Ecclesiastical law

Category: Common Tenure

Designated Offices and Common Tenure

Although equal security of tenure for all beneficed and licensed clergy is the general rule under the Ecclesiastical Offices (Terms of Service) Measure 2009, there are exceptions.  S.2(2) of the Measure makes clear that ‘common tenure’ is not incompatible with ‘appointments of limited duration’.

The only such appointment which is specifically referred to in the 2009 Measure concerns that of a priest-in-charge during a vacancy in the benefice.  The licence of a priest-in-charge may be revoked when the vacancy comes to an end (s.3(4)).  However, the Measure also provides that the bishop may revoke a licence granted to a person ‘in connection with employment under a contract of employment’ (e.g a school or hospital chaplain), if the contract is terminated by the employer (s.3(5)).

The Regulations issued under the 2009 Measure provide further categories of appointments of limited duration.  These are stated at Regulation 29.  Such appointments may be either

(1) for a fixed term (which may, however, be extended for a further period or periods indefinitely) or

(2) terminable on the occurrence of a specified event.

Some temporary appointments are fairly obvious.  They include

(1)  a post created to cover a colleague’s authorised absence from work

(2)  a post created as part of a mission initiative (mission initiatives are temporary in nature) and

(3)  a licence granted to an office holder who is above the retirement age of 70.

 However, Regulation 29 also provides for 3 categories of ‘designated office’ that are of limited duration:

(1)  Training posts.  These may arise where the office holder (e.g a recently ordained curate) is required by the bishop to undertake initial ministerial education.

(2)  Posts subject to sponsorship funding.  Such a post may arise where any part of the office holder’s remuneration ‘package’ (i.e stipend, pension, accommodation, expenses) is funded or supplied from outside the official Church (‘defrayed by a person or body other than a diocesan board of finance, parsonages board, parochial church council or the [Church] Commissioners’ (29(4)).  The post might need to be terminated for financial reasons if the sponsor withdrew support.

(3)  Probationary offices.  These may arise

(a)  where the office holder is returning to the Church after a career break (‘has not held any ecclesiastical office in any place during the [preceding] 12 months’ 29(5)) or

(b) where the office holder has a bad disciplinary record under the Ecclesiastical Jurisdiction Measure 1963 or the Clergy Discipline Measure 2003, or was removed from his previous office under the capability procedure introduced by the 2009 Measure (29(6) and (7)).

Training and sponsorship posts (1) and (2) can only be licensed offices, not benefices.  Also, the office of team vicar may not be designated as a sponsorship post.  However, it would be possible, on the wording of Regulation 29, for a benefice to be designated as a probationary office. 

Regulation 29 is silent as to any procedure for the designation of offices.  It does not specify who does the designating, or how, or when.  Moreover, it provides only that offices ‘may’, not must, be designated as such.  This suggests that a particular office need not be designated as a training, sponsored or probationary office, even if it matches the description of one.

Although Regulation 29 is vague, it must be clear from its context that an office can only be designated by the bishop, or at least with his agreement.  The bishop confers title to the office, whether beneficed or licensed.  If an appointment is to be of limited duration, this fact must be recorded on the ‘statement of initial particulars of office’ to which the new office holder is entitled (reg 3(5)(j)).  The statement must be prepared by a diocesan officer nominated by the bishop (3(1)(a)).

The initial statement must be given to the office holder not later than one month after he takes up the office.  The Terms of Service Regulations also envisage that particulars of office may change after the office holder has been appointed.  In that case, the office holder is entitled to another statement ‘containing particulars of the change’ (Reg 6(1)).

It may be very unlikely in practice, but the vagueness of Regulation 29 suggests the possibility of a misunderstanding over the designation of a particular office.  The office holder might accept an office before realising that it is designated and therefore of limited duration.  The bishop might change his mind and designate an office after the office holder has been appointed, thereby reducing the office holder’s tenure.

A disappointed office holder could then have recourse to the diocesan grievance procedure required by the Terms of Service Regulations (reg 32), but this may not be a very attractive option as the grievance procedure is controlled by the bishop.

Clerical Capability

The Ecclesiastical Offices (Terms of Service) Measure 2009 suggests 3 procedures for removing clergy on account of their unfitness for office:

(1) the prosecution of ‘reserved’ offences against doctrine, ritual and ceremonial, under the unrepealed provisions of the Ecclesiastical Jurisdiction Measure 1963

(2) proceedings under the Clergy Discipline Measure 2003 and

(3) the capability procedure, or procedures, provided under the 2009 Measure itself (s.3(3) and (6)).

