On Monday 10 July 2023, the Church of England will debate the replacement of the Clergy Discipline Measure (CDM) with the Clergy Conduct Measure (CCM). The draft Measure was produced, as requested by Synod, to reflect the legislative proposals as approved by Synod in 2022.
The Measure is expected to return to the Synod for the Revision Stage in February 2024 with the Final Drafting and Final Approval stages being taken in July 2024 [1]. The papers before Synod are:
The draft Clergy Conduct Measure amends the law on the regulation of the conduct of clergy in the Church of England by repealing the Clergy Discipline Measure 2003 and replacing it with a new system for the investigation and determination of complaints, establishing three different procedures depending on whether the complaint is a grievance, an allegation of misconduct, or an allegation of serious misconduct. Various other amendments have also been made to improve the overall operation of the Church’s disciplinary structures.
Background
We have reviewed the deposition from Holy Orders in relation to the Church of England, the Church in Wales, and other churches; and also in connection with safeguarding in the Church of England. On its introduction the Clergy Discipline Measure 2003 did not expressly repeal S50 Ecclesiastical Jurisdiction Measure 1963, and this section remains on the legislation.gov web page of this Measure. However, the penalty is not included in the list of penalties in S24 CDM and there is no reference to S50 EJM in the Synod Papers.
Clergy Conduct Measure
The re-introduction of a power to depose a clerk from Holy Orders is one of the eleven additional “key changes” to the CDM that will be brought in through the CCM. This implements one of the recommendations of the Independent Inquiry into Child Sexual Abuse (IICSA) and is applicable following a finding of misconduct that does not involve a question of doctrine, ritual or ceremony [2]. The relevant parts of the Explanatory Notes are reproduced below [emphasis added]:
Clause 39 Deposition from Holy Orders: priest or deacon
“[196]. …Canon C1.2 provides that once a person is admitted to Holy Orders they can never be divested of the character of the order, but may by legal process be deposed from them. The power to depose will be exercisable only where a tribunal has imposed a penalty of prohibition for life [3].
[197]. Where a tribunal makes a recommendation that the respondent be deposed from Holy Orders the bishop may then depose that person, subject to the provisions of clause 39(4) to (8) which sets out a process of appeal to the archbishop of the relevant province.
[198]. The effect of deposition from Holy Orders is that the person must thereafter live their life as a lay person and the same consequences apply as if the person had voluntarily relinquished their orders by deed under the Clerical Disabilities Act 1870 [reference 2].
Reference 2
(1) He shall be incapable of officiating or acting in any manner as a minister of the Church of England, and of taking or holding any preferment therein, and shall cease to enjoy all rights, privileges, advantages, and exemptions attached to the office of minister in the Church of England:
(2) Every licence, office, and place held by him for which it is by law an indispensable qualification that the holder thereof should be a minister of the Church of England shall be ipso facto determined and void:
(3) He shall be by virtue of this Act discharged and free from all disabilities, disqualifications, restraints, and prohibitions to which, if this Act had not been passed, he would, by force of any of the enactments mentioned in the first schedule to this Act or of any other law, have been subject as a person who had been admitted to the office of minister in the Church of England, and from all jurisdiction, penalties, censures, and proceedings to which, if this Act had not been passed, he would or might, under any of the same enactments or any other law, have been amenable or liable in consequence of his having been so admitted and of any act or thing done or omitted by him after such admission. This final paragraph is subject to the provisions of clause 43(2) of this Measure.
Clause 40 Deposition from Holy Orders: bishop or archbishop
[199]. Clause 40 makes equivalent provision for deposition from Holy Orders in respect of a bishop or archbishop. In the case of a bishop or archbishop the Upper House of the relevant Convocation must consider the recommendation and may not pass a resolution to depose the person from their orders until they have given the bishop or archbishop an opportunity to be heard before it and considered any representations.
Clause 41 Restoration on pardon
[200]. Clause 41 provides that the Royal prerogative of mercy (“a free pardon”) applies to proceedings under this Measure, the CDM or the Ecclesiastical Jurisdiction Measure 1963 (“EJM”).
[201]. Where a person receives a free pardon the relevant prohibition, removal or deposition ceases to apply and the person is restored to any preferment previously held, unless it has been filled in the meantime.”
Comment
With regard to the frequency with clergy are prohibited for life, at 8 July 2023, eleven of the forty tribunal decisions since 2007 imposed prohibition for life. Also, two of the fourteen CDM Penalties by consent under sections 16, 30, and 31 CDM, since 31 October 2022 imposed prohibition for life. Clause 35 of the CCM abolishes the ‘penalty by consent’ where a respondent admits misconduct. This implements another IICSA recommendation.
Notes
[1] Standing Order 48(1) provides for Measures and Canons to be considered by the General Synod on the following successive stages:
• First Consideration (SOs 51 and 52)
• Revision Committee (SOs 54 to 57)
• Revision (SOs 53 and 58 to 60)
• Final Drafting (SO 61)
• Final Approval (SO 64).
[2] This particular IICSA Recommendation was “reintroduce the power to depose from Holy Orders where a member of the clergy is found guilty of child sexual abuse offences”.
[3] Clause 35(1)(h) states “a prohibition for life […] is a prohibition from exercising the functions of Holy Orders for an indefinite period.
Updated 11 July 2023 at 08:37.