Ecclesiastical First Report


APPENDIX 1

The main amendments made by the Revision Committee ("the Committee")

  1.  It was the unanimous view of the Committee that the short title of the Measure should be changed to the draft Clergy Discipline Measure. Unlike the 1963 Measure (which contains provisions unrelated to clergy discipline), the new Measure would be dealing exclusively with disciplinary issues and the Committee felt that this should be reflected in the title.

  2.  The Committee accepted a proposal on clause 3 that the composition of the Clergy Discipline Commission ("the Commission") should include at least two persons from each House of the Synod. It was noted that the remainder of the membership of the Commission (which could include non-Synod members) should ensure a wide expression of views and expertise on the Commission. It was also agreed by the Committee that the Chairman and deputy Chairman of the Commission should also act as President and deputy President of Tribunals and that the Appointments Committee (in consultation with the Dean of the Arches) should appoint two legally qualified persons as Chairman and deputy Chairman of the Commission.

  3.  The Committee unanimously decided to widen clause 3(3) to include tribunals and Vicar-General's Courts amongst those advised by the Commission. In this way the sub-section would clearly highlight the function of the Commission in monitoring consistency of penalties for offences and developing a scale which could be used by bishops and courts and tribunals.

  4.  The Committee took the view that the Diocesan Registrar and Diocesan Secretary could fulfil the functions allocated to the Registrars of Tribunals in clause 5 and therefore that this clause was not needed as the functions referred to could be carried out by other officers.

  5.  The possibility of a cleric facing disciplinary proceedings emanating from two dioceses (for example, one diocese where the cleric was licensed and the other where he officiated without authority) was one that the Committee accepted needed attention. It was contrary to natural justice for a cleric to face disciplinary proceedings from two dioceses for the same misconduct. Therefore in clause 6(3) it was provided that once proceedings were undertaken by the diocese in which the cleric held preferment then no other proceedings on that matter should be permitted.

  6.  The Committee decided that the proviso on political opinions in clause 8 was also unnecessary. It could be seen at first sight to be a cover for those with extremist views, whom the Committee agreed should not be protected. Normal political opinion (and activity) was protected by the Human Rights Act.

  7.  The Committee accepted that a three-year limitation for the institution of proceedings in clause 9 was too long and that the time limit should be two years.

  8.  In clause 10, the Committee agreed a single churchwarden should be able to make a complaint in view of the fact that churchwardens had a special position of responsibility and trust within the parish which meant that they had an individual as well as a collective responsibility to make a complaint if they had evidence of alleged misconduct.

  9.  It was agreed that clause 11 should provide that upon receipt of a complaint and within a period of 28 days, the diocesan (or provincial) registrar would scrutinise the complaint in consultation with the complainant to form a view as to whether there was substance to the complaint. The respondent would be informed that a complaint had been referred to the registrar. At the end of the 28 days (or extended period), the registrar would report in writing to the bishop who would then determine whether to dismiss the complaint or pursue any of the courses of action provided in clause 12. If the bishop decided to dismiss the complaint, the complainant would have a right of appeal to the President of Tribunals on the grounds of the decision being "plainly wrong".

  10.  It was felt that the distinction between, on the one hand, this preliminary scrutiny to ascertain whether the evidence was sufficient to give substance to the complaint and, on the other hand, the decision as to which course of disciplinary proceedings should follow, was an important one. The two decision-making processes were different and this was now clearly reflected in the Measure. The Committee was content that the registrar, who was independent of the bishop in line with his oath of office (Canon G4), could perform this function satisfactorily.

  11.  In relation to clause 12(1)(e) and clause 17, the Committee was anxious to avoid possible conflicts of interest in the role of the designated officer (a lawyer from the Legal Office of the Church of England) once a formal investigation had been instigated. The Committee accepted there was the potential for such conflicts if the designated officer continued with three distinct roles: that of investigator, judicial assessor of whether there is a case to answer before a tribunal, and finally prosecutor. The Committee therefore agreed that the President of Tribunals should carry out the second of the above roles, that requiring a judicial decision, while the designated officer should keep the remaining functions.

