Ecclesiastical Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Archdeacon, can I first of all welcome you most warmly to this meeting of the Ecclesiastical Committee and thank you for bringing such a strong team with you from the Synod. Perhaps you might like to start by introducing the fellow members of your team.

  (Archdeacon of Malmesbury) Thank you, my Lord. On my left is David Williams, who is Clerk to the Synod. Next to him is Canon Frank Dexter, an incumbent in Newcastle, Chairman of the House of Clergy in the Newcastle diocese, and a member of the Steering Committee. Next to me is the Bishop of Winchester. On my right is the Dean of the Arches and Auditor who is also a member of the House of Laity of the General Synod, and Stephen Slack is the Legal Adviser to the General Synod.

  2. Thank you very much. As you know, we have all read, well, I hope we have all read your very helpful comments and explanations of the Measure. So I think you can assume that we are all broadly familiar with the Measure and what it is attempting to do. Perhaps you could start by highlighting the points which you regard as being the most important. You have, after all, been involved in this for a very long time so you are in a strong position to do that. Afterwards we will all want to ask questions. It is a very important Measure so do take as much time as you want.
  (Archdeacon of Malmesbury) Thank you very much, my Lord. The Clergy Discipline Measure is a major revision of the disciplinary procedures for the clergy of the Church of England. The intention is to replace the present disciplinary procedures, which are to be found in the Ecclesiastical Jurisdiction Measure of 1963. These have been in place for the last 39 years. In that time they have become increasingly out-dated. They are cumbersome to use and inflexible in practice. There is no longer any confidence in the Church that the 1963 procedures address the issues involved in handling the fairly small number of disciplinary cases that have to be dealt with. This new Measure has resulted from a thorough and carefully considered process, extending over six and a half years. This has been done deliberately, so as to allow for consultation at each stage of the process. There has been a careful examination of the disciplinary procedures of other bodies as part of this exercise—of other Anglican Provinces, of other Christian denominations, of the professional bodies in this country, and also the growing experience of employment tribunals. The result of this lengthy and carefully considered process is this new Clergy Discipline Measure. It carries the support of an overwhelming majority of 94.5 per cent of the General Synod—100 per cent in the House of Bishops, 99 per cent in the House of Laity, and 90 per cent in the House of Clergy (where only 23 voted against the final approval). The new Measure balances the interests of various groups, and it is important that I stress this particular point. First, there is the society in which we live, which still expects high standards of honesty, reliability and confidentiality from our clergy. And secondly, there are our congregations that have the right to be confident about their clergy upon whom they rely and to whom they look for care and for guidance. So this Measure provides assurance to both groups, to church and to society. Clergy in good standing will be supported and defended. But where clergy fall from grace or abuse their position this Measure means that the Church will respond fairly and firmly. Thirdly, there are the needs of those who feel aggrieved or hurt by less than satisfactory clergy behaviour. In an increasingly litigious society we see no virtue in seeking to avoid or ignore complaints. So the process of making a formal complaint has been simplified, and a right of appeal provided for when a complainant feels that they have not had their concern taken sufficiently seriously. And fourthly, and by no means least, there are the interests of our clergy themselves. They are required, not least by the Canons, to live and serve to a high professional standard. In doing so and as public figures they become vulnerable. So this Measure enhances the support of our clergy in a number of ways. Although 5,500 have freehold tenure, some 3,500 do not. This Measure creates a level playing field for the first time by up-grading non-freehold clergy to have the same security in discipline matters as the freeholders. With this Measure no clergy may be disciplined other than by the procedures laid down in the Measure, and to discipline in any other way will, in itself, be an offence under the Measure. In future, complaints will only be considered when made in writing, and where the person making the complaint specifies in writing the evidence on which their complaint is based. This is to enable frivolous, malicious and anonymous complaints to be deterred and, where they do occur, for these to be disallowed. Timings are provided to encourage prompt responses where complaints are not sieved out in the initial process. Rights of appeal are allowed whenever a discretion is provided, so that this procedure is transparent and fair. A flexible range of procedures is laid down so that discipline is handled in the most appropriate way in each circumstance, and a much wider range of sanctions has been introduced. In addition to enhancing the interests of all four groups, the new Measure has been carefully monitored to ensure its compliance with human rights legislation. It has also been designed so as to be equally applicable whether the clergy are brought under employment legislation at some point in the future, or whether they continue with their present status. My Lord Chairman, we now stand ready to answer any questions that the Committee may have, and to respond to any observations that the Committee may wish to offer.

