Malcolm Jones has been examining the Clergy Discipline Measure 2003 which came into effect this year. There are now a number of strikingly different ways of judging and sanctioning members of the cloth not all of which were expected
What are the changes being brought about by this new Measure, and how they would affect the parochial clergy of our church? Clergy sometimes think that nothing can ever bring them up short when it comes to how they exercise their ministry, but it does happen; what might happen in the future should be better known. Parishioners may also encounter, directly or indirectly, the effects of the new procedures.
The scope of the new Measure covers not only stipendiary and non-stipendiary clergy but also retired clergy (whether or not with any permissions to officiate). It also includes clergy who have left the Church of England and are perhaps working in another communion. In their case, any complaint about their behaviour whilst they were Church of England clerics can result in action.
The changes from the ‘offences’ clergy could be arraigned for under the old Ecclesiastical Jurisdiction Measure are interesting, and currently the new Measure confines itself to those areas of clerical conduct which do not include doctrine, ritual and ceremonial. These remain under the Ecclesiastical Jurisdiction Measure and the Court of Ecclesiastical Causes Reserved, although this may change.
The ‘acts or omissions’ for which a cleric may now be called to account are, to cite the actual words of the Measure [Section 8.1]:
(a) doing any act in contravention of the laws ecclesiastical; (b) failing to do any act required by the laws ecclesiastical; (c) neglect or inefficiency in the performance of the duties of his office; (d) conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.
The new Measure replaces the old Consistory Court procedure with a Clergy Discipline Tribunal, which, it is said, will operate more along the lines of an Industrial Tribunal. The language is reminiscent of such a view; however, there are still strong overtones of earlier attitudes of criminality concerning errant clergy.
Alongside these changes run the changes in the proof of an allegation. In the old measure, the ‘offence’ had to be proved on what is referred to as the ‘criminal standard,’ that is, the standard applied in the Crown Courts exercising criminal jurisdiction: ‘beyond reasonable doubt.’ This has been defined as follows: (a) burden of proof: ‘in this case the prosecution must prove that the defendant is guilty… the burden of proving the defendant’s guilt is on the prosecution’; (b) the standard of proof: ‘How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it.’
Under the new dispensation the system moves from the criminal ethos to what is referred to as the ‘civil’ standard, for as the Measure states, ‘The standard of proof to be applied by the Tribunal shall be the same as in proceedings in the High Court exercising civil jurisdiction,’ which is called the ‘balance of probabilities.’ This may be defined as follows: ‘The balance of probability standard means that the court is satisfied an event occurred if the court considers, that on the evidence, the occurrence of the event was more likely than not.’
Noticeably in the new Code of Practice for the new Measure it is stated that the more serious the allegation (or complaint) the stronger should be the evidence; and ‘stronger’ is a word open to interpretation. The Hawker Report on Clergy Discipline (Under Authority) wanted to retain the criminal standard, but the Ecclesiastical Committee was persuaded that the civil standard would be properly used. This has yet to be tested.
Who can make a ‘complaint’? Section 10 of the Measure gives: a person nominated by the PCC at a meeting when two-thirds are present and two-thirds of that two-thirds vote to effect proceedings; a churchwarden; or any person who has a proper interest in making the complaint.
The system works by way of letters and papers. The complainant must write to the bishop and must use the correct form and procedure. These are contained in the Rules made under the Measure. The bishop must pass the complaint over to the diocesan registrar who acts as a sieve and in some ways like a French Investigating Magistrate. Because of our system, the bishop has to keep clear of the complainant and the cleric. He is the fount of discipline as well as pastoral care, and herein lies a problem. The accused cleric is now called the ‘respondent.’
When the registrar has examined everything, then he or she states whether the complainant has a proper interest and whether there is sufficient substance to justify proceedings. Whilst all this is going on, a cleric may find that he or she has been suspended from office or from doing certain things.
I must stress that it is important to get proper help if a complaint has been made – and clergy need to be aware that some dioceses are suggesting a member of the diocesan office staff as the point of contact and advice. I have no comment to make about individual diocesan officers, but I do believe that they could find themselves in a ‘conflict of interest,’ and it would be better for people to have independent advice.
Courses of action
The bishop may take any of the following actions after the submission of the report: (1) no further action – but the complainant may appeal to the President of Tribunals; (2) conditional deferment – to see how things work out; (3) initiate a conciliation procedure; (4) offer penalty by consent – but this is a different version from the old one; (5) send the matter to the Designated Officer for formal investigation – this is a lawyer working in the legal office of the National Institutions of the Church of England, who conducts a further investigation and makes a referral to the President of Tribunals if it is thought fit.
If this stage is reached and a disciplinary tribunal is convened, it consists of the President (or his nominee from a list of qualified people) and two clergy and two lay members drawn from a provincial list that is or soon will be set up. Notably, this time, no person from the respondent’s diocese may sit on the tribunal and it normally sits in private, whereas the old Consistory Court was very public. Previously the ‘verdict’ had to be unanimous; it now rests upon a simple majority, i.e. 3 against 2.
At the conclusion of any hearing, if the complaint is proved, then (and here it is noticeable that we return to the criminal ethos) there are various possible penalties, namely (1) prohibition for life; (2) limited prohibition; (3) removal from office; (4) revocation of licence; (5) injunction; (6) rebuke.
There are some interesting points worth noting!
‘Underperformance’ in office is not now contained in the Code of Practice, although it was in the draft form and ‘inefficiency’ is in the Measure. There could be some interesting definitions of that word! Now, according to the Code of Practice, you cannot have a complaint laid against you because of the behaviour of your family members, but they were included in the draft Code and still appear in Canon C26, and of course in the Ordinal (1662 and CW). More seriously, whereas under the old system hearsay evidence was not admissible, it now is at any evidence gathering or hearing.
One of the great trumpetings of the new system was that licensed clergy could no longer have their licences terminated at an instant. This is certainly true for disciplinary matters under the Measure; however, recent changes in the Canons do not bear this out and someone like the Revd Anthony Freeman could still find himself deprived of a livelihood and family home because something is written with which the bishop disagrees.
All this has not touched on what happens if you gain a criminal conviction or if you have matrimonial problems, but there still is an automatic penalty procedure depending on the event.
The system has not been tried out as yet, and I am sure that we can all remember the events of the Tyler Case, the Dean of Lincoln case and the Bland case. Remember that the first section of the Measure reminds us that the bishop ‘…by virtue of his office and consecration, is required to administer discipline,’ and yet that same bishop is also chief pastor of the diocese and has the responsibility for the welfare of the clergy, as the Guidelines for the Professional Conduct of the Clergy states. It is ultimately this person who will decide whether a complaint is justified, having received various reports, and whether a cleric is to be arraigned before a tribunal. The balancing of responsibilities between one being responsible for any initiation of investigation and being concerned for the welfare will be difficult when it comes to trying to sort out the preliminary evidence. The welfare of the cleric, and members of the clerical family who have not been judged, does not appear in legislation as yet, and at least officially, the church has no legal responsibility to help!
Let us hope that the new system will be better and fairer for all – and perhaps in this aspect we could learn something from Roman Catholic Canon Law – but that is grist for another mill!
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