MATTERS RAISED BEFORE THE REVISION COMMITTEE
AND THE GENERAL SYNOD
A. Revision Committee Stage
Section 1: Misconduct
Organisations that are incompatible with
the Church's teaching on race equality - s.1(3)
88. An archdeacon proposed that section 1(3)
should be removed from the draft Measure. He questioned the need
for it on the basis that clergy membership of undesirable organisations
was not a practical problem for the Church, and suggested that
if section 1(3) were retained the House of Bishops could come
under considerable pressure from campaigning groups seeking to
have certain organisations declared to be incompatible. He also
feared that publicity would be generated for, and welcomed by,
any such organisations, and argued that that was not a constructive
means of combating racist behaviour.
89. A lay member also questioned whether the
provision in section 1(3) was needed. He argued that in February
2009 the General Synod had sent a strong signal that racism would
not be tolerated in the Church, because it was inconsistent with
Christian discipleship. He went on to suggest that if criminal
proceedings were successfully brought against a cleric under the
Racial and Religious Hatred Act 2006, disciplinary procedures
could be triggered under the existing provisions of the 2003 Measure.
90. The Steering Committee opposed the proposal
that section 1(3) be removed from the Measure, on the basis that
the General Synod had made a policy decision in February 2009
when it approved the private member's motion requiring provision
of this kind to be made, and the Steering Committee believed it
should seek to implement that policy. The Revision Committee
agreed with the Steering Committee.
91. A member of the House of Clergy proposed
that the provision enabling the House of Bishops to make declarations
about particular organisations should be omitted, and that instead
the House should be required to issue guidelines on racial equality
to help clergy know what they could or could not do. The Revision
Committee was advised that such an amendment would not be compatible
with Article 10 (freedom of expression) and Article 11 (freedom
of assembly and association) of the Convention because it would
remove the element of certainty, and would substitute merely guidelines.
A cleric would not therefore know if it were misconduct to promote,
support or belong to a particular organisation until a disciplinary
tribunal had ruled as to whether or not the organisation complied
with the guidelines. In the light of this advice, the member
withdrew his proposed amendment.
92. At First Consideration Stage section 1(3)
of the Measure provided no mechanism for a declaration by the
House of Bishops to be referred to the General Synod for debate
and approval. It provided for any declaration by the House to
be passed by a simple majority. A lay member, whilst agreeing
that it was appropriate that the House of Bishops should initially
decide under section 1(3) which groups or organisations were incompatible
with the Church's teaching on racial equality, submitted that
any such decision should require a two-thirds majority in the
House, because it would be creating an exception to the general
principle in section 8(3) of the 2003 Measure that no proceedings
for unbecoming conduct could be taken in respect of lawful political
opinions or activities. He proposed a further safeguard that
any decision by the House of Bishops to proscribe a body should
be ratified by the other two Houses of the General Synod, but
ratification could be deemed to be given unless within 28 days
of the declaration by the House of Bishops 10 members of either
of the other two Houses of the General Synod called for a debate.
The lay member proposed that all clergy in active ministry should
be notified by their respective dioceses when the House of Bishops
made a declaration under section 1(3).
93. A member of the House of Clergy supported
the proposal that a declaration of the House of Bishops under
section 1(3) should be subject to an approval process involving
the General Synod. He too submitted that approval should be deemed
unless Synod members wished to debate the proposed declaration.
He further submitted that clergy should be given a period of
grace following a declaration within which to sever their links
with any proscribed organisation, otherwise they could be unwittingly
guilty of misconduct.
94. The Steering Committee was sympathetic to
the proposal that the General Synod should be involved in approving
the declarations of incompatibility made by the House of Bishops,
and it was mindful that section 1(3) would affect rights granted
under Articles 10 and 11 of the Convention. The Steering Committee
was therefore in favour of the General Synod having a role to
play in approving declarations of incompatibility under section
1(3), and noted that any approval process would necessarily result
in a period during which individual clergy could take action to
distance themselves from any incompatible organisation.
