Andrew Brown’s article “Second priest defies Church of England to marry his same sex partner” (The Guardian, 22 June) stated: “[t]he bishops have appointed the bishop of Norwich, Graham James, to maintain a blacklist of clergy who will not be considered for any future roles”. However, this was amended following the statement from the Church of England:
“[t]he recent press report that the Bishop of Norwich has been asked to keep a blacklist of clergy who marry same sex partners is untrue. The House of Bishops agreed in February to establish a small informal monitoring and reference group which is available to diocesan bishops who may wish for information or advice. The group has no formal powers. The Archbishops of Canterbury and York asked the Bishop of Norwich to chair the group and for the Bishops of Sheffield and Willesden to be members,”
and the following correction added:
“[t]his is not the case. Rather, James has been asked to be available to diocesan bishops seeking advice on individual cases“.
Nevertheless, some Thinking Anglicans readers were unconvinced, as were others commenting on Changing Attitude’s piece Bishops of Willesden and Manchester reveal truths about the “blacklist” that isn’t. The latter included views from the Rt Revd Pete Broadbent, Bishop of Willesden, who is on the Bishop of Norwich’s group, and the Rt Revd David Walker, Bishop of Manchester, who isn’t.
+David Walker commented
“ . . . outside of this site I have heard no mention of a list, nor can conceive of circumstances in which I would want to have access to any such list, or to add names onto one”,
whilst +Pete Broadbent wrote
“[a]s Andrew Brown says, the role of the Group is to advise. Only the Diocesan/Area Bishop with whom the priest holds licence or PTO has the role of pastoral care and discipline in relation to that priest (or another bishop in the Diocese to whom discipline has been delegated under the Clergy Discipline Measure).”
The origins of the terms “being in one’s black books” and “blacklisting” date back to the reigns of Henry VIII and Charles II respectively , but currently a “black list” is generally regarded as meaning “a list or register of entities or people who, for one reason or another, are being denied a particular privilege, service, mobility, access or recognition.” Such “blacklists” have been used to deny employment to individuals on account of their trade union membership or their involvement in highlighting health and safety deficiencies in working practices, often within the construction sector.
In this context, there are a number of statutory provisions  that have been introduced to safeguard the rights of trade union members , and there is an associated a corpus of case law . In contrast to lists such as these, there are circumstances in which blacklists are legislatively sanctioned, such as the “barred lists” of the Disclosure and Barring Service, (DBS), required under s2 Safeguarding Vulnerable Groups Act 2006. In both cases, the use of personal data falls within the overarching requirements of the Data Protection Act 1998 and the provisions of Articles 8 and 11 of the ECHR.
Use of lists by the Church
The Church of England web page, Records Management Guides from the C of E, provides general guidance on data protection and includes a series of 11 factsheets – “the records management tool kit covering various records management topics” . The document Personal Files Relating to Clergy – Guidance for Bishops and their staff (revised March 2013), addresses issues relating to the management of clergy personal files [42 to 75] and the sharing of information in clergy personal files, [59 to 76]. With regard to the former it notes:
“43. For a number of years, the Bishoprics and Cathedrals Department has provided files in the form of blue card folders, with sub-divisions (hence the widely accepted use of the term ‘blue files’ when referring to clergy personal files). These folders have no official status and bishops are not obliged to use them. They have, however, been found helpful in promoting consistency. The format of these folders will be updated from time to time.”
In contrast, S38 Clergy Discipline Measure 2003, as amended, places a duty of the Archbishops acting jointly to compile and maintain a list of all clerks in Holy Orders:
(a) on whom a penalty or censure (by consent or otherwise) has been imposed under this Measure or the 1963 Measure; or
(b) who have been deposed from Holy Orders under the 1963 Measure; or
(c) who have executed a deed of relinquishment under the Clerical Disabilities Act 1870 (c. 31); or
(d) who have resigned preferment following the making of a complaint in writing against them under section 10(1) above or under the 1963 Measure; or
(dd) whose name is included in a barred list ; or
(e) who, in the opinion of the archbishops, have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment.
The relevant Archbishop is required to take all reasonable steps to inform the person in writing of his or her inclusion and the particulars that have been recorded. Where inclusion is under grounds (a) to (dd), the person may request the President of Tribunals to review the matter, following which the President may either direct the continued inclusion under the same or revised particulars, or should be not be included on the List.
