Ecclesiastical First Report


Clergy Discipline Measure—Comments and Explanations

INTRODUCTION

  1.  The Legislative Committee of the General Synod, having had referred to it a Measure entitled the Clergy Discipline Measure ("the Measure"), has the honour to submit that Measure to the Ecclesiastical Committee.

  2.  The Measure as now submitted is the result of seven years consideration:

    —  November 1994—November 1996—the Working Party produced the report entitled "Under Authority" in this period.

    —  November 1996—July 1999—an Implementation Group was given the task by the General Synod of drafting a Measure to follow through the "Under Authority" proposals, having re-examined each proposal.

    —  July 1999—February 2000—A General Synod Revision Committee met for six full day sessions to revise the draft Measure.

    —  February and July 2000—the draft Measure passed through Revision Stage in General Synod.

    —  November 2000—the draft Measure passed through the Final Drafting and Final Approval in the General Synod.

PART 1: A SUMMARY OF THE MEASURE

  3.  For the last 38 years the disciplinary procedure applied to clergy of the Church of England has been that under the Ecclesiastical Jurisdiction Measure 1963 ("the 1963 Measure"). The 1963 Measure has, however, been found to be inflexible, expensive and very slow moving.

  4.  In practice, these problems with the 1963 Measure have led to it being rarely used and as a consequence:

    —  A significant number of complaints have been left unresolved.

    —  Discipline has been exercised informally on a "voluntary" basis.

    —  Resignation has been the usual outcome, whether this is appropriate or not.

  5.  The increasingly unsatisfactory situation under the 1963 Measure has led to much dissatisfaction by all parties involved when a complaint is made. This led the General Synod in November 1994 to establish a Working Party to review Clergy Discipline and the Working of the Ecclesiastical Courts under the chairmanship of the then Reverend Canon Alan Hawker. The Measure as submitted results from that wide-ranging and lengthy inquiry and the proposals that it made.

  6.  There then followed an extensive consultation and examination of good (and bad) practice elsewhere in other Christian jurisdictions, with a detailed analysis of best modern practice in the professions and in employment legislation within the United Kingdom.

Basic Principles

  7.  The following are the basic principles of the Measure:

    (a)  A procedure that is fair to all parties, ie complainants, the Church, society, the clergy, the bishop and those who assist him in carrying through the procedures.

    (b)  A unified procedure for all clergy of whatever rank or experience.

    (c)  A procedure whose basic structure is easily understood.

    (d)  A procedure that provides flexibility yet encourages as speedy a resolution as is consistent with justice.

What is covered by Clergy Discipline?

  8.  At ordination, all clergy swear an Oath of Allegiance (Canon C. 13). Involved in this Oath is a recognition of, and a willingness to, abide by the secular law. Consequently, all clergy accused of a criminal offence will still have their case heard in the criminal courts of the land. The determination in the secular courts of guilt or innocence (beyond reasonable doubt) will continue to be accepted by the Church. Where the offence carries the possibility of imprisonment, a guilty verdict will automatically render the cleric liable to ecclesiastical discipline.

  9.  All clergy swear an Oath of Obedience (Canon C. 14). Therefore, breaches of the Canons and Laws Ecclesiastical are a disciplinary matter.

  10.  All clergy make the Declaration of Assent (Canon C. 15). Behaviour that is contrary to this Declaration is a disciplinary matter. Such behaviour may:

    —  constitute neglect in the performance of the duties the cleric has committed to fulfil; or

    —  relate to doctrine, ritual and ceremonial. (NB. These three areas continue to be covered by the 1963 Measure whilst a Working Party set up by the House of Bishops reviews how best to bring them within the remit of the new Measure.)

  11.  The conduct of clergy, in their private lives as well as when on duty, is a concern which is clearly stated in ecclesiastical law, eg in Canons C. 26, C. 27 and C. 28. Also, involvement in a divorce is a matter that can give rise to discipline and this also is allowed for in the new Measure, as it was in the 1963 Measure.

The Disciplinary Procedure—A Brief Summary (also see diagram above)

  12.  Initiated by a complaint being made to the bishop. NB—Only written and identifiable complaints are permitted, with anonymous complaints being disregarded (see paragraph B.4.4 of the draft Code of Practice).

  13.  An introductory SIEVE procedure is used. The bishop passes the letter of complaint to the Diocesan Registrar (a practising lawyer). Within 28 days the Registrar has to advise the bishop on three matters:—

    —  Under the Measure, has the complainant the right to complain?

    —  If the complaint is found to be valid, would the complaint be a disciplinary matter?

    —  What quality of evidence is being offered in support of the complaint?

  14.  On the basis of the Registrar's advice, the bishop determines whether or not it is a disciplinary matter. Also, whether the complaint is frivolous, malicious or vexatious (in which case it would be rejected).

    —  If the complaint is not disciplinary, then it proceeds no further.

    —  If it is disciplinary, then it enters the formal procedures.

  15.  The bishop decides which of five procedures is appropriate. NB—All but option (e) can only be used with the consent of the cleric against whom the complaint has been made.

    (a)   No further action. When, in the bishop's assessment, after speaking with the cleric, the matter (though a technical breach of discipline) is of insufficient significance to warrant further action or where the consequences already experienced are a sufficient response or where the extenuating circumstances make further action inappropriate.

    (b)   Left on the record. When the cleric admits the complaint is valid, the bishop may choose to take no further action, but leave the complaint on the record for a specified period (of up to five years). Further indiscipline during that period would automatically lead to the first indiscipline being re-evaluated at the same time.

    (c)   Conciliation. The Church of England has long experience of complaints being lodged as a means of communicating concern over a breakdown in relationships, usually at parish level. Whilst there may be genuine disciplinary matters involved, the core problem can be of relationships. This procedural option allows for conciliation with the help of a neutral conciliator, acceptable to all parties involved. If conciliation is successful, the complaint can be withdrawn.

    (d)   Penalty with consent. This continues a provision in the 1963 Measure. Where a cleric admits the complaint to be valid, the cleric may choose to ask the bishop to determine an appropriate penalty. NB—This procedure presumes adequate discussion of the complaint and the opportunity for the cleric to indicate extenuating and/or mitigating circumstances. Over the last 38 years this has been a well-used and proven procedure. Many clergy will admit to indiscipline when they know the complaint to be reasonable.

    (e)   Tribunal. Whenever a cleric declines to admit the truth of a complaint, or positively challenges its veracity, adjudication is required. There will also be some serious complaints or complaints raising issues of importance, when an adjudication is the appropriate procedure even if misconduct is admitted. Such cases will be heard by a panel of five (two laity, two clergy and a legally qualified chairperson). Tribunal members will be allocated from the relevant Provincial panels (of Canterbury or York). The tribunal will conduct its business in the same manner as would an employment tribunal—its rules of procedure being determined by the Rule Committee. Decisions would be by majority, using the civil standard of proof, in line with employment tribunals and virtually all professional disciplinary bodies, including the Police Complaints Authority. Appeals will continue as under the 1963 Measure to the provincial appeal court.

Penalties

  16.  Under the 1963 Measure there are five "censures" listed, only two of which have ever been used. The new Measure expands the responses available so as to provide greater flexibility and sensitivity in handling. The highest penalty available is prohibition for life, ie a bar on exercising any clergy function at all. This will only be for the most serious cases with a right to review later if new evidence comes to light.

  17.  The other penalties available are:

    (a)   Limited prohibition. This prevents clergy from exercising any clergy function, but for a specified period.

    (b)   Removal from office. This does not prohibit the performance of clerical duties; rather it removes the current preferment (ie the post) of the cleric.

    (c)   Revocation of licence. This is applicable to non-freehold clergy. But it can only be done in a disciplinary context once the procedures of the Measure have been followed through. To revoke a licence for disciplinary reasons without using the procedures of the Measure is, in itself, an offence under the Measure.

    (d)   Injunction. This specifically obliges a cleric to refrain from some offending behaviour.

    (e)   Rebuke. This is a formal warning.

