The main amendments made by the Revision Committee
1. It was the unanimous view of the Committee
that the short title of the Measure should be changed to the draft
Clergy Discipline Measure. Unlike the 1963 Measure (which contains
provisions unrelated to clergy discipline), the new Measure would
be dealing exclusively with disciplinary issues and the Committee
felt that this should be reflected in the title.
2. The Committee accepted a proposal on
clause 3 that the composition of the Clergy Discipline Commission
("the Commission") should include at least two persons
from each House of the Synod. It was noted that the remainder
of the membership of the Commission (which could include non-Synod
members) should ensure a wide expression of views and expertise
on the Commission. It was also agreed by the Committee that the
Chairman and deputy Chairman of the Commission should also act
as President and deputy President of Tribunals and that the Appointments
Committee (in consultation with the Dean of the Arches) should
appoint two legally qualified persons as Chairman and deputy Chairman
of the Commission.
3. The Committee unanimously decided to
widen clause 3(3) to include tribunals and Vicar-General's Courts
amongst those advised by the Commission. In this way the sub-section
would clearly highlight the function of the Commission in monitoring
consistency of penalties for offences and developing a scale which
could be used by bishops and courts and tribunals.
4. The Committee took the view that the
Diocesan Registrar and Diocesan Secretary could fulfil the functions
allocated to the Registrars of Tribunals in clause 5 and therefore
that this clause was not needed as the functions referred to could
be carried out by other officers.
5. The possibility of a cleric facing disciplinary
proceedings emanating from two dioceses (for example, one diocese
where the cleric was licensed and the other where he officiated
without authority) was one that the Committee accepted needed
attention. It was contrary to natural justice for a cleric to
face disciplinary proceedings from two dioceses for the same misconduct.
Therefore in clause 6(3) it was provided that once proceedings
were undertaken by the diocese in which the cleric held preferment
then no other proceedings on that matter should be permitted.
6. The Committee decided that the proviso
on political opinions in clause 8 was also unnecessary. It could
be seen at first sight to be a cover for those with extremist
views, whom the Committee agreed should not be protected. Normal
political opinion (and activity) was protected by the Human Rights
7. The Committee accepted that a three-year
limitation for the institution of proceedings in clause 9 was
too long and that the time limit should be two years.
8. In clause 10, the Committee agreed a
single churchwarden should be able to make a complaint in view
of the fact that churchwardens had a special position of responsibility
and trust within the parish which meant that they had an individual
as well as a collective responsibility to make a complaint if
they had evidence of alleged misconduct.
9. It was agreed that clause 11 should provide
that upon receipt of a complaint and within a period of 28 days,
the diocesan (or provincial) registrar would scrutinise the complaint
in consultation with the complainant to form a view as to whether
there was substance to the complaint. The respondent would be
informed that a complaint had been referred to the registrar.
At the end of the 28 days (or extended period), the registrar
would report in writing to the bishop who would then determine
whether to dismiss the complaint or pursue any of the courses
of action provided in clause 12. If the bishop decided to dismiss
the complaint, the complainant would have a right of appeal to
the President of Tribunals on the grounds of the decision being
10. It was felt that the distinction between,
on the one hand, this preliminary scrutiny to ascertain whether
the evidence was sufficient to give substance to the complaint
and, on the other hand, the decision as to which course of disciplinary
proceedings should follow, was an important one. The two decision-making
processes were different and this was now clearly reflected in
the Measure. The Committee was content that the registrar, who
was independent of the bishop in line with his oath of office
(Canon G4), could perform this function satisfactorily.
11. In relation to clause 12(1)(e) and clause
17, the Committee was anxious to avoid possible conflicts of interest
in the role of the designated officer (a lawyer from the Legal
Office of the Church of England) once a formal investigation had
been instigated. The Committee accepted there was the potential
for such conflicts if the designated officer continued with three
distinct roles: that of investigator, judicial assessor of whether
there is a case to answer before a tribunal, and finally prosecutor.
The Committee therefore agreed that the President of Tribunals
should carry out the second of the above roles, that requiring
a judicial decision, while the designated officer should keep
the remaining functions.
12. The Committee unanimously agreed that
the standard of proof, the majority needed on a determination
of the tribunal and the issue of private or public hearings were
so central that they should be contained in the Measure rather
than the Code. Along with this decision, the Committee also agreed
that the determination of the tribunal and the reasons for the
tribunal's decision should always be pronounced in public.
