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Ecclesiastical law

Tag: Clergy Discipline Measure 2003

The Coronation Oath: Right and Rite

Graeme Watt, Barrister, ‘The Coronation Oath’, Ecclesiastical Law Journal, Sept 2017, p.325

‘the oath … shall … be administered to [the Monarch] at the time of their coronation … by the Archbishop of Canterbury …’ (Coronation Act 1688, s.2)

‘Every King and Queen … shall have the coronation oath administered to him, her or them at their respective coronations, according to the [1688] Act’ (Act of Settlement 1700, s.2)

The Coronation Oath Act was passed in the wake of the Glorious Revolution.  The text of the oath is prescribed by s.3.  This well-researched, absorbing article draws attention to a curious fact.  S.3 has never been expressly amended since 1688.  Yet the oath actually taken by the Monarch at the coronation has varied several times over the years.  Its present wording is now significantly different from the unamended statutory text.  Does this difference mean that the oath, as actually taken by the Monarch, is illegal?

The article relates that the oath was first altered for King George I, to refer to ‘Great Britain’ rather than ‘England’, on account of the Anglo-Scottish Union of 1707.  It was altered again because of the Anglo-Irish Union of 1800, which created the United Church of England and Ireland.  Then the reference to the Irish Church was removed following the disestablishment of the Church of Ireland in 1869.

The present version of the oath dates from the coronation of King George VI (our present Queen’s father) in 1937.  The 1937 variation was precipitated by the Statute of Westminster 1931, which granted or confirmed the right of the overseas Dominions of the Crown (Canada, Australia, New Zealand etc) to self-government.  The 1937 oath was repeated by the Queen at her coronation in 1953.

The learned author’s opinion is that the pre-1937 variations of the coronation oath all had proper legal authority, even though s.3 of the 1688 Act was never amended.  They were authorised either expressly or by necessary implication in the Acts of Parliament which effected the Anglo-Scottish and Anglo-Irish Unions, and Irish Disestablishment.  However, he argues that the 1937-1953 variation of the oath did not enjoy such authority, because it went beyond any requirement of the Statute of Westminster.

In the 1937-1953 oath, the Monarch promises ‘to govern the peoples of Great Britain, Ireland, Canada etc … according to their respective laws and customs’ (p.330).  However, it omits the promise in the 1688 oath to govern ‘according to the statutes in Parliament agreed upon’.

The author seems to accept that the Statute of Westminster necessitated some amendment of the coronation oath.  The oath could not very well contain an unqualified commitment to govern according to the Acts of the Westminster Parliament, because the Statute made clear that many of the Monarch’s subjects were not to be governed from Westminster in the future.  And the 1937 oath does promise to govern ‘according to … laws and customs’, which presumably includes statute law.  Is it not farfetched to characterise the 1937 oath as a royal ‘power grab’?

However, the Glorious Revolution was an assertion of the constitutional supremacy of Parliament.  Parliamentary supremacy remains the basis of the British Constitution to this day, notwithstanding British membership of the European Union, and the devolution of legislative powers to Scotland, Wales and Northern Ireland.

Thus the author argues that the Statute of Westminster did not justify ‘The absence of any reference to Parliament as the ultimate source of the laws of the realm [this] does, in theory, reignite old controversies which date to the days of Charles II and … further back to Edward II … ‘.  He therefore concludes ‘with reluctance’ that ‘any oath administered at a coronation is unlawful if it does not … refer to Parliament’ (p.332).

Though he strives to remain calm and optimistic, it is clear that the learned author’s conclusion gives rise to a most alarming possibility.  Perhaps ‘unlawful oaths equal unlawful reigns’ (p.336).  Just imagine ‘the constitutional chaos that would ensue’!  If the Monarch failed to take the oath as required by the 1688 Act and by the Act of Settlement perhaps she is not really Queen.  All the laws passed during her long reign will be invalid, since she had no authority to approve them.

Fortunately this may not be the case after all.  The article cites a reassuring dictum of the Court of Appeal: ‘our Queen … has been accepted by Parliament and by the nation, as the rightful person to inherit the Crown as of the date of her coronation … it is not now, in the year 2000, open to … challenge her right to the succession’ (p.337).

The learned author offers 2 possible solutions to the hidden constitutional crisis that he has uncovered:

(1) Her Majesty might have acquired a prescriptive right to the Crown ‘pursuant to lengthy occupancy of the throne’, despite the invalid oath (p.337).  However, there is a difficulty here: ‘prescription is dependent on the [fiction] that the right claimed has a lawful origin.  The exposure of the fiction is fatal …’ (p.338).  Thus a prescriptive right to the Crown would depend on the presumption that the coronation oath had been lawfully taken, but the ‘well-documented evidence to the contrary’ would rebut that presumption.  So the prescriptive claim would fail, alas.