  18.   Conditional discharge. This indicates an appropriate penalty, but does not apply it for up to two years so long as there is no further misconduct. Should there be further misconduct, the penalty is applied when that misconduct is admitted or proven, in addition to any penalty for the second offence.

  19.   Resignation. This is permitted, whether offered by the cleric or suggested as appropriate, possibly by the bishop. But either way, a seven-day period for reflection (a "cooling-off" period) is written in to ensure that resignations are not ill considered or made in haste. Provision is also made for disciplinary action, the resignation notwithstanding, where the seriousness of the misconduct suggests that a more severe penalty would be appropriate. Resignation is not to be a means for avoiding the issue or subsequent proceedings in the criminal courts.

The Interested Parties

The Church and Society

  20.  If clergy are to be respected and trusted then a recognisably credible, fair and open system for administering discipline is essential. The 1963 Measure incurred some disrepute and complainants were given the impression that complaints were unwelcome and would be responded to reluctantly. The new Measure offers a more transparent procedure which is easy to access and prompt and flexible in its response. The initial sieve procedure ensures that clergy and Church officers relate seriously to genuine complaints, whilst excluding the trivial, malicious and vexatious complaints.

Complainants21.  A simple letter to the bishop outlining the nature of the complaint is all that is required to activate the initial sieve procedure. But the complainant will be expected to provide evidence to substantiate the complaint and a complaint will be ruled out by a failure to do so. If the decision is not to proceed with the complaint, the complainant will receive the Registrar's written report, and will be able to appeal against the decision not to proceed to the President of Tribunals. If the complaint is allowed to proceed, but the decision is to take no action, the complainant may appeal against that decision, to the President of Tribunals (who has an overseeing role in the new Measure).

The Clergy

  22.  The Measure is drafted on the presumption that clergy are not best served by denying complaints or failing to take legitimate complaints seriously. Equally, it is the responsibility of the complainant to provide the evidence and justify the complaint. The clergy are not required to prove their innocence and where a complaint is admitted or upheld, any extenuating or mitigating circumstances will be taken into consideration. Clergy will be encouraged at all stages of the procedure to take advice and to attend interviews with a companion, be it a friend, a union official, or a lawyer. Clergy will be appraised in detail of the complaint and the identity of the complainant. They will be provided with sufficient time to prepare their own defence to the complaint.

Bishops and Church Officers

  23.  Discipline is part of a bishop's responsibilities. It would be theologically and practicably impossible to operate disciplinary procedures without the bishop's involvement. However, it is neither desirable nor necessary for a bishop alone to administer discipline. The new Measure is drafted on the understanding that most of the procedures will involve persons appointed by the bishop or required specifically by the Measure, on whose advice the bishop will ultimately formulate his response. Consequently, unfettered action by a bishop is not possible. To ignore the new Measure's procedures in administering discipline will render the bishop open to discipline himself and will invalidate any unauthorised behaviour by himself or on his behalf. A level of discretion is appropriate in administering discipline, but wherever a discretion is permitted, it is clearly "ring fenced", and a right of appeal is provided to a neutral legally qualified person for any who feel aggrieved as to how the discretion has been exercised. Any disciplinary procedure is, ultimately, only as good as the people who operate it. This procedure seeks to minimise any risk, however slight, from recalcitrant church officers and allows appropriate review when necessary.

Particular themes and issues

Human Rights

  24.  The draft Measure was subject to detailed scrutiny by a Leading Counsel specialising in Human Rights law. His advice was to the effect that the Measure complied with the requirements of the Human Rights Act. The key provision was Article 6, which confers a right to a fair trial by an independent tribunal; and, whatever the nature of the preliminary processes, that right was met by the availability of a right of appeal to the Arches Court of Canterbury or the Chancery Court of York. Leading Counsel's advice also drew attention, however, to ways in which (had those rights of appeal not been available), the processes prescribed by the Measure (as then drafted) would not be fully consistent with the requirements of the Human Rights Act. Whilst it was not necessary to do so, a number of changes were accordingly made in the light of Leading Counsel's comments, with a view to ensuring that the processes laid down by the Measure were as fair as possible. In particular—

    (a)  The involvement of the bishop in the preliminary stages of the Measure has been limited by giving responsibility to the registrar to come to a view on the substance of a complaint before the bishop decides on whether to dismiss the complaint or to proceed.

    (b)  There is a prohibition on members of the provincial panel nominated by the bishop concerned sitting on the disciplinary tribunal for that diocese.

    (c)  The respondent will have the opportunity to make representations to the President of Tribunals as to the suitability of persons to be appointed to the disciplinary tribunal.

    (d)  The hearings of the tribunal will normally be held in private. However a public hearing may be held if requested by the respondent or may be ordered by the tribunal itself where this is considered to be in the interests of justice. In such circumstances, the tribunal may sit in private for certain parts of the proceedings.

    (e)  Before imposing a penalty, the tribunal may invite the bishop to express his views on an appropriate penalty with the proviso that there should be no consultation if the bishop has been involved earlier in giving evidence to the tribunal.

Tribunals

  25.  Although the experience of the 1963 Measure cannot provide an accurate basis for projecting the number of cases that might go forward to adjudication under the new Measure, on the basis of what has happened since 1963 it is likely that adjudications by tribunal will be rare. So, whilst the tribunal is an essential part of the process, it is expected that the large majority of disciplinary cases will be handled other than by a tribunal. The newly proposed disciplinary tribunal has been crafted from best practice in the secular and professional worlds. It differs markedly, as do employment tribunals, from the Crown Court (on which the existing disciplinary court of the Church (the Consistory Court) is based).

  26.  The changes are as follows:

    —  the diocesan Chancellor is now free to offer advice to the bishop and his staff (which he cannot do at present as he has to preside over the Consistory Court);

    —  the legally qualified chairmen can be selected for their experience in handling discipline cases (whereas Chancellors might be specialists in planning or conservation matters, and unused to disciplinary matters);

    —  the unanimous vote of four is replaced by a majority vote of five, which will now include the legally qualified chairman for the first time. Tribunal decisions do not need to be unanimous and can be by a majority decision, as is entirely consistent with good secular practice;

    —  the entire membership of the tribunal of five will be neutral and will never come from the diocese concerned (at present they all come from the diocese);

    —  the hearing shall be in private except that a tribunal or the court, if it considers that it is in the interests of justice to do so or if the respondent so requests, shall direct the hearing to be in public (in which case a tribunal or court may, during any part of its proceedings, exclude such persons as it may determine). The decision of the tribunal shall always be declared publicly;

    —  to uphold a complaint, the tribunal must be satisfied that the misconduct has taken place. In line with employment tribunals and nearly every professional body (including the police) the standard of proof will be the civil standard, (ie on the balance of probability); and

    —  it should be noted that, wherever criminality is alleged, the tribunal will not adjudicate. Such cases will be dealt with in the Crown Courts or the Magistrates' Courts by the secular authorities and the determination of the secular courts as to guilt or innocence will be conclusive for the Church.

Standard of Proof

  27.  The Under Authority Report (paragraph 7.14) had recommended the retention of the criminal law standard of "beyond reasonable doubt". However, during the course of its research into the disciplinary procedures adopted by a range of other professions, the Implementation Group revised Under Authority's recommendation in favour what is often called the "civil standard", a view that was subsequently endorsed by the Revision Committee and the Synod. In doing so they noted that the general trend across all the professions was away from the criminal law standard and towards the civil standard as widely used for civil law cases in the secular courts and took into account the fact that the Measure was establishing a disciplinary procedure not a criminal one.

  28.  The Synod accepted that the civil standard safeguarded the right of the cleric to a fair hearing and a safe decision, a vital consideration given the great damage to a cleric's reputation that could result from any disciplinary action, even on a relatively minor matter. However, the Synod recognised that in addition to a duty to the respondent, there was also a duty to the complainant and the wider Church to guard its congregations against misconduct by clergy going unchallenged and the Synod's attention was drawn to case law which makes it clear that the civil law standard is a flexible one, allowing for the degree of probability which must be established to vary according to the seriousness of the matter in question. Thus the more serious the allegation, the higher the degree of probability which is required.