The capability procedures are described as ‘procedures to assess the performance of office holders, including remedies for inadequate performance’ (s.2(2)(d)).  Under the Terms of Service Regulations 2009, capability procedure takes the form of ‘an inquiry into the capability of an office holder to perform the duties of his or her office’ (reg 31(1)).  The bishop may instigate an inquiry ‘if he considers that the performance of an office holder affords grounds for concern’.  Any inquiry must be conducted in accordance with a statutory Code of Practice (reg 31(3)).

The 2009 Measure does not completely abolish the old class distinction between beneficed and licensed clergy.  However, it seeks to provide that, once they are beneficed or licensed, all clergy will enjoy the same security of tenure and be subject to the same professional discipline.  This point is made by describing the terms of service under which beneficed and licensed clergy hold office as ‘common tenure’ (s.1(3)).

However, it has been argued elsewhere in this blog that ‘common tenure’ is endangered by the confused relationship between the Clergy Discipline Measure and the capability procedure, i.e procedures (2) and (3) above (see posts filed below under this category).

The statutory Codes of Practice concerning the 2003 Measure and the capability procedure are not reassuring on this point.  The Clergy Discipline Code suggests, ominously, that the boundary between discipline and capability procedure

‘will need to be determined on a case by case basis.  It is in the interests of justice for there to be flexibility between the capability procedure under the [Terms of Service] Regulations and disciplinary proceedings under the [2003] Measure, so that cases are dealt with in the most appropriate way’.  (paras 259-60, emphasis supplied).

It is argued that this view is mistaken.  On the contrary, ‘the interests of justice’ demand consistency and certainty.  Clergy discipline, like all professional discipline, is a penal, quasi-criminal jurisdiction which exists to maintain professional standards and public confidence.  This demands that everyone, both the subjects of the jurisdiction and the public, should know what to expect and that the subjects of the jurisdiction should be treated the same.

The Clergy Discipline Code suggests that it is for the bishop to decide whether a complaint should be pursued under the 2003 Measure or under the capability procedure (para 261).  The Capability Code provides that the person appointed by the bishop to oversee a particular case (usually the archdeacon) may suspend a capability inquiry if he decides that the matter should be dealt with under the 2003 Measure or the Ecclesiastical Jurisdiction Measure 1963 (para 22.1).

Neither Code provides for the accused clergyman to have a say in the matter.  The only protection afforded to him is that both Codes agree that he should not be subject to disciplinary proceedings and capability inquiry at the same time.

The danger is that the ‘flexibility’, or rather, the arbitrary ‘case by case’ approach which results from the uncertain boundary between the Clergy Discipline Measure and the Terms of Service Measure will undermine the common professional discipline that was the raison d’etre of both Measures.  Different clergy will be treated differently in respect of the same alleged misconduct.  Worse, accused clergy will only be able to defend themselves in the ecclesiastical courts if their bishops and archdeacons permit them to do so.  The uncertain boundary may cause the capability jurisdiction to become larger and larger as that of the ecclesiastical courts becomes smaller and smaller. 

What is the correct purpose of the capability procedure, if it is not to trespass on proceedings under the Clergy Discipline Measure?  One obvious use for a capability procedure is to assess an office holder’s medical fitness.  It is not misconduct to be in poor health.  The Terms of Service Regulations expressly provide for a medical capability procedure (cf reg 28).  Another use of the capability procedure is to address pastoral difficulties between an office holder and his parishioners.

In the case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 the Court of the Arches firmly held that disciplinary proceedings cannot be used to resolve a difficult pastoral situation by removing an incumbent who has alienated his parishioners but cannot be got rid of by other means.  In the wake of that case, the Incumbents (Vacation of Benefices) Measure 1977 was passed. 

The 1977 Measure introduced a procedure whereby incumbents and team vicars could be removed from office or subject to special restrictions, if it was found on inquiry that their conduct had contributed over a substantial period of time to a serious breakdown in pastoral relations.  ‘Serious breakdown’ was defined as a situation which impedes the promotion of the Church’s mission in the parish (s.19A).

