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Ecclesiastical law

Tag: Bland v Archdeacon of Cheltenham 1972

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.

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.

Modern Ecclesiastical Jurisdiction

Lord Penzance

Lord Penzance, Dean of the Arches in the late 19th century, did much to modernise ecclesiastical jurisdiction.  In Phillimore v Machon (1876) 1 Probate Division 481 he signified the Church courts’ recognition of the loss of their jurisdiction over the laity.  In Combe v de la Bere (1881) 6 Probate Division 157 he remoulded the jurisdiction over the clergy from a jurisdiction pro salute animae into a modern disciplinary jurisdiction.

The process of modernisation was completed by Lord Penzance’s successor as Dean of the Arches, Sir Lewis Dibdin, in Banister v Thompson (1908) Probate 362, which clarified the law governing exclusion from Holy Communion.  This is discussed separately.

In the case of Peek v Trower (1881) 7 Probate Division 21, Lord Penzance also effectively inaugurated the modern faculty jurisdiction, though unfortunately his judgment in the later case of Nickalls v Briscoe (1892) Probate Division 269 gave rise to subsequent misunderstandings.  This is also discussed separately.

Phillimore v Machon

Mr Machon was a farmer, not a clergyman or churchwarden.  Walter Phillimore, son of Sir Robert, was Vicar-General of Lincoln, though aged just 30.  He prosecuted Mr Machon in the ecclesiastical court for allegedly swearing a false affidavit in order to obtain a marriage licence.

Lord Penzance was plainly irritated by the precocious Phillimore’s attempt to revive the (by then) obsolete ecclesiastical jurisdiction over the laity.  The difficulty, however, was that the jurisdiction to try this particular offence had not been expressly abolished by Act of Parliament.

The difficulty was solved by holding that the ecclesiastical jurisdiction had been inferentially abolished by an Act of Parliament.  This Act had conferred criminal jurisdiction in respect of false oaths on the secular courts.  By doing this Parliament had withdrawn the jurisdiction from the ecclesiastical court.

Lord Penzance cited Coke:

‘where the common or statute law give remedy in foro seculari … the conusans of that cause belongs to the King’s temporal courts only: unless the jurisdiction of the ecclesiastical court be saved or allowed by the same statute to proceed …’ (p.489). 

Phillimore’s suit was dismissed with costs.

The case is useful for its approach to outdated law.  Lord Penzance noted that ‘the punishment of the laity for the good of their souls by the ecclesiastical courts would not be in harmony with modern ideas’ (p.487).  However, he acknowledged that contemporary thought alone ‘form[s] no reason for rejecting the jurisdiction, if it exists in law, but [it] ought to make the Court careful in asserting such a jurisdiction if its existence is not plainly established …’.

Phillimore had not been very careful in this respect.  Lord Penzance noted that he had been unable to cite a similar prosecution in an ecclesiastical court within the previous 200 years.

These dicta acknowledge that a jurisdiction may be abolished only by statutory authority, express or implied.  However, they also suggest that, where the jurisdiction is plainly anachronistic, it is wrong, as a matter of policy or discretion, for the Court or its officials to seek to revive it.

Combe v de la Bere

The Rev Mr de la Bere was convicted of various ‘ritualist’ offences: ‘unlawful use of lighted candles … unlawful elevation of the paten … unlawfully kneeling or prostrating himself …’ (p.158).  The Court of the Arches suspended him for six months.  He defiantly continued to officiate in his church and also obstructed the clergyman appointed to stand in for him during his suspension.

Such flagrant disobedience left the Court with little alternative but to deprive Mr de la Bere of his living.  However, Lord Penzance carefully discussed the origin and scope of deprivation as an ecclesiastical penalty.  He found that there were ‘very meagre records of ecclesiastical law’ on the point (p.162).

Deprivation is deprivation from office.  It therefore necessarily affects property rights.  However, Lord Penzance noted that ‘in [no] case of purely spiritual cognizance [have] the temporal courts … questioned the propriety of this sentence or the right of the [ecclesiastical] court to inflict it’. 

Thus he concluded that the ecclesiastical court had jurisdiction at common law to deprive a clergyman from office.  (Later, of course, the penalty was sanctioned by statutory authority.)

Citing Ayliffe, Lord Penzance held that ‘All the causes of deprivation may be reduced to these three heads …

[1] want of capacity,

[2] contempt and

[3] crimes’ (p.163).

‘Want of capacity’ may refer to some medical incapability or to legal incapacity (for example, if the incumbent is not an ordained priest).  ‘Contempt’ is disobedience to ecclesiastical law, or to the lawful orders of the ecclesiastical authority.