Archbishops' List

  29.  A List has existed from early in the twentieth century. Maintained by the Archbishops, it was for many years unknown and still remains non-statutory. The new Measure addresses this matter by putting it on a legal basis and by regulating its use. Procedures are provided in the Measure to notify those who are to be included on the List and there is also a right of appeal relating to inclusion under one particular category. There is also a general provision for the review of a cleric's inclusion on the List. These provisions reflect the principles set out in the Data Protection Act 1998. The List will become a confidential record of clergy on whom a disciplinary penalty has been imposed, who have been deposed from (or relinquished) Holy Orders, who have resigned preferment following a complaint being made against them under the Measure, or have acted in a manner (not amounting to misconduct) which might affect their suitability to hold office. The mechanics of how the list should be compiled and updated is not prescribed by the Measure but will be the subject of Rules.

  30.  Those already on the unofficial List will need to be incorporated onto the Archbishops' List created by this new statutory provision so that the expectation will not be raised that the passage of the new Measure will herald a wholesale review of previous decisions. The List will be available, in confidence, for consultation by all bishops considering the appointment of a cleric to a post.

  31.  Those who, in the opinion of the archbishops, have acted in a manner which might affect their suitability for holding preferment may be included in the Archbishops' List to protect the Church from appointing clerics to posts for which they might be unsuited. Such a statutorily regulated position (with safeguards for the cleric) is much to be preferred to the alternative of an unofficial and unregulated list of such cases.

Divorce

  32.  The belief of the Church is that marriage is between one man and one woman for life. It is this belief that clergy are expected not only to teach, but also to practice. So for a very long time clergy who became divorced, or who were cited as a co-respondent in divorce, have been liable to discipline and there are provisions to this effect in 1963 Measure. In drafting the new Measure, the Synod was aware of the progress of the Family Law Bill through Parliament. This, crucially, removed grounds for declaring a marriage to be irretrievably broken down. However, since its enactment, the Government has chosen not to activate some of its provisions. Consequently, the new Measure has been drafted to allow for both the current and possible future situation in the secular law. The Measure requires clergy to notify their bishop if they are either involved or likely to be involved in a divorce. This allows for a review of whether there is any misconduct and, if there is, to respond in an appropriate manner.

Suspension

  33.  It is envisaged that this will be of limited application. Criminal allegations are more likely to warrant its use than in cases of general professional misconduct. So the new Measure provides for suspension, but with caveats:

    —  the Code of Practice will require that agreement is sought with the cleric that temporary suspension is sensible. Only when this is not agreed will the bishop consider ordering a suspension;

    —  the cleric's stipend will continue to be paid and housing remains secure;

    —  if the respondent is an incumbent, arrangements for temporary cover must be made in conjunction with the cleric;

    —  there is a right of appeal by the cleric against a bishop's intention to suspend; and

    —  no suspension can last more than three months. If it is deemed necessary for a suspension to be extended, each extension is a new matter, with a new right of appeal by the cleric.

Consistency

  34.  One of the criticisms of the current situation has been that of inconsistency as between one bishop/diocese and another. The new Measure addresses this by:

    (a)  establishing a Clergy Discipline Commission of up to 12 people. This commission will:

    —  monitor the exercise of discipline;

    —  highlight and encourage best practice;

    —  be available to offer advice to bishops;

    —  report annually on the workings of the new Measure to General Synod through the House of Bishops;

    —  build up casework experience in disciplinary matters; and

    (b)  setting up procedures on a provincial basis (ie the provincial panels).

Professional "Performance"

  35.  The Code of Practice and Rules that will eventually accompany the new Measure will recognise that under-performance by a cleric should, initially, be handled pastorally. It will be a requirement that under-performance is discussed with the cleric while advice and appropriate training and support is provided. Only if this proves ineffective would a disciplinary complaint be allowed to proceed.

Resignations

  36.  Resignation has long been the most usual response to discipline. It is often offered voluntarily by the cleric and, it is suggested by some, sometimes achieved under pressure from the ecclesiastical authorities. But some disciplinary offences are insufficiently serious to warrant resignation and some misconduct is too serious to be settled in this way. So the new Measure, whilst allowing resignation as a response, seeks to regulate its use by allowing the respondent or the bishop to change their mind about offering or accepting a resignation within a cooling-off/reflective period of seven days. It also allows for the fact that a resignation was accepted in a disciplinary context to be recorded.

Deposition

  37.  Deposition (which provides that the person concerned is to be treated as a layperson for all purposes) raises fundamental sacramental questions concerning an understanding of the nature of holy orders. The Synod, having taken note of the view of the House of Bishops, decided that it would be clearer if prohibition for life (which in practical terms had the same effect) were the ultimate penalty that could be imposed under the Measure. Accordingly, there is no provision in the new Measure for imposing the penalty of deposition.

Political opinions or activities

  38.  The 1963 Measure provides that no proceedings in respect of conduct unbecoming shall be taken in respect of a cleric's political opinions or activities. A number of options were considered before reaching the conclusion that this provision should be kept in the new Measure, but modified and limited to political opinions or activities that are lawful. The Synod concluded that political opinions or activities that are unlawful should not be protected and that with regard to lawful opinions or activities the extra protection of this proviso was needed on top of that already provided in secular law, including the Human Rights Act.

Licenced Clergy

  39.  The 1963 Measure is only properly understood in the context of handling discipline for clergy with freeholds. But other clergy were left with a much less secure tenure of office. Because of the changing nature of the ministry, increasing numbers of clergy no longer have a freehold (eg those in team ministries). The new Measure effectively enhances the security of tenure of those without the freehold, as clergy with licences may only have their licences revoked in disciplinary situations if the new procedures are used. It will be an offence to revoke a licence for disciplinary reasons in any other way.

Rules

  40.  The Rule Committee (the membership of which includes practising lawyers) will draft Rules on the detailed working of the Measure. These draft Rules need to be made by the General Synod before being laid before Parliament for approval. The Measure allows for the Rule Committee to make provision for carrying into effect the provisions of the Measure. The Rules will cover detailed procedural matters and will inter alia cover the role of the bishop and his staff, the handling of complaints and gathering of evidence, the procedures for keeping the complainant and respondent informed and the procedural rules for the working of a tribunal, including such matters as the admissibility of evidence.

Legal Aid

  41.  Provision is already in place under the Church of England (Legal Aid) Measure 1994 whereby legal aid from the Legal Aid Fund administered by the Legal Aid Commission may be granted, subject to various conditions, for clergy facing disciplinary proceedings under the 1963 Measure. This will be extended by the Measure to include the new procedures beyond the initial sieve process.

Coming into effect

  42.  It is planned that the clauses of the Measure relating to the Clergy Discipline Commission and the power for the Rule Committee to make rules will be brought into force first to allow for the Code of Practice and the Rules to be approved by the Synod. It will then be possible for the substance of the Measure, the Code and the Rules all to come into force at the same time.

PART II: NOTES ON CLAUSES

  43.   Clause 1 provides that any body or person operating the functions conferred by the Measure shall have regard to the position of the bishop who is required by the Ordinal to administer discipline as part of his overall obligation to be a guardian of the faith.

  44.   Clause 2 lays down that where a complaint is referred under the Measure to a bishop's disciplinary tribunal, then a tribunal (constituted according to the provisions of section 22) shall be constituted for the diocese in question to deal with that particular complaint.

  45.   Clause 3 establishes a body to be called the Clergy Discipline Commission to consist of not more than 12 persons appointed by the Appointments Committee of the Church of England and to include two persons from each House of the General Synod and two persons who are suitably legally qualified. The Chairman and Deputy Chairman shall also be such legally qualified persons appointed by the Appointments Committee after consultation with the Dean of the Arches and Auditor.

  46.  The Commission shall exercise the functions conferred on it by the Measure (for instance, in clause 21 the compilation of the provincial panels) and in addition shall have the following duties:

    (a)  to give general advice to disciplinary tribunals, Vicars-General's courts and to bishops and archbishops as to the penalties which are appropriate in particular circumstances. It is expected that the Commission will emerge as the compiler of "case law" on these matters to the benefit of future tribunals etc.;

    (b)  to issue codes of practice and general policy guidance; and

    (c)  to make an annual report on the exercise of its functions to the General Synod through the House of Bishops.

