ecclesiasticallaw

Ecclesiastical law

Category: Clergy Discipline

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’.

Conciliation and Clergy Discipline

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.

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).

The Terms of Service Measure and the Clergy Discipline Measure

The Ecclesiastical Offices (Terms of Service) Measure 2009 does not make clear how the ‘capability procedure’ that it introduces will interact with the disciplinary procedure provided by the Clergy Discipline Measure 2003 (‘the CDM’).

There will be no difficulty in the case of lay ministers, since they are not subject to the CDM.  Nor does the CDM address medical incapacity (or incapability), only misconduct.  However, the CDM, which was passed only 6 years before the Terms of Service Measure, was intended to provide a comprehensive disciplinary code applicable to beneficed and licensed clergy on equal terms.

S.9(1) of the 2009 Measure provides that the Terms of Service Regulations made thereunder shall not affect proceedings for misconduct under the CDM.  However, the definition of ‘misconduct’ in the CDM includes ‘neglect or inefficiency in the performance of the duties of … office’ (s.8(1)(c)).  This suggests that the disciplinary procedure of the CDM will overlap with the capability procedure of the 2009 Measure to a considerable extent.  The distinction between ‘neglect or inefficiency’ and non-medical ‘incapability’ is very hard to understand.

Ms Judith Egar, of the Church of England legal office, made a bold and thought-provoking attempt to explain the relationship between the capability procedure and the CDM in an article published in the Ecclesiastical Law Journal (September 2008, p.328).  She acknowledged that the two regimes overlap to some extent, but suggested that they serve different purposes.

First, she argued that the CDM is concerned with ‘misconduct’, whereas the capability procedure addresses failure to perform to an acceptable professional standard.  However, as mentioned, the CDM does include ‘neglect or inefficiency’ in its definition of misconduct.  Thus inefficiency is misconduct under the CDM.

It may be that the word ‘inefficiency’ in the CDM was not well chosen.  It can open the door to a great many trivial complaints, as even the most conscientious people are sometimes inefficient.  Ms Egar expressed the hope that the capability procedure will reduce the number of complaints of inefficiency under the CDM, but it is arguably more appropriate to amend the wording of the CDM, rather than introduce a second procedure.

Another distinction suggested by Ms Egar is that the CDM procedure is concerned with punishing past misconduct, whereas the capability procedure is concerned with improving future performance.  The CDM is undeniably concerned with past conduct, but the lesser penalties that it prescribes (injunction, conditional deferment, conciliation) address future performance as well. 

S.2(1)(d) of the 2009 Measure refers to ‘remedies’ for inadequate performance, whereas the 2003 Measure provides for ‘penalties’ (at s.24).  However, the potential outcome of the disciplinary procedure and of the capability procedure is essentially the same for the individual concerned, loss of office.  Moreover, disciplinary penalties which do not involve loss of office can also have a remedial character, as well as a penal character.

Ms Egar illustrated her suggested distinctions between the CDM and the capability procedure with a hypothetical case of a scatterbrained vicar whose persistent administrative incompetence culminates in a disciplinary complaint after she forgets to turn up to a funeral which she is due to conduct.  Ms Egar’s solution to this hypothetical case is to take the option of no further action under the CDM (s.13), and use the capability procedure instead, to improve the vicar’s office skills.

However, this solution involves a radical reinterpretation of the ‘no further action’ option provided by the CDM.  The official background note to the CDM suggests that no further action is appropriate to ‘a technical breach of discipline … of insufficient significance to warrant further action …’.  Ms Egar’s interpretation, by contrast, is that no further action is appropriate, not because the disciplinary issue is too trivial, but because it is too serious.

It may, of course, be appropriate for an inefficient officeholder to be required to undergo remedial training but this might be achieved within the CDM framework by an injunction.  An injunction is defined in the CDM as ‘an order to do, or to refrain from doing, a specified act’ (s.24).  Also, if the officeholder frankly admits her shortcomings and seeks help, this is a mitigating factor which may justify a less severe penalty such as a rebuke, or the deferment of a penalty.  But that is not the same as abandoning the disciplinary proceedings altogether.

However, the policy and wording of the CDM itself allow little scope for a separate capability procedure.  The CDM was intended to be a comprehensive disciplinary regime for all the clergy, a ‘unified procedure’ as the official note expresses it.  It was intended to put an end to the unequal disciplinary treatment of beneficed and licensed clergy, and makes clear that a licence ‘shall not be termined by reason of [a minister’s] misconduct otherwise than by way of [CDM] proceedings’ (s.8(2)).  If a separate capability procedure was thought necessary, why was it not incorporated into the CDM?

There is a danger that the capability procedure will revive the very distinction between beneficed and licensed clergy that the CDM sought to remove, with the latter being dealt with under the capability procedure, the former under the CDM.  Another danger is that the CDM will be circumvented, as all disciplinary issues except criminal offences and grossly scandalous misbehaviour will be dealt with by the capability procedure.

This may result in a saving of expense for the Church, but may not be an attractive prospect for individual clergy.  Under the CDM, misconduct must be proved or admitted before any penalty can be imposed, and the officeholder has a right of appeal from the disciplinary tribunal on findings of fact as well as on points of law (s.20(1)(b)). 

The capability procedure may be subject to the scrutiny of a secular employment tribunal, but an employment tribunal does not require an employer to prove an employee’s misconduct, only to be satisfied that the employer acted fairly and reasonably in the circumstances.  An employment tribunal’s findings of fact may not generally be appealed.  Even if a dismissal is ruled unfair, the employment tribunal cannot compel the employer to reinstate or reengage the employee.

The Code of Practice issued under the CDM (s.39) was amended in 2011, in an attempt to address the inconsistency.  However, the amended Code still maintains the impossible distinction between ‘neglect or inefficiency’ and ‘incapability’.  It offers no clear guidance as to which cases will be determined under the CDM and which under the capability procedure.  It says only that the choice whether to follow the CDM procedure or the capability procedure ‘will need to be determined on a case by case basis’ (para 259).  It suggests vaguely that ‘It is in the interests of justice for there to be flexibility between [the two procedures] … so that cases are dealt with in the most appropriate way’ (para 260).  Significantly, it does not provide that a clergyman has the right to choose the CDM procedure over the capability procedure.

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.