95. The Revision Committee accepted the proposal
that a declaration by the House of Bishops under section 1(3)
should require a two-thirds majority.
96. The Revision Committee also agreed with the
Steering Committee that a declaration by the House of Bishops
under section 1(3) should be subject to an approval process involving
the General Synod before it could come into force. The Revision
Committee further agreed that any approval process would apply
not only when a declaration of incompatibility was made but also
when any such declaration was revoked by the House of Bishops.
97. The Revision Committee accepted the submissions
that Synodical approval could be deemed to be given unless a debate
was called for by a given number of the members of Synod. It
agreed that the number of Synod members required to call for a
debate should be 25, and that requests for a debate should be
made in writing to the Clerk to the Synod in accordance with the
requirements of Standing Orders.
98. The Revision Committee considered whether
Synodical approval following debate should be by the whole Synod
or by the Houses of Clergy and Laity meeting separately. A debate
in the whole Synod would enable members of the House of Bishops
to take part and explain the House's rationale for the declaration.
The Revision Committee therefore agreed that it would be more
appropriate for the whole Synod to debate an approval motion,
so that any contentious declarations would consequently be endorsed
by Synod as a whole.
99. The Revision Committee rejected the submission
that all clergy in active ministry should be notified of a declaration
by the House of Bishops under section 1(3). The Revision Committee
believed that a declaration would receive considerable publicity,
especially once the item appeared in the agenda for a group of
sessions. Furthermore, General Synod business was published on
the Church of England website and this particular business would,
no doubt, receive attention from the national press.
100. The Revision Committee also rejected the
proposal that clergy should be given a period of grace to sever
their links with an organisation once it had been declared to
be incompatible with the Church's teaching on racial equality.
There would be sufficient time during the declaration and approval
process for clergy to consider their position and to withdraw
from such organisations. Furthermore, once a declaration under
section 1(3) of the Measure came into effect a member of the clergy
who was involved with a proscribed organisation would not automatically
be disciplined - a complaint would have to be made first.
Section 3: Right of appeal
Obtaining leave to appeal
101. A member of the House of Clergy proposed
that section 3(3), which introduces a requirement to obtain leave
to appeal, be withdrawn. He submitted that there should always
be a right to appeal, and that a right of appeal was consistent
with the recommendations of "Under Authority" (GS
1217)[21].
102. The Steering Committee opposed the proposal
that section 3(3) be deleted. It argued that section 3(3) did
not remove the right of appeal, because every clergy respondent
would still be entitled to apply for leave to appeal, and if either
the Dean of the Arches and Auditor or the other judge hearing
the application believed there was a real prospect of success
(which was a relatively low threshold to satisfy) then the appeal
would go ahead. If an appeal had no realistic prospect of success
then the Steering Committee believed it would be inappropriate
for it to be pursued to a final hearing. Whilst an unmeritorious
appeal remained unresolved any parish concerned could be adversely
affected by the consequent delay and uncertainty.
103. The Revision Committee noted that in the
consultation carried out by the Clergy Discipline Commission in
2008-09 there was widespread support for the proposal that leave
to appeal should be required for all appeals. It considered that
prolonging cases whilst unmeritorious appeals were pursued could
be unfair on others affected by the complaint, and it was important
to ensure justice was provided for all, not just the respondent.
The Revision Committee noted that in secular court proceedings
leave to appeal was usually required before an appeal could be
pursued. The Revision Committee therefore rejected the proposal
for the removal of section 3(3).
104. The member of the House of Clergy further
submitted that any application for leave to appeal should be determined
on paper by each of the five judges of the appellate court (namely
the Court of Arches or the Chancery Court of York, as the case
may be) and that leave to appeal should be granted if a majority
of the judges were in favour. He argued in the alternative that
if two judges sitting together were to determine an application
for leave to appeal, then the second judge sitting with the Dean
of Arches and Auditor should always be a clerk in Holy Orders,
since the ministry and livelihood of a member of the clergy would
be at stake.