  47.   Clause 4 provides for a President and deputy President of Tribunals who shall be respectively the holders of the offices of Chairman and Deputy Chairman of the Clergy Discipline Commission. The functions of the President are those conferred on him by the Measure with the additional duties of issuing practice directions and acting as chairman of a disciplinary tribunal where, in his opinion, important points of law or principle are involved. If the President is absent or is unable or unwilling to act, the Deputy President shall act for the President.

  48.   Clause 5 provides for the appointment by each Archbishop, after consultation with the President of Tribunals, of a suitably qualified person to be Registrar of Tribunals for his province. The clause also provides for an upper age limit of 70 years on a person holding the office and a 12 month notice period for resigning or terminating the office. The duties of each Registrar shall be to direct and supervise the general administration of such disciplinary tribunals as may be convened in the province. If the Registrar of Tribunals for one province is for any reason either unable or unwilling to perform his duties or if it would be inappropriate for him to do so, the Registrar of Tribunals of the other province shall perform those duties.

  49.   Clause 6 lays down the jurisdiction of a disciplinary tribunal of a diocese or the Vicar-General's court. The bishop's tribunal of a diocese has jurisdiction over a priest or deacon if, when the alleged misconduct took place, that priest or deacon held preferment in that diocese, was resident therein, or is alleged to have officiated in that diocese without authority. The Vicar-General's court of a province has jurisdiction over a bishop against whom misconduct has been alleged, if the bishop held preferment in that province, was resident therein, or is alleged to have officiated in that province without authority. The Vicar-General's courts additionally have jurisdiction over the archbishop of the other province if that archbishop is accused of misconduct.

  50.  This clause also provides that any bishop, priest or deacon against whom a complaint of misconduct has been made cannot be subject to disciplinary proceedings in more than one diocese (or province in the case of bishops) for the same matter. If such a cleric at the time of the alleged misconduct was resident in one diocese and held preferment or is alleged to have officiated without authority in another, then proceedings in the diocese of residence would be discontinued. Similarly, if such a cleric held preferment in one diocese and is alleged to have officiated without authority in another, then proceedings in the diocese of preferment would be discontinued.

  51.   Clause 7 provides that the Measure has application only to acts of alleged misconduct relating to matters not involving doctrine, ritual and ceremonial and that proceedings in relation to matters involving doctrine, ritual and ceremonial shall continue to be conducted under the provisions of the 1963 Measure. A Group with members from all three Houses is currently reviewing clergy discipline in relation to doctrine, ritual and ceremonial (see paragraph 10 above) with a view to reporting to the House of Bishops and the Synod during this current quinquennium.

  52.   Clause 8 lays down what constitutes misconduct under the Measure. Disciplinary proceedings may be instituted against any archbishop, bishop, priest or deacon alleging any of the following acts or omissions: doing any act in contravention of (or failing to do any act required by) the laws ecclesiastical; neglect or inefficiency in the performance of the duties of his office; conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders (with the proviso in respect of conduct unbecoming that no proceedings shall be taken in respect of lawful political opinions or activities).

  53.  It is also provided that a minister who holds the bishop's licence shall not have that licence terminated by reason of misconduct other than by way of the disciplinary proceedings of the Measure.

  54.   Clause 9 provides a limitation of one year on the institution of proceedings. This time limit starts with the misconduct in question (or the last instance in a series of acts and omissions). Where the misconduct is one for which the person has been convicted in the secular courts, proceedings may be instituted within one year of the conviction becoming conclusive, even though the one year from the date of the misconduct has elapsed. Furthermore, the President of Tribunals (after consultation with the complainant and respondent) may give permission for proceedings to be instituted after the one year period, if he considers there is good reason why the complainant could not institute proceedings at an earlier date.

  55.   Clause 10 lays down how a complaint is to be made. In all cases it must be in writing. In the case of a priest or deacon, it must be either from a person nominated by the parochial church council of any parish that has a proper interest in making the complaint (not less than two-thirds of the lay members of the council being present and not less than two-thirds of those present and voting passing a resolution to the effect that proceedings be instituted); a churchwarden of any such parish; or any other person with a proper interest in making the complaint. The complaint is to be laid before the diocesan bishop concerned.

  56.  In the case of a complaint against a bishop or archbishop, this can be made by a person nominated by the bishop's or archbishop's council respectively, not less than two-thirds of the members of the either council being present and not less than two-thirds of those present and voting passing a resolution to the effect that proceedings be instituted; or any other person with a proper interest in making the complaint. The complaint in the case of a bishop to be laid before the archbishop concerned and in the case of an archbishop before the other archbishop.

  57.  Any complaint shall be accompanied by written particulars of the alleged misconduct and written evidence in support of the complaint, although all this information need not accompany the original complaint and may be provided later as the archbishop or bishop concerned may allow.

  58.   Clause 11 provides for the preliminary scrutiny of a complaint by the registrar of the diocese or province concerned (or any person to whom the registrar delegates this function). The registrar shall scrutinise the complaint in consultation with the complainant and shall form a view as to whether the parochial church council or other person making the complaint has a proper interest or holds the office of churchwarden if the person purports to do so. The registrar shall also form a view on whether there is sufficient substance in the complaint to justify proceeding.

  59.  Within a period of 28 days of the registrar receiving the complaint (or longer if the registrar considers one extension of time to be justified and having beforehand consulted both the complainant and respondent), the registrar shall make a written report to the bishop setting out his views. On receiving the registrar's report, the bishop may dismiss the complaint and on doing this shall give written notice to both complainant and respondent together with a copy of the registrar's report. The complainant may request the President of Tribunals to review the dismissal and the President may then uphold the dismissal or if he considers it to be plainly wrong, he may reverse it and direct the bishop to deal with the complaint under clause 12.

  60.   Clause 12 lays down the courses available to the bishop if he does not dismiss the complaint within 28 days of the registrar's report being received by the bishop or within 28 days of the President of Tribunal's decision to reverse the dismissal by the bishop. The bishop can extend this period of 28 days if he considers this to be justified, having beforehand consulted both the complainant and respondent. The courses available to the bishop are:

    (a)  no further action;

    (b)  conditional deferment, if the respondent consents;

    (c)  conciliation;

    (d)  penalty by consent; and

    (e)  formal investigation.

  61.   Clause 13 provides that if the bishop determines that there is to be no further action he shall inform the respondent and the complainant of his decision in writing. The complainant may refer the complaint to the President of Tribunals and if the President considers that the bishop's decision to take no further action is plainly wrong, then the President may direct the bishop to pursue one of the other courses available to the bishop.

  62.   Clause 14 lays down the procedure for a conditional deferment that requires the consent of the respondent. The bishop shall inform the complainant and the respondent of his determination and shall explain to both the effect of conditional deferment. The complaint and the bishop's determination shall be notified to the archbishop concerned and remain on a record maintained by the diocesan registrar concerned for a maximum period of five years (as the bishop may determine) and, subject to no new complaint being dealt with as outlined below, no further action shall be taken.

  63.  If during the period of conditional deferment another complaint is made and is dealt with by either conciliation, penalty by consent or formal investigation, then at the same time the recorded complaint may also be dealt with under that course of action.

  64.   Clause 15 provides for conciliation. Both the complainant and the respondent shall be afforded the opportunity to make representations on the appointment of a conciliator. If they both agree to such an appointment then the bishop shall appoint a conciliator (with the agreement of the complainant and the respondent as to the person to be appointed). The bishop shall not appoint a person unless he is satisfied of that person's impartiality. If within a period of three months from the appointment of a conciliator (or after a further period as may be agreed with both complainant and respondent) a conciliation is brought about, then the conciliator shall report this to the bishop, together with such recommendations as he may wish to make. If the first conciliator does not bring about a conciliation, provision is made for another conciliator to be appointed (again, if both complainant and respondent agree to it), or if not for the conciliator to refer the matter back to the bishop.