(2) the equitable doctrine of part performance might apply.  A person who has conscientiously performed her side of bargain should not be deprived of the benefit of it just because a legal formality was overlooked when the bargain was struck.

It is incontestable that Her Majesty has always acted in accordance with the 1688 oath, even if she never validly took it.  She has always  scrupulously respected  Parliamentary supremacy.  Thus she has kept her side of the post-1688 constitutional bargain with her subjects.  Therefore, happily, ‘we might be permitted to conclude that the person taking the oath should be regarded by law as being in the same position as if the oath had been correctly taken’ (p.340).

This all makes gripping reading.  However, it is argued that the constitutional difficulty, if it exists (which we rather doubt), is not quite as serious as the learned author imagines.  The flaw in his fascinating thesis is that it assumes that the coronation oath, in the correct form, is a condition of the Monarch’s title to the Crown.  It is not.

‘The King is dead – long live the King!’ is a traditional acclamation of the accession of a new Monarch.  F.W Maitland observed in The Constitutional History of England (1911) that ‘The King never dies … under the Act of Settlement, and some centuries before it, the heir begins to reign at the moment of the ancestor’s death’ (p.343).

The coronation rite begins with a ceremony known as The Recognition.  The Monarch formally shows herself to her subjects, while the Archbishop says ‘Sirs, I here present unto you Queen Elizabeth, the undoubted Queen of this Realm … ‘.  The Recognition occurs before the oath is taken, and before the Monarch is crowned.  It makes the point that the Monarch is already fully entitled to the Crown.  The coronation rite proclaims the Monarch’s title, celebrates it, invokes God’s Blessing on it.  But it does not confer, or even confirm, that title.

The coronation oath is therefore not comparable to the oath of office sworn by the President of the United States at his inauguration.  The learned author himself admits that King Edward VIII was never crowned at all, and so never took the oath, but there is no doubt that he was the lawful Monarch till his abdication.  Maitland suggested that ‘The coronation … does not seem to be a legally necessary ceremony’.

It is true, however, that the coronation oath is a mandatory legal requirement.  It is not discretionary or negotiable.  If a hypothetical Monarch declined to have the oath administered to him or her in accordance with the Act of Settlement, i.e flatly refused to take the oath, then this would cause a constitutional crisis.  Possibly it could be argued that a Monarch who refuses the oath has thereby forfeited his or her right to the Crown.  However, the right would not be forfeit ab initio, but only from the time of refusal.  And, of course, refusal of the oath is not the issue here.  The only issue is the correct administration of the oath.

The statutory provisions quoted above are worded passively.  The Monarch does not take the oath:  the oath is administered to the Monarch by the Archbishop of Canterbury.  Thus it is the Archbishop, not the Monarch, who is responsible for the correct administration of the oath, including the correct wording.  It follows that, if the oath is not administered correctly, any legal consequences will fall on the Archbishop alone.

There are 2 possible consequences:

(1) the secular court could require the Archbishop to administer the oath again, and correctly this time and / or

(2) the Archbishop could be haled before the ecclesiastical court to answer a disciplinary complaint of ‘neglect or inefficiency in the performance of the duties of his office’ (cf. Clergy Discipline Measure 2003, s.8(1)(c)).

Which would all be very embarrassing for the poor Archbishop, no doubt.  But the Monarch’s title to the Crown would continue serene and undisturbed.

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A Rogue Bishop

It is reported that a Church of England curate has been illegally ordained, or consecrated, as a ‘bishop’ by the Presiding Bishop of a breakaway Anglican Church based in South Africa.

Reacting to the distressing news, the Church authorities were not slow to refer to the Overseas and Other Clergy Measure 1967.  The Presiding Bishop could only perform episcopal functions in an English diocese ‘at the request and by the commission of … the [diocesan] bishop … and with the consent and licence … of the Archbishop’ (s.4(1)).  Yet he had acted without any such authority.

S.4(2) of the 1967 Measure stresses the authority of the diocesan bishop: ‘any person ordained priest or deacon by a [visiting] bishop acting on such request and by such commission as aforesaid shall be deemed to have been ordained by the [diocesan] bishop … and not by the [visiting] bishop’.  Of course, this provision refers only to the ordination of lesser clergy, not bishops.

The ordination of priests and deacons requires the authority of the diocesan bishop.  The consecration of a bishop requires the authority of the Monarch.

Thus the 1662 Ordinal provides that, before a new bishop is consecrated, ‘the Archbishop [shall] demand the Queen’s Mandate for the consecration, and cause it to be read [i.e read aloud]’ (rubric).  The consecration of a new bishop is performed by archbishops and bishops, but their authority to consecrate comes from the Monarch.  The choice of bishops is a jealously guarded royal prerogative.

