The first part of this analysis of “due regard” and “statutory guidance” considered guidance issued under the Dioceses, Pastoral and Mission Measure 2007 (“the 2007 Measure”), and that on “net zero” and, more recently, for “contested heritage“ issued under the Faculty Jurisdiction Rules 2015. This second part reviews guidance on Clergy Discipline and Safeguarding, and the general issues of the authority of guidance, and its practical application.

Clergy Discipline and Safeguarding

The  Clergy Discipline Measure 2003 is the overarching primary legislation and the Clergy Discipline Code of Practice (“the CoP”) was produced under S39 for which there is a duty to have regard to bishop’s role, S1, viz. 

“Any body or person on whom functions in connection with the discipline of persons in Holy Orders are conferred by this Measure shall, in exercising those functions, have due regard to the role in that connection of the bishop or archbishop who, by virtue of his office and consecration, is required to administer discipline.”

Within S39, the authority of the CoP is underpinned inter alia by:

• the duty of the Clergy Discipline Commission to formulate guidance for the purposes of the Measure generally and, with the approval of the Dean of the Arches and Auditor, to promulgate the guidance in a Code of Practice (39(1));
• the requirement for the CoP to be laid in draft before the General Synod and, if it is approved by the General Synod without amendment, the Code shall be issued by the Clergy Discipline Commission (39(3);
• when the Code has been approved by the General Synod with amendment, it is to be referred to the Clergy Discipline Commission (39(3A));
• where a draft Code of Practice is referred to the Clergy Discipline Commission under subsection (3A) above, then the Commission may either—(a) issue the Code as so amended, or (b)withdraw the Code for further consideration in view of any amendment by the General Synod;
• Where the Business Committee of the General Synod determines that a Code of Practice does not need to be debated by the General Synod then, unless—(a) notice is given by a member of the General Synod in accordance with its Standing Orders that he wishes the Code to be debated, or (b) notice is so given by any such member that he wishes to move an amendment to the Code, the Code shall, for the purposes of subsection (3) above, be deemed to have been approved by the General Synod without amendment.

In addition,

• Guidance on Penalties determined by CDM Tribunals is issued by the Clergy Discipline Commission; it is revised to reflect changes in the legislation, and its last revision was in January 2021.
• Judicial training is addressed in Clause 10 of the Church of England (Miscellaneous Provisions) Measure which amends the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 to give the Dean of the Arches and Auditor power to make regulations setting out training requirements to be met by ecclesiastical judges.

The S5(1) Safeguarding and Clergy Discipline Measure 2016 as enacted in March 2016 stated: “[a] relevant person must have due regard to guidance issued by the House of Bishops on matters relating to the safeguarding of children and vulnerable adults”. Subsequently, the General Synod passed the Safeguarding (Code of Practice) Measure 2021 (No. 3) to make provision for a Code of Practice on safeguarding children and vulnerable adults. Section 1 of the 2021 Measure inserts sections 5A-5C into the Safeguarding and Clergy Discipline Measure 2016 concerning the Code. These sections require the House of Bishops to issue, and from time to time revise, a code of practice for relevant persons on safeguarding children and vulnerable adults (5A); undertake consultation (5B); and subject the Code to scrutiny by General Synod (5C) [1].

Authority of guidance

The detailed “checks and balances” described above, mandated for the CDM Code of Practice and for safeguarding, contrasts with CBC Guidance Notes which are issued under the S55 Dioceses, Pastoral and Mission Measure 2007. There is no requirement for the broad range of guidance issued by the CBC to be subject to further scrutiny by General Synod, UK Parliament or other external supervisory body. Nevertheless, there have been changes since 2016 when Chancellor Bullimore reviewed CBC Guidance (in the context of seating) in Re All Saints West Burnley [2017] ECC Bla 6: [2].

The first part of this post indicated that for “net zero” and “contested heritage” there is now specific direction in secondary legislation. However, although these measures specify two areas which are to be covered by the 2007 Measure, the two statutory instruments do not elaborate on how this guidance is to be produced or approved. The CBC guidance notes on net zero emissions are clearly the result of detailed technical consideration of the issues involved, but without external verification, to mis-quote Bullimore Ch, “make the Guidance notes a very different sort of animal [from the “statutory guidance”] considered in Regina (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148].

Application of guidance

In Re All Saints West Burnley, Bullimore Ch. observed:

[48]. Whatever the outcome in these individual cases [3], it is apparent that both Chancellor Eyre QC, and Chancellor Turner QC, treated the CBC Guidance as such, that is, as guidance, and sought to evaluate the parish’s proposals in each case against the views set out in the Guidance. In short, the latter did not automatically ‘trump’ the views and wishes of the petitioners…Chancellor Eyre spoke with approval of the Guidance, whereas Chancellor Turner raised some real concerns about it.”

A similar approach was followed in Re All Saints Scotby [2023] ECC Car 3, the most recent  of the four judgments considered under the new provisions under the Faculty Jurisdiction (Amendment) Rules 2022 [4]. The petitioners sought to install a new gas boiler to replace the existing 35 years old boiler but the DAC did not approve the proposal. It took the view that the petitioners had not fully considered the alternatives to using fossil fuel.

