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
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
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
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
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
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