A Measure passed by the General Synod of the Church of England to amend the law relating to ecclesiastical discipline, to amend section 3 of the Ecclesiastical Jurisdiction Measure 1963 and section 5(5) of the Ecclesiastical Judges and Legal Officers Measure 1976, and for purposes connected therewith.

NOTE The Measure came into force in the Isle of Man on 1st January 2006, by virtue of the Clergy Discipline Measure (Isle of Man) 2005 (Appointed Day) Order 2005 (SD 854/05)

Introductory

1. Duty to have regard to bishop's role

Any body or person on whom functions in connection with the discipline of persons in Holy Orders are conferred by this Measure shall, in exercising those functions, have due regard to the role in that connection of the bishop or archbishop who, by virtue of his office and consecration, is required to administer discipline.

2. Disciplinary tribunals

Where a complaint is to be referred under this Measure to a disciplinary tribunal the tribunal (to be called the bishop's disciplinary tribunal) shall be constituted for the diocese in question in accordance with section 22 below to deal with the complaint.

3. Clergy Discipline Commission

(1) There shall be a body (to be called the Clergy Discipline Commission) consisting of not more than twelve persons appointed by the Appointments Committee of the Church of England including at least —

(a) two persons from each House of the General Synod;

(b) two persons who have either a seven years general qualification within the meaning of the Courts and Legal Services Act 1990 or who have held or are holding high judicial office or the office of Circuit judge.

(2) The Appointments Committee shall, after consultation with the Dean of the Arches and Auditor, appoint a member of the Commission to be the chairman of the Commission and also a member to be the deputy chairman, being members who have the qualifications referred to in subsection (1)(b) above.

(3) The Commission shall exercise the functions conferred on it by this Measure and in addition shall have the following duties —

(a) to give general advice to disciplinary tribunals, the courts of the Vicars-General, bishops and archbishops as to the penalties which are appropriate in particular circumstances;

(b) to issue codes of practice and general policy guidance to persons exercising functions in connection with clergy discipline;

(c) to make annually to the General Synod through the House of Bishops thereof a report on the exercise of its functions during the previous year.

4. President of tribunals

(1) The chairman and deputy chairman of the Commission shall be the president of tribunals and the deputy president respectively for the purposes of this Measure.

(2) The president of tribunals shall exercise the functions conferred on him by this Measure and in addition shall have the following duties —

(a) to issue practice directions;

(b) to act as the chairman of a disciplinary tribunal where, in his opinion, important points of law or principle are involved;

(c) to exercise such other functions as may be prescribed.

(3) The deputy president of tribunals shall act for the president when the president is absent or is unable or unwilling to act.

5. Registrar of tribunals

(1) The archbishops of Canterbury and York shall each for his province, after consultation with the president of tribunals, appoint a person to be the registrar of tribunals for the province for the purposes of this Measure.

(2) A person so appointed shall be a person who has a general qualification within the meaning of the Courts and Legal Services Act 1990.

(3) The person holding the office of registrar of tribunals for a province shall vacate that office on the date on which he attains the age of seventy years or such earlier age as may be prescribed by regulations made by the House of Bishops of the General Synod under section 5 of the Ecclesiastical Judges and Legal Officers Measure 1976.

(4) The registrar of tribunals for a province may resign his office by instrument in writing under his hand addressed to, and served on, the archbishop of the province and the instrument shall specify the date, being a date not less than twelve months after the service of the instrument or such earlier date as the archbishop may allow, on which the resignation is to take effect.

(5) The appointment of a person as registrar of tribunals for a province may be terminated by an instrument in writing under the hand of the archbishop of the province (after consultation with the president of tribunals) addressed to, and served on, that person, and the instrument shall specify the date, being a date not less than twelve months after the date of service of the instrument, on which the appointment is to terminate.

(6) The registrar of tribunals for a province shall exercise the functions conferred on him by this Measure and in addition shall have the following duties —

(a) to direct and supervise the general administration of disciplinary tribunals in the province;

(b) to exercise such other functions as may be prescribed.

(7) If the person holding the office of registrar of tribunals for a province is for any reason unable or unwilling to perform the duties of a registrar or it would be inappropriate for him to perform those duties, the registrar of tribunals for the other province [or, where a person has been selected under subsection (8), that person] shall perform those duties and, for that purpose, shall have all the powers and duties of the registrar of the first-mentioned province.

[(8) The registrar of tribunals for a province —

(a) may select a person to perform the duties of the registrar in the circumstances mentioned in subsection (7), but

(b) may not do so without having obtained the written approval of the president of tribunals.]

NOTE: s.5: subs.(7): words in square brackets inserted by Safeguarding and Clergy Discipline Measure 2016 s.9(1); subs.(8) inserted by ib. s.9(2).

6. Jurisdiction in disciplinary proceedings

(1) A disciplinary tribunal constituted for a diocese has jurisdiction to hear and determine disciplinary proceedings under this Measure against a priest or deacon —

(a) who, when the misconduct complained of was alleged to have been committed, held preferment in the diocese or, subject to subsection (3) below, was resident therein; or

(b) who is alleged to have officiated as a minister in the diocese without authority.

(2) The Vicar-General's court of each of the provinces of Canterbury and York constituted in accordance with the provisions of this Measure has jurisdiction to hear and determine disciplinary proceedings under this Measure —

(a) against any bishop who, when the misconduct complained of was alleged to have been committed, held preferment in the province or, subject to subsection (3) below, was resident therein; or

(b) against any bishop who is alleged to have officiated as a minister in the province without authority; or

(c) against the archbishop of the other province.