However, Deputy Chancellor Lander granted a faculty, being satisfied that the petitioners had in fact considered all the  available alternative heating systems, and that the system proposed was the only viable option that the church could afford. He stated [emphasis added]:

“[27]. In my judgment, the purpose of requiring the Petitioners to explain how they have had “due regard” to the guidance, and of requiring the DAC to set out its opinion on that explanation, is clearly to enable, and indeed to require, the Chancellor to make a decision on whether they have actually had due regard to the guidance;

[31]. I consider that the [Church Legal Office Note] provides a helpful and adequate explanation of [the phrase “due regard” in the context of safeguarding] for present purposes. I propose to adopt it as the correct definition of the phrase in the context of net zero guidance.

After considering the four documents on net zero guidance produced by the CBC [33] to [39], he stated that in his judgment, there were five key points that can be distilled from the guidance, which accord entirely with reality and common sense. In my judgment these are the points which generally need to be considered in an application of this nature [40]. In brief, these are:

• churches need to be properly heated [41];
• in assessing whether a church building is properly heated, it is necessary to consider the proposed and likely uses for the building [42];
• any proposed heating system must be affordable [43];
• the list of types of heating system available for churches is finite [44];
• once there has been a determination as to the appropriate type of heating system or, more specifically, whether the proposed system is appropriate, it is necessary to consider whether any conditions should be imposed when granting the faculty.

Lander Dep. Ch. identified the issues in the context of the instant case:

• the types of heating system available [46] to [48];
• the proposed uses for the church building [49] to [52]; and
• affordability [53, 54].

He then dealt separately, and in more detail, with the question of whether the Petitioners have given adequate consideration to the possibility of using an air source heat pump, since this is the particular point raised by the DAC [57] to [53]. In assessing whether the Fabric Committee of the church had properly explored the option of air source heat pumps [64] to [66], he concluded:

“[67]. … the Petitioners have had due regard to the guidance. Indeed, they have followed the guidance and carried out a thorough appraisal of the options available to them. It is not therefore necessary to consider whether the Petitioners have shown cogent reasons for not following the guidance.

[68]. The conclusion of the Petitioners that a replacement gas boiler is the only viable option seems to me to be correct on the basis of the available evidence. The rather unfortunate reality is that it is the only affordable option which meets the needs of the church“.

This last comment reflects that of Wood Ch. in Re St Mark Haydock [2023] ECC Liv 2 that the chosen system, “whilst not perfect in terms of carbon emission, was nevertheless a significant stride forward compared to the current system”. In conclusion he considered ways in which the carbon emissions from a heating system which is not in itself carbon neutral might be offset. In general:

“[71]. Unless something changes, many individual churches will not have sufficient funds to replace fossil fuel boiler systems with other forms of heating by 2030. Many churches will probably still have the fossil fuel boilers which are in use today, or newer fossil fuel boilers for which permission has been given. Unless something is done to reduce the net emissions from these boilers then it is difficult to see how the net zero ambition can be achieved, bearing in mind that heating currently gives rise to 80% of the emissions”.

[72]. With that in mind I consider that when giving permission for a new fossil fuel burning boiler it is necessary to adopt a robust approach when considering conditions. If this, or indeed any, church is to continue to operate a gas boiler then in my judgment the starting point, when considering conditions, ought to be that it should take steps to mitigate the effect of that.

A Faculty was therefore granted, subject to a condition that the church either switched to a green gas tariff or entered into a separate arrangement with a carbon off-setting scheme to offset the carbon emissions from all non-renewable gas used [75].

David Pocklington

Notes

[1]. Section 2(4) of the 2021 Measure introduced the changes:

“In section 8(1) Clergy Discipline Measure 2003 (acts or omissions constituting misconduct), for paragraph (aa) substitute—‘(aa)failing to comply with a requirement imposed by the code under section 5A of the Safeguarding and Clergy Discipline Measure 2016′”. 

and section 2(3) of the 2021 Measure states:

“In Section A of Part 9 of the Church Representation Rules (model rules: annual parochial church meeting), in Rule M5 (annual report), in paragraph (3), for the words from ‘the duty under section 5’ to the end substitute ‘the requirements imposed by the code under section 5A of the Safeguarding and Clergy Discipline Measure 2016’”.

[2]. He stated:

“[53] There is nothing in the [2007] Measure itself (which is the equivalent of an Act of Parliament or statute, as a matter of law) that spells out how or to what extent or by whom any guidance is to be followed or enforced, so what does this footnote mean? The phrase ‘statutory guidance’ does not mean simply that it emanates from a body set up under a Statute or Measure. If it meant only that it would be pointless to state it. It means much more than that, and if it did not, then the footnote would appear to be without foundation under the Measure .

[64]. …But what [the CBC] chooses to issue guidance about, it decides on; there has been no obligation placed on it by Measure or anything equivalent, to give guidance on seating”.

He also compared the generally applicable guidance produced by the CBC with more specific “expert guidance” subject to the requirements of rule 11.5 FJR 2015 in a particular case [49], [50].

[3]. The observation at [48] refers to Salford Priors St Matthew [2016] ECC Cov 4 and Ashton upon Mersey, St Mary Magdalene [2016] ECC Chr 1. The judgment also considered Re Holy Trinity, Long ltchington [2016] ECC Cov 7.

[4]. Re St Saviour Croydon[2022] ECC Swk 5; Re St. Michael Wandsworth Common [2023] ECC Swk 2; Re St. Mark Haydock [2023] ECC Liv 2; and Re All Saints Scotby [2023] ECC Car 2.