  12.  The Committee unanimously agreed that the standard of proof, the majority needed on a determination of the tribunal and the issue of private or public hearings were so central that they should be contained in the Measure rather than the Code. Along with this decision, the Committee also agreed that the determination of the tribunal and the reasons for the tribunal's decision should always be pronounced in public.

  13.  The Committee agreed that tribunal hearings would normally be in private but that a public hearing could be requested by the respondent or could be ordered by the tribunal itself where this was considered to be in the interests of justice. It was also agreed that where the tribunal meets in public it would have the power to sit in private for certain parts of the proceedings in accordance with the express restrictions set out in Article 6(1) of the European Convention on Human Rights. Leading Counsel (see paragraph 28 below) advised that these provisions in the Measure should not cause difficulties with the Human Rights legislation.

  14.  At a number of its meetings, the Committee considered in detail the issue of deposition. In contrast to the penalty of prohibition, which did not affect the legal status of a clerk in holy orders but rather the exercise of Holy Orders, deposition provided that the person concerned is to be treated as a layman for all purposes.

  15.  Although cases of deposition were likely to remain rare, the Committee appreciated that the circumstances in which deposition would be applied would be distressing for all concerned. Therefore it was important that the provision in the Measure was acceptable to all in the Church. It was recognised that this issue raised fundamental sacramental questions concerning an understanding of the nature of holy orders. Although it was the primary duty of the Committee to deal with the statutory provision for deposition (and its possible reversal), it was also accepted that the Committee had a duty to consider the doctrinal aspect of such a decision. Once the Committee had made its recommendation, it would be for the Synod as a whole to make the final decision on what was both legally equitable and reflective of the doctrine of the Church on this issue.

  16.  The Committee came to the view that a power of deposition was necessary as the ultimate penalty under the Measure as regrettably there were always likely to be certain instances of misconduct that warranted the permanent removal of the legal status of clerk in holy orders. The option of removing deposition and replacing it with "prohibition for life" was something that the Committee discussed but it concluded that this was a step that the Committee could not take alone. This issue raised fundamental sacramental and ecclesiological questions concerning an understanding of the nature of holy orders that required wider debate within the Church.

  17.  With regard to clause 29 on disobedience to a penalty, there was some discussion in the Committee as to whether this clause should be deleted and particularly the reference in parenthesis to those already deposed. The Committee recognised however that such a power was needed as the Church needed to keep under its clerical disciplinary procedures any clergy or deposed clergy who illegally performed clerical functions within the Church.

  18.  The Committee agreed to amend clause 30 so that if the secular divorce courts cited adultery, unreasonable conduct or desertion as grounds for granting a divorce, then the provisions of this clause would apply. Also in subsection (2), the period in which representations could be made to the bishop should be 28 days rather than the original provision of 21 days.

  19.  It was noted in discussion that the power given to the bishop in this section was again a discretionary one which would allow the bishop to take no action if he thought that a conviction of imprisonment imposed outside England did not warrant disciplinary action. This would cover those cases where a sentence of imprisonment imposed in a foreign country would not have warranted such a sentence under English law.

  20.  The bishop's power in clause 36 to suspend clergy (appointed office holders) was a discretionary one and could be lifted at anytime. The Committee considered that it would be inappropriate to apply a suspension before the bishop had decided that the complaint should be considered by way of any of the courses of action available under clause 12(1). Alternatively, it was considered correct that suspension could be applied with regard to secular criminal proceedings at the point of arrest. In subsection (4), it was agreed that the bishop should consult with the incumbent or priest-in-charge as well as the churchwardens before suspending a cleric. The Committee considered subsection (5) to be important for the suspended cleric as well as the parishioners concerned. During a suspension there should be no interference with divine services held or the conduct of normal parish duties. To underline this, the Committee agreed that disobedience to a suspension should be expressly stated to be misconduct.

  21.  The Committee did not consider that the archbishops were the appropriate appellate body in clause 36(6) to hear an appeal against a suspension. Rather it was thought that this function should remain with the President of Tribunals, but with a time limit of 28 days to ensure that adjudication would not be delayed.