Unfortunately the inquiry procedure provided by the 1977 Measure was so lengthy and expensive that it was hardly ever used.  The case of Cheesman v Church Commissioners (1999) Privy Council 12 records that the Bishop in the case was forced to abandon proceedings against the Rev Mr Cheesman on account of their sheer length and expense (p.20).  The Bishop complained bitterly that the 1977 Measure was ‘a deeply flawed piece of legislation’ (quoted at p.22).  The Privy Council itself acknowledged that ‘It is [the Measure’s] structure which makes the implementation of the 1977 proceedings so cumbersome and uncertain in outcome’ (p.6).

As mentioned, the 1977 Measure applied only to incumbents and team vicars.  This was long before common tenure was introduced.  Licensed clergy who fell out with their parishioners would simply have their licences terminated.

However, s.11(6) of the Terms of Service Measure provides that the 1977 Measure does not apply to any clergy who are subject to common tenure.  This means that the 1977 Measure will soon become obsolete (to the extent that it is not already!) as all clergy will eventually be subject to common tenure. 

The effective repeal of the 1977 Measure under s.11(6), and the decision in Bland, imply that pastoral breakdown will in future be addressed by the capability procedure.

This may have implications for clergy who take advantage of the Marriage (Same Sex Couples) Act 2013 to enter into homosexual ‘marriages’.  We have argued elsewhere that such clergy are safe from the ecclesiastical courts as the law now stands.  However, they may not be so safe from the capability procedure.  It is arguable that the procedure could be used to remove them from office if inquiry were to show, at least to the satisfaction of the Church authorities, that their status had caused pastoral difficulties.

Common Tenure

Ecclesiastical Offices (Terms of Service) Measure 2009

The 2009 Measure provides that all bishops, dignitaries, beneficed clergy and licensed officeholders, including stipendiary lay ministers, shall in future hold office under ‘common tenure’. 

S.1 defines common tenure as terms of service specified by regulations made under the 2009 Measure.  This means that the terms of service themselves constitute common tenure.  Common tenure is defined and constituted by the terms of service regulations (TSRs) in force for the time being.

Tenure of ecclesiastical office was originally determined by common law.  Bishops, dignitaries and beneficed clergy had a freehold, which meant a life interest in their offices.  The tenure of licensed clergy, by contrast, could be terminated at the licensor’s pleasure.

However, from the 19th century onwards, both freehold and licensed tenure were increasingly regulated by statute.  The effect of the statute law has been to limit or reduce the freeholder’s security of tenure, while enhancing the licensee’s security (albeit slightly).

Thus all freeholders are now subject to a compulsory age of retirement (Ecclesiastical Offices (Age Limit) Measure 1975).  They can be removed for disciplinary offences under the Ecclesiastical Jurisdiction Measure 1963 or the Clergy Discipline Measure 2003.  They can also be removed for medical incapacity and, in the case of parochial clergy, for a breakdown in relations with their parishioners (Bishops (Retirement) Measure 1986, Vacation of Benefices Measure 1977, Church Dignitaries (Retirement) Measure 1949).

Freehold offices, and therefore the officeholders, can be made redundant under pastoral schemes made under the authority of pastoral legislation, (legislation now principally contained in the Mission and Pastoral Measure 2011).  Schemes of pastoral reorganisation can also have the effect of reducing the number of freehold offices by such devices as the creation of team ministries and the suspension of rights of presentation to a benefice.

Some licensed clergy, notably team vicars, were granted security of tenure limited to a term of years, though the bishop was still empowered to revoke the licence before expiry of the term (canon C12).  The Clergy Discipline Measure provides that a clergyman’s licence cannot be terminated for ‘misconduct’ except under the disciplinary procedure provided by the Measure (s.8(2)).  However, this did not preclude revocation of a licence for other reasons, including for an offence against doctrine (doctrinal offences do not constitute ‘misconduct’ under the 2003 Measure and the procedure under the 1963 Measure applies only to freeholders).

The 2009 Measure purports to abolish freehold tenure.  S.9(2) provides that a freehold office held under common tenure / TSRs shall cease to be freehold.  However, this provision may be of symbolic significance only, as the statutory reforms of the late 20th century had already rendered the common law freehold fairly nominal.

Moreover, the Measure does not abolish certain incidents of freehold tenure.  The procedures for appointing bishops, dignitaries and beneficed clergy will remain the same.  Former freeholders will remain corporations sole (s.9(3)).  Beneficed clergy will remain the freeholders of their official residences (s.4(1)), and of their churches and churchyards, even though not of their offices.