Thus even if the local bishop and the Archbishop had given their full agreement to the consecration in accordance with the 1967 Measure, this would still have been ineffective without the Royal Mandate.

The 1967 Measure (which is only 50 years old, after all) may therefore not be the correct starting point for this case.  The Measure probably does not contemplate the illegal ordination of bishops, only of priests and deacons.  The true starting point is the Reformation statutes concerning the Monarch’s rights over the Church and its bishops: the Appointment of Bishops Act 1533, the Suffragan Bishops Act 1534.  And the Submission of the Clergy Act 1533, which provides that no ecclesiastical proceeding ‘shall be contrary or repugnant to the King’s prerogative royal …’ (s.3).

S.4(2) of the 1967 Measure provides that ‘If any overseas bishop performs any episcopal functions … otherwise than in accordance with this section [i.e without the authority of the local bishop and the Archbishop] he shall be guilty of an [ecclesiastical] offence’.

Yet if the offending bishop does not belong to the Church of England, disciplinary proceedings against him are unlikely to be effective in practice.  Moreover s.6(1) provides that an ‘overseas bishop’ means a bishop ‘in communion with the Church of England‘.  The breakaway South African Church is not in communion with the Church of England, apparently.  So the Presiding Bishop could not be subject to ecclesiastical discipline.

However, the English curate who was purportedly ‘consecrated’ by the Presiding Bishop certainly is subject to ecclesiastical discipline.  The Clergy Discipline Measure 2003 provides that ‘doing any act in contravention of the laws ecclesiastical’ constitutes misconduct for which disciplinary proceedings may be taken (s.8(1)).

The case of Bishop of St. Albans v Fillingham (1906) Probate 163 may be instructive here.  The Rev Mr Fillingham was an incumbent of Low Church persuasion.  He objected to the ritualism practised by another incumbent in the same diocese.  He was also disgruntled by the neglect or inability of the Bishop to take action against the ritualist.

He therefore decided to take direct action himself, by purporting to ‘ordain’ a non-conformist minister as priest, using the 1662 Ordinal with certain variations.  His idea was that the non-conformist would undertake an alternative mission in the ritualist’s parish.

Mr Fillingham was duly prosecuted and convicted of an ecclesiastical offence.  The Court of the Arches held that his purported ‘ordination’ constituted ‘an act of rebellion against the organisation and discipline of the Church of England’ (p.179).  His defence of necessity was rejected: ‘he cannot justify his acts … by shewing that they were intended to counteract the wrongful acts of someone else’ (p.176)

The Court found that Mr Fillingham’s offence was unprecedented (p.183).  His case may therefore be the only legally reported case of schism in the Church of England.

The judgment makes clear that a dispute over doctrine or moral values is not a schism.  Schism concerns the power of governance in the Church.  It requires a deliberate act of rejection by the schismatic of an authority to which he is subject.  Yet schism is more than mere disobedience.  It requires an express or implied claim of some other authority, in place of the authority that is rejected.

A century later, in Coekin v Bishop of Southwark (2006), unreported, the Rev Mr Coekin was involved in the ordination of two deacons by another breakaway Anglican bishop.  Mr Coekin did not directly participate in the act of ordination itself, but he associated himself with it and, in particular, he was responsible for ‘the making of necessary administrative arrangements’ in connection with the ordination (para 20).  The report on his case concluded that ‘by the part he played in arranging the [ordination] service [Mr Coekin] bore some degree of responsibility for the resultant breach of canon law’ (para 34).

The facts of these 3 cases are not identical.  Mr Fillingham purported to ordain a priest, Mr Coekin merely facilitated the purported ordination of deacons.  The curate in this case purported to be ordained a bishop.  However, all 3 cases involved active participation in an unlawful ordination.

Mr Fillingham and Mr Coekin were both dealt with leniently.  The Court of the Arches suggested in Fillingham that ‘offences of this nature differ from very grave moral offences in this, that they are not so irretrievable in their results on the reputation of the guilty person’ (p.186).  Mr Fillingham was suspended for two years, but was not deprived of his benefice after undertaking not to repeat his offence.  Likewise, Mr Coekin was allowed to keep his licence after giving suitable undertakings (para 39).

The offence in the present case is arguably graver than the first two, and not just because a bishop is more senior than a priest or a deacon.  It is, of course, part of a bishop’s function to perpetuate the ordained ministry by ordaining new clergy.  The 1662 Ordinal provides that a new bishop must promise to ‘be faithful in ordaining, sending or laying hands upon others‘.

The ordinations in which Mr Fillingham and Mr Coekin were involved were one-offs.  There was no proven intention to participate in future schismatic acts.  By contrast, receiving unlawful ordination as bishop arguably demonstrates an intention to administer unlawful ordinations in the future, and hence to establish a schismatic ordained ministry.  The late Archbishop Lefebvre was, of course, excommunicated for ordaining bishops without the permission of the Pope, as were the bishops he ordained (though the latter excommunications have since been lifted).