  22.  The Committee was content for the President of Tribunals to review an archbishop's decision to include a cleric on the List in clause 38 and furthermore it considered that the five-year review period in subsection (4) was appropriate. It was important for the healing process that a period of reflection was provided which, with counselling support, could allow the cleric the opportunity to rebuild.

  23.  In clause 41, the Committee decided that the principle of compensation should be embodied within the Measure for clergy who had successfully appealed against a penalty of removal from office or revocation of a licence. The Committee adopted the provisions of Schedule 4 to the Pastoral Measure 1983. The Church Commissioners considered this to be appropriate.

  24.  The Committee agreed unanimously that the disciplinary provisions of the Measure should be equally applicable to all persons in Holy Orders and clause 42 was inserted to provide for the Measure's application in particular special cases such as chaplains to the armed forces, cathedral clergy and others under special licence such as an Archbishop's licence.

  25.  The current legal position is that clergy serving in Royal Peculiars were exempt from the disciplinary procedures of the 1963 Measure. In correspondence with the Committee, Professor Avril Cameron (Chairman of the Review of the Royal Peculiars) had expressed the understandable desire that the report of the Review of Royal Peculiars should not be pre-empted on this matter by any revision of the law at this stage. The Deans of Westminster and Windsor also assured the Committee that there was no desire on the part of their two Royal Peculiars to be exempt from the same discipline as the rest of the Church.

  26.  Although the Committee remained committed to the principle that all those in Holy Orders should be subject to the same disciplinary procedures, it was accepted that while this Review was being undertaken it would be unwise to change the current legal position; therefore, for the time being at least, clergy serving in Royal Peculiars would remain outside the scope of this Measure. The Committee noted that an amending Measure was expected to come before the Synod in the 2000-05 quinquennium to deal with clergy discipline in relation to doctrine, ritual and ceremonial. Once the Review of Royal Peculiars had reported, any changes to the law to deal with the procedures for discipline of clergy serving in Royal Peculiars could be included in that amending Measure.

  Note: The Report of the Review Group on the Royal Peculiars was published on 5 March 2001 and recommended that "in matters of ecclesiastical discipline, clergy in the Royal Peculiars should become subject to disciplinary procedures laid down by Measure, subject to modification as required." At present the Crown is considering the recommendations of this Review Group and if, in time, it is the decision of the Crown to accept this recommendation, then the procedure as outlined in paragraph 26 above would be used to bring about the legislative changes required.

  27.  In clause 47, the Committee agreed to the following transitional provisions. Under subsection (1), on the coming into force of the new Measure, any proceedings instituted under the 1963 Measure before that date should continue under the procedures of the 1963 Measure. Under subsection (2), alleged misconduct which took place before the commencement procedures of the new Measure but where no complaint had been laid prior to commencement would be dealt with under the procedures of the new Measure. However where the alleged misconduct would not have been an offence under the 1963 Measure then proceedings shall not be taken under the new Measure; this provision would avoid retrospective legislation. Under subsection (3), censures imposed under the 1963 Measure would continue to have force under the new Measure, as if they had been imposed under the new Measure. This has the effect that the provision for the removal of deposition in clause 26 of this Measure would apply to depositions imposed under the 1963 Measure.

  28.  The Committee was concerned that the implications for the Measure of the Human Rights Act 1998 should be thoroughly investigated by Leading Counsel specialising in this field and therefore, as mentioned earlier, Leading Counsel was engaged to advise the Committee. He confirmed that the Measure was compliant with the terms of the Act. In particular, compliance with Article 6 (which confers a right to a fair trial by an independent tribunal) was achieved as a result of 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. In summary, Leading Counsel's main concern was over the involvement of the bishop in the preliminary stages of the Measure. Whilst it was not necessary to do so in order to achieve compliance with the Human Rights Act, a number of changes were 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. The Committee sought to address Leading Counsel's main concern by giving more responsibility to the registrar to come to a view on the substance of a complaint before the bishop decided on whether to dismiss the complaint or proceed. Further points of difficulty included the provisions to consult the bishop as to the membership of the tribunal and as to the penalty to be imposed by the tribunal. On the former point, the Committee deleted this provision and, on the latter point leading Counsel's proposed wording on "inviting the bishop to comment" was accepted.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 3 April 2003