law liability, because no child had suffered any harm.

A disturbing feature of this decision is the suggestion that clergy may be guilty of misconduct merely for disregarding advice or ‘guidance’, even if this has no legal basis whatsoever.

Several recent Measures empower the House of Bishops, and other Church authorities, to issue guidelines, codes of practice etc on a particular matter, to which others are required to ‘have regard’.  If the child protection guidance had been issued under such a statutory power, it could have been argued that Robinson was guilty, not of neglect of duty, but of ‘failing to do [an] act required by the laws ecclesiastical’ (box (1) above).  However, as the Tribunal recognised, the child protection guidance was not issued under any statutory power, so Robinson could not have been charged with this misconduct.

It may be that the Canon acted rashly in employing a convicted killer and in disregarding advice.  The anxiety of the Church authorities is understandable.  However, obstinacy and poor judgement do not per se amount to misconduct under the 2003 Measure.  If clergy are to be compelled to follow the child protection guidance, the obvious course is to amend the law to impose such a legal requirement on them.