Lord Penzance then stated the criteria for deprivation: ‘the gravity of the offence in each particular case taken in connection with its attendant circumstances’ (pp.169-70).  Also ‘one mode of measuring the gravity of an offence is to consider the obligations which have been broken through the committing of it’ (pp.174-5).

The case established that the purpose of modern ecclesiastical discipline is not ‘the soul’s health’ or the offender’s ‘reformation of manners’.  Discipline serves the public order of the Church, which demands the exclusion from office of those guilty of serious or persistent misconduct.

Combe v de la Bere was affirmed by the Court of the Arches in Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012.

The Rev Mr Bland did not get on with his parishioners.  He was convicted in the consistory court of various offences of neglect of duty and unbecoming conduct.

Mindful of the fraught situation in Mr Bland’s parish, the chancellor sentenced him to be deprived of his living, holding that ‘I should be failing in my duty if I did not … ensure that the convicted clerk and the cures where he was working part company now for ever’ (p.1021).

However, the Arches strongly disapproved of this sentence, holding that it was ‘a wholly wrong approach’ to use deprivation as a tool to resolve a difficult pastoral situation.  It followed Combe in holding that ‘the paramount consideration in selecting the appropriate sentence … should be the gravity of the offence … or the totality of the offences …’.

However, the Court of the Arches agreed that, if the proven offence was of sufficient gravity to warrant deprivation, it may be relevant to consider ‘the interests of the parish together with the other relevant circumstances’.

On Mr Bland’s appeal, the Court of the Arches overturned all his convictions, except a conviction for writing a number of rude letters, and sent him back to his parish with a rebuke.  (The pastoral situation there did not improve, indeed it deteriorated, and for many years Mr Bland’s Sunday services were attended only by his housekeeper.)

The Court of Ecclesiastical Causes Reserved: England’s Inquisition

Origin and Jurisdiction

In contrast to the diocesan (consistory) courts and the provincial courts of the Church of England, which date from mediaeval times, the Court of Ecclesiastical Causes Reserved (‘CECR’) is not quite 50 years old.  It was first constituted by the Ecclesiastical Jurisdiction Measure 1963, following the recommendation of a Church of England report Ecclesiastical Courts, Principles of Reconstruction which was published in 1954.

The ’causes reserved’ to the CECR, which it was created to decide, are those which concern doctrine, ritual and ceremonial.  Ecclesiastical law still makes a distinction between cases involving doctrine, ritual and ceremonial (the so-called ‘reserved matters’) and other legal cases. 

The CECR comprises two senior judges, who must be communicants, and three diocesan bishops (1963 Measure, s.5).  The CECR’s jurisdiction is regulated by s.10 of the 1963 Measure:

(1) it has original disciplinary jurisdiction in matters of doctrine, ritual and ceremonial. 

(2) it may hear an appeal (described as a suit of duplex querula) against a bishop’s refusal to institute a clergyman to a benefice, where the refusal is based on a matter of doctrine or ritual.

(3) it may hear an appeal from a consistory court in any faculty case ‘involving matter’ of doctrine, ritual or ceremonial. 

S.45(3) of the 1963 Measure provides that, in exercising these three jurisdictions, the CECR ‘shall not be bound by any decision of the … Privy Council in relation to matters of doctrine, ritual or ceremonial’. 

Cases involving ritual and ceremonial once caused acute legal difficulty.  In 1954 and 1963 public worship was still nominally regulated by the Act of Uniformity 1662 and by the Privy Council’s strict interpretation of the rubrics of the Book of Common Prayer in the 19th century.  It had long been recognised that the 1662 regime was unenforceable but Parliament rejected a revised Prayer Book in the 1920s. 

Having failed to persuade Parliament to abolish the 1662 regime, the Church at least freed itself from the Privy Council’s decisions concerning that regime, by means of the CECR and s.45(3). 

The CECR is progressive in another respect.  It exercises the same disciplinary jurisdiction over bishops and lesser clergy.  This demonstrates that everyone is equal before the law regardless of status.  The Clergy Discipline Measure 2003, by contrast, retains the quasi-feudal distinction between the discipline of bishops and that of lesser clergy, by providing that complaints against the former are to be heard by the Vicar-General’s Court, rather than by a disciplinary tribunal (as for other clergy).

The anarchic state of the law made it virtually impossible to treat questions of liturgical practice in the same way as other legal questions.  However, not long after the 1963 Measure, the 1662 regime was finally abolished, and a new regime of public worship introduced, by the Worship and Doctrine Measure 1974. 

The 1974 Measure should have sufficed to remove any need for a distinction between questions of worship and doctrine and other matters.  Yet the distinction has persisted since 1974.

