On Saturday 11 July the Church of England’s General Synod gave final approval to a package of proposals on safeguarding. The package is intended to strengthen both the disciplinary processes under the Clergy Discipline Measure 2003 where safeguarding issues arise and the Church’s wider legal framework in relation to safeguarding. The legislation was originally introduced in February 2014 following a consultation launched at Synod in July 2013.

The Safeguarding and Clergy Discipline Measure and draft Amending Canon No. 34, which were introduced by the Bishop of Durham, contain a range of powers, including:

• Giving bishops the power to suspend a priest or deacon where the local authority or police provides information which leads the bishop to be satisfied that a cleric presents a significant risk of harm; and similar powers for an archbishop to suspend a bishop in such circumstances. (As with all existing provisions this includes a right of appeal against suspension to the President of Tribunals).
• Provision for disqualification from office as a churchwarden or member of a parochial church council of anyone whose name appears on a statutory barred list under the Safeguarding Vulnerable Groups Act 2006.
• Provision for the bishop to suspend a churchwarden or PCC member on safeguarding grounds in circumstances similar to suspending clergy, with a similar right of appeal).
• A statutory obligation on office holders to have regard to safeguarding advice issued by the House of Bishops: it had previously been expected that clergy would comply but compliance is now formalised into a statutory duty.
• Removal of the current one-year limitation period on complaints of clergy misconduct specifically in relation to complaints of sexual misconduct towards children and vulnerable adults – on which there will now be no time-bar.
• A canonical duty on diocesan bishops to appoint a Diocesan Safeguarding Adviser to carry out certain functions.
• Provision for archbishops and bishops to direct bishops and clergy to undergo a risk assessment (with a right to request that the President of Tribunals review the direction). Subject to that review, it would be misconduct to refuse to undergo the assessment.
• Similar powers for bishops in relation to readers and lay-workers.

The Measure now proceeds to the Ecclesiastical Committee for approval, and then Royal Assent. For the draft Amending Canon, the Queen must issue a royal licence before it can be promulged.

The Clergy Discipline Measure 2003 did not expressly repeal section 50 of the Ecclesiastical Jurisdiction Measure 1963; however, the penalty appears to have been dropped on the entry into force of the CDM 2003, section 1 of which lists the following penalties:

“(a) prohibition for life, that is to say prohibition without limit of time from exercising any of the functions of his Orders;

(b) limited prohibition, that is to say prohibition for a specific time from exercising any of the functions of his Orders;

(c) removal from office, that is to say, removal from any preferment which he then holds;

(d) in the case of a minister licensed to serve in a diocese by the bishop thereof, revocation of the licence;

(e) injunction, that is to say, an order to do or to refrain from doing a specified act;

(f) rebuke.”

So it appears that, currently, though a cleric can be banned from ministry for life he or she remains in priest’s or deacon’s orders and there is currently no mechanism for forced laicisation; and that was confirmed in Synod by the Bishop of Durham, replying on behalf of the Chair to a question from the Revd Neil Patterson (Hereford):

“… With regard to exercising ministry, prohibition for life already exists as the most severe penalty under the Clergy Discipline Measure and may be invoked in the case of serious safeguarding offences. When the draft Clergy Discipline Measure was being considered in 2000 the Synod decided not to include deposition in the range of penalties available under the Measure. I intend to invite the House of Bishops to reconsider whether that decision was wise but amending the CDM to allow deposition would require a Measure, so change would take some considerable time.”

Comment on our post Is it an offence to impersonate a cleric? – thoughts on deposition from Holy Orders suggested that the reason why deposition from holy orders was discontinued in the CDM

“was because once deposed, a cleric had no right of appeal against sentence, even if fresh information came to light which would have brought about his acquittal in a secular court.

While a sentence of deposition (which could be administered under the EJM in private, by the bishop, with the consent of the cleric, without a trial) was devastating for anyone who wished to serve thereafter in the Church of England, it was routinely ignored by other provinces in the UK, who continued to appoint to full time ministry clerics who had been ‘deposed’ in the Church of England.

Deposition evidently was not taken to mean that a deposed cleric had been spiritually deprived of the charism of holy orders. It simply meant a life bar preventing the exercise of those orders in the Church of England. The CDM’s exclusion of deposition from the tariff of sentences available and its introduction of a new sentence of prohibition for life is intended both to provide for the possibility of a subsequent appeal, and a recognition that deposition cannot alter the fact that the cleric concerned has been ordained to a ministry which may be put into abeyance, but cannot be erased by the sentence of a court.”

Comment

When priests and deacons are ordained in the Church of England they become subject to the ecclesiastical law of that Church and remain so unless they follow the requirements of the Clerical Disabilities Act 1870 and make a formal deed of relinquishment, having resigned any and every preferment held by them: see Rouch v Hawthorne [2015] Winchester Disciplinary Tribunal.

In our post in February, we looked more generally at the question of whether it was an offence to impersonate a cleric and concluded that the answer must be “no” – unless the impersonation was for some otherwise criminal purpose such as fraud, conspiracy or sham marriage. But there is also a wider question as to whether, in theological terms (at least as understood by the Western Church), deposition from Holy Orders means that the offender becomes a lay person again or whether he or she remains in some sense a cleric even if totally inhibited from acting as such.

Which sounds like a distinction without a difference: but, for example, in the Roman Catholic Church Catechism of The Church, Article 6, The Sacrament of Holy Orders, states

1583. It is true that someone validly ordained can, for grave reasons, be discharged from the obligations and functions linked to ordination, or can be forbidden to exercise them; but he cannot become a layman again in the strict sense, because the character imprinted by ordination is for ever. The vocation and mission received on the day of his ordination mark him permanently.” [emphasis added].

The canonical (and thus juridic) position is to be found in c290 CIC.

So it’s not just a theoretical point; and presumably, the House of Bishops will clarify the matter so far as the Church of England is concerned.

Links to provisions in the Roman Catholic Church updated 8 July 2023 at 16:09.