  65.  If the complainant and respondent do not agree as to the appointment of a conciliator or as to the person to be appointed or if conciliation is not brought about, the bishop shall proceed to deal with the complaint under one of the other courses available to him in section 12.

  66.   Clause 16 provides for the imposition of a penalty by consent. Where the bishop considers this might be appropriate, he shall afford the complainant and the respondent the opportunity to make representations and if the respondent consents to the imposition of a penalty, the bishop shall proceed accordingly and no further action shall be taken. This provision is subject to the proviso that if it is agreed that the penalty should be prohibition for life or that resignation is the appropriate course, then within a period of seven days following the agreement, either the bishop or the respondent may withdraw from that agreement. The complainant shall be notified of any action taken under this section and the archbishop of the province and the registrar of the diocese concerned shall be notified of any agreed penalty.

  67.  If an agreement on a penalty by consent is not obtained, the bishop shall proceed to deal with the complaint under section 12(1)(e), formal investigation.

  68.   Clause 17 lays out the procedure for the formal investigation of a complaint. If so directed by the bishop, this formal investigation is undertaken by the designated officer of the Legal Office of the National Institutions of the Church of England (see paragraph 12 of Appendix I below). Once the designated officer has completed an inquiry then the matter is referred to the President of Tribunals who shall decide whether there is a case for the respondent to answer. If the President decides that there is a case to answer then the complaint shall be referred to a disciplinary tribunal or Vicar-General's court (as the case may be) for adjudication. If the President of Tribunals decides that there is no case to answer then no further action shall be taken on the matter.

  69.  In all instances, the President of Tribunals shall reduce his decision to writing and copy it to the complainant, the respondent, the bishop and the designated officer.

  70.   Clause 18 provides for the conduct of proceedings in either a disciplinary tribunal or Vicar-General's court. The designated officer or a person duly authorised by him shall conduct the case for the complainant. In any proceedings the President of Tribunals may direct that the complaint is withdrawn and no further action is taken in the proceedings or that an attempt (or further attempt) is made at conciliation.

  71.  The standard of proof to be applied by a tribunal of the court shall be the same as in proceedings in the High Court exercising civil jurisdiction. The determination of any matter by a tribunal or the court shall be by a decision of the majority of its members and shall be pronounced in public along with the reasons that led to the decision. The hearing shall be in private except that a tribunal or the court, if it considers that it is in the interests of justice to do so or if the respondent so requests, shall direct the hearing to be in public (in which case a tribunal or court may, during any part of its proceedings, exclude such persons as it may determine).

  72.   Clause 19 provides for the imposition of a penalty upon a finding by a disciplinary tribunal or Vicar-General's court that the respondent has committed misconduct. The tribunal or court may impose any one or more of the penalties mentioned in section 24 (or a conditional discharge as provided in section 25), defer consideration of the penalty and thereby adjourn the proceedings or impose no penalty. Before imposing a penalty, the tribunal or court may invite the bishop of the diocese concerned in the case of a tribunal or in the case of the Vicar-General's court the archbishop concerned (or if the respondent is an archbishop, the other archbishop) to express views as to the appropriate penalty and the tribunal or court shall have regard to such views in imposing a penalty and these views shall be conveyed in writing to the respondent. This provision is subject to the proviso that if the bishop or archbishop has given evidence in the proceedings he shall not be consulted.

  73.   Clause 20 provides a right of appeal for the respondent against any penalty imposed under the Measure. There is also a right of appeal for the respondent on a question of law or fact and the designated officer on a question of law against any finding of a tribunal or Vicar-General's court. An appeal is made to the Arches Court of Canterbury or the Chancery Court of York (according to where the proceedings take place) and proceedings on an appeal are as provided in section 3(2) of the 1963 Measure.

  74.   Clause 21 provides for the Clergy Discipline Commission to compile and maintain for each province a list (to be referred to as the provincial panel) of persons available for appointment to a disciplinary tribunal or the Vicar-General's court, all of whom shall be actual communicant members of the Church.

  75.  Each panel shall consist of two lay persons from each diocese nominated by the bishop of the diocese after consultation with the bishop's council, being persons resident in the diocese and on the electoral roll of a parish in the diocese or on the community roll of a cathedral which is not a parish church; two persons in Holy Orders from each diocese nominated by the bishop of the diocese after consultation with the bishop's council, having served in Holy Orders for at least seven years and being resident in the diocese; 10 persons with the appropriate legal qualifications nominated by the archbishop; not more than five persons who are resident in the province and are on the electoral roll of a parish in the province and not more than five persons who have served in Holy Orders for at least seven years and reside in the province also nominated by the relevant archbishop.

  76.  Members of a provincial panel serve for a period of six years with a half of the membership completing their period of office every three years, although on the first occasion half the members chosen by lot shall only serve for a period of three years. On retiring from a panel a person shall be eligible to be nominated to serve only one more period of six years. It is also provided that if a person's period of service on a panel expires while sitting as a member of a tribunal or of the Vicar-General's court, then that person shall continue to sit on that tribunal or court until the particular proceedings are completed. Provision is also made for the archbishop or bishop (as the case may be) to fill a casual vacancy following the above provisions of qualification and consultation but any person so chosen will only serve the unexpired term.

  77.   Clause 22 lays down that a disciplinary tribunal shall consist of five members. The Chairman shall be the President of Tribunals or another person nominated by the President from amongst the legally qualified members of the provincial panel. There shall be two lay persons and two persons in Holy Orders appointed by the President from members of the provincial panel (other than members of the panel nominated by the bishop of the diocese concerned). The President must be satisfied on the impartiality of persons appointed to the tribunal and the respondent shall be given the opportunity to make representations on the suitability of a person to be appointed.

  78.   Clause 23 lays down that the Vicar-General's court shall consist of five members. In a case of the court exercising its jurisdiction against a bishop, the Vicar-General of the relevant province shall be the Chairman of the court unless he declares himself personally acquainted with the complainant or respondent, in which case the President of Tribunals shall appoint a person to be chairman from amongst the legally qualified members of the provincial panel of the other province. There shall be two persons in Holy Orders (one of whom in Episcopal Orders) appointed by the President of Tribunals; and two lay persons appointed by the President from amongst those on the provincial panel of the other province. There are similar provisions in subsection (2) in the case of the court exercising its jurisdiction in respect of an archbishop.

  79.  The President must be satisfied on the impartiality of persons appointed to the court and the respondent shall be given the opportunity to make representations on the suitability of a person to be appointed.

  80.   Clause 24 lays down six penalties, one or more of which, may be imposed on a respondent upon a finding that misconduct has been committed. The penalties are: prohibition for life (prohibition without limit of time from exercising any of the functions of Holy Orders), limited prohibition (prohibition for a specific time), removal from office (removal from any preferment), revocation of a licence, injunction or rebuke. Where a penalty is imposed on an archbishop or a bishop or on any other person holding a preferment (other than a parochial one) where the right to appoint is vested in Her Majesty, then the penalty shall not be effective unless and until Her Majesty confirms the penalty by Order in Council.

  81.   Clause 25 provides that where a tribunal or Vicar-General's court (as the case may be) has found that the respondent has committed some misconduct, the tribunal or the court may make an order discharging the respondent, subject to the condition that no misconduct is committed within a period of up to two years (this condition being explained in ordinary language to the respondent). In reaching this decision, the tribunal or court will take into account the nature of the misconduct, the character of the respondent and the expediency of imposing a penalty.

  82.  If a person who is subject to such an order is found in disciplinary proceedings to have committed some misconduct within the period of the order, then the tribunal or the Vicar-General's court dealing with the subsequent misconduct may also deal with the misconduct for which the order was made and the order shall cease to have effect.

  83.   Clause 26 provides a process by which prohibition for life or deposition (imposed under the 1963 Measure) can be nullified. On an application from a priest or deacon to whom one of these penalties has been applied, the archbishop concerned may, after consultation with the Dean of the Arches and Auditor, declare the prohibition for life or deposition to be nullified, if he considers that it was not justified. The grounds on which the archbishop can nullify such a penalty are that new evidence has come to light affecting the facts on which the prohibition for life or deposition was based or that the proper legal procedure leading to either of these penalties was not followed. Although deposition is not be one of the penalties that could be imposed under the Measure, the effect of subsection 47(3) means that the provisions of clause 26 extend to depositions imposed under the 1963 Measure.