Licensed tenure, unlike freehold tenure, is not abolished by the 2009 Measure.  The modes of appointing team vicars and other licensed clergy, like those of former freeholders, will remain the same.  The Measure expressly provides that an appointment under common tenure / TSRs may be of ‘limited duration’ (s.2(1)(a)).  This suggests that the temporary, fixed-term character of many licensed offices will continue. 

Licensed officeholders, like former freeholders, will still lack the legal status of employees.  S.9(6) is careful to provide that ‘Nothing in this Measure shall be taken as creating a relationship of employer and employee between an officeholder and any other person or body’

So what will change as a result of this Measure?  Common tenure may represent a further erosion of the security of tenure of senior clergy.  It will be possible for an archdeacon or even a bishop to be appointed on a temporary basis only, if TSRs permit this.  The Cathedrals Measure 1999 already makes provision for canons to be appointed on a fixed-term basis only (s.9(1)(b)).  However, the report on the Measure to the Ecclesiastical Committee of Parliament suggests that fixed-term appointments are not envisaged for former freeholders (HL 35-II, p.21)

The 2009 Measure makes clear that the TSRs are capable of overriding any contrary provisions in cathedral constitutions (s.9(9)).  It is therefore possible that the experiment in fixed-term canons, which was introduced in the wake of difficulties at Lincoln Cathedral in the late 1980s and 1990s, will be discreetly ended.  The effect of this would, of course, tend to widen the class distinction between senior and junior clergy, rather than narrow it. 

Clergy of all ranks will be required to submit to a system of performance appraisal known as ‘ministerial development review’, which is likely to follow secular employment practice.  Parish clergy have always been subject to performance appraisal in the form of the archdeacon’s visitation, but now senior clergy, even the two Archbishops, will be appraised.  It is hard to imagine how the Archbishops’ appraisal is going to be managed (cf HL 35-II, p.7).

It will be possible to remove senior clergy, as well as junior clergy, for inadequate performance, following a ‘capability procedure’.  There are already procedures, referred to earlier, for removing senior clergy for medical incapacity and pastoral breakdown, but ‘inadequate performance’ suggests wider scope for removal.  Moreover the capability procedure is likely to be less cumbersome than the existing procedures.

The ministerial development review and, where necessary, the capability procedure, are evidently the principal means of oversight under the 2009 regime.  While they may limit the security of former freeholders, they should enhance the security of licensed clergy.  S.3(4) of the Measure suggests that a licence may not be terminated prior to the expiry of any term of years, except under the capability procedure (thus overriding canon C12).

While denying the status of employees to clergy and lay ministers, the 2009 Measure enables TSRs to provide for the use of employment tribunals to adjudicate on disputes (s.2(1)(e)).  Thus a licensed officeholder or a former freeholder who is dismissed following a capability procedure may be able to bring a claim of unfair dismissal.

However, the scope of this right will be determined by the TSRs, not by the general employment law.  This will create the interesting constitutional position that, in the early 21st century, the jurisdiction of secular tribunals will, albeit in a very limited context, be determined by legislation and quasi-legislation issued by an ecclesiastical authority (cf s.8(5)).

It is not clear from the 2009 Measure how the capability procedure will interact with the disciplinary procedures provided by the Clergy Discipline Measure 2003.  This difficulty is discussed separately. 

The Terms of Service Measure was urged on the House of Lords in messianic terms, as ‘a new covenant between people and their clergy’ (Hansard (Lords) volume 2109, column 1229, Bishop of Chelmsford).  The phrase ‘common tenure’ may have a fashionably egalitarian ring to it, but the degree of commonality of the tenure will depend to a large extent upon TSRs, which are likely to vary from time to time.

‘Common tenure’ might be more accurately described as common security of tenure, because, as we have seen, the 2009 Measure preserves many of the old distinctions between former freeholders and licensed clergy.  Henceforward there will be a common procedure for assessing the performance of official duties and for removing those found incapable of discharging them.  However, even the promised common security of tenure is not absolute, because of the retention of fixed-term appointments for some officeholders but not others, as well as the uncertain relationship between the capability procedure and the Clergy Discipline Measure.

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.

A New Ecclesiastical Law

Ecclesiastical Offices (Terms of Service) Measure 2009

The 2009 Measure may be the most radical reform of ecclesiastical law since the Church of England Assembly (Powers) Act 1919, for three reasons:

(1) it has created a new category of ecclesiastical legislation, called Terms of Service Regulations (‘TSRs’), alongside Measures and canons.