105. The Steering Committee opposed each of these
proposals. It considered that a member of the clergy wishing
to appeal would be more likely to secure leave to appeal from
one of two judges than from three out of five, and it considered
that a five-judge court would not be able to function satisfactorily
if each judge considered the application alone. The Steering
Committee also believed that it was appropriate to hear the voice
of the laity in an application by a respondent cleric for leave
to appeal. The Revision Committee agreed with the Steering Committee
and rejected the proposed amendments.
106. A lay member proposed that section 3(3)
should be amended to provide specifically as to what the decision
of the court would be on an application for leave to appeal where
the two judges disagreed. He argued that a new sub-section was
required in section 3(3) to provide that: (a) where one judge
held that leave should be given without limit but the other judge
considered that only permission limited to certain issues was
appropriate, the appeal should proceed without limitation; (b)
where one judge held that leave should be given limited to certain
issues but the other judge refused to grant leave to appeal, the
appeal would proceed on the issues as limited by the first judge;
and (c) where both judges wished to limit the issues in the appeal
but did not agree as to which issues they should be, the appeal
would proceed in respect of each issue identified by either judge.
107. The Revision Committee was advised that
the amendment was otiose, and that section 3(3) already achieved
what the lay member was seeking. Under the new section 20(1C),
to be inserted by section 3(3), the court could direct
that the issues to be heard on the appeal be limited in such way
as the court may specify. Since the approval of only one judge
was required for leave to appeal any decision made by the court
(whether giving unlimited or limited leave to appeal) would necessarily
be that which was most favourable to the appellant. The Revision
Committee was advised that the draft legislation should be kept
as uncomplicated as possible. The Revision Committee accepted
that advice and rejected the proposed amendment.
Appointment of judges to hear an appeal and
transitional matters
108. A member of the House of Clergy proposed
that the number of judges in the Court of Arches or Chancery Court
of York (as the case may be) to hear a substantive appeal should
be reduced from five to three, unless the appeal involved new
evidence. He submitted that a five-judge court was cumbersome.
The Steering Committee opposed this proposal.
109. The Revision Committee noted that the Clergy
Discipline Commission had concluded following its consultation
in 2008-9 that it was not appropriate or desirable for a three-judge
court to be able to overturn a decision of a tribunal consisting
of five members. It would be particularly undesirable if the
court were split two judges to one but the tribunal had been unanimous
the other way. The Revision Committee rejected the proposed amendment.
110. A lay member proposed that the transitional
provision applying section 3(3) to appeals brought before section
3(3) came into force should be amended to apply to complaints
made before section 3(3) came into force. He submitted that it
would otherwise be unfair because the new provisions would remove
an unfettered procedural right to appeal for any cleric in respect
of whom a complaint had already been made. The Steering Committee
supported this proposal, and the Revision Committee accepted it.
Amendments to section 3 proposed by the Steering
Committee
111. The Steering Committee had noted observations
made by the Dean of the Arches and Auditor at First Consideration
Stage of the Measure in relation to section 3. The Dean had spoken
in favour of section 3 but wished to see it amended in three respects.
First, he suggested that leave to appeal should be capable of
being granted not just by the appellate court but also by the
bishop's disciplinary tribunal at first instance. This would
then accord with the usual practice in secular civil courts.
Secondly, the Dean had suggested that the new section 20(5) to
be inserted by section 3(4), enabling a cleric to make representations
as to the suitability of a person to be appointed to the appellate
court to hear an appeal, should be extended to cover the second
judge sitting with the Dean to consider an application for leave
to appeal. Thirdly, the Dean recommended that the second person
appointed to sit with the Dean should not be a permanent appointment
but, like the judges of the full court, be appointed for the purposes
of a particular application.
112. The Steering Committee considered that there
was logic and consistency in all three points raised by the Dean
and therefore proposed amendments to the Measure to reflect them.
113. The Revision Committee agreed with the Steering
Committee and accepted each of the Steering Committee's proposed
amendments to section 3.