Chairman: We are very grateful to you. Do any of your colleagues want to add anything at this stage? If not, I think we might start the questioning. Stuart Bell?

Mr Bell

  3. I am sorry to start so early, my Lord, but I did not get the figures that you gave of the approvals. You said 94.5 per cent of the General Synod and I did not catch the others.
  (Archdeacon of Malmesbury) At final approval stage the overall majority of the General Synod was 94.5 per cent.

  4. And the bishops?
  (Archdeacon of Malmesbury) That consisted of 100 per cent in the House of Bishops, of 99 per cent in the House of Laity, just two members of the House of Laity voted against, and in the House of Clergy it was 90 per cent, where 200 voted in favour and 23 voted against.

  5. 23 against?
  (Archdeacon of Malmesbury) 23 against, 200 for.

Chairman: I do not know what would seem to be the most sensible way to approach the questions. We thought if we could start with clause 1 and see if anybody has any difficulties with that clause 1 as it is at the centre of the disciplinary procedure. Could I ask if there are any questions or queries on clause 1?

Lord Campbell of Alloway

  6. I have got some difficulty with clause 1 because I do not know what it means and there is no possible interpretation that I can give to it other than giving some pre-eminence or priority to the role of the bishop in the disciplinary procedure, and I cannot see why that should be necessary. I agree if you look at the Measure as it is drafted that there is a perfectly sensible provision saying that the bishop of the diocese should not sit, alright, so far so good, but what about the bishop from another diocese? Why in a disciplinary tribunal should his view have pre-eminence? If it does not mean that, what does it mean? Of course, I was put onto this by reading—you have probably read it—the report of the Bishop of London who is President of this society, but I did get on to it before, so it is not just my own concern, it is the concern of the association with which the Bishop of London is associated.
  (Archdeacon of Malmesbury) I will ask the Bishop to answer in some detail but I think I would want to start by saying that we wish to emphasise in an episcopally ordered Church bishops cannot be left out of discipline and indeed the title deeds of the Church of England, which are the Book of Common Prayer and the Ordinal, are quite specific that the bishop has primary responsibility to take responsibility for discipline. Under this Measure it is not perceived the bishop does that by himself, it is perceived that he has a team of people to help him, therefore this basically has been put in to remind people that the bishop in an episcopal church has to be involved in discipline. I think the Bishop of Winchester might want to follow that through.
  (Bishop of Winchester) First, I know nothing of whatever it is to do with the Bishop of London that Lord Campbell has referred to, so I cannot respond to that, that is outwith my knowledge. Second, there is no question that the bishop's view of a disciplinary matter is included because the Measure is very carefully drawn. Although the bishop, as this makes clear, in a significant sense is the fount of the process, every step he takes is very carefully taken on advice, if he takes any steps at all from the very beginning of a complaint being made to him, which stems itself from this clause. The third preliminary, I think I heard Lord Campbell say something about the bishop of another diocese. That is neither here nor there as well because the only bishop who is engaged at any point is the bishop of the diocese concerned and the archbishop is engaged either as the bishop of that diocese or the archbishop of that province, so at any point in the understanding of the Measure it is crystal clear which bishop and which archbishop is involved. If I may then come to the substance of Lord Campbell's question, the Archdeacon has already noted that the fundamental position of our Church as an episcopal Church is, the Ordinal of the Book of Common Prayer and the Ordinal of the Alternative Service Book, and both recognise the bishop as the point of origin of the institution and licensing of clergy. In the licensing documents of every cleric in a diocese, the Bishop is the person to whom in person or through a commissary every clerk makes an oath of obedience; and that goes of the bishop is to the archbishop. The Ordinal is itself very clear, if I may just quote briefly, this is among the questions in the Book of Common Prayer Ordinal: "Will you maintain and set forward, as much as shall lie in you, quietness, love, and peace among all men; and such as be unquiet, disobedient, and criminous, within your Diocese, correct and punish, according to such authority as you have by God's word." Then: "Be so merciful, that you be not too remiss, so minister discipline, that you forget not mercy", which appears in the Alternative Service Book as "He is to be merciful, but with firmness, and minister discipline but with mercy." There are two other things, my Lord and they are another way of putting what I have just said about the oath of canonical obedience. The cure of souls of everybody in the diocese who has a cure of souls derives from that of the bishop over the geographical area of his diocese, so whenever a bishop institutes a priest or licenses a priest in charge, he receives a cure of souls, which is "both mine and yours". The last thing to say I think—and this is another part of the Synod's understanding of the absolute centrality of this clause—has to do with the character of the whole process because the Ordinal also says: "Use the authority given him"—this is the Prayer Book -"not to destruction but to salvation, not to hurt but to help, so that as a wise and faithful servant giving to thy family their portion in due season." It speaks of the character of the disciplinary process such as it has to be as being not only justice and fairness but tinged also with a particular Christian graciousness, as I understand it. I believe all of that is there within clause 1 and that is why there is—Lord Campbell's words—a pre-eminence or priority of the bishop of a diocese. In the end, however, though in this Measure it is properly constrained in every kind of way, the Synod takes the view that theologically the process does in the end stem from the bishop of the diocese, as does the whole work of the clergy.