13. The Committee agreed that tribunal hearings
would normally be in private but that a public hearing could be
requested by the respondent or could be ordered by the tribunal
itself where this was considered to be in the interests of justice.
It was also agreed that where the tribunal meets in public it
would have the power to sit in private for certain parts of the
proceedings in accordance with the express restrictions set out
in Article 6(1) of the European Convention on Human Rights. Leading
Counsel (see paragraph 28 below) advised that these provisions
in the Measure should not cause difficulties with the Human Rights
14. At a number of its meetings, the Committee
considered in detail the issue of deposition. In contrast to the
penalty of prohibition, which did not affect the legal status
of a clerk in holy orders but rather the exercise of Holy Orders,
deposition provided that the person concerned is to be treated
as a layman for all purposes.
15. Although cases of deposition were likely
to remain rare, the Committee appreciated that the circumstances
in which deposition would be applied would be distressing for
all concerned. Therefore it was important that the provision in
the Measure was acceptable to all in the Church. It was recognised
that this issue raised fundamental sacramental questions concerning
an understanding of the nature of holy orders. Although it was
the primary duty of the Committee to deal with the statutory provision
for deposition (and its possible reversal), it was also accepted
that the Committee had a duty to consider the doctrinal aspect
of such a decision. Once the Committee had made its recommendation,
it would be for the Synod as a whole to make the final decision
on what was both legally equitable and reflective of the doctrine
of the Church on this issue.
16. The Committee came to the view that
a power of deposition was necessary as the ultimate penalty under
the Measure as regrettably there were always likely to be certain
instances of misconduct that warranted the permanent removal of
the legal status of clerk in holy orders. The option of removing
deposition and replacing it with "prohibition for life"
was something that the Committee discussed but it concluded that
this was a step that the Committee could not take alone. This
issue raised fundamental sacramental and ecclesiological questions
concerning an understanding of the nature of holy orders that
required wider debate within the Church.
17. With regard to clause 29 on disobedience
to a penalty, there was some discussion in the Committee as to
whether this clause should be deleted and particularly the reference
in parenthesis to those already deposed. The Committee recognised
however that such a power was needed as the Church needed to keep
under its clerical disciplinary procedures any clergy or deposed
clergy who illegally performed clerical functions within the Church.
18. The Committee agreed to amend clause
30 so that if the secular divorce courts cited adultery, unreasonable
conduct or desertion as grounds for granting a divorce, then the
provisions of this clause would apply. Also in subsection (2),
the period in which representations could be made to the bishop
should be 28 days rather than the original provision of 21 days.
19. It was noted in discussion that the
power given to the bishop in this section was again a discretionary
one which would allow the bishop to take no action if he thought
that a conviction of imprisonment imposed outside England did
not warrant disciplinary action. This would cover those cases
where a sentence of imprisonment imposed in a foreign country
would not have warranted such a sentence under English law.
20. The bishop's power in clause 36 to suspend
clergy (appointed office holders) was a discretionary one and
could be lifted at anytime. The Committee considered that it would
be inappropriate to apply a suspension before the bishop had decided
that the complaint should be considered by way of any of the courses
of action available under clause 12(1). Alternatively, it was
considered correct that suspension could be applied with regard
to secular criminal proceedings at the point of arrest. In subsection
(4), it was agreed that the bishop should consult with the incumbent
or priest-in-charge as well as the churchwardens before suspending
a cleric. The Committee considered subsection (5) to be important
for the suspended cleric as well as the parishioners concerned.
During a suspension there should be no interference with divine
services held or the conduct of normal parish duties. To underline
this, the Committee agreed that disobedience to a suspension should
be expressly stated to be misconduct.
21. The Committee did not consider that
the archbishops were the appropriate appellate body in clause
36(6) to hear an appeal against a suspension. Rather it was thought
that this function should remain with the President of Tribunals,
but with a time limit of 28 days to ensure that adjudication would
not be delayed.
22. The Committee was content for the President
of Tribunals to review an archbishop's decision to include a cleric
on the List in clause 38 and furthermore it considered that the
five-year review period in subsection (4) was appropriate. It
was important for the healing process that a period of reflection
was provided which, with counselling support, could allow the
cleric the opportunity to rebuild.