Section 4: Convictions and matrimonial orders,
etc: priests and deacons
Barred lists under the Safeguarding Vulnerable
Groups Act 2006
114. Without making any specific proposal to
amend the proposed power in section 4(2)(c) for a bishop to remove
a barred cleric from office, a lay member drew the Revision Committee's
attention to his concern about the provision. He was concerned
that a member of the clergy who had not been convicted of a criminal
offence could nonetheless be put on a barred list under the provisions
of the Safeguarding Vulnerable Groups Act 2006, and thereafter
be subject to discipline.
115. The Revision Committee was advised that,
under the procedures of the Safeguarding Vulnerable Groups Act,
before any decision is taken by the Independent Safeguarding Authority
to place a person on a barred list, that person has the right
to make representations, and if included in a barred list, is
entitled to appeal to a statutory tribunal on the grounds that
the Independent Safeguarding Authority made a mistake on any point
of law or any finding of fact upon which it had relied. The Revision
Committee was also advised that if a cleric were placed on a barred
list by the Independent Safeguarding Authority, the bishop would
have a discretion whether to exercise any disciplinary powers
in all the circumstances of the case having consulted the President
of Tribunals and given the priest an opportunity to make representations.
Furthermore, a cleric would have the right to request the archbishop
to review the bishop's decision. The Revision Committee was satisfied
that there were therefore sufficient safeguards for a cleric and
it decided not to make any amendments to section 4(2)(c).
Matrimonial orders and section 30(1)(b) of
the 2003 Measure
116. Submissions were made from two members (one
lay, one clergy) that the bishop's power to impose a penalty under
section 30(1)(b) of the 2003 Measure upon termination of a marriage
on the grounds of a cleric's adultery, desertion or unreasonable
behaviour, should be abolished. It was submitted that, in practice,
allegations in a petition for divorce were often not contested
so that a swift divorce with minimum expense and acrimony could
be granted - especially where the petition was presented on the
grounds of unreasonable behaviour - and that it was unfair on
clergy if they were then subsequently liable to a disciplinary
penalty based on the unreasonable behaviour relied upon in the
divorce proceedings.
117. One of the members submitted, as an alternative,
that if section 30(1)(b) in the 2003 Measure were retained, there
should be an obligation on a bishop not just to consult the President
on penalty but to follow the view of the President of Tribunals
unless there was a good reason not to do so. The proposal was
made on the basis that this would lead to greater consistency
among bishops.
118. The Steering Committee disagreed with the
submissions that section 30(1)(b) of the 2003 Measure should be
repealed. It was satisfied that paragraph 171 of the Code of
Practice gave sound advice and realistic guidance to a bishop
who was considering exercising his powers of discipline following
a marital breakdown, especially following a petition based on
unreasonable behaviour.[22]
The Revision Committee agreed with the Steering Committee, and
rejected the proposal to remove section 30(1)(b) altogether.
The Revision Committee also rejected the submission that bishops
should be required to follow the view of the President of Tribunals
as to penalty when acting under section 30(1)(b) of the 2003 Measure.
The Revision Committee bore in mind the fundamental principle
in section 1 of the 2003 Measure that it was the bishop who was
responsible for administering discipline, and it was satisfied
that consistency was achieved under the present procedure whereby
the President was consulted by a bishop. Additionally, any decision
by the bishop to impose a penalty under section 30(1)(b) could
be reviewed by the archbishop on the application of the cleric
concerned.
Section 5: Convictions and matrimonial orders,
etc.: bishops and archbishops
119. The Revision Committee considered similar
submissions with regard to section 5 as were made in respect of
section 4, and came to the same conclusions.
Section 6: Suspension of priest or deacon
120. A lay member proposed that the new power
of suspension in section 6(2) should be widened to include any
conviction where a sentence of imprisonment was passed, since
the Measure at First Consideration Stage did not enable a bishop
to suspend where a prison sentence was imposed on a member of
the clergy following conviction for a summary offence. The Revision
Committee accepted the proposal.