  84.  In the case of a bishop who has been deposed under the 1963 Measure the above applies with the archbishop of the other province deciding on the appeal in consultation with the Dean of the Arches and Auditor and in the case of an archbishop, the Dean of the Arches and Auditor decides alone.

  85.   Clause 27 provides for the removal of prohibition for a limited period of time in respect of an archbishop, bishop, priest or deacon whether the penalty was imposed under this Measure or the 1963 Measure. On application from the person to whom the penalty applies and the archbishop or bishop concerned (or his successor in office) acting jointly, the Dean of the Arches and Auditor sitting with the two Vicars-General may decide that the penalty shall be removed.

  86.   Clause 28 provides for what is to happen if the Royal Prerogative of Pardon is exercised for any archbishop, bishop, priest or deacon who is prohibited from exercising functions or is removed from office. On receiving a free pardon from the Crown the person concerned shall be restored to any preferment previously held if it has not in the meantime been filled, although that person will not be entitled to compensation under clause 41.

  87.   Clause 29 establishes that disobedience to a penalty imposed under this Measure or the 1963 Measure is an act of misconduct under the Measure in respect of which disciplinary proceedings may be instituted. In the case of a person deposed from Holy Orders who is alleged to have committed such misconduct, disciplinary proceedings under the Measure may be instituted as if that deposition had not taken place.

  88.   Clause 30 provides that a priest or deacon who is convicted of an offence in England or elsewhere for which a sentence of imprisonment is imposed (although not necessarily implemented immediately); or has a decree of divorce or an order of separation made against them following a finding of adultery, unreasonable behaviour or desertion and in the case of divorce, the decree has been made absolute; shall be liable without further proceedings to a penalty of removal from office or prohibition or both. This is subject to the proviso that a penalty shall not be imposed after a period of two years from the date of a sentence becoming conclusive or a decree absolute or order being made.

  89.  If the bishop proposes to impose such a penalty he shall first consult the President of Tribunals while also informing the person concerned inviting them to make representations to him within a period of 28 days. At the end of this period the bishop shall inform the person concerned of his decision and if it is to impose a penalty then the cleric may request the relevant archbishop to review the decision after which the archbishop may uphold or reverse the bishop's decision. If the relevant archbishop is unable to exercise this review function (or there is a vacancy in see), then the other archbishop shall exercise this function.

  90.  If the bishop is to impose the penalty then before he does so his registrar shall give not less than 14 days notice to the priest or deacon concerned of the time and place at which the bishop will impose the penalty. The priest or deacon concerned shall be entitled to be present when the bishop (attended by his registrar) imposes the penalty which shall be reduced to writing for the cleric concerned and copied to the relevant archbishop and diocesan registrar.

  91.  The relevant diocese in this clause is either the diocese in which the cleric held preferment, the diocese of residence or, if neither apply, the diocese in which preferment was last held or in which ordination took place; with all, the relevant date being when the sentence justifying the penalty becomes conclusive.

  92.   Clause 31 provides for the provisions of the previous clause to be applied to bishops (meaning any diocesan bishop, suffragan bishop and any other bishop) and archbishops. In the case of a bishop, if the archbishop of his province decides to impose a penalty, then the bishop concerned may request the other archbishop to review the decision. Where a penalty is imposed it shall be by the archbishop of the relevant province after consultation with the two senior diocesan bishops of the province.

  93.  In the case of an archbishop, if the archbishop of the other province decides to impose a penalty, then the archbishop concerned may request the President of Tribunals to review the decision. Where a penalty is imposed it shall be by the archbishop of the other province after consultation with the two senior diocesan bishops of the province concerned.

  94.   Clause 32 provides that a penalty of removal from office or prohibition imposed on a person as a result of proceedings in the secular courts shall have the same consequences as if that person had been found to have committed misconduct under the Measure and had such a penalty imposed.

  95.   Clause 33 lays down that a person in Holy Orders who is convicted of an offence or who is arrested on suspicion of committing an offence shall be under a duty within 28 days, if a priest or deacon, to inform the bishop of the diocese concerned of the conviction or arrest, if a bishop to inform the archbishop concerned and if an archbishop, to inform the other archbishop. Failure to do so shall be regarded as a failure to do an act required by the laws ecclesiastical.

  96.   Clause 34 provides that the provisions of the previous clause shall also apply to a person in Holy Orders where a decree nisi of divorce has been made absolute or an order of judicial separation has been made in respect of their marriage.

  97.   Clause 35 provides for the application of certain provisions of the 1963 Measure to this Measure with adaptations as specified in the clause.

  98.   Clause 36 gives power to the bishop to suspend a priest or deacon with preferment in a diocese where a complaint has been made against the cleric which has not been dismissed by the bishop after preliminary scrutiny or where a cleric has been arrested on suspicion of committing a criminal offence. The bishop has discretion to suspend and, where it is applied (by notice in writing served on the priest or deacon), the suspension has the effect of preventing the cleric from exercising any right or duty of or incidental to his office, without leave of the bishop. The priest or deacon on whom a notice of suspension is served may appeal to the President of Tribunals and within a period of 28 days of lodging such an appeal, the President may either confirm or revoke the suspension.

  99.  The suspension may be revoked at any time by the bishop. A notice of suspension shall continue for a period of three months from its imposition or until proceedings under the Measure or for the criminal offence are concluded, whichever is the earlier. A further period of suspension of up to three months may be imposed if proceedings are not completed before the expiry of the initial period of suspension with the like right to appeal to the President of Tribunals.

  100.  If a notice of suspension is served the bishop may, after consultation with the churchwardens and the incumbent or priest-in-charge concerned, make arrangements for meeting the needs of the parish or parishes concerned. A cleric under notice of suspension shall not interfere with any person performing services in church and any such action shall be regarded as an act in contravention of the laws ecclesiastical.

  101.   Clause 37 provides, in the case of a bishop (diocesan, suffragan or other), the archbishop of the province concerned with the power to suspend the bishop or, in the case of an archbishop, the other archbishop with the power to suspend the archbishop. The provisions of the previous clause are applied to this clause with necessary adaptations. The archbishop of the province concerned or the other archbishop needs the consent of the two senior diocesan bishops of the province concerned before a suspension can be imposed.

  102.   Clause 38 lays a duty on the archbishops jointly to compile and maintain a list of all clerks in Holy Orders on whom a penalty or censure (by consent or otherwise) has been imposed under this Measure or the 1963 Measure; who have been deposed under the 1963 Measure; who have executed a deed of relinquishment; who have resigned a preferment following the making of a complaint under this Measure or the 1963 Measure; or who, in the opinion of the archbishops, have acted in a manner which although not constituting misconduct, might affect their suitability to hold preferment.

  103.  Where the archbishop proposes to include a person on the list he shall take all reasonable steps to inform that person. In the case of the final category above—that is, action not amounting to misconduct, if the archbishop proposes to put a person on the list he shall give the person concerned 21 days to send in representations before deciding on whether to do so or not. If a person is put on the list, then that person may request the President of Tribunals to review that decision and the President may order that the person continue to be included in the list (and may also direct that particulars relating to that person should be altered as specified) or that person be removed from the list.

  104.  It shall be the duty of the archbishop to review the inclusion of a person in the list after a period of five years from its inclusion or a bishop of a diocese may request a review at any time. The person concerned is not entitled to request a review during that initial five year period but can subsequently request a review after a period of five years following any previous review.

  105.   Clause 39 provides that the Clergy Discipline Commission shall have the duty to formulate guidance generally and, with the approval of the Dean of the Arches and Auditor, to promulgate guidance in the form of a Code of Practice. The General Synod shall approve such a Code and any amendments to it before it comes into force and provision is made (subject to the determination of the Business Committee and the provisions of Standing Orders for a member to request a debate) for this approval to be deemed without a debate in the Synod.