The validity of unlawful ordinations is discussed in the blogpost ‘Holy Orders: Validity and Legality’, which is filed below.

The Clerical Declaration of Assent

Chancellor Rupert Bursell QC, article in the Ecclesiastical Law Journal (2016) vol 18(2), May 2016, p.165.

This is an interesting account of the history and content of the Declaration contained in Canon C15(1) that clergy are required to make.  However, there are difficulties with its speculations about the disciplinary consequences of a ‘breach’ of the Declaration by an officeholder.

The learned author suggests that any disciplinary case involving the Declaration is likely to constitute a ‘reserved matter’, i.e an offence against doctrine, ritual and ceremonial (p.185).  Reserved matters are still regulated by the Ecclesiastical Jurisdiction Measure 1963, not the Clergy Discipline Measure 2003.

To date, no prosecution has ever been brought under the 1963 procedure for reserved matters.  There seems to be no reported case either under the 1963 Measure or the 2003 Measure concerning a breach of the Canon C15(1) Declaration.

Although described as ‘The Declaration of Assent‘, the word ‘assent’ does not appear in the text of the Declaration.  The Declaration is in the following terms:

‘I, A.B …

[1] declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the Catholic Creeds and to which the historic formularies of the Church of England bear witness and

[2] in public prayer and the administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon’.

It will be apparent from this wording that ‘the Declaration’ is actually two declarations, as to (1) religious belief and (2) compliance with the Church’s law of worship.

The two declarations are significantly different in character.  Only Declaration (2) is concerned with conduct.  Declaration (1) concerns state of mind.  Declaration (1) is expressed in the present tense.  It affirms the clergyman’s religious belief as at the time it is made.  It contains no guarantee of what the clergyman may or may not believe in the future.  Declaration (2), by contrast, is an undertaking as to future conduct.

It is difficult to see how Declaration (1) could give rise to disciplinary action, as it refers only to a state of mind.  As Dr Johnson observed, ‘Every man has a physical right to think as he pleases, for it cannot be discovered how he thinks’.  Perhaps disciplinary action would be possible if there was evidence that an officeholder had knowingly made a false declaration (e.g ‘I only made the Declaration to get the job’), though such a case might be hard to prove.

The ‘forms of service’ which are the subject of Declaration (2) are now ‘authorised or approved’ under the authority of the Worship and Doctrine Measure 1974, which was, of course, passed some years after the 1963 Measure.  The reserved jurisdiction over ritual and ceremonial in the 1963 Measure applied to the old 1662 regime of public worship.  The 1662 regime was abolished by the Worship and Doctrine Measure.  It might therefore have been appropriate to abolish the reserved jurisdiction over ritual and ceremonial at the same time, but this was not done.

Canon B2 now provides that ‘Every minister shall use only the forms of service authorised by this Canon, except so far as he may exercise the discretion permitted by Canon B5′.

Thus if an officeholder breaks the rule laid down by Canon B2, or exceeds the discretion permitted by Canon B5, this will clearly constitute disobedience, ‘doing [an] act in contravention of the laws ecclesiastical’, which is misconduct under s.8(1) of the Clergy Discipline Measure.  There will be no need to invoke the 1963 reserved jurisdiction, even if such misconduct is cognisable under this jurisdiction.

The learned author asserts that ‘Once made, the Declaration is binding unless and until a cleric formally renounces his or her orders’ i.e by exercising a deed of relinquishment (p.183).  He makes this assertion not just once but twice (at p.183 and p.187).  (It must be important to him, for some reason.)

Canon C15(1)(6) is cited as authority.  This provides that

‘Where any bishop, priest or deacon ceases to hold office in the Church of England or otherwise ceases to serve in any place, the Declaration made under this Canon shall continue to have effect insofar as he continues to minister in the Church’.

On this wording, Canon C15(1)(6) does not provide that the Declaration continues until a clergyman formally renounces his orders.  It provides only that the Declaration continues as long as the clergyman continues to officiate.  It makes no reference to renunciation of orders.

Canon C15(1)(6) means in effect that a retired bishop or vicar (or a vicar on a career break) who helps out by taking services, as retired clergy do, will not have to take the Declaration again after retirement, but will be expected to honour the Declaration made while still in ‘active’ ministry.  It simply does not apply to clergy who do not officiate at all.  And clergy who do not officiate in the Church will have no opportunity to act in breach of the Declaration, regardless of whether they have executed a deed of relinquishment.

The Case of Archbishop Abbot

W Adam, ‘The Curious Incident of the Homicidal Archbishop: The Dispensation Granted to Archbishop George Abbot, 1621’ (September 2015) 17 Ecclesiastical Law Journal, p.306.