(2) it has altered the balance of legislative power, away from Parliament and the General Synod, and in favour of the Archbishops’ Council

(3) the new category of ecclesiastical legislation conflicts with, or circumvents, existing legislation but without actually repealing it.

(1) A New Ecclesiastical Law.  Before the 2009 Measure almost all ecclesiastical legislation took the form of Measures and canons.  It is true that a number of Measures provide for the making of rules by various authorities other than the General Synod, but such rules are usually confined to points of detail rather than substance.  They clarify or facilitate the functions, rights and duties provided by the parent Measure or canon.

The Synodical Government Measure 1969 refers to the power of the General Synod ‘to make provision’ for matters concerning the Church of England ‘by such order, regulation or other subordinate instrument as may be authorised by Measure or Canon’ (schedule 2(6)), but there are very few such regulations.

The National Institutions Measure 1998, which created the Archbishops’ Council, may be some sort of precedent for TSRs.  The 1998 Measure empowered the Archbishops to order the transfer to the Council, or to another specified body, of functions previously exercised by the Church Commissioners, the Central Board of Finance and the committees of the General Synod (s.5).  Thus a ‘transfer of functions order’ by the Archbishops alone was required, not a Measure or Canon. 

However, the scope of TSRs is much wider than that of the transfer of functions orders.  TSRs are substantive, not procedural or transitional.  Their purpose is ‘to make provision for terms of service’ (2009 Measure, s.2(2)).  They confer new functions, rights and duties.  Moreover, ‘terms of service’ is a vague phrase, and the 2009 Measure allows a very broad scope to regulations.  Its suggested subjects of regulation are non-exhaustive, and expressed to be ‘without prejudice to the generality of [the phrase ‘terms of service’]’. 

The evident purpose of the 2009 Measure and the TSRs is to extend the range of ecclesiastical legislation.  TSRs will provide statutory regulation of matters that were formerly dealt with by informal ‘quasi-legislation’ or were indeed completely unregulated.  This may improve the quality of ecclesiastical governance.  

(2) The Balance of Legislative Power.  TSRs are made by the Archbishops’ Council, not by the General Synod, and it is for the Council, not the Synod, to propose new regulations (s.2).

The General Synod has a power of amendment, but this must be clearly understood.  Strictly speaking, the Synod cannot amend the regulations.  It can only amend the draft regulations.  The Council may then either

(1) accept the amendments and make the regulations or

(2) withdraw the draft regulations ‘for further consideration’.

This means that the Synod may suggest amendments, but cannot actually insist on them. Such a procedure is not compatible with the supposed ‘legislative supremacy’ of the General Synod in the Church of England.  The regulations will be the outcome of a dialogue between the Council and the Synod.  But the Council is the dominant party in this process.

The 2009 Measure seems to assume that regulations are unlikely to cause much controversy.  The Measure allows the business committee of the Synod to determine ‘that draft regulations do not need to be debated by the General Synod’, subject to the right of Synod members to insist on a debate.  Proper scrutiny of regulations may therefore depend on alert Synod members who are prepared to risk a certain unpopularity by insisting on debates and proposing amendments.

Unlike Measures, TSRs are not subject to the scrutiny of the Ecclesiastical Committee of Parliament, and do not even have to be positively approved by Parliament.  They are merely ‘laid before’ Parliament, under the negative resolution procedure (s.2(8)).

The lack of scrutiny by the Ecclesiastical Committee may be justified on the ground that the Ecclesiastical Committee is concerned with the constitutional aspects of ecclesiastical legislation, its impact on the constitutional rights of all subjects (1919 Act, s.3(3)).  TSRs are likely to affect only clergy and lay ministers, and employees of the Church.  They do not engage the constitutional rights of all subjects.  An unconstitutional regulation could be ‘quashed’ by the High Court in judicial review proceedings.

(3) Impact on existing legislation.  The effect of the 2009 Measure is that some Measures (such as the Vacation of Benefices Measure 1977) will continue in force, but will apply only to clergy who are not subject to the TSRs (cf 2009 Measure, s.11(6)).  As tenure under the TSRs (so-called ‘common tenure’) becomes universal, the Measures will gradually cease to have effect, even if they are not formally repealed.

The 2009 Measure empowers the Archbishops’ Council, as part of the Council’s new legislative function, to amend or repeal existing legislation ‘as appears to the Council to be necessary or expedient in consequence of any provision of this [2009] Measure or of [terms of service] regulations’ (s.11).  This power will lapse after 5 years.  Any exercise of the power in the meantime will require the approval of the General Synod on the same terms as the approval of TSRs.

