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Report offers new rules for heresy trials

by
02 November 2006

by Glyn Paflin

CHURCH COURTS should have new procedures under which to handle complaints about alleged doctrinal, ritual and ceremonial offences by the clergy, says a report, published this week.

The report, Clergy Discipline (Doctrine), is by a working group set up in 1999 by the House of Bishops, and chaired since 2002 by the Bishop of Chester, Dr Peter Forster, who took over from the Bishop of Birmingham, the Rt Revd Mark Santer, on his retirement.

The report says that reliance should no longer be placed on the procedures contained in the Ecclesiastical Jurisdiction Measure 1963. Instead, it says that with adaptations they should correspond to those in the Clergy Discipline Measure 2003, and take the form set out in an appendix to the working group’s report.

In particular, it says, the procedures would make provision for dealing with complaints relating to matters of ritual and ceremonial as well as doctrine; and should establish a new ecclesiastical “offence” relating to the promotion of doctrine incompatible with the doctrine of the Church of England.

The group also recommends that, where it remains possible for clergy to make the Declaration of Assent otherwise than in public, wherever practically possible it should in practice be made publicly before a congregation in the context of a public act of worship.

And the group recommends that “greater prominence be given to education in the requirements of the Canons and that (subject to funds being made available for the purpose) a copy of the Canons be provided to each new student on entering ministerial training.”

In his foreword to the report, Dr Forster says that the group has kept in mind “the limited role which formal ecclesiastical courts and tribunals should play in maintaining doctrinal and liturgical standards in the Church. It is much better that controversies are addressed through theological discussion and debate, sympathetic enquiry and persuasion.”

Nevertheless, the Bishop says, there is a place for formal adjudication. “The absence of a workable procedure has arguably encouraged various types of protest, and fuelled public controversy, in a way which has not been helpful to the Church’s mission.

“In the past forty years, no case involving doctrine, ritual and ceremonial has been brought, other than in a faculty case. In offering this report to the Church we have no desire to see extensive use made of the proposed tribunals.”

The report begins from a starting point that the process for pursuing doctrinal complaints set out in the 1963 Measure is not only complex and inflexible, “but the Group considered it to be wrong in principle that the final arbiter in doctrinal cases should be a body with a majority of its members drawn from the secular judiciary.”

At present, appeal in such cases would be to a Commission of Review consisting of three Lords of Appeal (C of E communicants) and two Lords Spiritual. Under the working group’s proposed Measure, appeal would be to the Court of Ecclesiastical Causes Reserved. This comprises two members who hold, or have held, high judicial office, and who are C of E communicants, and three serving or former diocesan bishops.

The group warns that the 1963 Measure predates by some years the introduction of human-rights legislation. “If the Church were to continue to operate these procedures, there would inevitably be a risk of challenge on human-rights grounds.”

A majority of the group agreed that the links between doctrine, ritual and ceremonial were so significant that it would be impossible to create a workable disciplinary system to deal with ritual and ceremonial separately from doctrine. “Furthermore, to do so would run the risk of legal dispute over the appropriate jurisdiction for particular cases.”

A minority, however, believed that such matters could and should be separated. “To do so, in their opinion, would underline the primacy of doctrine as the most important area in which clerical discipline needed to be applied and would avoid an over-emphasis on the secondary, although still important, area of ritual and ceremonial.”

The group suggests that the doctrinal offence under the new legislation should be “professing, advocating or promoting beliefs which are incompatible with the doctrine of the Church of England by preaching or teaching or publicly communicating such beliefs”.

The aim of this definition is to exclude from the scope of the offence (i) the profession of false doctrine in private, unless it can be said to involve preaching or teaching; and (ii) teaching that cannot be said to involve “professing, advocating or promoting”: this is to provide some protection for clerics in academia.

“A complaint could only be made under it if the cleric in question had a personal commitment to the views being expressed or could be said to be advocating or promoting it — which was different from merely exploring a doctrinal position, with detachment, for the purpose of academic discussion or stimulating students or others to engage seriously with it.”

But the group also addressed the issue of expressing false doctrine implicitly. “Examples might include a bishop knowingly ordaining someone known to hold unorthodox views or to have a lifestyle inconsistent with the doctrine of the Church, or a cleric submitting to re-baptism.” Whether this was implied would be for registrars, bishops and tribunals, advised by theological experts, to determine in each case.

Doctrine is to be construed for these purposes in accordance with the Worship and Doctrine Measure 1974, and by reference to the Declaration of Assent. This the report discusses at some length together with the Church of England’s formularies, to which it refers, and places in a historical perspective.