Lord Williams of Elvel

  7. Let us suppose that we are in the position of flying bishops, if I may use that shorthand expression, let us suppose that we get into women bishops, and let us suppose that a number of clergy do not accept the ecclesiastical authority of their diocesan bishop and that they respect the authority of, let us use the word, flying bishop again; what would be the impact of this clause and Measure on that?
  (Bishop of Winchester) I think that needs dividing, my Lord, if I may. We have at the moment those whom you call flying bishops and this legislation has come to this point since the Priests (Ordination of Women) Measure 1993, and so that is already understood within this. I guess that is why the process ensures that the whole thing is not dependent on the discretion and judgment of the bishop of diocese, it is that bishops act on advice throughout, that the process works that way, and should it in the rare instances come to a tribunal again the bishop is not part of that. The second, of course, is speculation, my Lord, for the future. I imagine that were we to reach the stage that Lord Williams is mentioning then there would be cross-references in the legislation but that is not the situation that exists at the moment.


  8. Dean of the Arches?
  (Miss Cameron) May I just say this, my Lord Chairman, that this Measure is predicated on our present diocesan structure, and if members of this Committee refer to clause 10 (2) which is on page 6 of the Measure they will see that a complaint shall be made "in the case of a priest or deacon, to the diocesan bishop", so we are not concerned with the unusual situation of the flying bishop for which special provision was made after the Ordination of Women Measure was going through Parliament. In relation to the general question about clause 1, may I say that as a matter of law when a diocesan bishop has his election confirmed which makes him in law the chief pastor in his diocese, the wording which is used is that he is given the "cure of souls" in his diocese. Now all members of the Committee, my Lord Chairman, are well aware that the Church of England at the moment is an established Church and therefore the cure of souls means everyone in the diocese, whether they come to Church or not, they are the people of England whom the Church of England is willing to serve and the bishops are there to serve them. The important thing as far as the House of Laity in the General Synod is concerned, and this was raised many times during our many debates on this Measure, was there had to be recognition of the rights of the people, and the bishop was charged not only with looking after the interests of his clergy but also with disciplining his clergy to make sure that they served the people in the diocese professionally and properly in accordance with Canon law and in accordance with their office. So this Measure has that as foremost, and that is why this is important. It is difficult to unpack, but that is what lies within it. The bishop has a dual role in the cure of souls within his diocese. He must look after his people and he must look after his clergy and of course he is part of the clergy as well (we say that at confirmation of election) but we must also make sure the bishop serves the people.

Sir Patrick Cormack

  9. Every parish within the Church of England is allowed perfectly properly as the law currently says to pass resolutions (A), (B) and (C) and the third of those resolutions enables the parish under its incumbent to opt out of the jurisdiction of the diocesan bishop —
  (Bishop of Winchester) Not so.

  10. — And to receive the ministrations of the so-called flying or episcopal visitor.
  (Archdeacon of Malmesbury) The provincial episcopal visitor is provided and every parish may pass resolutions (A) and/or (B) but (C) if they wish to pass it has to be agreed to by the diocesan bishop and when passed it means this flying bishop is provided at a provincial level to provide pastoral care and sacramental services, but everything else under law, including appointments, exercise of patronage, remains where it is anyway. My own experience from my own diocese is we invite the provincial episcopal visitor to be involved—we have not had any discipline in any of our three parishes—but when we have had appointments the provincial episcopal visitor has always been consulted and brought into the exercise. We do not have to by law but we choose to do that because we think it is right and proper to do that. If there were discipline required because a complaint was laid against a priest in a resolution (C) parish, it is inconceivable to me that we would not ask for the guidance and advice of the provincial episcopal visitor in reaching a decision.

