Unjust – Yet ‘Expedient’!

Jonathan Redvers Harris considers the proposed Clergy Discipline Measure

Over two years ago, in November 2000, the General Synod of the Church of England gave its final approval to the proposed Clergy Discipline Measure. For the past few months these legislative proposals have been considered by the Ecclesiastical Committee of Parliament. The memory of the Churchwardens Measure’s troublesome journey to the statute book – and its arrival as a shadow of its former offensive self – has never been far way, and it was hoped by many that the Clergy Discipline Measure 2001 would receive similar treatment. Sadly, on this occasion the Ecclesiastical Committee has gone with the Synod, deeming ‘expedient’ proposals which seem similarly ill-devised and, ultimately, found wanting in the protection of the parochial clergy and people of our land.

Criminal proceedings

The present disciplinary legislation for clergy is found in the Ecclesiastical Jurisdiction Measure 1963. Its procedures are said, by advocates of reform, to be cumbersome, cripplingly expensive, and humiliating to the Church; perhaps, above all, it is difficult, under the current legislation, to secure a conviction. True, it has its shortcomings, and not least in that, although both any priest and deacon come within its ambit, in practice it has only extended the right of a scrupulously fair hearing to beneficed clergy, since licensed clerics have enjoyed little protection. (A bishop can revoke the licence of an unbeneficed cleric, summarily for any cause which appears to him good and reasonable, or with notice without reason – and what cleric will have the resources to seek a judicial review of the bishop’s actions?)

The 1963 Measure is unashamedly ‘criminal’. It uses the language of ‘laying a complaint’, of being ‘charged’ with an ‘offence,’ of having ‘proceedings’ in a court, with ‘a trial’. Section 28, referring to ‘conduct’ cases, expressly says that ‘the procedure at the trial shall … be the same as the trial of a person by a court of assize exercising criminal jurisdiction.’ The chancellor sits as judge and the assessors as jury. It is in open court, with the usual rules as to admissibility of evidence, the standard of proof being ‘beyond reasonable doubt’, and conviction by unanimous verdict. It is indeed a criminal jurisdiction, rightly based on a presumption of innocence of the defendant cleric.

Window-dressing

The new Clergy Discipline Measure changes all that. Instead, we shall have a new modern-sounding disciplinary tribunal – a user-friendly body, from the contemporary world of employment relations, free of the language of criminality. Unfortunately, however, it will be largely window dressing. The new cosy tribunal is still a draconian court; it will still be able to take away a man’s livelihood and the home for his family – in short, his life.

And far more easily too. This is the first principal weakness of the proposed Measure. At a stroke, in section 18, justice for the defendant is whittled down to the civil law ‘balance of probabilities’, with a majority verdict being all that is needed, and in a private hearing (thereby encouraging spurious and ill-founded accusations which the prospect of open court, in public, can help reduce). As if this were not enough, the almost inevitable and accompanying ‘Code of Practice’ – at least in the draft form originally published with the Measure – suggests the admissibility of hearsay evidence!

Control freaks

The second cause for concern about the proposals is the scope of those within it. Not only are the retired clergy with permission to officiate – a body of some 4,200, to be deemed to have taken an oath of canonical obedience which they have not taken – to be within the jurisdiction of this new Measure, but also non-clerics are now to be within the long arm of the Church. By section 29, a cleric formerly deposed from Holy Orders – an ex-cleric – would be brought within the ambit of the Measure. Is there no limit to the degree of control freakery and paranoia of today’s Church?

Thirdly, the grounds for criminous ‘conduct’ will be changing from ‘conduct unbecoming’ and ‘serious, persistent or continuous neglect of duty’ (as they are at the moment) to ‘conduct unbecoming or inappropriate’ and to ‘neglect or inefficiency in the performance of the duties’. But how would the politically-correct and apparently morally-neutral term ‘inappropriate’ be used? What of the cleric who is a keen enthusiast in hunting, collecting butterflies, restoring old motor cars, going to the races, or someone who fails to observe – after a tragic incident – two minutes’ silence demanded by fickle public opinion and the diocesan media spin-doctors? Will this result in the inferior clergy stifling all healthy eccentricity and individuality and, always glancing over their shoulders, becoming as monochrome and dull as many of their episcopal overlords – all in a bid to avoid the charge of ‘inappropriate conduct’? And again, what of ‘inefficiency’; who will provide the definition? Spending an indulgent length of time on funeral visits, rather than following the latest recommended optimum efficient length for a pastoral visit? Insufficiently encouraging people to contribute towards the next huge increase in the ‘parish share’? The recasting of the conduct offences in this ill-defined way opens the gates for all sorts of absurdities.