121. The Steering Committee proposed that section
6(4) be amended so that the bishop would have power to renew a
suspension that was imposed following a criminal conviction, or
where the cleric had been entered on a barred list under the Safeguarding
Vulnerable Groups Act. Although the original suspension could
last for up to three months it was foreseeable that there could
be cases where the bishop was not able to take action under section
30(1) of the 2003 Measure within that time frame - for example
where the respondent cleric was ill for a time so the process
was delayed. The Revision Committee noted the safeguard that
the cleric would have the right to appeal to the President of
Tribunals against the renewal of any suspension and accepted the
Steering Committee's proposed amendment.
B. Final Drafting Stage
122. At Final Drafting Stage, in addition to
a number of technical drafting amendments which did not change
the substance of the Measure, two special amendments were moved
on behalf of the Steering Committee.
123. The first special amendment related to section
1(3) of the Measure and the proposed new section 8(8) to be added
to the 2003 Measure. The Revision Committee had amended the Measure
by requiring a two-thirds majority in the House of Bishops for
a declaration of incompatibility with the Church's teachings on
racial equality, and had given the General Synod an opportunity
to debate and endorse the House's proposed declaration. The Revision
Committee had concluded that a similar process should apply when
a declaration was revoked.
124. The Steering Committee proposed that the
requirement for a two-thirds majority in the House of Bishops
to revoke a declaration should be removed, whilst leaving in place
the provision enabling the General Synod to debate any such proposed
revocation. In proposing this amendment the Steering Committee
was mindful of the general principle in section 8(3) of the 2003
Measure that no proceedings may be taken in respect of lawful
political opinions or activities. Whilst there was a case for
a two-thirds majority to make a declaration of incompatibility,
the Steering Committee considered that it would be inappropriate
for restrictions imposed on clergy under the new section 8(4)
of the 2003 Measure to continue to have force if a simple majority
in the House of Bishops was no longer in favour of the restrictions.
The amendment was carried.
125. The other special amendment was concerned
with section 4(2) and the proposed new section 30(1)(a) of the
2003 Measure. As drafted, section 4(2) would have amended section
30(1)(a) of the 2003 Measure by enabling a bishop to impose a
penalty upon conviction in the United Kingdom for an offence other
than a summary offence where the cleric concerned did not receive
a prison sentence, and upon conviction for an equivalent offence
outside the United Kingdom. The special amendment on behalf of
the Steering Committee restricted the new provision in section
30(1)(a) of the 2003 Measure so that the bishop could impose discipline
upon a cleric if convicted of such an offence only if it was committed
in England or Wales. There were two reasons for proposing the
amendment: first, it would otherwise have been problematic to
determine which offences committed outside the United Kingdom
were equivalent offences for these purposes; and second, because
the concept of summary offence is not the same throughout the
United Kingdom, clerics could have been treated differently for
similar offences depending on where in the United Kingdom the
offence was committed. This amendment was also carried.
On behalf of the Legislative Committee
P.N.E. Bruinvels
Canon Peter N. E. Bruinvels
Deputy Chairman
October 2012
21 "Under Authority" was a report
published in 1996 by a working party of the Synod that reviewed
clergy discipline, and called for fresh legislation. This led
to the enactment of the Clergy Discipline Measure 2003. Back
22
Paragraph 171 of the Code of Practice reads: "Removal
from office or prohibition will not automatically result from
a decree absolute of divorce or decree of judicial separation
involving adultery, unreasonable behaviour or desertion. Most
decrees absolute and decrees of judicial separation are granted
as a result of uncontested proceedings on paper so that the evidence
in support of the petition is not questioned or tested, although
it is accepted by the court. Furthermore, some respondents, recognising
that their marriage has broken down irretrievably and could be
dissolved against their will in any event after a period of 5
years separation, may choose not to contest allegations in a divorce
petition, even if not accepted - this avoids legal expense and
argument over sensitive and personal issues. The bishop should
bear this in mind as a factor when considering what disciplinary
action to take." Back
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