  11. I agree with that. I think it is appropriate to have some mention of that in this piece of legislation so he is brought in as of right.
  (The Reverend Canon Dexter) My Lord, it is important to remember that the diocesan bishop is still the Ordinary and, whether I accept the ordination of women or not, the provincial episcopal visitor is not my Ordinary, my diocesan bishop is. That is why the Measure is framed in that context. That does not prevent the diocesan engaging the help of the PEV in a disciplinary matter, but that is not included in the Measure.
  (Bishop of Winchester) May I just respond to that because there is a little more clarification. Sir Patrick asked why was this not drawn in? It seems to me it is perfectly clear why it was not drawn in and that is because—and, if I may say so, I think Sir Patrick's inference was mistaken—it is the case that explicitly in the Act the diocesan bishop remains what is called the Ordinary but he extends episcopal ministry through the provincial episcopal visitor. It is also the case that the Act of Synod is crystal clear that there is a kind of cascade through which the diocesan bishop should run in extending episcopal ministry. He should first of all look to a suffragan bishop in his own diocese who is in a position to be acceptable. He should secondly look to a bishop (diocesan or suffragan) of a neighbouring diocese who is in a position to be acceptable through the rule to extend the ministry. And only thirdly does he then look to the provincial episcopal visitor. In relation to the legal and disciplinary structure nothing has changed, so it would have been misleading for this Measure to act as Sir Patrick has suggested it should have done.

Sir Patrick Cormack: If I could correct that, I was not intending to imply that. I am in a parish where we have deliberately not passed resolution (C) although we have passed the other two, and we very much wish our diocesan bishop to be our bishop in every sense. I did not mean to say "all" and if I did say that then I apologise. What I was seeking to do was clarify—and I was ill and not on the Synod at the time of the material debate—precisely what the position was and why there was no reference within this particular Measure. You have answered that question but I was not seeking to imply any disrespect to any bishop.

Chairman: That is resolved.

Lord Pilkington of Oxenford

  12. On the same point, I absolutely accept the position of the bishop in the Church of England. As you know, under the Articles of Foundation of this Committee we are concerned about the rights of the subject. I want you to answer this to meet my point. In any other situation when an employee is brought before a tribunal the employer has no influence whatsoever on the tribunal, they are alien to it. In this case the bishop institutes proceedings on the provincial level, he has the right of appointment, the archbishop too has the majority right of appointment. It is almost certain the archbishop will take advice from the diocese. The question I want to ask is is the position of the citizen, ie the clergy person, as protected under this tribunal as he would be in a tribunal? For example when I was a headmaster if one of my masters took me to an industrial tribunal I had no influence whatsoever over the tribunal, I was pleading in open court. In this case the Ordinary has quite a degree of influence by certain appointments. I would like you to reassure us that the right of the citizen is preserved, because, dare I say it, the position of the Church of England vis-a"-vis discipline as regards the Puritans or the people who did odd ritual things in the 19th century has not been wholly good.
  (Bishop of Winchester) My Lord, I am obviously not going to get into a historical discussion with Lord Pilkington but I think the proper response from the point of view of the Measure is this: first of all, the bishop of the diocese, as the Measure makes clear, acts on advice very clearly as to which of the ways through he follows. Secondly, it is the bishop in consultation with his council that nominates clergy and lay people to the provincial panels. Thirdly, it is explicit in the Measure that not only is it for the President of Tribunals and not any bishop to nominate which members of a panel sit on any tribunal but that, unlike the present situation, it is also explicit that no members of that panel from the diocese concerned will sit on that particular tribunal. Those are the points that need making in response.

Chairman: I think that is clear. We have probably had enough discussion on clause 1. We have got much else to discuss.

Baroness Rendell of Babergh

  13. My question, my Lord, is not particularly relevant to any clause but I would like to know how many instances there are each year of disciplinary measures being taken against clergymen. I think the Archdeacon said it is quite rare. If you do have figures I would be very interested to know what they are.
  (Archdeacon of Malmesbury) It is an extremely difficult question to answer simply because the Measure of 1963 is rarely brought into use. I think it has only been used six or seven times in 39 years but that is not to say there have only been six or seven occasions and therefore a precise figure I cannot give you but because of the present Measure most of it has been exercised in informal ways.

  14. In fact, it is very rare?
  (Archdeacon of Malmesbury) Two, three or four significant cases per year per diocese, that sort of figure.

Baroness Rendell of Babergh: I see, thank you.

