Review of the ecclesiastical court judgments during October 2024
In contrast to earlier months in which as many as twenty consistory court
judgments have been reviewed, in this October only two judgments were circulated: Re All Saints Ripley [2024] ECC Lee 2 which concerned the replacement of pews, and the controversial Re Holy Cross Newcastle [2024] ECC New 3. Here the court was faced with a “wholly avoidable problem” of the “apparent failure to follow what is now longstanding Church of England guidance, a failure to take the steps preparatory to obtain the appropriate faculty before committing the church financially”. As we have noted, the raises a number of fundamental questions relating to the consequences of the uncritical adoption of “net zero” targets by General Synod in February 2020 and the required deliberations of the consistory courts through the Faculty Jurisdiction (Amendment) Rules 2022. A more detailed post is in preparation.
Although not reported, events at the Grade II* church King Charles the Martyr, Falmouth, have been of interest, and a summary has been posted, v infra. Nevertheless, this review includes updates on: CDM Decisions; Privy Council Meetings; and Links to other posts relating to ecclesiastical law. With regard to CFCE Determinations, the applications scheduled for review by the Commission (Form 8s) are now up to date, and reported decisions made by the Commission (Form 10s) re now available for 18 July 2024 and 5 September 2024.
Reordering, extensions and other building works
Removal and replacement of pews
Re All Saints Ripley [2024] ECC Lee 2 The Petitioners sought faculty
permission for a number of items of reordering of this grade II* listed church. These included inter alia: removal of the existing nave pews and replacement with up to 160 Rosehill Chantry chairs; lowering pew platforms and reinstatement of timber floor boards; installation of electrical sockets; modification of middle choir pews and reader pews; removal of the middle pew in the Ingilby Chapel; relocation of the reader pew and reduction in width of the existing pew platform; provision for securing a ladder in the Choir Vestry to enable safer access to storage space [1].
There was a mixed response from the statutory consultees, with a letter of objection from a parishioner directed to the removal of the pews containing which spoke disparagingly of the interior of Ripon cathedral and asserted that the proposals were unfitting for a fourteenth century church [3]; the petitioners “provided a gracious response…acknowledging that opinions differ but giving a cogent explanation for what is proposed” [4]. The DAC recommended the proposals.
Applying the Duffield framework Hill Ch. was drawn to the conclusion that harm to building would be marginal, that the justification for the proposal was convincing, and that the balance therefore came down in favour of the granting of a faculty. And so he directed [5]. [Re All Saints Ripley [2024] ECC Lee 2] [Top of section] [Top of post].
Re Holy Cross Newcastle [2024] ECC New 3 The petitioners sought permission to remove the existing convection gas heaters and replace them with a contemporary equivalent [1]. Having been in discussion with the DAC about, and in anticipation of, this project since at least November 2023, at its meeting on 6 June 2024, the DAC indicated the need for further evidence as to the steps taken to consider and evaluate alternative options as it concluded it could not recommend the proposal for approval.
However, the parish had already committed the sum of £17,000 to the contractors by way of a non-refundable deposit, thus causing the Archdeacon of Northumberland to approach the registry with a view to urging the court to take a sympathetic view of the church’s position given the financial embarrassment that would inevitably follow if permission to replace as proposed was refused. The court indicated that a faculty be applied for without delay [3].
The Statement of Needs was “conspicuously silent on the Church of England’s commitment to net zero and the need to have “due regard” to this: [CBC Guidance issued pursuant to s. 55 of the Dioceses, Pastoral and Mission Measure 2007, (hereafter “Net Zero”) and rule 4.4(2)(b) of the FJR 2015 (in force since 1 July 2022)” [4].
The Chancellor required the petitioners to look at other options, which they did. The Chancellor, whilst deprecating the way things had been done, acknowledged that to reject the proposals would cause undue further financial problems for the church and a delay in providing a new heating system. He therefore granted a faculty, subject to conditions requiring the parish to enter into a green gas tariff or a separate arrangement with a carbon offsetting scheme and to obtain professional advice about how to make a meaningful contribution to Net Zero. [Re Holy Cross Newcastle [2024] ECC New 3] [Top of section] [Top of post]
Designation of closed churchyard
Allington Parochial Church Council: environmental permit application, NG32 2EA, Advertisement – EPR/HB3649KM/A001: 0.183 cubic metres per day; trench arch system; SK 85528 40271.
