LEGAL & PAROCHIAL

Canonical Obedience versus the Rule of Law

A recent article in Legal and Parochial drew attention to the Lambeth List and the way in which offending clergy can be listed, not only for criminal offences, but as a matter of “pastoral discipline”? by the Bishop of their diocese, the definition of pastoral discipline being entirely at the discretion of the Church authorities.

The clergy of the Church in Wales have recently received their copies of The Cure of Souls, in which the Welsh bishops are proposing a scheme of clerical discipline which could prove even more draconian. Their foreword states that they “intend to implement the policies it proposes....a means of addressing the pastoral problems which from time to time confront them as guardians of the Church's discipline.”

The Cure of Souls is effectively in three parts. The first five chapters, dealing with the clergy, set out the policy of the House of Bishops, on their own authority. The sixth chapter is a very helpful statement of the current situation faced by any organisation in employing people to work with children, as paid servants or as volunteers. The policy statement here is well worth consideration by any British Church as a model for its own work with children. The seventh and last chapter is a proposed disciplinary procedure for the Church in Wales, in which the disused Provincial Court of the Church in Wales is to be replaced by a Tribunal, becoming instead a court of appeal from that Tribunal.

The proposed Tribunal system is to be welcomed, providing the Church in Wales with a means of exercising discipline, for the good of all, which it has lacked since the Provincial Court last sat in 1941. At present the bishops’ hands are tied where discipline genuinely needs to be exercised, having only two options open to them, personal rebuke of the priest concerned, or the use of a Court which is even less adapted to the modern age than the English consistory court. Any Church needs effective means to remove persistent and wilful offenders, for the benefit of all its members and the reputation of its clergy.

The proposed Tribunal is very much along the lines proposed by the MSF Clergy Section in its submission to the Church of England committee considering clergy discipline, Fair Process in a Modern Context. The Welsh report acknowledges that the Tribunal’s procedure “must satisfy the principles of natural justice” and also recognises that increasingly important fact of modern law, that “if the disciplinary procedure does not provide for due process, it is likely to be challenged by judicial review.” Its proceedings will normally take place in private, except where issues of special public interest are concerned. An accused cleric would have the right to be represented both at preliminary hearings and at the Tribunal, for which financial help will be made available in case of a full hearing. Commendably, every effort is to be made by way of resolution of conflicts and reconciliation, to prevent cases reaching a full hearing unless absolutely necessary.

The proposals for the Tribunal await approval by the Governing Body of the Church in Wales. They are not in their final form, and when they appear for ratification some important amendments should be sought. The requirement that clergy should report civil judgements made against them to the Bishop, for possible reference to the Tribunal, is unnecessarily inquisitive, and should be removed. The procedure should make it clear that an accused cleric has the right to be accompanied by a representative, be it a lawyer, cleric or union colleague, at every stage of the process, including preliminary interviews with the Bishop.

Consideration should also be given to the question of making the disciplinary process applicable to all who serve the Church in Wales, not only as clergy, but as lay employees, and as bishops. Justice is best served by being equally applicable to all classes of person, and there is no reason why the Church should be different. This needs to be emphasised particularly in view of the body of this report, in which an excessively hierarchical view of the episcopate colours all that is said about the calling, life and practice of the clergy.

The Bishops’ Foreword to what is essentially a document about clergy discipline suggests that it is intended to “offer clergy encouragement to undertake their work more confidently”?, but the effect of what is set forth, as the agreed policy of the Bishops, is likely to operate in the direction of hesitation and diffidence, for fear of unwittingly committing some offence.

The presupposition on which the Bishops’ claim to authority is based lies in the Oath of Canonical Obedience made by clergy to their Bishop, I, A.B.......declare that I will pay true and Canonical Obedience to the Lord Bishop of C......and his Successors, in all things lawful and honest: so help me God.

The phrase, in all things lawful and honest, is interpreted by the Bishops in the widest possible terms: “Instructions to the clergy from the diocesan bishop, and from those, such as archdeacons, to whom authority is given by the bishop or the Constitution, must be heeded. Failure to obey such instructions is a breach of duty.” (page 7)

A breach of duty rings through the report like a theme, as the life, calling and duties of the clergy are described and prescribed in detail in terms of a duty of obedience to their superiors in office. The other keynote which is struck is that of collaborative ministry: “priests are expected to work with other clergy within the given parochial, deanery, diocesan, provincial and, where appropriate, ecumenical structures. Failure to collaborate with fellow clergy and ministers is a breach of duty.” (page 7)

Breaches of duty include the use of forms of worship which are not approved by the diocesan bishop, personal interpretations of the Faith which are in clear contradiction of the formularies of the Church (when were the formularies ever clear?) and, most remarkable of all, the neglect or mishandling of opportunities for the exercise of that concern for the well-being of the wider community that has always been part of the ethos of the Church in Wales.

What does it all mean? Such undefined categories of offence described in general terms will inevitably lead to uncertainty by the clergy as to whether or not they may face disciplinary action, and a consequent lack of trust in those who serve in positions of authority. Archdeacons and Bishops will be able to refer to the Tribunal not only obvious miscreants, who have robbed the church safe or run off with someone else’s spouse, but clergy exercising both the personal discretion which one would expect and encourage in responsible and mature adults, and the varieties of churchmanship which give to Anglicanism its intrinsic interest and colour.

What protection will there be, once the Tribunal is in place, for clergy who are unable to work with neighbouring colleagues, whose parish is of an entirely different complexion? Or for clergy whose churchmanship is eventually deemed to be contrary to that of the Church in Wales, because they are identifiable as Evangelicals or Catholics? Or for those who will not concelebrate at the Eucharist, as a matter of conscience, on ecumenical occasions? Or clergy with strongly held views on almost any subject, from Green issues to party politics to abortion?

There is a marked contradiction in that collaborative ministry is to be obligatory for clergy and other ministers, but not for the Bishops, who are to retain an authoritarian and separate role which is potentially manipulative, encroaching on the personal lives and views of the Welsh clergy to an unacceptable degree, removing from them the responsibility for their own ministry. This is not collaboration with the clergy in any sense worthy of Anglicanism. The cure of souls belongs both to the Bishop and to the parish priest, and what is applicable to one must be equally applicable to the other.

Whatever else is decided about disciplinary procedures in Wales, the absolute claims made by the Welsh Bishops for the principle of Canonical Obedience needs to be challenged in the Welsh Governing Body. The new Tribunal ought not to be allowed to operate until this matter is resolved. Such claims are fundamentally opposed to the rule of law, in which natural justice and respect for individuals are paramount. The Welsh clergy must have an assurance that the law will not be used oppressively against them as individuals, and that they can know in advance what is, and what is not, lawful. They have undertaken obedience in all things lawful and honest: they have not signed away their right to justice.

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