Ecclesiastical Offices (Terms of Service) Measure

Ecclesiastical Offices (Terms of Service) Measure - Ecclesiastical Committee Contents

THE PROVISIONS OF THE MEASURE AND THE MAIN ISSUES CONSIDERED BY THE GENERAL SYNOD

29. This section introduces the concept of 'Common Tenure', the generic name for the package of terms and conditions of service governed by the legislation, and describes how it will apply to various categories of office holder.

30. The legislation will apply to all clergy who hold either a freehold office or a licence from the diocesan bishop. It will also apply to that small proportion of lay ministers who receive a stipend or other emoluments of office. It was considered appropriate to bring these particular lay ministers within the scope of Common Tenure because it was recognised that they often occupy posts of significant pastoral responsibility.

31. The legislation will not apply to the following:

· clergy who exercise their ministry under permission to officiate from the bishop. This form of authorisation is generally used for retired clergy. It enables them to assist on a voluntary basis in any parish in the diocese, at the invitation of the incumbent. In this case it was thought desirable to retain the flexibility and relative informality of the existing arrangement;

· clergy who exercise their ministry under a contract of employment, unless that employment also requires a licence from the bishop;

· non-residentiary cathedral canons, who are not licensed by the bishop and whose conditions of office will continue to be governed by the statutes of the relevant cathedral. These are essentially honorary appointments, and it was not thought appropriate to bring them within the scope of Common Tenure;

· chaplains in the three armed services, who are licensed by the Archbishop of Canterbury. Correspondence with the Archdeacon to the Army established that such chaplains were either employed or treated as 'fee earners' by the Ministry of Defence and that therefore Common Tenure ought not to apply to them;

· non-stipendiary readers and licensed lay workers. Because of the numbers involved (over 8,000 readers alone in 2006) it was decided that it would be impracticable to bring these office holders within the scope of the present legislation.

32. The legislation will apply to licensed clergy, stipendiary licensed lay ministers and those residentiary canons appointed for a term of years, with immediate effect upon the coming into force of this section. It will also apply with immediate effect to the Archbishops of Canterbury and York. Both Archbishops were consulted and agreed that it was appropriate, for practical and symbolic reasons, that their offices should be brought within Common Tenure at the earliest opportunity.

33. Those, other than the Archbishops, who hold freehold offices at the date when section 1 comes into force will be invited by letter to 'opt in' to Common Tenure. Those who elect not to do so will continue to hold office under their pre-existing terms and conditions until such time as they leave that freehold post. This provision was made in the recognition that compelling a person to surrender a freehold office (however vestigial the actual property rights associated with it) could amount to an infringement of Article 1 of the First Protocol to the European Convention on Human Rights. However, it will not be possible, once this section is in force, to make any new appointment to a freehold office - all future appointments must be made on Common Tenure (see s.9 (2)).

Matters raised before the Revision Committee and the General Synod

34. The Revision Committee and the Synod heard submissions that the Measure should not apply to those holding freehold office. It was argued that, while the case for strengthening the protection of licensed office holders was clear, the argument for changing the terms on which freeholders held office had not been made out. The Committee and the Synod rejected these submissions, agreeing that they were contrary to one of the most important principles established by the Review Group - i.e. that clergy and stipendiary lay ministers should, so far as practicable, hold office on terms and conditions that were common to all (see paragraph 12 above).

35. The Revision Committee and the Synod also rejected a proposal that licensed clergy should be given contracts of employment, upholding the recommendation of the Review Group (see paragraphs 13-18 above) that office-holder status, coupled with a statutory framework of rights and responsibilities, embodied more accurately the way in which most ordained and licensed ministry is exercised in practice.

SECTION 2: REGULATIONS

36. This section confers upon the Archbishops' Council a duty to make, by means of regulations, provision for terms of service of those holding office under Common Tenure. Any such regulations must be laid before, and may be amended by, the General Synod, and will also be subject to the negative resolution procedure in pursuance of a resolution of either House of Parliament. Under sub-section (7) there is provision for the Synod's approval to be deemed if the Business Committee of the Synod considers a particular set of regulations to be uncontroversial, but in such a case any member of Synod has the power to override the deemed procedure by requesting a debate.

37. Sub-section (2) details certain matters which may, within the generality of the overriding obligation, be dealt with in the regulations. These include provision for:

· appointments of limited duration;

· protection against unfair dismissal;

· terms relating to the provision of housing;

· procedures to address inadequate performance; and

· the use of employment tribunals to adjudicate on disputes.

