Jersey – Lines of Authority
I thought it might be useful to lay out what the issues of authority are in the matter of the suspension of the Dean of Jersey, Bob Key. My purpose in this post is not to take one side or the other in the dispute but simply to explain where the conflict of understanding arises so that others can understand why this conflict has arisen.
Accountability and Authority
The first area to understand in this discussion is issues of accountability. Who is accountable to who and who derives their authority from whom.
The Dean of Jersey is appointed by Letters Patent from the Queen and by a Commission from the Bishop of Winchester. The Canons of the Church of England in Jersey explain it like this.
The Dean shall exercise his jurisdiction in accordance with the terms of his Letters Patent, the Bishop of Winchesterâ€™s Commission, these canonsÂ and local law and custom.
These means that the Dean of Jersey derives his authority from no less thanÂ five separate sources – Firstly from the Queen by Letters Patent, secondly from the Bishop of Winchester through an Episcopal Commission (i.e. the Bishop commissions him to act on his behalf within Jersey), thirdly from the Canons of the Church of England in Jersey (which are separate Canons from those of the Church of England on mainland UK), fourthly through Jersey law andÂ fifthly, and most interestingly, through local custom.
The fact that the Dean receives both Letters PatentÂ andÂ a Commission from the Bishop means that he has two immediate masters. The first is the Bishop of Winchester (currently the Rt Revd Tim Dakin) and the second is the Queen (who in Jersey isÂ referredÂ to as the Duke of Normandy for historical reasons – Jersey was originally part of the Duchy of Normandy and has never formally been part of the United Kingdom) who in practice defers her authority in Jersey to her Lieutenant Governor.
So two masters, but then he is also subject to the laws of Jersey so he also has a third master in the Chief Minister of the States of Jersey. The laws of the States that affect the Dean include, but are not restricted to, the ones found here. In practice the Chief Minister of Jersey has very little executive power over the Dean.
So we come back to the fundamental question – who is the Dean of Jersey’s boss? The two positions being argued can broadly beÂ summarisedÂ as follows.
- The position of the Diocese of Winchester is that the Bishop, by virtue of the Commission that he gives the Dean after being informed of the Letters Patent from the Crown is the Dean’s boss in all matters ecclesiastical. This means that the Bishop has the right to suspend the Dean in matters like safeguarding issues.
- The position of many in Jersey is that whilst the Bishop issues a Commission to the Dean to act on his behalf in Jersey, ultimately the line of authority is through the Letters Patent to the Crown. In practice this would be to the Lieutenant Governor who is the Queen’s representative on the island.
Who is the Ordinary?
Perhaps a better way to explore the issues of authority is to look at the concept of the “Ordinary”. In episcopal churches, the Ordinary is
an officer of a church or civic authority who by reason of office hasÂ ordinary powerÂ to execute laws.
InÂ canon law, the power to govern the church is divided into the power to make laws (legislative), enforce the laws (executive), and to judge based on the law (judicial).Â A person exercises power to govern either because the person holds an office to which the law grants governing power or because someone with governing power has delegated it to the person. Ordinary power is the former, while the latter is delegated power.Â The office with ordinary power could possess the governing power itself (proper ordinary power) or instead it could have the ordinary power of agency, the inherent power to exercise someone else’s power (vicariousÂ ordinary power).
The law vesting ordinary power could either be ecclesiastical law, i.e. the positive enactments that the church has established for itself, or divine law, i.e. the laws which the church believes were given to it by God.
The Canons in Jersey say
The Bishop has within Jersey jurisdiction as Ordinary except in places and over persons exempt by law or custom.
This is really important. In most English dioceses the person in supreme authority is the Bishop. In Jersey he is in charge, except where local law or custom say otherwise. This is the crucial battleground – who has Ordinary power in Jersey?
Perhaps an even better way to explore this issue is to ask a specific questions about Ordinary power in specific circumstances. Who has Ordinary Power over safeguarding – i.e. who is responsible for it in the Church in Jersey? It is unclear whether the Church of England in Jersey has its own safeguarding rules – certainly the States do – so the default would be to assume that they should operate under the safe-guarding practice of the Diocese of Winchester. But that is a separate question to the issue of who can “crack the whip” is the safe-guarding guidelines from the Diocese of Winchester are not followed correctly. Here we seem to have the real conflict – Section F of the Canons of the Church of England in Jersey has the law for the Ecclesiastical Court in Jersey and it is separate to the law for the rest of the Church of England.