In relation to ground (e), there is an additional requirement that the Archbishop’s notification is accompanied by an invitation to send comments or representations in writing within twenty-one days: the Archbishop will then decide whether or not to include that person in the list and the person will be informed of the decision in writing of their decision.
In an earlier post we noted the relevance of paragraphs 3 to 11 of Personal Files Relating to Clergy – Guidance for Bishops and their staff which relate to: “Circumstances in which personal information will be shared”; and the use of Episcopal Reference and Clergy Current Status Letters (‘CCSL’). Guidance concerning the personal files of readers, other licensed lay ministers, and those who are exploring a vocation to ministry or who are in training but not yet ordained is addressed in separate documents.
The legally-sanctioned Archbishops’ List was in existence well before the publication of the House of Bishops’ Pastoral statement of Pastoral Guidance on Same Sex Marriage, and provides a vehicle for the collation, assessment and recording of information on the activities of “all clerks in Holy Orders”, including those: “who, in the opinion of the Archbishops, have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment.” However, the non-statutory CDM Code of Practice indicates that in relation to a Permission to Officiate, [para 19]
“If a complaint is made under the Measure against a priest or deacon who has the bishop’s written permission to officiate [PTO] . . . . . the bishop can, nonetheless, terminate the PTO for misconduct without taking any action under the Measure (unlike a Licence, which cannot be terminated for misconduct except by way of proceedings under the Measure). In serious cases of misconduct, however, the bishop may choose to deal with it under the Measure, so that that person’s name may be included in the Archbishops’ List.”
This emphasizes the discretionary nature of the PTO, and indicates that unless proceedings are taken under the Measure, a person’s name may not be included on the Archbishops’ List. However, details may be recorded in the person’s personal file, [para 124],
“If the bishop considers on the evidence that there has been misconduct, but decides to take no further action on the complaint under the Measure because it is not of sufficient seriousness, the bishop may nonetheless advise and warn the respondent in writing as to future behaviour. A copy of the advice and warning should be kept in the respondent’s personal file (known as the blue file) for an appropriate period. No record of it will be entered in the Archbishops’ List.”
In view of the uncertainties in applying sanctions under ecclesiastical law summarized here and elsewhere, and the Bishop of Gloucester’s observation that the Pastoral Statement “did not signal as fully as it might have done that there is, inevitably, a variety of views in the House of Bishops”, there are clearly problems in achieving a consistent approach throughout the Church. The establishment of the Bishop of Norwich’s reference group goes part way towards the achievement of this objective but has no formal powers and will only be accessed by those diocesan bishops seeking information or advice.
Rather than focussing on which clergy have been blacklisted, perhaps the focus should be on how consistently the Church addresses those clergy who enter into same-sex marriages – Quis custodiet ipsos custodes?
 A “Black Book” listing abuses in the monasteries was compiled during the reign of Henry VIII and subsequent references to “black books” became associated with censure or punishment: the associated word “blacklist” is said to originate from a list made by Charles II of the fifty-eight judges and court officers who sentenced his father, Charles I, to death in 1649. When Charles II was restored to the throne in 1660, thirteen of these regicides were put to death and twenty-five sentenced to life imprisonment; the others escaped.
 For completeness, reference should also be made to the potential use of the common law tort of ‘unlawful means conspiracy’ in relation to the claims against the construction firm Robert McAlpine concerning the blacklisting of workers.
 Including: ss 2 and 13, Employment Relations Act 1999; Employment Relations Act 1999 (Blacklists) Regulations 2010 SI 493; ss 146, 295 and 296, Trade Union and Labour Relations (Consolidation) Act 1992, as amended; ss 44 and 230, Employment Rights Act 1996.
 For example: Smith v Carillion (JM) Ltd and Schal International Management Ltd EAT Appeal No. UKEAT/0081/13/MC.
 In addition to Personal Files Relating to Clergy – Guidance for Bishops and their staff, these include: Chapter and Verse – The Care of Cathedral Records (published June 2013); Cherish or Chuck? – The Care of Episcopal Records, (published December 2009); Save or Delete? – The Care of Diocesan Records (revised December 2008); Keep or Bin? – The Care of Your Parish Records (revised April 2009); (revised March 2013).
 A persons in Holy Orders who is included in a barred list is under a duty to inform the appropriate bishop or archbishop within the period of twenty-eight days following their inclusion and the reasons for such inclusion, [s34A of the 2003 Measure].