Matters raised before the Revision Committee and the General Synod

38. Some Synod members were concerned that sub-section (3), which provides that regulations may apply, amend or adapt any enactment or instrument, was too widely drawn, and this provision was therefore given particularly careful scrutiny by the Revision Committee. The considered view of both the Committee and the Synod was that it was appropriate and necessary, given the interrelationship between this legislation and employment law. An example of how this provision would work in practice can be found in regulation 33 of the draft Regulations included in the Annex, where the jurisdiction of employment tribunals under Part X of the Employment Rights Act 1996 is applied, with certain necessary modifications, to cases where an office holder under Common Tenure has been removed from office following a capability procedure. Were this provision not in place, it would be necessary to replicate Part X of the 1996 Act in its entirety, with extensive modifications.

39. The Revision Committee and the Synod also heard some submissions which questioned the appropriateness of the provision in sub-section (4) allowing recourse to be made to employment tribunals. The objections were both theological and practical. It was suggested that it was contrary to Scripture for Christians to refer disputes to secular courts, and that employment tribunals were not equipped to deal with matters relating to the exercise of ministry: instead, a new system of Church tribunals should be set up. The Committee and the Synod noted that the Review Group had given careful consideration to the theological issues and had commissioned some reflections from a leading biblical scholar, Professor Anthony Thistleton of the University of Nottingham, who concluded that the relevant Scriptural passages were concerned with the abuse of power rather than with the use of secular courts as such. On the practical considerations, the Committee and the Synod were advised that the DTI had been consulted and had taken the view that employment tribunals should be well able to deal with claims from clergy and stipendiary lay ministers arising from dismissals for incapability. Such tribunals were already accustomed to dealing with organisations with a distinctive ethos, and they would not be called upon to decide questions of doctrine. By contrast, it would be impractical, and prohibitively expensive, to set up a system of Church tribunals and to ensure that its members acquired the necessary expertise in employment law.

40. A proposal that sub-section (8) should be revised to provide for the regulations to be subject to the affirmative resolution procedure in Parliament, rather than the negative resolution procedure, was rejected. Given that amending regulations made in the future would not necessarily be of major significance, and that any important changes would be fully debated in Synod, the Revision Committee considered that it would not be a good use of Parliamentary time to require affirmative resolution.

SECTION 3: DURATION OF APPOINTMENTS

41. This section describes the circumstances in which an office held under Common Tenure may lawfully be brought to an end. These may be summarised as follows:

· on the death, resignation or retirement of the office holder;

· where the office ceases to exist as a result of pastoral reorganisation (in which event the Regulations will provide for the payment of compensation);

· where the office holder is removed from office following disciplinary proceedings or under the capability procedure;

· where the office falls within one of the categories of fixed- or limited-term appointment prescribed by the Regulations and the term expires or is otherwise determined;

· where a licence is held in connection with a contract of employment (for example, as a hospital or prison chaplain) and that contract is terminated;

· where the office holder has been appointed as priest-in-charge during a vacancy in a benefice and that vacancy comes to an end on the appointment of a new incumbent (in which case the Regulations will provide for the payment of compensation).

42. One of the central purposes of the present legislation is to remove the present inequality of treatment between freeholders and licensed clergy as regards termination of office. The Amending Canon will remove the right of the bishop to terminate a licence summarily for any non-disciplinary cause. Once the Measure is in force, it will also no longer be possible to appoint an office holder on a fixed- or limited-term basis except as provided in the Regulations. Regulation 29 of the draft Regulations in the Annex specifies the following circumstances in which such an appointment may be made:

· where the post is created to cover another office holder's authorised absence from work (for example, on maternity or long-term sick leave);
· where the office holder is aged 70 or over and is occupying a part-time post (see paragraph 40 below as to provisions for retirement);
· where the office is designated as a training post - that is, where the post-holder is required to undertake initial ministerial training (usually for the first four years following ordination);
· where the office is subject to sponsorship funding - that is, where it is dependent wholly or partly on external funds, as described in regulation 29(4);
· where the office is designated as a probationary post, that is an appointment designed to facilitate the office holder's return to ministry where that person has not held ecclesiastical office for a year or more, or where he or she has left office following a capability procedure or disciplinary proceedings;
· where the office is created by a bishop's mission order under the Dioceses, Pastoral and Mission Measure 2007. Section 49(8) of the 2007 Measure provides that mission orders, which are intended to facilitate 'fresh expressions' of church, are to be of limited duration, initially not exceeding five years; or
· where the office is designated as a post held in conjunction with another office or employment (for example, where a residentiary canon in a cathedral also holds a post in the diocesan office), in which case the office may be terminated in the event of the other office or employment coming to an end.

