Section 2 of the Bishops and Priests (Consecration and Ordination of Women) Measure 2014 modifies Schedule 6 to the Equality Act 2010, (‘the Equality Act’), with the addition at the end—

“Bishops

4. The office of diocesan or suffragan bishop is not a public office.”.

Whereas paragraph 1 of Schedule 6 to the Act concerns those offices or posts which “are not personal or public offices insofar as one or more of the provisions mentioned in sub-paragraph (2)” [1], the inserted paragraph 4 is of general application within the Act and reflects  paragraphs 2 (Political Offices) and 3 (Honours &c).

Whilst it was clause 2 of the draft Measure, the necessity for and implications of the provision were considered at each stage of its passage through the synodical and parliamentary procedures. However, though Royal Assent has been given, there remains an underlying uncertainty in some quarters as to how the Church of England will rely upon section 2 of the Measure in relation to equality law other than in its application to women in the episcopate HC Hansard 30 Oct 2014 : Vol 587 (53) Col 391. It is therefore pertinent to consider the background to section 2, its future application and the broader role of CofE bishops when exercising public functions, including their position in relation to employment provisions and the common law.

Bishops and Priests (Consecration and Ordination of Women) Measure 2014

The Note by the Legal Advisers, GS Misc 1068, provides a summary of the Church’s deliberations on clause 2. Paragraph 2 of the Note states:

“[t]he background to, and the effect of, clause 2 was explained in paragraphs 121 – 129 of Women in the Episcopate – New Legislative Proposals: Report from the House of Bishops (GS 1886) and paragraphs 20 – 23 of the Report of the Steering Committee (GS 1924).

Paragraph 3 summarizes the position as:

• under section 50 of the Equality Act it is unlawful for a person with the power to make an appointment to a “public office” to discriminate either in making the appointment or in the terms on which such an appointment is offered.
• a “public office” for this purpose includes one “made on the recommendation of or subject to the approval of a member of the executive”,

adding that Government officials shared the view of the Legal Office that [emphasis in original]:

• it was uncertain whether that the post-2008 arrangements for appointing bishops were such that a diocesan bishopric falls within the definition of “public office” within the Equality Act; and
• if diocesan bishoprics did fall within this definition, it would not be lawful for the Church of England to create the expectation (even though it were not a legal requirement) that diocesan bishops would, in certain circumstances, invite other bishops to exercise ministry in parishes which, on grounds of theological conviction, did not wish to receive episcopal oversight from a woman.

Consequently, for legal certainty it was considered that the draft Measure would need to include some clarificatory provision to make clear that the office of diocesan or suffragan bishop is not subject to sections 50 and 51 of the Equality Act (which are concerned with appointments to certain categories of public office). Following discussion with and the agreement of the then Prime Minister’s Appointments Secretary and the Government Equality Office, clause 2 was included in the draft Measure for this purpose. The issues raised were dealt with in further detail by GS 1068, which clarified a number of important issues:

• Clause 2 states what is believed to be the current legal position to be, and therefore was not considered to not deprive anyone of any protection from unlawful discrimination, whether in relation to gender or any other of the protected characteristics (age, disability, marital status, sexual orientation etc.) which they currently enjoy [11].
• Clause 2 was not intended to address concerns about discrimination in the appointment process, but was about discrimination in relation to a person who is to be or who has actually been appointed to a public office. Specifically, the exception in Schedule 9 of the Equality Act would not allow a woman to be appointed a diocesan bishop on the understanding that, in relation to certain parishes, she would refrain from carrying out certain functions herself on account of her sex [14].
• The effect of clause 2 will not be to put the Church of England in a special position, but in relation to possible discrimination claims it will be in the same position vis-à-vis the Equality Act as all other denominations and faiths where senior appointments are concerned [16] [2] .
• Clause 2 is concerned only with the definition of “public office” that has been specifically formulated for the purposes of the Equality Act, and not whether the person holding office has an official public role or with the concept of “public office” in any more general sense in which the term might be used. It is concerned solely with the manner in which the appointment to the office is made and is dependent on the government or Parliament having a particular role in the appointment [17].
• In particular, clause 2 will not have any impact upon the questions as to whether, in relation to the exercise of any of their functions, bishops are susceptible to judicial review or constitute “public authorities” for the purposes of the Human Rights Act 1998 [18].