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Mary’s Church Churchyard, Wisbech St Mary, Wisbech, Cambridgeshire; Church of St Lawrence Churchyard, Swindon Village, Cheltenham, Gloucestershire; Immanuel Church Churchyard, Oswaldtwistle, Accrington, Lancashire; and St Mary’s Churchyard, Cholsey, Oxfordshire.
- Burial Act 1853 (Final) Order prohibiting further burials in: St James the Great Church Churchyard, Ruscombe, Wokingham, Berkshire; and Great St Mary’s Church of England Churchyard, Sawbridgeworth, Hertfordshire.
- Burial Act 1855 (Variation) Order varying an Order dated 9th July 2008 prohibiting further burials in the Churchyard of Holy Trinity Churchyard, Bardsley, Oldham, Manchester.
“Notwithstanding anything in the Order in Council made under the Burial Act 1853 on 9th July 2008, directing the discontinuance of burials in the Churchyard of Holy Trinity Churchyard, Bardsley, Oldham, Manchester, an exception be added in that the human remains of Mr John Andrew Partington and Mrs Patricia Partington, may be interred within a burial ground of Holy Trinity, Oldham in the diocese of Manchester”.
CDM Decisions and Safeguarding
Clergy Discipline Measure, Scottish Episcopal Church
Canon 54 process concludes after review by independent Procurator
The SEC Procurator’s Note of Reasons is summarized below, in addition to an explanation of the Scottish Episcopal Church Independent Canon 54 Process.
Penalties by consent
A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, paragraph 312, but before this date, as with The Right Reverend Peter Hullah. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.
Name: The Right Revd TIMOTHY LIVINGSTONE AMBOKO WAMBUNYA
Diocese: Oxford
Date imposed: 9th October 2024
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(a) Doing any act in contravention of the laws ecclesiastical & 8(1)(d) Conduct unbecoming to the office and work of a Clerk in Holy Orders
Penalty: Rebuke and injunction
Name: The Revd RICHARD MARTIN
Diocese: Gloucester
Date imposed: 2nd October 2024
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(d) Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Rebuke and injunction
Name: The Ven MICHAEL JOSEPH PATRICK McGURK
Diocese: Manchester
Date imposed: 3rd October 2024
Relevant CDM section: 16(1)
Statutory Ground of Misconduct: 8(1)(d) Conduct unbecoming & inappropriate to the office & work of a clerk in Holy Orders
Penalty: Rebuke
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. The applications scheduled for review by the Commission (Form 8s) are now up to date, and the reported decisions of the Commission (Form 10s) re now available for 18 July 2024and 5 September 2024. The next meeting will be on Thursday 12 December 2024.
Recent summaries of specific issues that have been considered in the consistory courts include:
General/Miscellaneous
- Memorialization of Thomas Corker in Falmouth church, (29 October 2024).
- Publication of Smyth independent review – 13 November, (22 October 2024).
- Rebuke to Bishop-designate of Wolverhampton, (14 October 2024).
- Scottish Episcopal Church, the Canon 54 Process, (10 October 2024).
- SEC not to pursue allegations against Bishop, (8 October 2024).
[Top]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.
Updated: 31 October at 10:37
I always understood that a CDM should only be brought where the offence was so serious that deprivation or prohibition were the likely outcomes. We have three CDM cases here when the outcome has been a rebuke (and injunctions in two cases). To me, this highlights the need for the Clergy Conduct Measure and a very different approach.
Norman, that doesn’t appear to be a threshold requirement for the bringing of a CDM complaint. However, Sir Mark Hedley regarded it as the appropriate test for the President [or her deputy] to apply when deciding, under section 17, whether or not to refer an allegation for trial by a disciplinary tribunal. This is part of what he said in his lecture to the Ecclesiastical Law Society on 11 October 2017:
”I have formed the view that paragraph 183 [of the Code of Practice], which spells out Section 17(3) and (4) and Rule 29, is to be interpreted as generally requiring a degree of seriousness that, if conduct is proved, will render the respondent liable at least to removal from office or revocation of licence. Whether that is a threshold that should apply at every stage of the Measure is a matter that we will need to consider further.”