Matters raised before the Revision Committee and the General Synod

43. At present, holders of freehold offices and team vicars are obliged under the Ecclesiastical Offices (Age Limit) Measure 1975 to retire when they reach the age of 70. Other office holders are not subject to any fixed retirement age, as bishops presently have the power to terminate their licence on notice or summarily. Section 3(10) of the Measure extends the retirement age of 70 to all office holders under Common Tenure, although there is provision in the Regulations, as described above, for those over 70 to be appointed to a part-time office on a fixed-term basis. A submission was made to the Revision Committee that office holders should have the right to ask to continue in the post which they held upon reaching retirement age, to reflect the position of employees under the Employment Equality (Age) Regulations 2006. The Committee rejected this submission, and the matter was not pursued in the Synod.

44. Though the position of priests-in-charge would be greatly improved under the Measure, a question was nevertheless raised as to whether the additional security they had been given was adequate. The Synod accepted that the position of priests-in-charge was much improved under these provisions, and that it would be impossible to give them greater security without thereby adversely affecting the rights of patrons. A priest-in-charge is appointed by the bishop under licence, to minister in a benefice during a period when the bishop has suspended the right of presentation to that benefice under section 67 of the Pastoral Measure 1983. At present, the licence of a priest-in-charge can be terminated summarily by the bishop at any time, and if the benefice ceases to exist as a result of pastoral reorganisation the priest-in-charge (unlike an incumbent) receives no compensation. Section 3(4) of the Measure permits the licence of a priest-in-charge to be terminated, but only when the vacancy comes to an end. This provision is necessary because, if there were no such power and the office of priest-in-charge were simply to continue, it would be impossible for an incumbent then to be appointed under the statutory appointment processes. In many cases the priest-in-charge is in fact appointed as the new incumbent, but where that does not happen and no suitable alternative post has been found at the time when the office comes to an end, the proposed Regulations provide for compensation, limited to one year's loss of office (see draft regulation 30). Priests-in-charge will also receive compensation on the same basis if the benefice is abolished under pastoral reorganisation. It was also noted that regulation 30 would introduce a provision whereby an incumbent could be appointed, through the normal appointment processes, where proposals for pastoral reorganisation were in place at the time of appointment, and if the office were then abolished within a specified period - not exceeding five years - compensation limited to one year's loss of office would be payable. This provision should significantly reduce the frequency with which bishops will need to exercise the right to suspend presentation.

SECTION 4 - PROVISION OF HOUSING FOR OFFICE HOLDERS

45. This section grants, for the first time, a legal right to holders of full-time stipendiary offices (and part-time office holders where the particulars of office specify that housing is included) to be provided with accommodation of a reasonable standard by or through the agency of a specified housing provider. Incumbents of benefices are excluded from this provision, because the Synod voted that they should continue to own the legal title to their parsonage house (see paragraphs 46-49 below).

46. Section 4(2) provides that the right to accommodation can be waived by the office holder or modified by agreement. An example of a situation where this might be appropriate would be where a married clergy couple, both of whom hold full-time stipendiary posts, agree to occupy the same house.

47. The specified housing providers are:

· in the case of an archbishop or diocesan bishop, the Church Commissioners;

· in the case of cathedral clergy, the cathedral Chapter; and

· in the case of other office holders, the Parsonages Board of the diocese ("the Parsonages Board").

48. The Commissioners and the Chapter already in practice provide housing for the relevant categories of clergy. Housing for other office holders is at present provided from a variety of sources - some by the Diocesan Board of Finance ("the DBF") either as diocesan glebe or as part of its corporate property and others by parochial church councils, local trusts or patrons. The Parsonages Board, which is either a committee of the DBF or a separate body corporate, already has the responsibility under the Repair of Benefice Buildings Measure 1972 for maintaining and repairing parsonages and making recommendations about their sale and replacement where necessary. This therefore seemed the most appropriate body to become the relevant housing provider in the case of office holders generally. The Parsonages Board is accordingly given power under the Measure to acquire and hold property for this purpose (section 6), but it also has the power to make arrangements with another housing provider (section 4(8)) or another person or body (section 5).

49. Detailed provisions as to the terms of occupation of accommodation provided under this section are proposed to be contained in regulations and will include a procedure for resolving disputes.