This article, just published, is an important contribution to the study of ecclesiastical law, in particular its relationship with canon law.  As the learned author points out, the case of Archbishop Abbot, though well known to history, is virtually unknown to ecclesiastical law.  This scholarly legal account of the case is therefore especially welcome.

In 1621, when Archbishop of Canterbury, Abbot accidentally killed a gamekeeper while out hunting.  This caused a flutter in ecclesiastical circles for a specific legal reason.  Mediaeval canon law provided that, if an ordained minister unlawfully killed someone, he was ipso facto (i.e automatically and immediately) inhibited from officiating as such.  Any official function performed by the minister while inhibited was therefore prima facie illegal or ‘irregular’.  This rule survives in modern Roman Catholic law (see canons 1041.4 and 1044.1.3 of the Code of Canon Law 1983).

One of the principal functions of an Archbishop is, of course, the consecration (ordination) of new bishops.  Four bishops-elect (including William Laud, Abbot’s successor as Archbishop of Canterbury) objected to being consecrated by Abbot, fearing that their consecrations would be irregular, and therefore ineffective to constitute them as Church of England bishops, on account of the mediaeval canon.

Abbot argued, with some justification, that the canon did not apply to his case.  The inquest into the gamekeeper’s death had exonerated him.  It found that the accident was caused by the gamekeeper’s own misadventure.  However, Adam’s account indicates that Abbot, like the four bishops-elect, accepted that the mediaeval canon still had the force of law, notwithstanding the break with Rome nearly a century earlier.

If (God forbid) a modern Archbishop were to be involved in such a terrible accident, any disciplinary consequences would be regulated by the Clergy Discipline Measure 2003.  However, there was no statutory regime concerning the discipline of bishops and Archbishops in the 17th century.  The canons of 1603 are also silent on the subject.

The effect of the mediaeval canon was that an ordained minister who was guilty of homicide was automatically inhibited unless and until his ecclesiastical superior granted a dispensation, thus restoring him to the exercise of his orders.  The Pope was the Archbishop of Canterbury’s superior before the Reformation.  Thus a mediaeval Archbishop in Abbot’s predicament would have applied to the Pope for a dispensation.

The papal jurisdiction was, of course, abolished at the Reformation.  The Ecclesiastical Licences Act 1533 provided that the Pope’s power to grant dispensations should in future be exercised by … the Archbishop of Canterbury! (s.3).  The Archbishop could hardly grant a dispensation to himself.  King James I settled the matter by appointing a commission of bishops and directing them to grant ‘a precautionary and excessive dispensation’ to Archbishop Abbot ‘concerning all irregularity and taint of irregularity, if perchance you have incurred any’.  Adam’s erudite article includes an English translation of the full Latin text of the dispensation.

As Adam points out, this dispensation could not plausibly have been authorised by the 1533 Act.  That Act regulated dispensations granted by the Archbishop, not to him.  The Act does empower the Monarch to commission other bishops to grant dispensations, but only if the Archbishop wrongfully refuses to grant them (s.11).

But if, contrary to the view of the protagonists in Abbot’s case, the mediaeval canon no longer had the force of law then no dispensation was necessary.  Adam refers to the Reformation legislation, which provided that mediaeval canons might continue in force, provided that they ‘be not contrary nor repugnant to the laws, statutes and customs of this realm, nor to the damage or hurt of the King’s prerogative royal’ (Submission of the Clergy Act 1533, s.7).

The purpose of the mediaeval canon, ridding the Church of homicidal clergy, is obviously just and reasonable.  Of course a priest or bishop (or Archbishop) who culpably causes a person’s death should be inhibited from officiating – but how?  The rule of ipso facto irregularity was extremely hurtful to the royal prerogative when applied to the Archbishop of Canterbury.  English law jealously guarded the Monarch’s right to appoint bishops.  The Archbishop of Canterbury is, of course, the senior bishop, the Primate of All England.  Not only that, the Monarch requires the Archbishop to consecrate his episcopal appointees.  The Archbishop is therefore the source of holy orders throughout the province.

If the rule of ipso facto irregularity applied to Archbishops and bishops, this would not deny the Monarch’s right to appoint them, but it could still cause grave difficulties.  The Monarch might appoint an Archbishop or bishop, but the mediaeval canon could render the appointee incapable of officiating as such.  The Archbishop might be incapable of consecrating the Monarch’s chosen bishops.  The lawfulness of consecrations performed by the Archbishop might be put in doubt.  This in turn might impugn the ordinations of priests by the bishops who had been consecrated by the Archbishop.  The regularity of the entire ordained ministry might be undermined.