Equality Act 2010

With regard to the general applicability of section 2 of the Measure within the Equality Act, in response to a question from Baroness Howe, the Archbishop of Canterbury stated, [HL Hansard, 14 Oct 2014, Vol 756(38) Col 186], [emphasis added]:

“Clause 2, referring to the Equality Act, is not designed to facilitate discrimination in relation to any protected characteristic. It was put in place in particular with this characteristic in mind, but there would have been no logic in providing that episcopal posts were public offices for one equality but not for another—you would simply get in a muddle. The assurance that I can give is that already a large number of clergy posts in the Church of England are not within the terms of the Equality Act. As a matter of policy, the House of Bishops has advised that those in parochial appointments should act as though the Act applied. This change is not a cloak for discrimination on sexuality, marital status, marital history or, for that matter, age.”

With regard to a bishop’s role in the issue of a Licence or ‘Permission to Officiate’, (PTO), which may be necessary for a priest to take up a position with a non-church employer, e.g. a hospital chaplain, these do not appear to fall within the ambit of “relevant qualifications” within section 97 of the Equality Act.

Misconduct in public office

Readers will recall that in our 3 August post “Outing” gay bishops and Article 8 ECHR, we noted that the former Bishop of Gloucester, Peter Ball, had recently been charged not only with two counts of indecent assault but also with misconduct in public office – and all three offences relate to his time as suffragan Bishop of Lewes, not to his time as Bishop of Gloucester. The CPS Press Release of 27 March 2014 stated:

“[t]he misconduct alleged is that he misused his position and authority to manipulate and prevail upon others for his own sexual gratification. During this time Mr Ball was serving as a Bishop in the Church of England.”

Misconduct in public office is an offence at common law triable only on indictment and carrying a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office. CPS Guidance indicates that the Court of Appeal has made it clear that the offence should be strictly confined, a fact borne out by statistics [3] within House of Commons Standard Note: SN/PC/04909. However, with regard to the definition of a “public officer”, the Guidance states:

“[t]he courts have been reluctant to provide a detailed definition of a public officer. The case-law contains an element of circularity, in that the cases tend to define a public officer as a person who carries out a public duty or has an office of trust. What may constitute a public duty or an office of trust must therefore be inferred from the facts of particular cases.”

In our post we suggested that “if a suffragan bishop were indeed a “public officer” for the purposes of a misconduct charge, then maybe his actions would be regarded as of sufficient public interest to override the protection of Article 8”, although it remains to be seen as to whether or not the charge against Ball will ever come to trial.

Comment

It is clear from the above that the terms “public office” has a number of meanings in law and that for some of them there is a degree of uncertainty. With regard to clause 2 (now section 2), however, the background note GS Misc 1068 and the Archbishop’s assurances to the House of Lords [186] clarify the Church’s stated intention that:

“Clause 2, referring to the Equality Act, is not designed to facilitate discrimination in relation to any protected characteristic … This change is not a cloak for discrimination on [grounds of] sexuality, marital status, marital history or, for that matter, age.”

Whether or not a bishop is a public official for the purposes of the criminal law, as opposed to the Equality Act 2010, remains to be seen.

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[1] viz. (a) section 39 (employment); (b) section 41 (contract work); (c) section 44 (partnerships); (d) section 45 (LLPs); (e) section 47 (barristers); (f) section 48 (advocates); (g) section 55 (employment services) so far as applying to the provision of work experience within section 56(2)(a) or arrangements within section 56(2)(c) for such provision.

[2] Other denominations and faiths do not have the legal obligations associated with the CofE’s established status, and the appointment of their senior officials is therefore not subject to the same “public office” provisions with the Equality Act.

[3] However, these are only to 2007.

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Suggested citation: David Pocklington: ‘CofE Bishops and “public office”’ (Law & Religion UK 10 November 2014) (available at http://wp.me/p2e0q6-42L)