More equal then others

A fourth worry presented by the proposals is that sauce for the clerical goose should be sauce for the episcopal gander – in terms of who is able to institute proceedings. In the case of a priest or deacon, the proposed Measure gives a PCC (with a two-thirds majority) the power to institute proceedings through a nominated person, and likewise in the case of a bishop, two-thirds of the bishop’s council (at present five incumbents of the diocese and five lay members of diocesan synod are required). A moment’s reflection, however, will remind us that the parallel is an unsatisfactory one, given the composition of a bishop’s council (with the bishop’s nominations for co-option and the weight of ex officio diocesan, and sympathetic, members). Also, under the new Measure, a priest or deacon could have proceedings instituted against him simply by one person – a churchwarden. There is, however, no parity in the case of complaint against a bishop; a parallel could perhaps have been by one incumbent of the diocese. One suspects that this sauce would be too rich for the tender gander. But the point nonetheless remains: under the proposed Measure, proceedings against a bishop are made much more difficult to begin than those against one of the inferior clergy. Where is the much vaunted ‘natural justice’ in this?

Spurious modernity

A final, and fifth, criticism of the Measure is that the structure and procedure it would establish would not be modern at all. There is nothing sacrosanct about the 1963 Measure, but if clergy discipline is going to be reformed, then there should be a new court system with a proper, modern, separation of powers, with prosecution, judge and jury exercising distinct roles. It cannot possibly be ‘good practice’ in modern employment terms to have the very bishop, who may be an aggrieved party, himself adjudicating on the initial investigations and pronouncing the ultimate sentence. There is, at the heart of this Measure, a degree of control freakery encapsulated best in the bizarre provision of Section 1 – that anyone involved in the matter of the discipline of clergy under the Measure ‘shall … have due regard to the role … of the bishop … who … is required to administer discipline’. (And the full name of the tribunal is, we are told, ‘to be called the bishop’s disciplinary tribunal’.) Surely, if regard is to be had to anything, it must be to justice and a fair trial?

Again, none of this is to say that the present system should not be properly overhauled, nor that there are not some good points in the proposed legislation. Most importantly, the Measure would provide that, in the case of a licensed cleric – who, as we have noted, enjoys little protection – ‘the licence shall not be terminated by reason of that person’s misconduct otherwise than by way of … proceedings (under the Measure)’: section 8(2). Also the acknowledgement, in section 38, of the ‘Archbishops’ list’ is to be commended; it is far better that the existence of such data be openly recognized.

Yet such commendable points cannot atone for such a flawed Measure. In short, the procedures proposed by this Measure – which would serve only to add a further layer to those of the existing 1963 Measure (still be needed for cases involving doctrine, ritual, or ceremonial) – merely masquerade as an employment tribunal. The position of the cleric, as an ecclesiastical office holder, is a unique one, albeit analogous, at points, to an employee or the self-employed. But his very life and, if he is married with children, the way of life of his family, are tied up with this ‘employment’ in such a way that, were he to be found wanting before a disciplinary tribunal, he could be rendered utterly unemployable and destitute – merely on a 51% likelihood of having done something ‘inappropriate’ or failed to do something (‘inefficient’?), with a fate sealed by only three of five members of a tribunal, in private, with a sometimes relaxed approach to evidence. In a word, despite the use of the term ‘tribunal’, the Measure is not talking of arbitration in a dispute between employer and employee, but of the historic criminal jurisdiction which in the Church of England has until now been exercised, having regard to no one’s role save the duty to do justice, by the chancellors of each diocese, with lay assessors chosen in a jury-like way, to hear a charge framed by an independent examiner. We can only hope that, despite consideration by the Ecclesiastical Committee, the members of both Houses will themselves throw out this botched and unjust legislation.

 

The Revd Jonathan Redvers Harris is Vicar of Ryde All Saints’ in the Diocese of Portsmouth. An earlier version of this article appeared in Parson & Parish, the magazine of the English Clergy Association.

The new cosy tribunal is still a draconian court; it will still be able to take away a man’s livelihood and the home for his family – in short, his life.

Proceedings against a bishop are made much more difficult to begin than those against one of the inferior clergy. Where is the much vaunted ‘natural justice’ in this?

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