Ecclesiastical First Report

Report by the Ecclesiastical Committee on the Clergy Discipline Measure

  The Ecclesiastical Committee has met and considered the


referred to it under the provisions of the Church of England Assembly (Powers) Act 1919 and has had the assistance in deliberation of the General Synod thereon.


  1.  The Clergy Discipline Measure is a major piece of legislation providing a new, modern and workable structure for clergy discipline in non-doctrinal cases to replace that in the Ecclesiastical Jurisdiction Measure 1963 which has proved unsatisfactory in practice. Its provisions are fully described in the Comments and Explanations of the General Synod, published with this Report.

  2.  At the core of the Measure is the procedure whereby a complaint is initially investigated by the diocesan registrar who then reports to the bishop on whether the complaint has any substance. If the bishop decides not to dismiss the complaint, he has a range of options that can be pursued: no further action, conditional deferral, conciliation, penalty by consent and finally, formal investigation which can then lead to a hearing before an independent disciplinary tribunal consisting of two members of the clergy, two members of the laity and a legally qualified chairman. Rights of appeal are provided at appropriate stages for the complainant or the respondent and a similar process is provided for the discipline of bishops and archbishops.

  3.  The penalties which may be imposed under the Measure are: prohibition for life, limited prohibition, removal from office or revocation of licence, injunction to refrain from any offending behaviour, rebuke, or conditional discharge.

  4.  Amongst its other provisions, the Measure provides the bishop with the discretionary power to suspend a cleric or to impose a penalty after proceedings in the criminal or divorce courts. The Measure also provides for the establishment of a new permanent commission—the Clergy Discipline Commission—to give general advice on the working of the Measure and to issue Codes of Practice and guidelines, and for the maintenance of an archbishops' list (a confidential record of penalties imposed under the Measure and other matters).

  5.  The Measure submitted to the Committee is the product of some seven years consideration by the Church, starting with a Working Party which produced a report entitled "Under Authority" in November 1996. The Measure was approved by the Synod in November 2000, with the following figures:
Bishops  38  0
Laity200  2


  6.  The Ecclesiastical Committee considered the Measure on 18 December 2002 and again on 12 February 2003. Representatives of the Synod assisted the Committee in their deliberations on both days. Those deliberations ranged widely but the Committee draw particular attention to the following points.

Misconduct (Clause 8)

  7.  Clause 8 sets out the grounds on which disciplinary proceedings may be instituted against any archbishop, bishop, priest or deacon. Subsection (3) provides in respect of one of these grounds (conduct unbecoming) that no proceedings shall be taken "in respect of the lawful political opinions or activities of any bishop, priest or deacon". It is apparent from both a reading of the explanatory notes and from the Committee's exchanges with the Synod representatives (QQ 22-24) that subsection (3) should have referred to archbishops too.

  8.  While the Committee are of the opinion that the omission is unlikely to be of practical significance, it is possible that the General Synod may wish to remedy the apparent omission when an appropriate legislative vehicle is available.

Preliminary scrutiny of complaint (Clause 11)

  9.  Clause 11(1) provides for a diocesan registrar to whom a written complaint has been referred to consult the complainant before making a report to the bishop. (This will of course add to the responsibilities of the registrar and underscores the requirement for registrars to be qualified "within the meaning of section 71 of the Courts and Legal Services Act 1990, [and] learned in the ecclesiastical laws of the realm" (Q 82)). The purpose of the consultation is to help establish whether the complainant has a proper interest in the matter and whether there is substance in the complaint. The respondent is entitled at this preliminary stage merely to be notified, not to be consulted. The Committee appreciates that the respondent has ample opportunity to present his case at a later stage and that such a sifting procedure is a common feature of disciplinary systems in other areas of employment (QQ 79-90). Nevertheless, there is a strong case for suggesting that the elimination of unmeritorious complaints at the early stage might be facilitated if the views of the respondent could be sought and taken into account by the registrar, as he saw fit. The Committee suggest that this point might be addressed in Rules (formulated by the Rules Committee under Clause 45) or in a Code of Practice (formulated by the Clergy Discipline Commission under Clauses 3 and 39).

Conduct of proceedings: civil standard of proof (Clause 18(2))

  10.  Clause 18 provides that in disciplinary proceedings under the Measure the standard of proof to be applied shall be the civil, rather than the criminal, standard. This caused concern to some members of the Committee, bearing in mind the possible consequences of a finding of misconduct. However, it was clear that the General Synod had consciously taken this course. As they write in paragraphs 27 and 28 of their Comments and Explanations, "In doing so [the Synod] noted that the general trend across all the professions was away from the criminal law standard and towards the civil standard as widely used for civil law cases in the secular courts and took into account the fact that the Measure was establishing a disciplinary procedure not a criminal one". Furthermore "the Synod's attention was drawn to case law which makes it clear that the civil law standard is a flexible one, allowing for the degree of probability which must be established to vary according to the seriousness of the matter in question. Thus the more serious the allegation, the higher the degree of probability which is required". The Committee explored this point at length in discussion with the Synod representatives (QQ 34-46). Bearing in mind the practice in other Anglican Churches and other professional disciplinary regimes, on balance the Committee is of the opinion that the civil standard is appropriate, but only because it is a flexible standard which the law requires to be applied with greater or lesser strictness according to the seriousness of the complaint and the implications for the respondent of it being proved. In the most serious cases, it should be virtually indistinguishable from the criminal standard and applied as such.

Majority Opinion (Clause 18(3)(b))

  11.  The Measure provides for the determination of a disciplinary tribunal, and the reasons for it, to be pronounced in public. The determination is according to the opinion of the majority and there is no provision for publication of a minority opinion when there is one. The Committee were assured by the Synod representatives that the recording of a minority view could be dealt with in Rules made by the Rules Committee under Clause 45 (Q 55). The Committee considers that the effectiveness of the appeal process under Clause 30 would be enhanced were there provision for the minority opinion to be made available and suggest that rules might be made to that effect.


  12.  The Committee is of the opinion that the Measure is expedient.

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