Laying a Charge
In all the controversy in Jersey, there is a possibility that charges may be laid against clergy on the island. In particular, Dame Steel’s Terms of Reference invite her to
make recommendations about whether or not disciplinary complaints should be brought against any member of the clergy as a result of the matters raised
Given this, I thought it would be interesting to explore under what mechanisms such disciplinary complaints could be made.
On the mainland of England, discipline in the Church of England is very clear. Formal processes are laid out in the Clergy Discipline Measure 2003 and have been in practice for almost a decade. As described on the Church of England website, complaints are handled in the following manner.
Making a complaint
The disciplinary process is started by a formal written complaint of misconduct, which is made to the bishop (or archbishop, as the case may be).Â There are four grounds on which misconduct may be alleged, namely: acting in breach of ecclesiastical law; failing to do something which should have been done under ecclesiastical law; neglecting to perform or being inefficient in performing the duties of office; or engaging in conduct that is unbecoming or inappropriate to the office and work of the clergy.
The complainant must produce written evidence in support of the complaint, and verify the complaint by a statement of truth. The complaint and evidence in support are referred by the bishop to the diocesan registrar for advice on (1) whether the complainant has a proper interest in making the complaint, and (2) whether the allegations are of sufficient substance to justify proceedings under the Measure.Â This is the ‘preliminary scrutiny’ stage.
Having received the registrar’s advice, the bishop may decide that it should be dismissed, in which case it will proceed no further under the Measure. If on the other hand the bishop considers that the complainant has a proper interest in complaining and that the complaint deserves further consideration, he will invite the priest or deacon about whom the complaint is made (‘the respondent’), to send a written answer verified by a statement of truth, together with evidence in support.Â The bishop will then decide which of five possible courses of action available to him under the Measure is the appropriate one to pursue. He can:
- take no further action;
- record the complaint conditionally for a period of up to five years, such that if another complaint is made within that time and is dealt with under paragraphs c, d or e below, the two complaints may then be dealt with together;
- refer the complaint to a conciliator in an attempt to obtain agreement between the complainant and the respondent as to how the complaint should be resolved;
- impose a disciplinary penalty (but only with the consent of the respondent); or
- require the complaint to be formally investigated by the Designated Officer, a barrister employed in the Church of England Legal Office.
Bishop’s disciplinary tribunal
The vast majority of cases will be dealt with by the bishop of the relevant diocese. In the small minority of cases where the Designated Officer is asked to investigate, a report will be produced for the President of Tribunals, who will then decide whether there is a case to answer before a bishop’s disciplinary tribunal. Tribunals consist of two members in Holy Orders and two communicant lay members, plus an experienced lawyer in the chair.Â If a complaint is proved, the tribunal can impose the same range of penalties that a bishop can impose by consent, ranging from a rebuke to lifelong prohibition from exercising any ministerial functions.
All well and good. However, a problem lies in that the Clergy Discipline Measure 2003 doesÂ not apply to Jersey. Section 48(3)Â of the Measure says,
This Measure shall extend to the whole of the Provinces of Canterbury and York except the Channel Islands and the Isle of Man, but the provisions thereof may be applied to the Channel Islands as defined in the Channel Islands (Church Legislation) Measures 1931 and 1957, or either of them, in accordance with those Measures and if an Act of Tynwald or an instrument made in pursuance of an Act of Tynwald so provides, shall extend to the Isle of Man subject to such exceptions, adaptations or modifications as may be specified in the Act of Tynwald or instrument.
A quick look at the relevant legislation (the 1931 and 1957 Measures – the 1957 Measure simply amends the 1931 Measure) shows us the process for applying any Church of England legislation to the Channel Islands. First, the 1931 Measure.
2. Application of future Measures.
Any Measure receiving the Royal Assent after the passing of this Measure, which contains an express provision that it may be applied to the Islands, or either of them, in accordance with this Measure, mayÂ be so applied in accordance with the procedure set out in the Schedule hereto.
Next, the schedule attached to the 1931 Measure.
1. If and whenever the Bishop comes to the conclusion that a Measure ought to be applied either wholly or partly and either with or without variations to the Islands or either of them, he may prepare a draft scheme for the purpose.
2. In coming to such conclusion and in preparing the draft scheme the Bishop shall proceed in consultation with theÂ Deanery Synod of the Island concerned, or, if the scheme relates to both the Islands, with theÂ Deanery Synods of both.
