Last June we reported that the Sheldon Hub had established “Project CDM”, with the objective inter alia of “reducing the suffering of defendants and other participants in CDM proceedings”. In October 2018, the Church Times explored this initiative further in Clergy Discipline Measure: a harsh discipline?, summarized here. In this post, we review these and other views on the operation of the CDM. We would stress that, for the most part, the views that have been expressed by the various groups or individuals are complementary rather than contradictory, and we have attempted to present them as such. Furthermore, there are some common threads between the experiences of those reported to the IICSA Inquiry, and those examined by the Sheldon Hub.

Development of the Clergy Discipline Measure 2003

The Church Times article outlines the shortcomings of the Ecclesiastical Jurisdiction Measure 1963 and the developments leading to the Clergy Discipline Measure 2003, citing the Ecclesiastical Law Journal article by Adrian Iles, Clergy Discipline Measure 2003: A Canter Through its Provisions and Procedures. An updated version of this article is also available, [1].

Under s3(3)(c) CDM, the Clergy Discipline Commission is required to make an annual report to the General Synod, through the House of Bishops, on the exercise of its functions during the previous year. Its thirteenth Annual Report 2017, GS MISC 1193 covers its work in the year to 31 December 2017; the House of Bishops received this report in May 2018.

Other pertinent comments on the working of the CDM have been made by Sir Mark Hedley, Deputy Chair and Deputy President of Tribunals, in a lecture to the Ecclesiastical Law Society, and by the Revd Dr Rupert Bursell QC in his evidence to the IICSA inquiry on Peter Ball. These are summarized below.

Project CDM

The Sheldon Hub is “for people in ministry” and has the aim of providing: “an independent supportive online community; live directory of people and places; and a bank of trustworthy advice all for doing healthy ministry together”. The objectives of Project CDM are:

• Reducing the suffering of defendants and other participants in CDM proceedings;
• Improving confidence and quality in the application of the existing Measure;
• Replacing the Measure with something more fit for purpose and promoting doing healthy ministry together; and
• Promote doing healthy ministry together.

The project is proposing a four-pronged approach to action on the CDM:

• education & support, providing and signposting help, advice and support for CDM respondents;
• accountability, improving how the existing Measure is operated and research outcomes;
• review & replacement with a professional conduct framework fit for 21st-century ministry; and
• listen & learn, with a view to recovering a culture of mutual support freed from a climate of fear.

Work on the project is taking place largely in the online space of the Sheldon Hub or via e-mail. Sheldon has also commissioned Aston University Business School and Department of Psychology to undertake independent academic research into the effects of the CDM; this is with that aim of providing “a much-needed evidence base to assist the church going forward”.

In 2017, a total of 101 complaints was made under the CDM, for which penalties for misconduct were imposed in 27 of the 101; this represents a greater percentage than that reported by Iles for the period 2006-2012. Both sets of figures bear out the assertion of the Church of England that the majority of complaints that are made are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal. However, in his LLM dissertation, Gavin Foster concluded [2]

“there is a more widespread problem with clergy discipline caused by the preference for dealing with matters ‘below the radar’. Many issues of discipline are dealt with privately by archdeacons and bishops without ever coming to public attention. Even those cases which are formally pursued and heard by a Clergy Disciplinary Tribunal are heard in private, and the process for publishing the public decisions of the Tribunals is alarmingly ad hoc …. While a concern for keeping matters private has obvious pastoral advantages, the cumulative harm caused by a largely invisible disciplinary regime is not, it is suggested, properly appreciated.”

During 2017, four Tribunal outcomes with the Decision and Penalty were posted on the CofE website, (although the complaints were made during 2016).

Perceived shortcomings of the CDM

The shortcomings of the CDM raised by the Sheldon Hub and reported in the CT article, include:

• the bishop’s role of “wearing the mitre and the wig”;
• the ideal of fully informed and pastorally supported clergy is often unmet;
• the lack of opportunity for clergy to tell their side of the story, particularly when a case is dismissed;
• a formal complaint “can be stressful for all parties concerned”, but “experience shows that many complaints are without substance”;
• recourse to the CDM by “a lot of people [who] want to use it for minor purposes: when they don’t agree with — or like — what the vicar is doing; when a priest has made a genuine mistake or error of judgement”. Rather than agreeing to mediation or an opportunity to talk things through, they want to go straight to the top.”