Sir Mark was deputy president of tribunals [and deputy chairman of the Clergy Discipline Commission] when he delivered the lecture. He referred to this as the test in a section 17 decision relating to a CDM case in London diocese in June 2020:
”It is not appropriate that every case of misconduct should be referred to a tribunal. Their role is to deal with serious complaints that, if proved, question the fitness of the relevant clergy person to continue in ministry. Moreover, they are only able to consider matters that can be proved to the requisite standard.”
Later, he added, ”Tribunals should be reserved for the more serious cases and yet it is not necessarily right to refuse to send to a tribunal a case that involves misconduct whatever may be the mitigation and whatever may be the pressures that are imposed on the respondent.”
A high profile case that reached the President, Dame Sarah Asplin, for a decision under section 17 in 2021, and where she decided that reference to a disciplinary tribunal would not be proportionate and, accordingly, that there was no case for the respondent answer, was the ‘hairgate’ CDM allegation brought against the former Dean of Christ Church, Oxford, Dr Martyn Percy. At paragraph 9 of her decision, dated 28 May 2021, she stated:
” When determining whether there is a case to answer upon which a disciplinary tribunal should adjudicate, I must also bear in mind that the CDM is designed to deal with serious misconduct and that section 8(1)(d) of the CDM should be read in that light. Proportionality must also be borne in mind. Would it be proportionate to refer this matter to a tribunal for adjudication?”
The other point to note is that the penalties published on the C of E website, pursuant to the policy in force since October 2022, are penalties by consent. This will mean that the respondent has admitted the allegation. Unfortunately, the bare details placed on the website give no indication as to the nature of the alleged misconduct so, unless otherwise published [as it was in the case of Bishop Wambunya, who issued a statement, published on the diocese of Lichfield website, co-incident with publication of the penalty], the nature of the misconduct remains hidden. That, surely, cannot be right: there should be full transparency, even if some details [e.g. the identity of a complainant] are appropriately redacted.
That said, the ‘triaging’ approach of the draft Clergy Conduct Measure, currently awaiting final amendment and approval – presumably at General Synod in February 2025, will bring transparent clarity to the position. Assuming the Ecclesiastical Committee of Parliament is reconstituted following the July general election, the new measure, replacing the CDM, might receive Royal Assent and come into effect by 1 January 2026.
I note your comment that the Holy Cross, Newcastle, consistory court judgment ”raises a number of fundamental questions relating to the consequences of the uncritical adoption of “net zero” targets by General Synod in February 2020.”
The motion at General Synod on 12 February 2020 (when I was present), as proposed by the then Bishop of Salisbury (Nicholas Holtam), called on all parts of the C of E to “work to achieve year-on-year reductions in emissions to reach net zero emissions by 2045 at the latest”. An amendment by Martin Gainsborough from Bristol diocese to substitute ‘2030’ for ‘2045 at the latest’ was passed narrowly by 144 votes to 129, with 10 recorded abstentions (so only 283 out of some 450 members of the synod recorded a vote or abstention) after only a short debate (occupying just 4 pages of transcript, with only 4 speeches from the floor – two for and two against) before a closure motion, following which the vote on the amendment was taken.
No one addressed the issue of whether a target date of 2030 was realistic, or what would be its financial implications for parishes. You rightly describe the adoption of the amendment as ‘uncritical’, and the rushed way in which it was considered did the Synod no credit. The chair of the debate, the [then] Bishop of Newcastle, the Rt Revd Christine Hardman (ironically in view of the reported decision relating to a church in Newcastle diocese) said ”I am afraid I will be going to be even more brutal with the speech limits and I will endeavour to have us finished as soon as possible”, and she then imposed a speech limit of two minutes: see Report of Proceedings February 2020, page 251:
file:///C:/Users/User/Documents/GS%20Report%20of%20of%20Proceedings%20February%202020%20redacted%20+%20index.pdf
This was not General Synod acting responsibly as a deliberative chamber.