Lord Elton

  15. Do you expect the number to increase when the Measure is brought into being?
  (Archdeacon of Malmesbury) My expectation would be when this Measure comes in there might be a little blip because there are a number of cases people have not bothered to take forward because "what is the point with the present Measure, but we can do so now, we think". There may be a little blip at first but—and I was talking to the Bishop about this before we came, and neither he nor I have any experience that there has been a growth in the incidence of disciplinary cases. They are significant when they occur and we want to treat them seriously but I am proud of the clergy in the Church of England, overall they are a pretty good bunch.

Chairman: I think we have moved off clause 1, perhaps inadvertently. I do not think we need to discuss it any further.

Mr Bell

  16. I wanted in a sense to encapsulate the views which we have already heard. In the first instance, it is the bishops of the Church we are talking about, it is the bishops, archbishops, priests, and every member of the clergy swears an oath of allegiance, he swears an oath of obedience, he also swears a declaration of assent. That comes within the purview of ecclesiastical law as well as civil law, as we understand it. So is it not a fact that whilst we might look to be giving powers to bishops, the bishops already have those powers under this former Measure of 1963 is it not also the case we are diluting the power from the bishops and spreading the load around? Can you confirm that?
  (Archdeacon of Malmesbury) I would like to make two points. The oath of obedience is a limited one because the cleric agrees to obey the bishop in all things lawful and honest, so if the bishop's conduct is unlawful and dishonest he is released from that particular point on that particular issue. You are quite right, the whole point here is it is a team job using skills within the Church which are particularly to assist in this. I would like to suggest in a very simple way that the bishop is really the conductor of an orchestra. Things come to and from him but the core of work is done by others, which is one of the reasons clause 1 is there, to remind people that there is still a bishop around and there has to be some reference there. If the bishop gets a clear report from his registrar in the first 28 days, he has to be an exceedingly silly bishop to ignore that report which is going to be public. At every stage it has an appeal procedure written into it so if you really feel you have been dealt with unfairly you can challenge it. The bishop has limited powers within this but still is an essential part of the whole process.

Chairman: I feel the Committee would want with that answer to move on from clause 1, if we may. I think Lord Judd had a small point on clause 9.

Lord Judd

  17. In a sense my concern arises from some of the issues to which other members of the Committee have already referred. As the Church is dealing with disciplinary measures itself and it is not an independent process, it seems to me it is absolutely essential to be clear as to when it is dealing with allegation and when it is dealing with how to deal with something where an allegation has been substantiated. I am not altogether reassured, if I am honest, that this is crystal clear when one reads the whole document right through. I just think there may be room for anxiety, unnecessarily, but there may be room. I centre on clause 9 because I am most intrigued that the first sentence in clause 9 reads: "No disciplinary proceedings under this Measure shall be instituted unless the misconduct in question, or the last instance of it in the case of a series of acts or omissions, occurred within the period of one year ending with the date on which proceedings are instituted". Surely it is the alleged misconduct or the last alleged instance? There is a big difference. I wonder whether you could put my mind at rest.
  (Miss Cameron) My Lord, that is implicit because you are alleging misconduct and that is quite correct, but you do not actually put "alleged" in a piece of legislation, you would never find that word. It is assumed if you are bringing any proceedings and you are making allegations that you will then have to prove the allegations, and "misconduct" is the word for what it is that is going to be alleged under this Measure. It may be, while I am just addressing clause 9, I should point out that in fact under the present Measure a clergyman is subject to allegations of conduct unbecoming of a clerk in Holy Orders and so forth going back for three years, so he is at risk of somebody going back over a long period of time. The Synod actually reduced the period. My Lord, a year is not very long in all our experiences, it is a few months, and one year is quite a short timescale, one-third now of what has been in force since 1963. So we have shortened the period. If there are going to be complaints they have got to be taken promptly, they are taken to the bishop, the bishop then puts them to the registrar to see if it is just a busy-body or somebody with a genuine complaint, and it then goes through a strict legal process after that.

  18. If I might just come back to that. Thank you for what you have said, although I am not sure you have totally reassured me and the reason for this concern is this is very firm wording "occurred within the period of one year" which seems to suggest that you are dealing with something that happened.
  (Bishop of Winchester) No.

Lord Judd: What I am arguing is that perhaps at this stage you are still discussing whether in fact it did happen, and I just therefore wonder whether this is not something which even at this stage might be looked at again.


  19. Has Mr Slack got an opinion on that?
  (Mr Slack) To reassure Lord Judd, can I draw his attention to clause 7 (1) which deals with this very point, making it plain that these are the procedures for dealing with clerks in Holy Orders who are alleged to have committed an act or omission and that references to misconduct are to be construed accordingly.

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