It is hard to accept that a rule of mediaeval canon law would be allowed to survive the Reformation, when it had such potentially devastating consequences for the reformed Church.  If the rule remained in force, one would at least expect the law to confer a clear power on the Monarch (not just on bishops) to dispense from any irregularity in the exercise of the Archbishop’s function.  There is no such power.

The silence of the canons of 1603 on the discipline of Archbishops also suggests that this was regarded as a matter for the Monarch’s jurisdiction.

Adam does not reach any definite conclusion on the legal force of the mediaeval canon.  However, it is argued here that the canon did not survive the Reformation.  The dispensation was granted to humour a few tender episcopal consciences.  E Garth Moore relates that King James I ‘thought the whole matter ridiculous’ (Introduction to English Canon Law, 3rd edition 1993, p.135).  Even if Abbot had been held responsible for the gamekeeper’s death, his ability to officiate as Archbishop of Canterbury, and to consecrate new bishops lawfully, would have continued unless and until King James inhibited him from doing so.

Freelancing and Fees: The Long Arm of the Ecclesiastical Law

Rouch v Hawthorne (2015) Winchester Disciplinary Tribunal, Chancellor Bursell QC presiding

The erudite and informative blog Law and Religion UK (to which this blog has been much indebted over the last three years) has drawn attention to a minor controversy in the Church of England concerning fees charged by clergy for officiating at funeral services in crematoria.

The Rev Dr Hawthorne was the non-stipendiary assistant curate of a parish (therefore not an incumbent).  The Disciplinary Tribunal found him guilty of dishonesty concerning such fees, over quite a long period.  Dr Hawthorne later crowned this career of errors by turning papist.  He left the Church of England to join the Anglican Ordinariate (though, of course, it goes without saying that this had not the slightest influence whatsoever on the Tribunal’s condemnation of him).

Even though he had already left the Church of England, the Tribunal found it necessary to prohibit Dr Hawthorne from exercising the ordained ministry therein, for the rest of his natural life.

The Law and Religion blog relates (16th March 2015) that Dr Hawthorne’s case has caused ‘a degree of concern’ among other clergy who routinely officiate at crematorium funerals – as well it might.  Guidance issued by the Church of England’s Legal Office in the wake of the case warned menacingly that ‘Unless the diocesan board of finance has expressly agreed … it is not lawful for a member of the clergy to retain any fee … To do so in the absence of agreement with the board would amount to the appropriation of property belonging to another for the purposes of the Theft Act 1968’ (‘Crematorium Funerals and Parochial Fees’, January 2015, para 6).

As mentioned, Dr Hawthorne was an assistant curate, attached to a particular parish.  However, the case against him was principally concerned with his activity at a crematorium outside the parish.  It seems that he had been freelancing there, taking the funerals of people who had no connection with his own parish.  He had officiated at 227 cremations and received about £23,000 in fees.

The case against Dr Hawthorne was that he had ‘dishonestly retained fees payable under the Parochial Fees Orders for services at which he has officiated’ (para 18).  Two observations may be made on this complaint:

(1)  It does not refer to funerals per se, only to funeral fees.  The Church authorities did not apparently object to Dr Hawthorne officiating at the crematorium.  Indeed the Tribunal’s decision indicates a striking lack of curiosity about how Dr Hawthorne came to take so many funerals outside his own parish.  (Did he advertise through funeral directors, the crematorium management, other clergy, or was he just approached by them?  No explanation is given.)

Canon C8(4) lays down a general rule against freelancing or ‘poaching’ by clergy on the cure of souls of other clergy:

‘No minister who has … authority to exercise his ministry in any diocese shall do so therein in any place in which he has not the cure of souls without the permission of the minister having such cure …’.

S.2 of the Miscellaneous Provisions Measure 1992 permits clergy to officiate at crematoria without requiring the permission of the incumbent in whose parish the crematorium happens to be situated.  However, s.2 only permits clergy to officiate at the cremations of their own parishioners.

Thus, for ecclesiastical purposes, a crematorium is treated as if it was part of the deceased person’s parish, and therefore within the cure of souls of that person’s incumbent.  If the first cremation of the day is of a parishioner from Barchester, the crematorium is treated as if it were part of the parish of Barchester.  If the next cremation is of a parishioner from Crampton Hodnet, the crematorium is then treated as part of the parish of Crampton Hodnet.  And so on.

Therefore if a clergyman officiates at the cremation of a non-parishioner without the incumbent’s permission, he will be guilty of ‘[an] act in contravention of the laws ecclesiastical’, contrary to the Clergy Discipline Measure 2003, s.8(1) .  However, Dr Hawthorne was not charged with this offence.  Nor did the Tribunal expressly find that he had officiated without permission.  Indeed, it seemed to accept that the bishop knew about the crematorium funerals (cf. para 37).