However, the 1954 report argued that there was another distinction between reserved matters and other cases, apart from the 1662 regime:

‘The differentiation [of reserved matters from other cases] … rests upon a solid foundation.  The burden cast upon a tribunal when an issue is factual differs in essence from that when the issue involves intellectual appreciation and spiritual discernment’ (p.48).

This point is hard to accept.  A reserved case will involve facts just as much as any other.  It is possible that the facts may be more complex than in an ordinary case, requiring expert evidence from theologians or historians, but they are still facts.  All cases require ‘intellectual appreciation and discernment’ on the part of the judges if they are to be decided justly.

The distinction between reserved matters and other misconduct was discussed by the Court of the Arches in the case of Archdeacon of Cheltenham v Bland (1972) 1 All England Reports 1012.  One of the charges of neglect of duty was the Reverend Mr Bland’s alleged refusal to baptise a baby.  It was suggested that a refusal to baptise that was based on doctrinal grounds might constitute a ‘reserved’ matter, an offence against doctrine, and therefore not within the Court of the Arches’ jurisdiction.

The Court rejected this suggestion.  It held that ‘refusal to baptise a child is not a doctrinal offence … It is concerned with pastoral work and activity’.  The defendant’s motive or intention is irrelevant to the question whether an offence is doctrinal or not.  Only the defendant’s alleged conduct is relevant.

Likewise it is argued that, if an incumbent disobeys the bishop’s directions under canon B5(4), concerning the use of forms of service, this should be treated as an offence of disobedience under the Clergy Discipline Measure 2003, and not as a reserved offence under the 1963 Measure, even if the disobedience was prompted by the incumbent’s opinions on ritual and ceremonial.

The exclusion of ‘heresy’ cases from the Clergy Discipline Measure 2003 does not necessarily assist clergy of questionable orthodoxy.  The protection conferred on licensed clergy (as distinct from beneficed clergy) by s.8(2) of the 2003 Measure applies only to alleged misconduct within the scope of that Measure.  The Church of England report Under Authority (1996) records the case of a clergyman whose licence was revoked ‘because his [religious] views were considered to be incompatible with his diocesan role’ (p.4). 

It will be interesting to see how, if at all, the ‘capability procedure’ inaugurated by s.2(1) of the Ecclesiastical Offices (Terms of Service) Measure 2009 will be applied to clergy and lay ministers whose doctrinal opinions cause offence.

Doctrinal Disputes

S.45(3) is now somewhat otiose in relation to ritual and ceremonial, since these are regulated by the 1974 regime.  The Privy Council was concerned to enforce the 1662 regime, which is now abolished.  S.45(3) is therefore relevant only to doctrine. 

Halsbury’s Laws identifies the following ‘doctrinal’ offences in ecclesiastical law: heresy, blasphemy (‘avowing blasphemous and impious opinions contrary to the Christian religion’), depraving the Book of Common Prayer and maintaining doctrines repugnant to the 39 Articles (4th edition, volume 14, para 1354).  The 1996 report Under Authority recommended a new offence of ‘teaching, preaching, publishing or professing doctrine or belief incompatible with that of the Church of England’ (p.53), but the suggestion was not followed.

Although the CECR is not ‘bound’ by the decisions of the Privy Council, there is nothing to prevent it from considering such decisions. 

There may be only four reported Privy Council decisions on doctrine.  The most famous was Gorham v Bishop of Exeter (1849-50) 163 English Reports 1221.  The Bishop refused to institute Mr Gorham to a benefice in his diocese because, after a lengthy examination, he found that Mr Gorham’s views on infant baptism were incompatible with the Church’s doctrine.  Mr Gorham took proceedings in the Court of the Arches to compel the Bishop to institute him.

The Court held that, to decide the question of infant baptism, ‘All that the Court is called upon to do is … ascertain whether the Church has determined any thing upon the subject’ (p.1238).  It continued:

‘With a view to ascertaining the doctrine of the Church on any subject … the 39 Articles are, in the first place, to be consulted: and when … they leave nothing short, but speak on any point of doctrine plainly, precisely and definitely, then there can be no occasion to search further … prima facie then the 39 Articles are the standard of doctrine’ (pp.1240-1).

Having examined the relevant Articles the Court concluded that ‘we find no solution to the point [about infant baptism]’.  It therefore turned to the forms of service in the Prayer Book.  Having studied these, it concluded that Mr Gorham ‘did oppose the doctrine of baptismal regeneration’ (p.1257). 

As is well known, Mr Gorham appealed to the Privy Council and won his case.  The Privy Council overruled the Court of the Arches and the Bishop of Exeter, and held that Mr Gorham’s views were not incompatible with Church doctrine.