23. In clause 41, the Committee decided
that the principle of compensation should be embodied within the
Measure for clergy who had successfully appealed against a penalty
of removal from office or revocation of a licence. The Committee
adopted the provisions of Schedule 4 to the Pastoral Measure 1983.
The Church Commissioners considered this to be appropriate.
24. The Committee agreed unanimously that
the disciplinary provisions of the Measure should be equally applicable
to all persons in Holy Orders and clause 42 was inserted to provide
for the Measure's application in particular special cases such
as chaplains to the armed forces, cathedral clergy and others
under special licence such as an Archbishop's licence.
25. The current legal position is that clergy
serving in Royal Peculiars were exempt from the disciplinary procedures
of the 1963 Measure. In correspondence with the Committee, Professor
Avril Cameron (Chairman of the Review of the Royal Peculiars)
had expressed the understandable desire that the report of the
Review of Royal Peculiars should not be pre-empted on this matter
by any revision of the law at this stage. The Deans of Westminster
and Windsor also assured the Committee that there was no desire
on the part of their two Royal Peculiars to be exempt from the
same discipline as the rest of the Church.
26. Although the Committee remained committed
to the principle that all those in Holy Orders should be subject
to the same disciplinary procedures, it was accepted that while
this Review was being undertaken it would be unwise to change
the current legal position; therefore, for the time being at least,
clergy serving in Royal Peculiars would remain outside the scope
of this Measure. The Committee noted that an amending Measure
was expected to come before the Synod in the 2000-05 quinquennium
to deal with clergy discipline in relation to doctrine, ritual
and ceremonial. Once the Review of Royal Peculiars had reported,
any changes to the law to deal with the procedures for discipline
of clergy serving in Royal Peculiars could be included in that
Note: The Report of the Review Group
on the Royal Peculiars was published on 5 March 2001 and recommended
that "in matters of ecclesiastical discipline, clergy in
the Royal Peculiars should become subject to disciplinary procedures
laid down by Measure, subject to modification as required."
At present the Crown is considering the recommendations of this
Review Group and if, in time, it is the decision of the Crown
to accept this recommendation, then the procedure as outlined
in paragraph 26 above would be used to bring about the legislative
27. In clause 47, the Committee agreed to
the following transitional provisions. Under subsection (1), on
the coming into force of the new Measure, any proceedings instituted
under the 1963 Measure before that date should continue under
the procedures of the 1963 Measure. Under subsection (2), alleged
misconduct which took place before the commencement procedures
of the new Measure but where no complaint had been laid prior
to commencement would be dealt with under the procedures of the
new Measure. However where the alleged misconduct would not have
been an offence under the 1963 Measure then proceedings shall
not be taken under the new Measure; this provision would avoid
retrospective legislation. Under subsection (3), censures imposed
under the 1963 Measure would continue to have force under the
new Measure, as if they had been imposed under the new Measure.
This has the effect that the provision for the removal of deposition
in clause 26 of this Measure would apply to depositions imposed
under the 1963 Measure.
28. The Committee was concerned that the
implications for the Measure of the Human Rights Act 1998 should
be thoroughly investigated by Leading Counsel specialising in
this field and therefore, as mentioned earlier, Leading Counsel
was engaged to advise the Committee. He confirmed that the Measure
was compliant with the terms of the Act. In particular, compliance
with Article 6 (which confers a right to a fair trial by an independent
tribunal) was achieved as a result of the availability of a right
of appeal to the Arches Court of Canterbury or the Chancery Court
of York. Leading Counsel's advice also drew attention, however,
to ways in which (had those rights of appeal not been available),
the processes prescribed by the Measure (as then drafted) would
not be fully consistent with the requirements of the Human Rights
Act. In summary, Leading Counsel's main concern was over the involvement
of the bishop in the preliminary stages of the Measure. Whilst
it was not necessary to do so in order to achieve compliance with
the Human Rights Act, a number of changes were made in the light
of Leading Counsel's comments, with a view to ensuring that the
processes laid down by the Measure were as fair as possible. The
Committee sought to address Leading Counsel's main concern by
giving more responsibility to the registrar to come to a view
on the substance of a complaint before the bishop decided on whether
to dismiss the complaint or proceed. Further points of difficulty
included the provisions to consult the bishop as to the membership
of the tribunal and as to the penalty to be imposed by the tribunal.
On the former point, the Committee deleted this provision and,
on the latter point leading Counsel's proposed wording on "inviting
the bishop to comment" was accepted.