  106.   Clause 40 sets out when convictions in secular courts are deemed to be conclusive for the purpose of proceedings under the Measure.

  107.   Clause 41 provides that a cleric who has been subject to a penalty of removal from office or revocation of licence under the Measure which is subsequently revoked on appeal shall be entitled to compensation under the provisions of Schedule 4 to the Pastoral Measure 1983.

  108.   Clause 42 provides for the application of the Measure with certain adaptations to cathedral clergy, chaplains of prisons, hospitals, universities, schools and institutions in extra-parochial places, chaplains to the armed forces, ministers with the archbishop's licence to preach in the province, and ministers with a licence from the universities of Oxford or Cambridge to preach in England.

  109.   Clause 43 deals with interpretation. In subsection (3), it is provided that for the purposes of this Measure, the seniority of diocesan bishops shall be determined by the length of time that each has held office as diocesan in either province without interruption.

  110.   Clause 44 provides for amendments to Measures. Subsection (1) amends the Pluralities Act 1838 to prevent an assistant curate being asked to quit his curacy in respect of a disciplinary offence (this mirrors clause 8(2) of the Measure). Subsection (3) provides for greater flexibility for a provincial or diocesan registrar to resign his office. Subsection (4) gives the Fees Advisory Commission the power to include fees for the President and deputy President of Tribunals and the registrars of tribunals in fees orders. The amendments in subsection (5) extend the provisions of the Church of England (Legal Aid) Measure 1994 to respondents involved in disciplinary proceedings under this Measure.

  111.   Clause 45 empowers the Rule Committee to make provision for carrying into effect the provisions of the Measure and to appoint additional members to assist the Committee in doing this.

  112.   Clause 46 deals with repeals and Clause 47 contains transitional provisions. Clause 48 provides for the short title, commencement and extent of the Measure.

PART III—THE HISTORICAL BACKGROUND

The Working Party reviewing Clergy Discipline and the working of the Ecclesiastical Courts

  113.  The Measure is the product of a Working Party which was established (under the chairmanship of the then Canon Alan Hawker) by the Standing Committee of the General Synod in response to a resolution of the Synod passed in November 1992 on the Legal Aid Commission's report "The Ecclesiastical Legal Aid System", in which it was stated that a body should be established to review the law relating to the discipline of the clergy and the Ecclesiastical Courts.

  114.  The law relating to clergy discipline is mainly contained in the 1963 Measure. The 1963 Measure resulted from the Archbishops' Commission on the Ecclesiastical Courts that reported in 1954. At that time, the law relating to clergy discipline was dispersed through different Acts and Measures with many Courts existing to deal with disciplinary cases although many, in practice, had fallen into disuse.

  115.  The 1954 report noted that clergy discipline cases fell into two broad categories: those concerned with morality, unbecoming conduct and neglect of duty; and those concerned with doctrine, ritual and ceremonial. The 1963 Measure retained these two broad categories within a considerably reformed framework in which for the first category of cases, the court of first instance (for priests and deacons) was the Consistory Court which was at diocesan level, while in respect of the second category, there was a new Court established for the whole of the Church of England, the Court of Ecclesiastical Causes Reserved.

  116.  Since 1963 only a few disciplinary cases have reached the stage of a trial before the Consistory Court and no disciplinary cases have been brought before the Court of Ecclesiastical Causes Reserved. The Working Party came to the conclusion that this lack of use was a direct result of the system's inflexibility and cost (further details of which are listed below) which, in the view of the Working Party, had led to the increasing unwillingness of bishops to use the 1963 Measure.

  117.  In examining the case for reform of the 1963 Measure, the Working Party took account of disciplinary procedures in other professions with which useful comparisons could be made, such as the medical or legal professions. In doing so, however, the nature of ordained ministry and the dependent position of the clergy on the Church for a stipend and housing were always borne in mind. The expectations parishioners had of clergy, the trend in society at large to resort to law to settle disputes and the consequent need for flexible procedures, as well as the lessons of recent revisions of disciplinary procedures in other Churches, were also all taken into account.

  118.  The Working Party concluded that the main disadvantage of the system established under the 1963 Measure is that it is extremely complex and elaborate which, in turn, could make its procedures very expensive. Further disadvantages include the lack of provision for any kind of initial mediation or conciliation or the establishment of a satisfactory "filter" at an early stage to deal with cases that clearly should not be taken further. If a case reached a trial, the members of the court were drawn from the diocese concerned. There was no method under the 1963 Measure of ensuring consistency of practice between the dioceses and the fact that the chancellor had to hear a case prevented the chancellor from acting as adviser to the bishop at an earlier stage. The Working Party considered that it was questionable whether the treatment of the Church's disciplinary procedures as criminal or quasi-criminal was either necessary or helpful. Finally, the Working Party concluded that it was unacceptable for the resignation of the cleric concerned to be used as an alternative to disciplinary proceedings, which was clearly occurring in some cases under the 1963 Measure.

  119.  The main general recommendations of the Working Party were as follows:

    (a)  new disciplinary structures were needed that adhered to the rules of natural justice;

    (b)  the role of the bishop in clergy discipline should be reaffirmed, providing for his early involvement and giving him flexibility and assistance in reconciling his disciplinary and pastoral roles;

    (c)  the Archbishops' Caution List should become the official depository of decisions made under due disciplinary process;

    (d)  disciplinary proceedings should, with certain exceptions, be held in private, but with the decision invariably pronounced in public; and

    (e)  of the existing provisions in the 1963 Measure protecting clergy against disciplinary proceedings in respect of their political opinions or activities, the provision in relation to political opinion should be retained while that for political activity needed to be restricted to exclude activity which was unlawful or had led to a neglect of duties.

  120.  On the scope of discipline, the Working Party agreed that all in Holy Orders whether freehold, licensed, stipendiary or not, active or retired should be subject to the same disciplinary process. It was agreed that the following should be regarded as disciplinary offences:

    (a)  wilful disobedience to or breach of the laws ecclesiastical;

    (b)  neglect, culpable carelessness or gross inefficiency in the performance of the duties of office;

    (c)  conduct inappropriate or unbecoming the office;

    (d)  teaching, preaching, publishing or professing doctrine or belief incompatible with that of the Church of England; and

    (e)  conviction in a secular court of an offence for which a sentence of imprisonment can be imposed;

  and where a cleric is involved in a divorce, a review of the circumstances should be made to establish whether there were grounds for disciplinary proceedings.

  121.  The Working Party concluded that there should be a new single procedure to deal with all disciplinary complaints and the forum for adjudicating these should be an independent national tribunal called "The Clergy Discipline Tribunal", under the overall direction of a legally qualified President and administered by its registrar. In any particular case, a legally qualified Chairman appointed by the President, who would sit with a clerical and a lay member drawn from a panel, should chair the tribunal which would retain from the Consistory Court the same burden of proof and rules of evidence as in criminal cases. A new body called the Clergy Discipline Commission should be established with its membership coming from the Synod. The Commission's functions would be to maintain the clergy and lay panels from which the members of the tribunal would be drawn; to advise bishops; to maintain a list of investigators, and to act as a policy and resource body. The Commission would report to the Synod.

  122.  The procedure for making a complaint should be uncomplicated. The Working Party proposed that upon receiving a written complaint, the bishop would have a period of four weeks to investigate the complaint. After this period the bishop should either:

    (a)  dismiss the complaint as clearly vexatious;

    (b)  follow a procedure for dealing with minor complaints unless the seriousness of the complaint becomes more obvious;

    (c)  invoke the disciplinary process for more serious complaints, after which one of the following actions be taken by the bishop:

      (i)  no formal action;

      (ii)  conciliation;

      (iii)  penalty by consent;

      (iv)  investigation and prosecution.

  123.  The Working Party also recommended that the bishop should have the power to suspend a cleric at any stage in these proceedings with the cleric being able to ask for this suspension to be reviewed. Complaints against bishops should, with necessary modifications, be dealt with by the same procedures as for priests and deacons. The right of appeal for a cleric to the Arches or Chancery Court under the 1963 Measure should be retained against the decision of a tribunal. Furthermore, resignations in disciplinary circumstances should not be accepted without time for reflection and should not circumvent its recording as a disciplinary matter.