3. The Bishop shall before the draft scheme is finally settled send particulars of what is proposed to be effected thereby to theÂ Lord Chancellor in order that they may be communicated to the States of the Island concerned, or of the Islands, as the case may be, for the ascertainment of their views thereon.
4.Â The scheme when finally settled shall be presented by the Bishop to theÂ General Synod, who may, by resolution, approve or reject it, but shall not have power to amend it. No such resolution shall be passed by theÂ General Synod unless the scheme to which it refers has been in the hands of its members for at leastÂ fifteen days.
5.Â If the scheme is approved by theÂ General Synod, it shall be forwarded forthwith to theÂ Lord Chancellor for submission to His Majesty in Council, and His Majesty in Council may thereupon make an Order confirming the scheme and directing that the Measure shall apply to the Island concerned, or to the Islands, as the case may be, in accordance with the scheme.
The process to apply the Clergy Discipline Measure to Jersey (or indeed any Church of England Measure) is clear. The Bishop prepares a draft scheme in consultation with the Deanery Synod. The details of the Scheme are sent to the Lord Chancellor who informs the States of Jersey of the proposed change in order to ascertain their opinion. The scheme (amended as appropriate after any feedback) is then presented to General Synod who have to either accept or reject it. Once General Synod accept it it is sent back to the Lord Chancellor who presents it to the monarch (in this instance acting as the Duke of Normandy rather than the King/Queen of the United Kingdom).
This processÂ has been undertaken with respect to the Clergy Discipline Measure in relation to Guernsey. You can read the measure as presented for application in Guernsey here and the explanatory paper for General Synod here (excerpts below).
3. Although the Channel Islands falls within the jurisdiction of the Bishop of Winchester and are in the province of Canterbury, the CDM and the Legal Aid Measure do not automatically apply to the Islands.Â Acts of Parliament do not apply to the Channel Islands save in very limited and exceptional cases, and the same principle applies to Measures of the General Synod which have the force and effect of Acts of Parliament when given Royal Assent.
11. As well as consulting the Deanery Synod of Guernsey and the States of Guernsey in accordance with the Channel Islands (Church Legislation) Measure 1931 and 1957, the Bishop of Winchester in preparing the draft scheme has worked closely with Her Majestyâ€™s Comptroller of Guernsey, and has also consulted the Clergy Discipline Commission (including the President of Tribunals), the Dean of the Arches, the Dean of Guernsey and theÂ Legal Office of the National Church Institutions.
12. The Scheme was approved by the Guernsey Deanery Synod on the 30th November 2005 and by the States of Guernsey on 29th March 2006.
The guidance is interesting for two reasons. First, it explicitly reminds Synod that Acts of Parliament and Measures of SynodÂ do not apply to the Channel Islands. Second, it lays down an example of the framework outlined in the 1931 Measure being applied to implement the Clergy Discipline Measure on one of the Channel Islands. Interestingly, it explicitly informs Synod that the Guernsey Synod and the States of GuernseyÂ approved the measure in turn. The 1931 Measure does not say that the Deanery or States need to approve the draft Measure presented by the Bishop, but the indication is given in the guidance that given that the States and DeaneryÂ have approved the Measure it is an acceptable thing for Synod to pass the Measure. Indeed, on this basis the Measure as presented in 2006 was passed overwhelmingly.
So it seems pretty clear, both in the law itself and in precedent of the application of the law on this very Measure (Clergy Discipline) that the Clergy Discipline Measure does not at present apply to clergy in Jersey. This means that any charge against any clergy in Jersey would have to be undertaken under Section F of the Canons of the Church of England in Jersey which deal with discipline. These processes of discipline are utterly different to those outlined in the Clergy Discipline Measure, and I will examine them in a following blog post.
For the moment though, I am pretty clear in my mind that no charge could be laid on any Jersey clergy under the Church of England Clergy Discipline Process. Such an attempt would fail at the first point because any Registrar worth his salt would have to rule any such a charge out of order (and if he didn’t, I would anticipate a call for judicial review to overrule such a mistake).
Any thoughts? Do any of you have an alternate reading of the legislation and precedents which would allow a charge under the CDM against clergy in Jersey? Please add your comments below.
Your analysis seems pretty clear. So the next thing that will happen will be for the Bishop of Winchester to prepare a scheme to apply the Measure to Jersey….
Such a scheme would not affect anyone in the recent controversy: my understanding is that the European Convention on Human Rights has been held to forbid retrospective legislation in criminal cases. I can’t imagine the Lord Chancellor/Minister of Justice volunteering for a fight in Strasbourg over this.