However, although they came to different conclusions, both tribunals agreed on the legal construction of the formularies in matters of doctrine.  The Privy Council agreed with the Court of the Arches that the 39 Articles are the primary standard of doctrine.  The Articles are the Church of England’s ‘code of faith’.  If the Articles are silent or inconclusive, the Book of Common Prayer may be consulted.

The Privy Council was more sensitive than the Court of the Arches to the character of the Prayer Book as a manual of public worship.  It held that only the ‘dogmatical’ parts of the Prayer Book are declaratory of doctrine.  By contrast the ‘devotional’ parts of the Prayer Book, and its rubrics, are not evidence of doctrine, unless clearly supported by the 39 Articles.

As an example of the distinction between the ‘dogmatical’ and ‘devotional’ parts of the Prayer Book, the Privy Council cited the burial service, which on its wording seems to promise eternal life for everyone, even though this is not the Church’s doctrine.

The other 19th century doctrinal cases were Williams v Bishop of Salisbury (1864) 15 English Reports 943, Sheppard v Bennett (1872) Law Reports 4 Privy Council 350 and Voysey v Noble (1870-1) Law Reports 3 Privy Council 374.

Unlike Gorham, which was a civil dispute, the other three cases were ‘criminal’ prosecutions for alleged unorthodoxy.  In the first two cases, the defendants were acquitted.  As a commentator noted, the Privy Council ‘while narrowly restricting the limits of permissible ritual, enlarged the latitude of permissible belief’ (C.Y Sturge, Points of Church Law (1907), p.111).

However, in Voysey v Noble, the Reverend Mr Voysey was found guilty of having ‘maintained and promulgated doctrines contrary and repugnant to, or inconsistent with, the Articles of Religion and formularies of the Church of England’, and was deprived of his living.

It was suggested in the Williams case that a prosecution for heresy must

‘(1) distinctly state the [heretical] opinions which the clerk has advisedly maintained

(2) set forth the passages in which these opinions are stated

(3) specify the doctrines of the Church which such opinions or teaching of the clerk are alleged to contravene and

(4) the particular Articles of Religion, or portions of the Formularies, which contain such doctrines’ (p.961).

A Lesson for Lawyers

It is salutary for ecclesiastical lawyers to study the history of the CECR.  Ecclesiastical courts are of particular interest to ecclesiastical lawyers, for obvious reasons.  They are the special preserve of lawyers.  They are the one means by which lawyers can take their own decisions concerning the Church, rather than merely seek to influence decisions taken by others.  An ecclesiastical lawyer’s preferred solution to a particular problem within the Church is likely to involve the creation of a new court or tribunal.

There is therefore an enormous volume of law and legal commentary concerning ecclesiastical courts.  Yet this is out of all proportion to their practical function in the modern Church.  With a slight hint of shock, Norman Doe wrote of his researches into the law of the Anglican Communion that ‘The evidence from decisions of Church courts is weakest … available in only half a dozen Churches … in several Churches, replies indicated that Church courts simply do not sit’ (Canon Law in the Anglican Communion (1998), Clarendon, Oxford, p.5).

The likely reason for this dearth of material is that bishops and other ecclesiastical officeholders, and indeed churchpeople generally, do not share the lawyers’ natural enthusiasm for Church courts.  Like all sensible people, they try to avoid the expense and unpleasantness of litigation if they possibly can.

The experience of the CECR, above all, shows that it is one thing to establish a new tribunal and another to make use of it.  The learned authors of the 1954 report clearly had high ambitions for their brainchild.  They argued that the proposed new Court ‘must possess … such spiritual authority as will lead the Church as a whole not only to accept but to welcome its pronouncements on the vital matters with which it is to deal’ (p.53).

Nor did the 1954 report overlook the burden that the new Court would place on the resources of the Church.  It would require the assistance of ‘assessors, theologians … and liturgists … the assembly of such a Court from … one diocese [only] would be impossible and would … tax the resources of a province if the hearings were frequent or protracted’.  Thus there should be ‘one such Court … for the whole Church of England …’ (p.54).

True, the Church did adopt the proposal for the CECR, though nearly a decade after the report was written.  Yet in the half century since then the CECR has apparently met only twice, on both occasions to hear appeals in faculty cases.  No prosecution for a reserved offence has ever been brought under the 1963 Measure.  The ambitions of the CECR’s promoters have been disappointed, to put it mildly.  It is likely that few churchpeople have even heard of it.

The two reported faculty cases are St Michael and All Angels, Great Torrington (1985) Family 81 and St. Stephen’s Walbrook (1987) 2 All England Reports 578.  The Walbrook case is notable, not for any doctrinal pronouncement, but for the judges’ powerful critique of the test of ‘necessity’ devised by the ecclesiastical courts for faculty applications.  However, this powerful critique has been studiedly ignored by the ecclesiastical courts for the last 25 years.

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.