  124.  Finally, the Working Party concluded that if the cleric were found guilty, the tribunal should be able to impose any of the following penalties: removal from office, disqualification, prohibition, injunction, conditional discharge, deferred sentence, rebuke or absolute discharge.

  125.  The Report of the Working Party entitled Under Authority: Report on Clergy Discipline was debated by the Synod in November 1996 and a resolution approving the Report's recommendations was approved subject to two amendments. The first provided that disciplinary cases involving doctrine, ritual and ceremonial should not come within the provisions of any new procedures and should remain to be dealt with under the existing provisions of the 1963 Measure. The second amendment retained the existing provisions of the 1963 Measure whereby disciplinary proceedings could not be instituted in respect of political opinions or activities.

Under Authority Report Implementation Group

  126.  Following the 1996 Synod debate, an Implementation Group was appointed under the chairmanship of Canon Alan Hawker (now the Archdeacon of Malmesbury) which worked on translating the recommendations of Under Authority into the draft Ecclesiastical Jurisdiction (Discipline) Measure which was given General Approval by the Synod at the July 1999 Group of Sessions.

  127.  The draft Measure as presented to Synod in 1999 implemented the recommendations of Under Authority (as amended) in all respects except:

    (a)  The disciplinary tribunal was not to be a national one but rather a tribunal of the bishop in every diocese, to consist of three persons drawn from a provincial panel (but not from the diocese concerned). Having the tribunal on a diocesan basis would reflect the position of the diocesan bishop as the focus of discipline in his diocese.

    (b)  In the accompanying Code of Practice to the Measure, it was provided that the civil standard of proof should operate in the disciplinary tribunal rather than the criminal law standard of "beyond reasonable doubt". In line with most disciplinary procedures in other professions, the Implementation Group concluded that the criminal standard was inappropriate for such cases.

    (c)  The options given to a bishop in dealing with a complaint were increased to include that of remaining on the cleric's record conditionally. This additional route to deal with a complaint provided further flexibility for the bishop.

    (d)  The original recommendation of the Under Authority Report on disciplinary proceedings being instituted in respect of political opinions or activities was modified. It was the Group's view that political activities which were unlawful under secular law were unacceptable in a cleric, being contrary to Canon Law, and therefore should be grounds for disciplinary proceedings under the Measure.

  128.  With regard to matters of doctrine, ritual and ceremonial, the House of Bishops considered the issue at its meeting in June 1999, noting the amendment passed by the Synod. The House shared the view of the Implementation Group that the 1963 Measure procedures for dealing with doctrinal offences are unsatisfactory by comparison with what was proposed in the draft Measure but considered that careful consideration and a good deal of time would be needed to work out satisfactory alternatives to the 1963 Measure procedures. Consequently, the House has set up a Group under the chairmanship of the Bishop of Birmingham (made up of members from all three Houses and assisted by expert consultants) to examine this issue and report back to the House and the Synod, followed by the introduction of an amending Measure, all in the lifetime of the 2000-05 Synod.

The Revision Committee

  129.  Having received General Approval, the draft Measure was remitted to a Revision Committee under the chairmanship of Sir Timothy Hoare, Bt which met on six occasions before reporting to the February 2000 Group of Sessions. The main amendments to the Measure made by the Revision Committee are set out in Appendix I.

Revision stage in full Synod

  130.  This was started at the February 2000 Group of Sessions and concluded at the July 2000 Group of Sessions.

  131.  In relation to clause 8, the Synod carried an amendment to insert a proviso to subsection (3) which provided that no proceedings in respect of unbecoming conduct should be taken in respect of political opinions or activities.

  132.  An amendment to clause 9 was carried in the Synod which reduced the limitation of time for the institution of proceedings from two years to one. In making this amendment, members of Synod were conscious of the need to keep to a minimum the period of time between any alleged misconduct and the institution of proceedings to ensure that the facts of the case could be most accurately recalled. It was noted that the President of Tribunals retained a discretion to allow proceedings to be instituted after one year if he considered there was good reason why the complainant did not institute proceedings at an earlier date.

  133.  The Synod carried an amendment to reduce the maximum period of conditional deferment provided in clause 14 (see paragraphs 56 and 57 above) from 10 to five years. A period of 10 years (amounting to almost one-third of the maximum pensionable service for clergy) was regarded by the Synod as being excessive.

  134.  An amendment to clause 22 was carried by the Synod to increase the membership of the disciplinary tribunal from three to five members (so that there would be two lay persons and two clerics plus the President of Tribunals (or another a legally qualified person) as chairman). The Synod accepted that this increase in the tribunal's membership was necessary to reassure clergy and laity alike that their legitimate interests and concerns would be fully represented, thereby ensuring the fullest confidence of clergy and laity alike in the new disciplinary tribunal.

  135.  An amendment to clause 24, which removed deposition as a penalty that could be imposed on a respondent upon a finding that he had committed misconduct, was carried by the Synod. The Revision Committee had considered in detail the complex question of keeping deposition as a penalty or replacing it with prohibition for life (see paragraphs 14 and 15 of Appendix I). Before the revision stage in full Synod, the House of Bishops had also considered this question at the request of the Bishop of Bristol (a member of the Revision Committee) and the House had endorsed the proposed amendment to remove deposition.

  136.  It was accepted by the Synod that it would be clearer if prohibition for life (see paragraph 74 above) were the ultimate penalty that could be imposed under the Measure. Should, at some future date, a Royal Pardon be received or the prohibition for life be removed under clause 26, the permanent prohibition could be removed without having the ecclesiological problems associated with deposition.

Final Drafting and Final Approval

  137.  The Final Drafting and Final Approval stages were both taken at the November 2000 Group of Sessions. A Special Amendment was carried by the Synod at Final Drafting Stage which in clause 21 provided that those who are resident in the diocese and are on the community roll of a cathedral will also be eligible to be nominated to the one of the provincial panels.

  138.  In the Final Approval debate, the majority of speakers expressed confidence that the Measure would provide a system of administering clergy discipline which was fair to both clergy and laity alike.

  139.  Specific concerns raised in debate included the role of the bishop and the impartiality of the disciplinary tribunal, the definition of misconduct, the consequences for a cleric of being the subject of a finding of adultery, unreasonable behaviour or desertion in a divorce case, a grievance procedure for clergy, and the coming into force of various clauses of the Measure at different times.

  140.  All of these points were addressed in the debate:

    (a)  The role of the bishop was clearly defined throughout the Measure with appeal provisions provided and the impartiality of the tribunal would be achieved by the duty given to the President of Tribunals to ensure this and by means of the bar on members of the provincial panel from the diocese in question serving on a tribunal.

    (b)  The definition of misconduct was sufficiently broad not to exclude any potential act that should be brought within it.

    (c)  The provisions relating to divorce indicated which aspects of divorce are a source of concern to the Church and the provisions of the Measure do not make the imposition of a penalty under the Measure obligatory; quite the contrary, they provide for consultation and review and are subject to a two year time limitation.

    (d)  The Synod was assured that a grievance procedure was being produced by the Ministry Division of the Archbishops' Council that would compliment the working of the Measure and come into force at the same time.

    (e)  Finally, it was anticipated that the provisions of the Measure relating to the Clergy Discipline Commission and the Code of Practice and the Rule Committee and the Rules would come into force first and that the remainder of the Measure would only come into force after the Rules and the Code had been approved by the Synod and Parliament as appropriate.

  141.  The Synod proceeded to Final Approval and the Measure was Finally Approved on a division by Houses. The voting figures were as follows:
AyesNoes
Bishops  38  0
Clergy19723
Laity200  2

CONCLUSION

  142.  The Legislative Committee hopes that the Ecclesiastical Committee will now be able to issue a favourable report on the Measure, but in the event of the Ecclesiastical Committee requiring any further information or explanation, the Legislative Committee stands ready to provide this.

On behalf of the Committee

Brian McHenry

Deputy Chairman

1 August 2001


 
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