It is generally accepted that “the CDM may be the right tool for serious cases of misconduct — theft, fraud, marital infidelity, etc”. However, the Ven Cherry Vann, Archdeacon of Rochdale and Prolocutor in Convocation for the Northern Province, has suggested that it is not simply a matter of administering the existing Measure better:

“We need another route for complainants to go down in instances where the complaint is not about serious misconduct — perhaps a requirement to go through a mediation/reconciliation process, and/or clearer guidelines or examples showing cases when a CDM is an appropriate route to go down — and when it isn’t.”

On 21 May 2019, Dr Sarah Horsman, Warden of the Sheldon Community (a.k.a. The Society of Mary and Martha), spoke to the Ecclesiastical Law Society on “The CDM – a Sideways Look”. In the subsequent discussion, shortcomings of the CDM were discussed and problems identified in relation to the CDM legislation itself and the manner in which it was being applied within the dioceses. These issues echoed those raised in the IICSA Inquiry, albeit from the clergy point of view. It was suggested that a degree of “episcopal anxiety” (and by implication “archepiscopal anxiety”) was sometimes driving the process.

Sir Mark Hedley’s ELS Lecture

In February this year we posted Allegations against clergy under the Clergy Discipline Measure, which reviewed the legal approach to the treatment of evidence, following two recent CDM Tribunal determinations of Timothy Davis and Timothy Blewett; the decision in Blewett is notable in that it is a rare example of a matter going all the way to a Tribunal and then being dismissed.

A comprehensive and authoritative review was given by Sir Mark Hedley DL, Deputy Chair and Deputy President of Tribunals, in a lecture to the Ecclesiastical Law Society on 11th October 2017, Practical Aspects of the Clergy Discipline Measure. Sir Mark noted that section 8 lies at the heart of the CDM 2003, of which subsections (2) [termination of clergy Licence] and (3) [lawful or political opinions or activities of any bishop, priest or deacon] have not given rise to particular difficulties in practice; however, with the increasing proscription of organisations, the “lawful” qualification in (3) does act as some restraint on freedom of political opinion or action.

Subsection (1) states: “Disciplinary proceedings under this Measure may be instituted against any Archbishop, bishop, priest or deacon alleging any of the following acts or omissions: (a) doing any act in contravention of the laws ecclesiastical; (b) failing to do any act required by the laws ecclesiastical; (c) neglect or inefficiency in the performance of the duties of his office; (d) conduct unbecoming or inappropriate to the work and work of a clerk in Holy Orders.

Sir Mark observed: “Paragraphs (a) and (b) [of subsection (1)] are fairly straightforward and generally relate to regulated behaviour in respect of baptisms, weddings and funerals as well as the management and accounting of money. Paragraphs (c) and (d) are less straightforward, not least because none of the material terms are anywhere defined, though the [Code of Practice, not the Code of Conduct as in the EccLJ article] does seek to offer some examples but it is of course only guidance and lacks statutory force”.

With regard to Paragraph (c), “although no doubt a trial to many a bishop, it is rare for any formal disciplinary action to be taken on this ground alone. Generally, the approach required is pastoral and, if that fails, some accommodation, including voluntary vacation of office, seems usually to be found. The vast majority of complaints are founded in paragraph (d)”.

On paragraph (d), the Code of Practice (“the Code”) seeks to define a threshold for “conduct unbecoming or inappropriate”, though the Measure and the Rules do not. However, the Code “contains a significant number of wholly undefined terms”.

After reviewing aspects of the Code and the Clergy Discipline Rules 2005, in relation to “minor complaints or grievances”, the objectives of the CDM and certain procedural aspects, Sir Mark concludes:

“It seems to me that it is at least a reasonable interpretation of threshold that the conduct complained of, if not admitted, should be such as to be considered by such a Tribunal”.

[Note: in his evidence to the IICSA Inquiry on Peter Ball, the Rev Dr Rupert Bursell QC had certain issues regarding Sir Mark’s approach to this threshold, see below].

Clergy Discipline Commission Annual Reports

The Clergy Discipline Commission’s thirteenth Annual Report 2017, GS 1193 covers its work in the year to 31 December 2017 and was received by the House of Bishops in May 2018. The Commission has no judicial role in respect of individual cases, but it has a general responsibility to monitor disciplinary procedures under the Measure in practice; its specific duties include formulating guidance for the purposes of the Measure generally, issuing general policy guidance to persons exercising disciplinary functions, and giving general advice as to appropriate penalties.