(2) The complaint was only that Dr Hawthorne retained fees, not that he demanded or received the fees in the first place.  Yet the parochial fees legislation in force at the time is very clear that funeral fees are payable only to an incumbent.  Dr Hawthorne was an assistant curate, not an incumbent.  Therefore he could have had no right to be paid any fees.  So why was he not charged with demanding or receiving the fees, only with retaining them?

The answer seems to be that it is common practice for non-incumbent clergy to receive fees, notwithstanding the provisions of the parochial fees legislation.  The Church does not seem to object to non-incumbents taking fees paying them into their personal bank accounts etc, just so long as they account for them to the rightful owners later on.

This is arguably a rather dangerous practice.  A non-incumbent clergyman who accepts a fee is prima facie in breach of the parochial fees legislation, even if this is common practice, and is therefore vulnerable.  Any confusion or forgetfulness may give rise to a nasty disciplinary complaint, and accusations of dishonesty.  On the other hand, if a non-incumbent clergyman refuses to handle a fee, and the fee is then not paid to the Church at all, he may get into trouble for ‘neglect and inefficiency in the performance of the duties of his office’ (2003 Measure, s.8(1)), depriving the Church of fee income.  No wonder some clergy are anxious.

It may be that the parochial fees legislation requires further amendment.  At present, it is concerned only with the imposition of fees.  It provides no procedure for collecting them.  Moreover, it is argued that the policy underlying the legislation is incoherent.  What are parochial fees for?  Obviously to provide a source of income for the Church.  However, incumbents should not be paid fees for officiating at the weddings and funerals of their own parishioners, since this is what they are paid to do anyway.  If they are paid fees on top of stipend, they are effectively being paid twice for the same work.

By contrast, non-stipendiary clergy (like Dr Hawthorne) and retired clergy have a just claim to payment of any statutory fees, since weddings and funerals are not part of their paid duty.  There will also be little incentive to do such work, if they receive no remuneration for doing it.

The Ecclesiastical Fees (Amendment) Measure 2011 partly addressed this anomaly, by providing that fees should in future payable to the diocesan board of finance (which now pays all stipends), and not to incumbents.  But this does not resolve the difficulties revealed by Rouch v Hawthorne.

However, the Tribunal which decided Rouch v Hawthorne was evidently unmoved by the difficulties.  It found Dr Hawthorne guilty, not merely of unbecoming and inappropriate conduct, but of dishonesty.  It effectively called him a thief.  Such an accusation must be a dreadful experience for any person of good character, let alone a clergyman.  Theft is, of course, contrary to the Eighth Commandment.  It was the accusation made against Judas Iscariot in the Gospel.  (Perhaps joining the Ordinariate is regarded as an act of betrayal in the Church of England!)  And it is a serious crime in secular law.

It is argued that the Tribunal should have been guided by the famous case of Neary v Dean of Westminster (1998).  The Choirmaster of Westminster Abbey was dismissed for making secret profits, over a number of years, derived from his management of the Abbey choir (fees for arranging concerts, recordings etc), and not accounting for these to the Abbey authorities.  The Special Commissioner (a retired law lord) ruled that the dismissal was justified.  However, he made clear that the Choirmaster’s misconduct amounted to impropriety only, and not dishonesty.

If Dr Hawthorne received funeral fees on a regular, ongoing basis without accounting for them, then he was guilty of an impropriety which could arguably justify a verdict of inappropriate conduct under the Clergy Discipline Measure.  However, he did work for those fees.  He turned up at the crematorium, took the funeral services, comforted the bereaved relatives.  He had a legitimate expectation of payment, even though no legal right. Yet by condemning him as dishonest, the Tribunal treated him exactly the same as if he had fraudulently claimed fees for funerals that he never took.

The Tribunal justified its continued pursuit of Dr Hawthorne, notwithstanding that he had left the Church of England, on the ground that he had not executed a deed of relinquishment under the Clerical Disabilities Act 1870, and so remained subject to ecclesiastical discipline.  This view was trenchantly supported by the Legal Office, which asserted (perhaps with a beady eye on other clergy who might be tempted across the Tiber) that ‘only where a deed [of relinquishment] is executed and enrolled … and subsequently recorded by the bishop is the person concerned freed from the legal constraints and obligations that apply to clerks in holy orders’ (para 10).

Yet this is not really accurate.  S.8 of the 1870 Act, which is headed ‘saving for pecuniary liabilities’, provides that ‘Nothing in this Act shall relieve any person or his estate from any liability in respect of … any debt or other pecuniary liability incurred or accrued before or after his execution of a deed of relinquishment … and the same [debt / liability] may be enforced and recovered as if this Act had not been passed’.