Jurisdiction is given in the draft Measure to “bishop’s doctrinal disciplinary tribunals” (as distinct from the “bishop’s disciplinary tribunals” under the Clergy Discipline Measure) in cases of discipline in matters of doctrine, ritual and ceremonial; and, where complaints are made against bishops and archbishops, to the Vicar-General’s Courts.

The Measure provides for a limitation of one year on the institution of proceedings. The time limit begins with the misconduct in question (or the last instance in a series of acts or omissions). But the President of Tribunals would be able to give permission to waive this if there were a good reason why the complainant had not been able to institute proceedings earlier.

In the doctrinal context, the provisions of the Clergy Discipline Measure need to be varied, the report says, to filter out vexatious and malicious complaints. The report does not allow a bishop to make a complaint, because, owing to the human-rights legislation, this would reduce his involvement later in the disciplinary process.

The group decided it should not be possible for a churchwarden having a proper interest to make a complaint against a priest or deacon; rather, primary responsibility for this should rest with the PCC. The churchwarden or a PCC nominee is thus able to make a complaint only if he or she has the support of two-thirds of the PCC.

Beyond this sphere, it would be possible for an individual to institute a complaint only if he or she had the support of ten per cent of the House of Clergy and ten per cent of the House of Laity of the diocesan synod. In the case of a bishop or archbishop, an individual could also institute a complaint if he or she was acting on behalf of three bishops and five clergy of the Convocation concerned, plus five members of the House of Laity of the General Synod from the province concerned.

As in the Clergy Discipline Measure, a complaint would be given preliminary scrutiny by the diocesan registrar; but in doctrinal matters the registrar would be able to consult a theological expert from a panel of 15 appointed by the House of Bishops to serve for five years.

The Bishop, having received the registar’s report, could direct that a formal investigation be first instituted; but would have the option of first requesting that the archbishop of the province appoint three serving or retired bishops to advise him. This advice would be recorded in writing and made available to all parties in the proceedings. The provision for consultation with episcopal colleagues would also apply to cases involving complaints against bishops or archbishops.

If formal investigation went ahead, it would be conducted by a designated officer of the legal office designated for the purpose by the Archbishops’ Council. This officer would be required to consult with a theological expert from the panel of 15 — but not the one consulted by the diocesan registrar.

If the President of Tribunals decided there was a case to answer, the doctrinal disciplinary tribunal would consist of the President of Tribunals or his nominee (chairman); three bishops, at least two being serving diocesan bishops; two lay persons, and two clergy.

The bishops would be nominated by the standing committee of the House of Bishops. The other members would be selected from the provincial panels established under the Clergy Discipline Measure. The respondent in the case would be able to make representations if he or she thought an appointee to the tribunal was not going to be impartial.

The tribunal would appint two or three different theological experts from the panel to act as assessors.

In the event of a hearing, the working group sees no reason why the provision for trial in camera should be different from that in other cases under the Clergy Discipline Measure, namely: “the hearing shall be in private, except that the tribunal or court, if satisfied that it is in the interests of justice so to do or the respondent so requests, shall direct that the hearing shall be in public in which case the tribunal or court may, during any part of the proceedings, exclude such person or persons as it may determine.”

The group recommends that appeal should be possible against any penalty imposed, and on the grounds of “a question of law or fact”; and that the House of Bishops, by means of a designated officer, should be able to challenge a finding relating to matters of doctrine, ritual or ceremonial with which it was unhappy.

If these procedures are put into effect, says the report, the law will have to be amended so that a member of the Court of Ecclesiastical Causes Reserved involved earlier in the process could be replaced, in the event of an appeal.

Clergy Discipline (Doctrine): Report of a working party set up by the House of Bishops (General Synod, £6; available from Church House Bookshop, 31 Great Smith Street, London SW1P 3BN).

Members of the working party

The members of the working party were: the former Bishop of Birmingham, the Rt Revd Mark Santer (chairman 1999-2002); the Bishop of Chester, Dr Peter Forster (chairman since 2002); the Bishop of Gibraltar in Europe, Dr Geoffrey Rowell (since 2000); the late Bishop of Ebbsfleet, the Rt Revd Michael Houghton (1999-2002); the former Bishop of Swindon, the Rt Revd Michael Doe (since 2002); the late Canon Ray Adams (1999-2002); the Archdeacon of Surrey, the Ven. Robert Reiss; Prebendary Gillian Sumner (since October 2002); Canon Frank Dexter; Margaret Brown; Peter Bruinvels; Christine McMullen. Consultants: the former Bishop of Newcastle, the Rt Revd Alec Graham; Canon Professor Anthony Thiselton.

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NB The editor would like to hear from any of those who indicated that they had been affected by a fete cake: editor@churchtimes.co.uk

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