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Ecclesiastical law

Tag: Clergy Discipline Act 1892

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.

Ecclesiastical Discipline: the Williams case

R v Provincial Court of the Church in Wales ex parte Williams (1998) EWHC Admin 998

The High Court rejected the Rev Mr Williams’ application to ‘quash’ a decision of the Church’s Provincial Court finding him guilty of misconduct.

Mr Williams’ principal complaint was that the Church in Wales Court had found him guilty according to the civil standard of proof, even though it was agreed that the criminal standard of proof applied in English ecclesiastical law.  (This was before the Clergy Discipline Measure 2003.)

The High Court replied that the constitution of the Church in Wales entitled the Provincial Court to apply the civil standard of proof.  It noted two provisions of the constitution:

(1)  a provision which expressly disapplied the Clergy Discipline Act 1892 to the Church in Wales after Disestablishment.  The High Court held that this Act ‘forms the basis of the principle that the criminal standard …applies’ (para 21)

(2) a provision that Church in Wales courts are not bound by decisions of the English courts in matters of ‘discipline’.

However, the Clergy Discipline Act (now repealed) did not make express provision for the standard of proof to be applied to disciplinary proceedings against clergy.  It merely assumed the pre-existing, common law standard of proof.  Therefore it does not form the ‘basis’ for the criminal standard in ecclesiastical law.  It did not impose the criminal standard, it merely applied that standard to the proceedings that it regulated.

There are also difficulties with point (2).  The word ‘discipline’ admits of different meanings.  It is an old word for ‘governance’.  In the Church of Scotland, ‘discipline’ apparently refers to the entire constitutional structure of the Church (The Constitution and Laws of the Church of Scotland, ed James L Weatherhead, Edinburgh, 1997, p.62).

However, the use of the word in the constitution of the Church in Wales must be understood according to its context.  The relevant section of the constitution states that

‘The [English] ecclesiastical law [pre-Disestablishment] … with the exception of [certain statutes, including the Clergy Discipline Act 1892] shall be binding on the members (including any body of members) of the Church in Wales and shall be applied to the determination of any question or dispute between them … insofar as it does not conflict with anything contained in the constitution …’ (now found in Chapter 1, s.5).

The effect of this provision is that English ecclesiastical law, with the exception of the named statutes, is incorporated into the constitution, subject to any contrary provision in the constitution.

Then comes the proviso:

‘the Courts of the Church in Wales shall not be bound by any decision of the English courts in relation to matters of faith, discipline or ceremonial’.

Thus the proviso must be understood in the context of the general rule that immediately precedes it.  The general rule is that English ecclesiastical law is incorporated into the constitution, and is to be applied to any question or dispute between Church members and authorities.

If too broad a meaning is given to the proviso this will have the effect of overriding or ignoring the general rule.  If ‘discipline’ is understood in the Scottish sense, to refer to any constitutional matter whatsoever, English ecclesiastical law would not have the binding force accorded to it by the general rule, since any question or dispute is likely to involve some issue of governance.  Too broad a meaning would also have the absurd consequence that ecclesiastical law should bind all members and governing authorities of the Church in Wales, but not its courts.

The general rule is concerned with ecclesiastical law, the proviso with ecclesiastical courts.  Their wording indicates that ‘discipline’ refers to something which, according to ecclesiastical law, is the subject of judicial decision.

Moreover, two of the statutes exempted from incorporation into the constitution were the Church Discipline Act 1840 and the aforementioned Clergy Discipline Act 1892.  The ‘discipline’ that was the subject of these Acts was the professional discipline of clergy.  This indicates that the word ‘discipline’ in the proviso refers to clergy discipline.

The phrase ‘faith, discipline or ceremonial’ suggests that the proviso was primarily intended to liberate public worship from unpopular and impractical judicial decisions taken in the 19th century to forbid ‘ritualism’, certain liturgical practices which had, nevertheless, become widespread by the early 20th century.

(The phrase ‘English courts’ in the proviso may be somewhat careless, since the most important decisions were taken by the Privy Council, which is not strictly a court.)

‘Discipline’ therefore refers to the personal or official conduct of the clergy.  The effect of the proviso is that Church in Wales courts are not bound by what the English courts consider to be misconduct or indiscipline by clergy.  Likewise, in faculty case, the Church in Wales courts may permit an ornament which English courts have held to be illegal.  The intention was probably to protect ‘ritualist’ clergy and discourage petty liturgical disputes.

However, the proviso does not refer to the standard of proof to be applied in disciplinary cases (or in faculty cases).  It refers only to ‘faith, discipline or ceremonial’, not to ‘faith, discipline, ceremonial or evidence’.  It entitles the Church in Wales courts to decide for themselves whether the proven facts of a case amount to misconduct or indiscipline by the accused person.  It does not entitle them to decide how the facts shall be proved in the first place.  The High Court understood the word ‘discipline’ to include ‘evidence’, but the wording and context of the proviso do not admit of such a broad, loose interpretation.

The constitution of the Church in Wales provides for the appointment of a rule committee, composed of ecclesiastical judges, which has power to issue rules ‘for regulating … the administration, practice and procedure’ of the Chruch courts (now found in Chapter 9, s.38).  Any rule concerning the standard of proof should be sought either in the constitution or in the procedural rules made under the authority of the constitution.  If both constitution and rules are silent, the standard of proof must be determined by the English ecclesiastical law as at the date of Disestablishment.  This law will bind the courts of the Church in Wales, unless and until overridden by the constitution or by procedural rules made by the rule committee.

If the proviso concerning ‘discipline’ entitled the Church in Wales courts to disregard the standard of proof laid down by English law, this would allow the possibility that different Church courts, or even different constitutions of the same court, might apply different standards of proof in different cases.  One clergyman’s guilt might be decided according to the criminal standard, another’s according to the civil standard.