Legal Matters

OXFORD DIOCESAN SYNOD

Clergy Discipline: Introducing the New Regime

Background

1.1       The purpose of this paper is to explain the current and proposed arrangements for clergy discipline,

1.2       These are the subject of consultation by the General Synod Office, with a view to final implementation at the beginning of 2006.

1.3       You can download the Consultation Paper from the General Synod website (at www.cofe.anglican.org/about/churchlawlegis/cdmconsultation).

Present Arrangements

2.1       Currently, clergy discipline is very much in the hands of the bishops

2.2       Cases are often dealt with informally, and sometimes without reference to any statutory regime. 

2.3       Serious cases may result in:

• Resignation
• Deprivation and disqualification, following criminal/matrimonial proceedings (under s 55 Ecclesiastical Jurisdiction Measure 1963)
• Withdrawal of licence (subject to rights of appeal to the Archbishop, under Canon C12, in some cases)
• Deposition from holy orders (only following formal proceedings)
• Censure by consent (under s 31 Ecclesiastical Jurisdiction Measure 1963)

2.4       Following disciplinary action, the name of the clergy concerned generally appears on the Lambeth and Bishopthorpe Register:

• Part I includes the names of those deposed, or deprived and disqualified, under the EJM 1963; it also includes those who have relinquished their orders under the Clerical Disabilities Act 1873
• Part II comprises those who have not been the subject of formal proceedings, but whom bishops are advised to approach with caution in relation to any appointment.

2.5       The Incumbents (Vacation of Benefices) Measure 1977 has never been used successfully; the cost implications have been a deterrent.

2.6       In the 1990s, the General Synod resolved to introduce a new regime

Documentation

3.1       The new scheme was outlined in a General Synod Report, Under Authority, published in 1996

3.2       The Clergy Discipline Measure was finally approved by Parliament in 2003 following adoption by the General Synod

 (www.legislation.hmso.gov.uk/measures/20030003.htm)

3.3       Since then, draft Rules, and a draft Code of Practice have been produced, and it is these which are now out for consultation (not the Measure itself, which has already passed through all its legislative stages).

3.4       Meanwhile, the Convocations (the Houses of Clergy of the General Synod) have produced Guidelines for Professional Conduct, which provide some guidance to “best practice”.

The New Arrangements

4.1       The effect of the Measure, Rules and Code will be to introduce new structures and a new formal process, which will apply to all disciplinary cases, in place of the present (often informal) arrangements.  All clergy will benefit from the protection afforded by the new regime (not only those who hold ‘freehold’ office), and no informal disciplinary procedures will be permitted. 

Structures

4.2.1       There will be a national Clergy Discipline Commission, with 12 members (Measure, s.3), which will give general guidance and oversee the working of the new regime

4.2.2       In those cases which have to be referred to a tribunal (see below, paras 4.3.10 et seqq), the President of Tribunals (Lord Justice Mummery) will either himself chair, or appoint a chair, for the relevant tribunal (Measure, s.22(1)(a)).

4.2.3       The bishop’s role remains central (Measure, s.1); he determines how cases should be dealt with in the light of his Registrar’s report (see infra, para 4.3.5), and may be invited to advise the tribunal as to suitable censure; however, he must take care to observe appropriate boundaries due to his judicial role (Code, paras 6, 65, 89-97) 

4.2.4       The “bishops disciplinary tribunal”(Measure, s.2) will hear serious cases; it will not include any members drawn from the relevant diocese, in order to avoid prejudice or undue influence (s.22(1)(b) and (c)).

Process

4.3.1       Complaints must be:

• brought normally within twelve months of the occurrence of the alleged misconduct (Measure, s.9);
• brought by someone who has a ‘proper interest’ in doing so (Measure, s.10(1); Code paras 25-34) 
• laid before the bishop (Measure, s.10(2); Rule 3; Code paras 22-24); and
• supported by written particulars and written evidence (Measure, s.10(3); Code paras 35-42).

See generally, Rules 3-5, and Form 1a (at end of Rules)

4.3.2       If there are other criminal, matrimonial or capability proceedings under way, the usual period of one year is extended until 28 days after the outcome of these proceedings is made known (Rule 15)

4.3.3       At this stage, the respondent (the person against whom the complaint has been made) does not need to submit any formal Answer (Rule 8(1)(iii); Code, para 74) 

4.3.4       The diocesan registrar is to investigate in the first instance, and report to the bishop within 28 days (as to the status of the complainant and as to the substance of the complaint) (Measure, s.11(2); Rules 7-11; Code, paras 70-88).

