Seal of confessional: its future in the CofE

In our post CofE to axe seal of confessional? we reported the story in The Mail on Sunday which quoted “a Church of England spokesman” as saying:

“‘The guidelines for clergy are being considered for debate in November at General Synod. The Australian model is one of a number of options which will be considered as part of the on-going discussions”.

We noted the Private Member’s Motion (PMM) that had been tabled by Revd Simon Cawdell of Hereford

“PROVISO TO CANON 113 (July 2014)

That this Synod call on the Business Committee to bring forward legislation amending the proviso to Canon 113 of the Code of 1603 so that a minister who, in the exercise of the ministry of absolution, receives a confession of a serious criminal offence (including in particular a sexual offence involving a child or vulnerable adult) is not required to keep the confession confidential,”

which had attracted 4 signatures[1], but in view of on-going government initiatives on safeguarding &c, suggested that the issue was likely to be considered in detail by the Church, although any changes might take some time to agree and implement.  Whilst Simon Cawdell’s PMM has not been chosen for debate at the November General Synod, other initiatives are in progress within the Church.

At its meeting on 30th September the Archbishops’ Council considered the proposed revision of the Guidelines for the Professional Conduct of the Clergy, and what advice to offer to the Convocations on its treatment of the ministry of absolution (i.e. confession) for which provision is made in Canon B 29, GS Misc 1085: the Annex to this paper sets out the background to the revision process, and states, [emphasis in original]:

“The Guidelines are grounded in the Ordinal and were drafted by clergy for clergy, to promote best practice in the conduct of ministry. Although drafted with legal advice, they are guidelines, not a legal code. It was realised eleven years ago that they would ‘…need to respond to change while holding fast to the basic principles which underlie them.’”

The Working Party which is preparing the revised draft of the Guidelines on behalf of the Convocations proposed that the section dealing with ‘Reconciliation’ should describe the current legal position in relation to the formal ministry of absolution. GS  Misc 1085 states:

“The effect of the proviso is that, where the formal ministry of absolution as described in Canon B 29 is sought, if the penitent makes a confession with the intention of receiving absolution, the priest is forbidden to reveal or make known to any person what has been confessed. That requirement of absolute confidentiality applies even after the death of the penitent”.

The current legal position is summarized in the draft Guidelines for the Professional Conduct of the Clergy, (GS 1970), which state, inter alia:

3.2 Where it is freely sought by a penitent, a priest may exercise the formal ministry of absolution as described in Canon B29.

3.3 The ministry of absolution may only be exercised by the minister who has the cure of souls of the place in question or by another priest with that minister’s permission, or by a priest who is authorised by law to exercise ministry in that place without being subject to the control of the minister who has the cure of souls (e.g. a priest who is licensed to exercise ministry under the Extra-Parochial Ministry Measure 1967). This rule is subject to an exception that permits a priest to exercise the ministry of absolution anywhere in respect of a person who is in danger of death or if there is “some urgent or weighty cause” (See Canon B 29.4)

3.4 Before undertaking the ministry of absolution a priest should receive appropriate training and be familiar with any guidelines published by the House of Bishops that relate to the exercise of this ministry.

3.5 A clear distinction must be made between pastoral conversations and a confession that is made in the context of the ministry of absolution. Where such a confession is to be made both the priest and the penitent should be clear that that is the case. If a penitent makes a confession with the intention of receiving absolution the priest is forbidden (by the unrepealed Proviso to Canon 113 of the Code of 1603) to reveal or make known to any person what has been confessed. This requirement of absolute confidentiality applies even after the death of the penitent.

3.6 If, in the context of such a confession, the penitent discloses that he or she has committed a serious crime, such as the abuse of children or vulnerable adults, the priest must require the penitent to report his or her conduct to the police or other statutory authority. If the penitent refuses to do so the priest should withhold absolution.

Future developments

Whilst recognizing the well-established place of the ministry of absolution in the life of the CofE, the Council also acknowledged the responsibility of the Church to protect children and vulnerable adults from harm, and the force of the argument that the legal framework of the Church should be such as to enable those who present a risk to children and vulnerable adults to be identified.

The Council therefore decided to commission further theological and legal work to enable it to review, in consultation with the House of Bishops, the purpose and effect of the un-repealed proviso to the Canon of 1603, with a view to enabling the Synod to decide whether it wished to legislate to amend it. At its November meeting, the Council will consider the terms of that review and who should conduct it, with a view to putting their proposals in those respects to the House of Bishops when it meets in December.

On the afternoon of 17 November, General Synod is to debate a motion to take note of the draft Guidelines for the Professional Conduct of the Clergy, (GS 1970). Responsibility for approving any final version will rest with the Convocations following the ‘take note’ Synod debate.

_____________________________

[1] The list of PMMs on the CofE web page is correct as of 16 July 2014.

 

6 thoughts on “Seal of confessional: its future in the CofE

  1. Have there been any occasions since 1603 when a Church of England priest has either
    (a) been censured for revealing (either in court or otherwise) what was said in the context of the confessional ; or
    (b) been compelled by the courts to reveal what was said in the context of the confessional (and either complied under duress or refused to do so despite the penalties)?

  2. A very pertinent question given the interest in our recent posts on the subject: whilst there is a paucity of post-1603 censures &c on Anglican clergy in the secular and ecclesiastical courts, there are strong concerns in Roman Catholic circles where a priest who breaks the seal is subject to automatic excommunication.
    As Frank noted in Articles 8 & 9 and the “seal of the confessional”: are communications between clergy and penitents privileged? Rupert Bursell QC has analysed the issue of minister-penitent confidentiality at some length in ‘The Seal of the Confessional’ in (1990) 2 Ecclesiastical Law Journal pp 84–109. Bursell’s thorough review of the case law reveals that there are very few examples of action against Anglican clergy: some cases refer to Roman Catholics; other to conversation with priests which do not fall within the ambit of “sacramental confession” (and therefore within the scope of the Canon); and others which are badly reported, and therefore unreliable.
    He states:
    “It seems that another claim to the seal of the confessional was made in an unreported case in 1905. A metropolitan police magistrate committed an Anglican clergyman to prison for seven days under section 22 of the Metropolitan Police Courts Act, 1839, for a “refusal to state what had been disclosed to him in confession”. There is insufficient information, however, upon which to discover whether the clergyman’s claim was properly founded in the first place or whether there had been any waiver by whoever made the disclosure.
    In no subsequent English case has the seal of the confessional been in issue, although on a number of occasions it has been the subject of adverse obiter dicta. On none of these occasions has the matter been argued and on none has any detailed reasoning been given.”

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  4. May I make three observations:
    1] Didn’t Bursell in that ELJ article say something along the lines that the Children’s Act section 1, ‘the interests of the child are paramount’ overrides other more junior legislation, including therefore the canon of 1603.
    2] In any event, on these and pastoral grounds, I have always prefaced any confidential / confessional conversations with an explanation that confidentiality is absolute with the exception of anything involving abuse or endangering a child.
    3] surely it is good practice for the clergyperson, whatever the official the official policy ends up being, outlines the nature and limits of confidentiality in any confessional / pastoral encounter.

    • I would be glad to know the boundaries of confidentiality this priest was willing to respect if I were a penitent.

      But he seems to misunderstand this sacrament as does the Archbishop of York. In any case this has absolutely nothing to do with the systematic failure of churches to protect children nor the institutional failures of dealing with those who were accused. It even suggests a rather desperate attempt at smoke and mirrors to scapegoat confession when there is no evidence that a change in the law would or could protect a single child now or back then.

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