The 2009 Measure expressly affirms the continued application of the Clergy Discipline Measure 2003 and of the Ecclesiastical Jurisdiction Measure 1963.  It provides that ‘misconduct’, as defined in those Measures, shall continue to be dealt with under the existing disciplinary procedures (s.9).  The Archbishops’ Council will therefore not be able to amend or repeal those two Measures, nor disapply them to clergy who are subject to common tenure.

However, that does not resolve the difficulty of reconciling the 2003 disciplinary regime with the capability procedure laid down by the 2009 Measure and by terms of service regulations.  This difficulty is discussed separately.

Terms of Service and the Canons

As its title implies, the Ecclesiastical Offices (Terms of Service) Measure 2009, and the regulations made thereunder, are concerned to regulate the terms of service of the Church’s clerical and lay ministers.  There is a distinction between

(1) terms of service and

(2) the service (i.e the ministry) which is the subject of the terms.

 It is therefore quite possible, in principle, for terms of service regulations to co-exist coherently with the revised canons of the Church of England.  The regulations are concerned with (1) above.  The canons are primarily concerned with (2).

However, the distinction between (1) and (2) is not absolute.  There may be an unavoidable overlap between them.  Residence in the parish, for example, is both a personal need of the incumbent (1) and part of the incumbent’s ministry to the parishioners (2).  (See canon C25).

A more serious difficulty is that there is no reference to the canons either in the 2009 Measure or in the present terms of service regulations.  Terms of service regulations and the canons can indeed co-exist, but there ought to be some co-ordination between them.

The regulations make provision for the ‘continuing ministerial education’ and ‘training’ of officeholders (regulations 19-20).  This rather begs the question, education and training for what?  If the canons are not referred to in the regulations, it is not clear that the education and training enjoined by the regulations will be appropriate to the ministry as defined by the canons.  The Archbishops’ Council may issue ‘guidance’ (regulation 19), but the Council is not required to refer to the canons either.

The same difficulty applies to the performance appraisal or ‘ministerial development review’ of officeholders (regulation 18).  An officeholder must submit to a review of his or her ministry at least every two years, but the standard or criteria against which this ministry is reviewed is not made clear.

The danger is that the canons (at least the common law canons, those not made under the authority of ‘parent’ Measures), while not being formally repealed, will be ignored.  The ministry of officeholders will be arbitrarily determined by those who control the education, review and capability procedures under the 2009 regime.

It may be that the relationship between the common law canons and modern statute law has always been a little confused.  The canons tend to be based on the assumption that all ministry is carried out in the context of traditional parishes, one parish with one incumbent.  They were mostly written before team and group parishes became widespread.  Thus a group ministry or a team ministry is likely to be regulated by its constituting pastoral scheme (which has statutory authority under the pastoral legislation) rather than by the canons.  Cathedral ministry will be likewise be regulated by the Cathedrals Measures and the cathedral constitutions (which also have statutory authority).

Still, it is unsatisfactory that a comprehensive, modernised code of terms of service, which the 2009 regime seeks to provide, should be unaccompanied by any corresponding clarification of the service itself.

The lack of c0-ordination means that canons and regulations may, indeed, regulate the same matters.  The canons are not exclusively concerned with ministry ((1) above).  They regulate tenure and discipline as well, to some extent.  At common law, the visitation was the primary means of oversight, and this is regulated by canon (canon G5).  The visitation canons have not been repealed.  This means that officeholders under the 2009 regime will be subject to two forms of oversight, common law visitation and statutory ‘ministerial development review’.

The canons also regulate the select and training of ordination candidates, albeit in very brief and general terms (canons C6-C7).  The present terms of service regulations make no provision for the training of ordination candidates (or of candidates for lay ministry).  It is arguably anomalous that the regulations should provide for post-ordination training, while being silent as to pre-ordination training.

The 2009 Measure provides that regulations apply to ‘persons holding office under common tenure’ (s.2).  Ordination candidates (i.e persons preparing for ordination) do not, as such, hold office.  However, it is argued that the use of the present tense (‘holding office’) does not preclude regulations for the preparatory training of officeholders.  It is reasonable that ‘holding office’ should be subject to threshold conditions as to competence.  It also makes sense for pre-ordination training and post-ordination training to be governed by a single regime, not two different regimes.