This is the heart of the conflict.
- The Diocese of Winchester believes that the Ordinary power over handling failures to conform to the Safeguarding guidelines of the Diocese is vested in the Bishop as the Ordinary of the Diocese. This means that the Bishop has the authority to discipline anyone who fails to abide by the guidelines, and the authority to suspend people while breaches are investigated, and that includes in Jersey.
- The position of some in Jersey is contrary to this. Although the Diocese of Winchester Safeguarding guidelines may apply to Jersey, the power to enforce them does not necessarily rest with the Bishop. The Canons in Jersey indicate that the Dean is the head of the Ecclesiastical Court and that therefore any breaches need to be handled through the Ecclesiastical Court in Jersey. Although the Bishop is the Ordinary of the Diocese, for the purposes of handling disciplinary matters the Dean is the Ordinary on the Island through the fact that there is local law to handle such matters.
And hence the conflict. The Bishop says he has every right to suspend the Dean after the report that he commissioned indicates that he failed to follow Safeguarding guidelines. The Dean argues that even if the Safeguarding guidelines applied to Jersey (and that itself is in dispute) the Ordinary authority to manage breaches of the guidelines rests in the Ecclesiastical Court of Jersey.
Over to the lawyers…
Please feel free to correct any of the above if you believe it is in error or if I have misrepresented the legal arguments / positions or the law itself.
You haven’t mentioned the Clergy Discipline Measure, which gives the Bishop power to suspend clergy pending investigation and proceedings before a tribunal. And yes, it is in force in the Channel Islands.
Good point, but such a suspension would require a charge being made under the CDM. To the best of my knowledge no such charge has been made.
It only requires a complaint to be made in writing against any member of the clergy, for the Bishop to exercise his power of suspension under s.36(1) of the Measure. There is a right of appeal against suspension in s.36(6).
Just had it clarified to me that Jersey is not subject to the Clergy Discipline Measure. The only way to bring a charge against a clerk in holy orders is to follow Section F of the Canons of the Church in Jersey.
Your informant appears to be mistaken. The Channel Islands Measure 1931/1957 expressly applies to the CDM in the Channel Islands, which form part of the Diocese of Winchester.
Can you provide a link to these Clergy Discipline Measures?
Also, where can we find the original Canons that were recently replaced.
Have the Jersey authorities written them to carve out authority to local powers? That is to say did they pull a fast one? No one in the States Assembly scrutinises ecclesiastical legislation. The debate at the time did raise issues about the canons being Human Rights Compliant, but the Attorney General and governement party glossed it over.
I have no knowledge of the legal ins and outs, but I do know something about the principles of good corporate governance. If the legal position is as set out in your second option, then the Dean of Jersey, as the head of the ecclesiastical court, would appear to be the judge in his own case if he is the one being subjected to ecclesiastical discipline. And that it an indefensible position in ethics, regardless of its status in law. The presiding role could not be delegated to one of his subordinates in Jersey as you can’t have the judge subordinate to the accused. So the judge would have to be the Dean’s superior, which would presumably have to be either the Queen as the issuer of the Letters Patent (in practice presumably in the person of the Lieutenant Governor) , the government of Jersey, or a senior member of the Church’s hierarchy not based on Jersey (logically the Bishop). The first two would appear to subject the Dean to civil jurisdiction on a matter of church discipline.
Alternatively, if the Statues or Canons of Jersey provide for the possiblity of the Dean being accused in his own court, it would seem to be clear that the Bishop does not have jurisdiction as whoever it was who did would be set out clearly in local law. But from all that you report is happening, it is clearly not so set out.
All of which seems to boll down to two alternatives in practice. Either the Bishop or Archbishop have jurisdiction, at some cost to local sensitivities in Jersey, or jurisdiction in a matter of clergy discipline lies with some arm of the civil authority, which has interesting implications for the delicate balancing act of Church and State in the Church of England. I’m glad I’m not the Bishop who has to sort it out.
I think I would agree with you that the Jersey Canons are ambiguous as to what should happen if the Dean himself is accused of a misdemeanour. However in practice I suspect that the Vice-Dean would take over the role of President of the Court.
It is unclear whether the Church of England in Jersey has its own safeguarding rules
which would, of course, account for why all clergy and Readers in the island are required to undergo UK CRB clearance, rather than local Police checks plus enhanced checks via Disclosure Scotland…
OOps sorry, wrong thread