Matters raised before the Revision Committee and the General Synod

50. When it was introduced into the Synod, the Measure contained provisions transferring the legal title in parsonage houses to the Parsonages Board, and giving incumbents the same rights and responsibilities under this section as other office holders. This proposal proved controversial and the Revision Committee received a substantial number of representations opposing it. The objections (briefly summarised) were as follows:

· the proposed transfer of ownership was not necessary - the basic aims of the legislation could be achieved without it ;
· it was a centralising exercise that would upset the historic balance of power between the parish and the diocese, and loosen the ties between the local community and the Church;
· it would undermine the proper independence of the incumbent and hinder him or her from exercising a prophetic ministry;
· it would materially alter the nature of the 'living' to which the patron presented the incumbent;
· it would remove a symbol - which had considerable significance for some - of the rootedness of the Church of England in its local context; and
· it could put parsonages at risk of becoming available to general creditors in the event of a DBF becoming insolvent.

51. The Revision Committee recognised the strength of feeling that underlay the opposition, but the majority of its members took the view that many of the concerns were based on mistaken perceptions. None of the objections was, in the view of the majority of the Committee, strong enough to outweigh the case for an approach based on fairness and parity between office holders in the terms on which they occupied their accommodation.

52. The Committee nonetheless acknowledged that the concerns about the vulnerability of parsonages to creditors of a DBF had some force, and it was not persuaded that the provisions of the legislation as originally drafted were adequate to address this. Therefore the Measure, when returned to the Synod at Revision stage, contained provisions requiring all Parsonages Boards to be established as independent charities, separate from the DBF, with clearly defined purposes. This proposal prompted further controversy, in that it was unwelcome to dioceses who were seeking to streamline their administrative structures.

53. At the Revision stage in full Synod, an amendment removing the provision for the transfer of parsonage houses to the Parsonages Board was carried in all three Houses. There was therefore no longer any need for Parsonages Boards to be established as independent charities, and the Synod agreed that this provision should be withdrawn.

SECTION 5 - PROVISION OF HOUSING BY PARSONAGES BOARDS AND OTHER RELEVANT HOUSING PROVIDERS

54. Section 5(1) confers a duty on the Parsonages Board to oversee the provision of housing for all office holders in the diocese for whom it is the relevant housing provider and to ensure that suitable housing is provided for all office holders who have the right to such provision under section 4. Section 5(2) confers on the Parsonages Board and other relevant housing providers a power to provide housing for office holders within their respective remits who do not have such an entitlement, so giving flexibility to meet particular needs.

55. No matters of significance were raised before the Revision Committee or the Synod in relation to this section.

SECTION 6 - POWERS TO ACQUIRE AND DISPOSE OF HOUSES OF RESIDENCE AND CARRYING OUT OF WORKS

56. Section 6(1) confers upon relevant housing providers the power to acquire land or buildings for the purpose of housing office holders, and to dispose of property no longer required for that purpose.

57. Section 6(2) gives relevant housing providers the power to carry out works of improvement, repair, demolition, reduction, enlargement or alteration to such property. In the case of repairs, section 6(3) provides that there must be prior consultation with the office holder: other such works fall within the definition of a 'regulated transaction' in section 7.

58. Section 6(4) excludes parsonage houses from the ambit of this section and section 7. In consequence of the decision of the Synod that parsonages should not be transferred to the Parsonages Board, their acquisition, disposal and maintenance will continue to be covered by the existing provisions in the Parsonages Measure 1938 and the Repair of Benefice Buildings Measure 1972.

59. No matters of significance were raised before the Revision Committee or the Synod in relation to this section.

SECTION 7 - TRANSACTIONS BY RELEVANT HOUSING PROVIDERS RELATING TO HOUSES OF RESIDENCE

60. This section provides that, where a relevant housing provider proposes to carry out certain transactions (specified in section 7(1)), that provider must first serve notice on the interested parties specified in section 7(2), who are given a right to object. Details of how this right is to be exercised and the objection determined are set out in draft regulation 16. Office holders other than incumbents and members of team ministries do not at present have any voice in decisions relating to the house which they occupy, and this provision gives them, for the first time, the right to object and to have that objection heard by an independent body.

61. This section also provides that consent must be obtained in the case of a disposal, purchase or exchange of property where the other party is a 'connected person' as defined in section 7(6) or a trustee for or nominee of such a person, or where the transaction is made at an undervalue. Application for consent is made to the Commissioners except where the Commissioners are themselves the relevant housing provider, in which case the consenting body is the Archbishops' Council. In the case of cathedral housing, there is already a requirement to obtain the Commissioners' consent to all acquisitions and disposals, and this is preserved in section 7(7).

Matters raised before the Revision Committee and the General Synod