THE guidance, made public last weekend, that the Crown Nominations Commission (CNC) can legally discriminate against a candidate for his or her views on sexuality is tortuous, and for a reason. If hard cases make bad law, they also prompt bad guidance. The hard case in this instance is the Dean of St Albans, the Very Revd Dr Jeffrey John, and, although not named, this guidance is essentially about him. He is not a conventional hard case, of course: the difficulty he has caused the church hierarchy stems from his popularity with successive CNCs. Their deliberations are confidential, but it is well known that, besides his appointment as Bishop of Reading in 2003, subsequently withdrawn, he has come close to being chosen for the sees of Southwark, Exeter, and St Edmundsbury & Ipswich.

As this guidance makes clear, those who meet to appoint diocesan bishops — six diocesan representatives, six national ones, and the two archbishops — have the legal right to exclude from consideration anyone in a civil partnership or who has married after divorce (technically “impose a requirement”). It appears that CNCs are now declining to do this, opening the door to Dr John’s appointment to the episcopate. The guidance is interesting on this point, stating: “The key question for consideration is, therefore, whether the proposed requirement could be justified by reference to a theologically rooted convictions [sic] about the nature of marriage or same-sex exclusive relationships (even if sexually abstinent) — as opposed, for example, to simply reflecting social conservatism.” At the height of the Reading row, Dr John volunteered the information that his relationship with his partner, now civil partner, was a chaste one. We have yet to see theologically rooted objections to a sexually abstinent relationship.

All this is immaterial, however, because the new guidance repeats the view that it would not be illegal to discriminate against someone (i.e. Dr John) on the grounds of his past statements on sexuality if it were felt that these prevented his being a focus of unity, a fundamental element of episcopal ministry. The fragility of this argument when compared with the weight given to candidates’ views on other subjects is what has led to this succession of legal clarifications, especially in the light of Dr John’s threat of a legal challenge after the Southwark fiasco. The difficulty of making general rules from individual cases is that they must be applied indiscriminately. The recent appointment of the chairman of Reform, a conservative Evangelical campaigning group, to be Bishop of Maidstone might be questioned in the light of this guidance.

Sympathetic bishops may wish to test the guidance by expressing views similar to Dr John’s — robust but never inflammatory — and seeing what happens to unity in their diocese. We predict that, just as people cope easily with differing views on theology and politics, they would cope with this. An early opportunity for the Church to practise good disagreement, perhaps?

Public statements on sex can be a bar, CNC is advised