4.3.5       Within 28 days of receiving the registrar’s report, the bishop may dismiss the complaint, subject to appeal by the complainant to the president of tribunals (Measure, s.11(3) and (4); Rule 12; Code paras 98-104).

4.3.6       If he does not dismiss the complaint, the bishop requires the respondent to submit his answer to the complaint, within 21 days (Rule 13(1)(iv), using Form 2; Code paras 105, 106)

4.3.7       The bishop then has a series of possible ways forward. He may:                    

• Take no further action (subject to appeal by complainant)
• Direct conditional deferment
• Direct conciliation process
• Impose penalty by consent
• Direct formal investigation

See Rules 16-24; Code paras 128-155

4.3.8       If the respondent decides to resign, a 7-day ‘cooling-off’ period is imposed before the resignation takes effect (Measure, s16(2); Rule 23(5); Code para 164)

4.3.9       The bishop may suspend the respondent from some or all rights and functions of office  (Measure, s 36; Rules 54-60; Forms 12, 13; Code paras 107-124)

4.3.10     Any formal investigation is undertaken by the “designated officer” a member of the central legal team at Church House, Westminster; he submits his report to the president of tribunals (Measure, s17(1); Rules 24, 25; Code paras 187-195).

4.3.11     If the president considers the matter should be brought before a disciplinary tribunal, the designated officer prosecutes the case, and there is a right of appeal to the Court of Arches (Measure, s.20(1); Code 196-211, 221-223).

4.3.12     Hearings will normally be held in private; but may be in public, if the respondent requests or the interests of justice require (Measure, s18(3); Rule 35; Code paras 205, 206)

4.3.13     The standard of proof is ‘civil’ (balance of probabilities) not ‘criminal’ (beyond reasonable doubt), but the more serious the complaint, the more weighty the evidence that will be needed to prove the case (Measure, s18(3); Code 211)

4.3.14     Penalties that may be imposed comprise (Measure s 24(1)):

• Prohibition for life            (Code, para 214)
• Limited prohibition           (Code, para 215)
• Removal from office         (Code, para 216)
• Revocation of licence       (Code, para 217)
• Injunction                        (Code para 218)
• Rebuke                           (Code, para 219)

Misconduct

4.4.1       It is the lack of any agreed description of what clergy should do which has bedevilled attempts to impose discipline, except in the most blatant cases.  The new Measure does not attempt to define misconduct except in the most general terms (Measure, s8) :

• Acts or defaults
• Neglect or inefficiency
• Conduct unbecoming or inappropriate

4.4.2       The Code of Practice (paras 13-21) gives some explanation; and raises the possibility that the same issues may give rise to ‘capability’ proceedings (under the Clergy Terms of Service proposals)

4.4.3       This is one of the areas in which the Convocations’ Guidelines may prove to have a particular relevance

Lambeth and Bishopthorpe Register

4.5.1       S.38 provides a statutory basis for the Lambeth and Bishopthorpe Register.  It includes all that is presently comprehended in Part I of the Register (see supra para 2.4), but adds two further categories (in place of the present Part II):

• Those who have resigned following a formal complaint
• Those who “in the opinion of the Archbishops have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment”

4.5.2       The Archbishops are required to review the Register after a name has been included for five years (Measure, s38; Rules 68-75)

Removing effects of prohibition for life and deposition

4.6          In line with theological understandings of the ‘indelibility of orders’, lifetime prohibition, and deposition (under the old regime) will be reversible (Measure, ss 26, 27; Rules 93-96; Code paras 231-241)

Cost

5.1       In addition to the costs falling on bishops’ expenses (met by the Church Commissioners), the Church of England’s Legal Aid Commission may provide funds to assist clergy facing complaints brought under the Measure (Code, paras 247-249)

5.2       “We have not tried to devise a system “on the cheap”.  An effective disciplinary system will inevitably need to be properly resourced both in monetary and other terms…if, as we hope, the new system is one which is more flexible and with which the Church is comfortable, an increase in the number of cases is a likely consequence. Any costs offset in an individual case compared to a case under the 1963 Measure could be more than made up through an increase in the number of cases being heard” (Under Authority, p105).