Headline issues raised in the 2017 Report include:

• the January 2017 meeting at which the CDC heard observations from the Revd Stephen Trott on the operation of the Measure, with particular regard to ‘vexatious’ complaints, and complaints relating to capability or pastoral difficulties which should be dealt with outside the CDM because they were not matters of misconduct;
• the Commission’s continued monitoring of the progress of various pieces of legislation related to the CDM; the remaining sections of the Safeguarding and Clergy Discipline Measure 2016 were brought into force on 1 January 2017, and the Commission’s Amending Code of Practice and the Clergy Discipline (Amendment) Rules 2016 were brought into force on 1 January 2017.
• the Commission considered the matter of thresholds in CDM cases, and at its May meeting received a presentation from the Archdeacon of Gloucester on the ‘Six Step Process’ in operation in her Diocese. The process was employed in following up concerns and complaints outside the statutory CDM procedure for less serious matters, and was an informal, pastoral and practical framework which aimed to provide security and transparency for those involved: it was not a substitute for CDM, safeguarding or capability procedures.
• at its October meeting, the Commission heard that the Archdeacons’ Forum was to work with Church of England Clergy Advocates (‘CECA’) on this matter and that proposals would be put by those bodies to the Archbishops’ Council’s Remuneration and Conditions of Service Committee (‘RACSC’). The Commission would keep a watching brief on the discussions insofar as they related to the CDM and the Code of Practice issued by the Commission.
• the Commission also considered: the accuracy of the information was reported to the relevant archbishop for inclusion in the Archbishops’ list in cases where a penalty was imposed by consent after a complaint had been made; delays in CDM proceedings; application of S9 CDM concerning requests for permission to make a complaint out of time; provision of pastoral care to clergy responding to complaints made under the CDM, particularly in cases involving prohibition.

IICSA Proceedings

In his evidence on 13 March 2018 to Day 7 of the IICSA proceedings on the allegations against the former Bishop of Gloucester Peter Ball, Dr Bursell commented that, although important changes had been made to the Clergy Discipline Measure in 2016, he had some residual concerns [50/12 to 54/12]; he said [emphasis added]:

“It’s too cumbersome. I have come to the conclusion, somewhat reluctantly, that individual bishops should not actually have any participation in the machinery. They never did so before the coming into the effect of the 2003 Measure, and I can’t see why it is necessary that they should now. Indeed, I know a number of diocesan clergy who prefer not to.

He also commented on the procedure whereby at the preliminary enquiry stage, the diocesan registrar has to advise the bishop whether there is a sufficient threshold for the complaint to go forward”.

On 9 May 2019, IICSA published its 252-page report into the Church of England,  based on its case studies of the Diocese of Chichester and the response to allegations against Peter Ball. The report made five recommendations, summarized here, and although these included amendments to Canon C30 (Recommendation 2) and to the Sexual Offences Act 2003 (Recommendation 3), they did not directly specify the CDM or mandatory reporting in the case of the seal of the confessional. However, Recommendation 4 suggested sanctions for failures to comply with safeguarding procedures, viz.

“Individuals engaged in regulated activity who have failed to undergo a DBS check or complete compulsory training should not be permitted to hold voluntary offices within the Church. Failure by ordained clergy to comply with either requirement should result in disciplinary proceedings”.

One feature of the hearings was the widespread lack of understanding of the meaning of the term “due regard” (specifically in Canon C30); “Very few individuals who gave evidence to the Inquiry said they understood what this meant, including the Archbishop of Canterbury himself”. However, this is clearly set out in the House of Bishops’ Safeguarding Policy Statement of the Church of England (2017) [3].

IICSA will make further recommendations directly related to the findings of this report following the hearing in July 2019, which will focus upon the wider Anglican Church.

Other aspects of clergy discipline

Deposition from orders

In our post Safeguarding, the C of E and deposition from orders, we noted that the CDM 2003 did not expressly repeal the power of bishop to depose priest or deacon from Holy Orders, as in s.50 Ecclesiastical Jurisdiction Measure 1963. Nevertheless, the penalty is not included in the list of penalties in s.1 CDM, nor does s.50 feature in Schedule 2 (Repeals) to the Measure. It appears, therefore, that though a cleric can be banned from ministry for life, he or she remains in priest’s or deacon’s orders, and there is now no mechanism for forced laicization.

A Comment on our post Is it an offence to impersonate a cleric? – thoughts on deposition from Holy Orders suggested inter alia:

“The reason why deposition from holy orders was discontinued in the CDM was because, once deposed, a cleric had no right of appeal against sentence, even if fresh information came to light which would have brought about his acquittal in a secular court…”

When priests and deacons are ordained in the Church of England they become subject to its ecclesiastical law and remain so unless they follow the requirements of the Clerical Disabilities Act 1870 and make a formal deed of relinquishment, having resigned any and every preferment held by them: see Rouch v Hawthorne [2015] Winchester Disciplinary Tribunal.

