Clergy Discipline MeasureComments
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 1994November 1996the
Working Party produced the report entitled "Under Authority"
in this period.
November 1996July 1999an
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 1999February 2000A
General Synod Revision Committee met for six full day sessions
to revise the draft Measure.
February and July 2000the
draft Measure passed through Revision Stage in General Synod.
November 2000the draft Measure
passed through the Final Drafting and Final Approval in the General
PART 1: A SUMMARY
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.
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
(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 ProcedureA Brief Summary
(also see diagram above)
12. Initiated by a complaint being
made to the bishop. NBOnly 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. NBAll 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. NBThis 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 tribunalits 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.
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
(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
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
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).
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
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.
(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.
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
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
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.
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.
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
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.
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
(b) setting up procedures on a provincial
basis (ie the provincial panels).
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.
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.
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.
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.
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
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
PART II: NOTES
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
(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
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
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
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:
(b) conditional deferment, if the respondent
(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
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
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
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 abovethat
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
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.
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
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
(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
(b) neglect, culpable carelessness or gross
inefficiency in the performance of the duties of office;
(c) conduct inappropriate or unbecoming the
(d) teaching, preaching, publishing or professing
doctrine or belief incompatible with that of the Church of England;
(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
(c) invoke the disciplinary process for more
serious complaints, after which one of the following actions be
taken by the bishop:
(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
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
(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
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
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
(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
(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:
|Bishops|| 38|| 0
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
1 August 2001