If the Church authorities really believed that Dr Hawthorne had swindled them, and deprived them of income which rightfully belonged to them, they could have taken action against him in the secular court, even if he had executed a deed of relinquishment (and even if he had died).  The ecclesiastical tribunal was not in a position to ‘discipline’ Dr Hawthorne in any meaningful sense, since he had already ceased to belong to the Church of England.  However, as this vindictive proceeding makes clear, even though clergy may leave the Church of England for the Ordinariate, they still leave their characters behind them.

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.

Clergy Doctrine and Same Sex Marriage

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

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

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

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

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

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

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

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

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

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

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

Conciliation and Clergy Discipline

The Clergy Discipline Measure 2003 provides, at s.12, that if the bishop decides to proceed with a disciplinary complaint against one of his clergy, there are 4 possible courses open to him.  He can

(1)  ‘direct that the matter remain on the record conditionally’, but only with the accused clergyman’s consent.

(2)  attempt to resolve the dispute by a process of conciliation

(3)  impose a penalty, again with the clergyman’s consent

(4)  refer the complaint for ‘formal investigation’, which means turning it over to a disciplinary tribunal for adjudication.

Conciliation (option (2) above) is regulated by s.15 of the 2003 Measure.  The conciliator is appointed by the bishop, but the terms of the conciliation must be agreed by both the clergyman and the complainant.  The bishop must also be satisfied that the conciliator is impartial.

It is not easy to see how the conciliation option fits into the scheme of clergy discipline.  Indeed it is arguable that conciliation has no real place in the Clergy Discipline Measure.  It may be an appropriate means of resolving private disagreements.  However, if applied to the public order and professional discipline of the Church then it blurs the important distinction between right and wrong.  An accused clergyman has either misconducted himself or he has not.  If he has misconducted himself then he should be penalised, or at least warned.  But if he has not misconducted himself then he should not be troubled further.  Disagreement and discipline are two different subjects.  Disagreements are private, civil matters.  Discipline is a public, quasi-criminal matter.

In an article for the Ecclesiastical Law Journal jauntily entitled ‘A Canter’ through the disciplinary procedure, Adrian Iles, a barrister with responsibility for administering the 2003 Measure, suggested that conciliation ‘may be particularly useful where there has been a pastoral breakdown in relations between the parties …’ (January 2007, p.16).  However, when he wrote this, the Incumbents (Vacation of Benefices) Measure 1977 already provided a procedure for resolving a breakdown in pastoral relations, albeit only for incumbents, not other clergy.  The 1977 Measure was passed in the wake of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 , when the Rev Mr Bland was cleared of any serious misconduct even though his behaviour had clearly alienated his parishioners.

The 1977 Measure does not apply to the new regime of ‘common tenure’ introduced by the Terms of Service Measure 2009.  However, the 2009 regime provides for a ‘capability procedure’, similar to that operated in most secular employment (see Terms of Service Regulations, regulation 31).  The capability procedure is arguably the appropriate forum to address personal or pastoral difficulties between clergy and their colleagues or parishioners.

Mr Iles has recently contributed a second article to the Ecclesiastical Law Journal, to commemorate the 10th birthday of the Clergy Discipline Measure (January 2014, p.3).  This article further illustrates the confusion over the role of conciliation in disciplinary proceedings.  While giving a generally positive account of how the Measure has worked in practice, Iles regrets that ‘the most disappointing aspect of the Clergy Discipline Measure … has been the relatively rare use of conciliation to resolve complaints’ (p.6).  Apparently only 6 cases have been resolved by conciliation.

However, the article itself reveals the reason for this, even if the learned author seems unaware of it.  It states firmly that ‘complaints based on disagreements and grievances, however genuine, are not disciplinary matters … Bishops are encouraged … to take a fairly robust approach at the preliminary scrutiny stage and to be alert to the possibility of resolving a complaint … by non-disciplinary means outside the Clergy Discipline Measure where appropriate’ (p.5).

‘Disagreements and grievances’ do indeed fall outside the scope of the Clergy Discipline Measure, because the function of the Measure is to correct and penalise misconduct, not to settle disputes.  Hence complaints which indicate no more than a disagreement are rightly rejected at the preliminary stage.  Only allegations of misconduct go forward to the second stage of the procedure, as provided by s.12.

This renders the conciliation option superfluous under the present structure of the 2003 regime.  The option is provided only at stage 2 of the disciplinary procedure, but matters suitable for conciliation will already have been dismissed at stage 1.  If conciliation has any place in the Clergy Discipline Measure, its proper place is at the preliminary scrutiny stage, not at stage 2.  A disagreement or grievance that does not amount to misconduct should be dismissed at the preliminary stage, but it may be appropriate to recommend an attempt to resolve it by conciliation.

Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?

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

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

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

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

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

Criminality and Immorality

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

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

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

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

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

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

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

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

Doctrine and Discipline

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

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

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

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

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

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

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

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

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

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

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

Discipline and Pastoral Care

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

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

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

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

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

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

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