However, the above logic applies equally to those in Holy Orders who have left the Church of England, though the meaningful sanctions that can be applied are limited; it is not possible to claim “You can’t touch me I’m part of the Ordinariate” (or similar) in CDM proceedings unless the requirements of the 1870 Act have been satisfied: see Clergy discipline, former clergy and parochial fees.

Incumbents (Vacation of Benefices) Measure 1977

In his Comment Mediation, an untapped resource, (2011) 13 Ecc LJ 57–77, Mark Hill QC explains:

“[t]he Incumbents (Vacation of Benefices) Measure 1977 is concerned with occasions where there may have been…a serious breakdown in the pastoral relationship between the incumbent and the parishioners, caused by the conduct of one or the other or both, over a substantial period. This breakdown is described as ‘a situation where the relationship between an incumbent and the parishioners . . . is such as to impede the promotion in the parish of the whole mission of the Church of England, pastoral, evangelistic, social and ecumenical.

The Measure allows for an inquiry to be made at the request of the incumbent, the archdeacon or two-thirds of the lay members of the PCC … a request for an inquiry may only be made after a notice of intention to do so has been served on the bishop and a period of six to twelve months has elapsed”.

He further notes:

“It is understood that only one inquiry under the Measure has proceeded to completion and resulted in a declaration of avoidance; it took an extremely long time to reach a resolution at considerable cost, personal and financial, to those concerned and to the reputation of the Church locally and nationally”.

Furthermore, under S11(6) Ecclesiastical Offices (Terms of Service) Measure 2009, the 1977 Measure only has effect in relation to benefices of which the incumbent is not subject to Common Tenure. The CofE FAQs on Common Tenure indicated that the following office-holders fall outside the scope of the legislation:

• Clergy with permission to officiate;
• Non-stipendiary readers, deaconesses and licensed lay workers;
• Those whose ministry is the subject of a contract of employment (for example, chaplains and diocesan employees) unless the bishop’s license authorises them to exercise a wider ministry in the diocese (in which case Common Tenure may apply to that wider ministry);
• Office-holders in a Royal Peculiar;
• Dean and residentiary canons of Christ Church, Oxford;
• The office of Rural Dean which is made by the bishop by way of letters patent or commission. The office is usually held on a limited term basis by one of the incumbents in the deanery, sometimes elected by his or her peers.
• Office-holders in the Channel Islands and the Isle of Man (unless and so far as the legislation is applied to them under the relevant local jurisdictions).

Comment

There are a number of common threads regarding the present application of the Clergy Discipline Measure. These range from the experiences of those who gave evidence to the IICSA Inquiry, primarily the victims of sexual abuse by the clergy, and those examined by the Sheldon Hub relating to clergy subjected to the CDM over a much wider range of issues. There appear to be two aspects to the problem: the underlying legislation, the Clergy Discipline Measure 2003 as amended in 2016, and its application in each of the dioceses. Whilst changes to the former would involve the often lengthy involvement of General Synod, the latter could be more readily introduced.

References

[1]. Adrian Iles, The Clergy Discipline Measure 2003: A Progress Report, Ecc LJ (2014) 16 (1) 3; and the Church of England website has a consolidated version of the Clergy Discipline Measure 2003, as amended by the Clergy Discipline (Amendment) Measure 2013 and the Safeguarding and Clergy Discipline Measure 2016.

[2]. Gavin Foster, Clerical Disobedience of Canon Law in the Church of England, A dissertation submitted in partial fulfilment of the requirements for the degree of LLM (Canon Law) Cardiff University, 2012.

[3]. Page 7 of the House of Bishops’ Safeguarding Policy Statement of the Church of England (2017) states [emphasis added]: “Under section 5 of the Safeguarding and Clergy Discipline Measure 2016, all authorised clergy, bishops, archdeacons, licensed readers and lay workers, churchwardens and PCCs must have ‘due regard’ to safeguarding guidance issued by the House of Bishops (this will include both policy and practice guidance).*  A duty to have ‘due regard’ to guidance means that the person under the duty is not free to disregard it but is required to follow it unless there are cogent reasons for not doing so. (‘Cogent’ for this purpose means clear, logical and convincing.) Failure by clergy to comply with the duty imposed by the 2016 Measure may result in disciplinary action.”

The footnote (*) states: “The Safeguarding and Clergy Discipline Measure 2016 applies to the whole of the provinces of Canterbury and York (including the Diocese in Europe subject to local variations/modifications), with the exception of the Channel Islands and Sodor and Man. In order to extend the 2016 Measure to the Channel Islands or Sodor and Man legislation will need to be passed by the relevant island jurisdictions in accordance with section 12 of that Measure”.

David Pocklington