LEGAL & PAROCHIAL
DISCIPLINING THE CLERGY
The way in which discipline is currently administered in the Church of England - and also not administered - has been a source of considerable difficulty for a number of years, as it has become apparent that the criminal procedure of the 1963 Ecclesiastical Jurisdiction Measure is too awesome to be practical as a means of dispensing justice.
The first concern in the hearing of a disciplinary allegation, which can affect for ever the reputation of a clerk in holy orders as well as result in removal from pastoral office, is that justice should be done - and secondly, that it should be seen to be done.
The consistory court system set up in 1963, itself the product of an enlightened reforming process which cleared up a whole ragbag of unsatisfactory procedures, certainly goes out of its way to ensure that the highest standards, those of what is now the Crown Court, are applied in the trial of an accused cleric.
But the fact that there have been just three such trials in more than 30 years, in each of which the cleric has strenuously protested his innocence, tells us that the court itself has been found - in the late Chancellor Garth Moore's words - too "complicated and cumbersome" to be used effectively as a means of disciplining the clergy. No disciplinary cases have been brought in the Court of Ecclesiastical Causes Reserved, and no case has been brought against a bishop.
One or two voices have been raised in this debate to question whether justice would be as well served by the Hawker Report's (Under Authority, Report on Clergy Discipline, Church House Publishing, 1996) proposed tribunal system, as by the formal consistory court procedure laid down in 1963. Possibly so, in the three cases actually heard so far, although there are aspects of the 1963 procedure which raise grave doubts about its impartiality, such as the selection of assessors from within the diocese of the accused cleric. It is hard to reach a dispassionate verdict on a colleague in such a small organisation.
What is generally overlooked is the kind of justice on offer in the numerous disciplinary cases since 1963 which have not been put through the mangle of a full court hearing, or subject to any kind of regulation. Justice requires that the procedure, the judgement and any form of punishment should be objectively administered.
What is equally serious is that in many such cases it has proved impossible to exercise any kind of discipline, to the detriment of the Church as a whole, and to the reputation of the vast majority of law-abiding and hardworking clergy.
The result of having an unworkable system of justice is that local arrangements have prevailed instead, and individual clergy have been dealt with ad hominem by their dioceses, without the opportunity of a formal and impartial hearing, frequently without the benefit of representation, and their cases dispatched without the consistency from one diocese to the next, or one case to the next, that is the very hallmark of justice.
Because of the outside chance of a full hearing, bishops have been unable to consult their Chancellors for expert advice. Unbeneficed clergy have simply found their Licence withdrawn, with minimal opportunity to defend themselves, and with little practical right of appeal. And some clergy are notoriously exploiting the failure of the present system by getting away with unprofessional conduct that is quite simply intolerable.
Again, where justice is concerned, this Report has been criticised for its recommendation that disciplinary tribunals should hear cases in private, unless there is a request from the defendant for an open hearing, or the chairman decides that there is a genuine question of public interest at stake.
Much of this criticism has, naturally, come from sections of the media, which always likes to present itself as serving both justice and the public interest, by reporting such cases in detail. Anyone who was at the trial of the Dean of Lincoln last year, and who followed the press coverage, will know that for "public interest" synod members should understand "prurient" interest. Unrestrained reporting means allegations, subsequently found not proven, are printed not only in the Daily and Sunday tabloids, but across the front pages of respected broadsheets.
Nothing sells newspapers like claims about extra-curricular activity by a clergyman, but such allegations are deeply and permanently damaging both for the Church and for the acquitted cleric. The General Synod should not be deceived by the demand for open hearings. Neither the genuine public interest nor justice itself is served by the daunting prospect of a media circus surrounding a disciplinary hearing.
One of the most important aspects of the Report's proposed procedure is that it will provide the Church with a disciplinary system capable both of dealing with those who possess a freehold as incumbents, and of providing protection for clergy without a freehold, who at present can find themselves unemployed, with just three months' notice, and no right of appeal. Errant clergy with a freehold will not be able any longer to rely on a system which prefers to turn a blind eye rather than go to court; while priests in charge will have the right to a full and fair hearing of disciplinary complaints against them.
A further important step is taken in the Report's advice that those against whom complaints have been made should have the right to be accompanied at every stage of the disciplinary procedure by a friend, or lawyer, or union representative. It can be extremely daunting for one person, facing extremely serious allegations which could end his ministry permanently, to go alone to a disciplinary hearing at which the diocesan authorities are accompanied by other senior clergy and diocesan legal advisers. Few clergy have the legal knowledge to defend themselves in person, and no one should be expected to face such an ordeal alone. The clergy have the same right to presumption of innocence until found guilty as any other defendant in English law.
The recent meeting of the General Synod voted, unfortunately, for an amendment to the Report, aimed at removing doctrinal heterodoxy or heresy from the category of offences with which the new disciplinary tribunals will deal. No proceedings for such matters have been brought under the 1963 Measure, and yet the licence which some of the clergy enjoy in popularising unorthodox religion is one of the things which most scandalise faithful Anglicans.
The amendment was secured with a series of emotional speeches to the Synod, citing personalities from Father Mackonochie to the Sea of Faith organisation. Clearly, sufficient numbers felt that heresy trials would be a good idea if only their own dark corner of the Church could be exempted from consideration! And so the procedure proposed by Under Authority was removed by the Synod, but when detailed legislation is finally proposed in 1997, some alternative means of describing boundaries of belief is likely to be put forward, if only as an amendment from the floor of Synod.
Under Authority was eventually approved by the General Synod on 28 November, and a new committee will now be appointed to draw up a proposed Measure for consideration by the Synod and by Parliament. A fresh start can not come too soon for either the Church or the clergy, who both owe a considerable debt of gratitude to Canon Alan Hawker and his working party.
Stephen Trott is Rector of Pitsford with Boughton, Diocese of Peterborough and a member of the General Synod
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