(3) Where disciplinary proceedings in respect of any matter are instituted under section 10 below against —

(a) a priest or deacon in the diocese in which he holds or held preferment or in which he is alleged to have officiated as a minister without authority, or

(b) a bishop in the province in which he holds or held preferment or in which he is alleged to have officiated without authority, no such proceedings in respect of the same matter shall be instituted in any other diocese or the other province, as the case may be, on the basis of residence therein and any such proceedings previously instituted on that basis shall be discontinued.

(4) Where disciplinary proceedings in respect of any matter are instituted under section 10 below against —

(a) a priest or deacon in the diocese in which he is alleged to have officiated without authority, or

(b) a bishop in the province in which he is alleged to have officiated without authority,

no such proceedings in respect of the same matter shall be instituted in any other diocese or the other province, as the case may be, on the basis of preferment therein and any such proceedings previously instituted on that basis shall be discontinued.

(5) In this section and elsewhere in this Measure "preferment" has the meaning assigned to it by section 43 below.

Disciplinary proceedings concerning matters not involving doctrine, ritual or ceremonial

7. Application

(1) The following provisions of this Measure shall have effect for the purpose of regulating proceedings against a clerk in Holy Orders who is alleged to have committed an act or omission other than one relating to matters involving doctrine, ritual or ceremonial, and references to misconduct shall be construed accordingly.

(2) Proceedings in relation to matters involving doctrine, ritual or ceremonial shall continue to be conducted in accordance with the 1963 Measure.

8. Misconduct

(1) Disciplinary proceedings under this Measure may be instituted against any archbishop, bishop, priest or deacon alleging any of the following acts or omissions —

(a) doing any act in contravention of the laws ecclesiastical;

[(aa) failing to comply with the duty under section 5 of the Safeguarding and Clergy Discipline Measure 2016 (duty to have due regard to House of Bishops’ guidance on safeguarding children and vulnerable adults);]

(b) failing to do any [other] act required by the laws ecclesiastical;

(c) neglect or inefficiency in the performance of the duties of his office;

(d) conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.

(2) In the case of a minister licensed to serve in a diocese by the bishop thereof, the licence shall not be terminated by reason of that person's misconduct otherwise than by way of such proceedings.

[]

(3) [Subject to subsection (4) below,] no proceedings in respect of unbecoming [or inappropriate] conduct shall be taken in respect of the lawful political opinions or activities of any [archbishop,] bishop, priest or deacon.

[(4) Notwithstanding subsection (3) above, it shall be unbecoming or inappropriate conduct for any archbishop, bishop, priest or deacon to be a member of or to promote, or express or solicit support for, a political party or other organisation whose constitution, policies, objectives, activities or public statements are declared in writing by the House of Bishops to be incompatible with the teaching of the Church of England in relation to the equality of persons or groups of different races.

(5) It shall be the duty of the House of Bishops to take appropriate steps to publish any declaration made under subsection (4) above.

(6) Without prejudice to subsection (5) above, the House of Bishops shall lay any declaration made under subsection (4) above before the General Synod and, if 25 or more members of the Synod give notice in accordance with its Standing Orders that they wish the declaration to be debated, it shall come into force on the date on which the declaration is approved by the General Synod.

(7) Any declaration made under subsection (4) above which is not debated by the General Synod in accordance with subsection (6) above shall come into force at the expiry of the period required by the Standing Orders for the giving of the notice under subsection (6).

(8) Any declaration made under subsection (4) above may be revoked by a resolution of the House of Bishops and subsections (5), (6) and (7) above shall apply to any such resolution as they apply to a declaration under subsection (4).

(9) Any declaration made under subsection (4) above may be revoked by a declaration made by the House of Bishops under that subsection.

(10) Any declaration made by the House of Bishops under subsection (4) above shall require the assent of a majority of not less than two-thirds of the members of the House present and voting.

(11) In subsection (4) "race" shall be construed in accordance with section 9 of the Equality Act 2010.]

NOTE: s.3: subs.(1): para.(aa), and word in square brackets in para.(b), inserted by Safeguarding and Clargy Discipline Measure 2016 s.6(3); subs.(3): words in square brackets inserted by Clergy Discipline (Amendment) Measure 2013 s.1(2); subss.(4)-(11) inserted by ib. s.1(3).

9. Limitation of time for institution of proceedings

[(1)] No disciplinary proceedings under this Measure shall be instituted unless the misconduct in question, or the last instance of it in the case of a series of acts or omissions, occurred within the period of one year ending with the date on which proceedings are instituted:

Provided that, when the misconduct is one for which the person concerned has been convicted either on indictment or summarily, proceedings may be instituted within twelve months of the conviction becoming conclusive, notwithstanding that the aforesaid period of one year has elapsed:

And provided further that the president of tribunals may, if he considers that there was good reason why the complainant did not institute proceedings at an earlier date, after consultation with the complainant and the respondent, give his written permission for the proceedings to be instituted after the expiry of the said period of one year.

[(2) Subsection (1) does not apply where the misconduct in question is conduct of a sexual nature towards a child.

(3) Subsection (1) does not apply where the misconduct in question is conduct of a sexual nature towards an adult if the president of tribunals considers that the adult was a vulnerable adult at the time of the conduct, having taken into account such representations as the complainant and respondent each make on the issue of vulnerability.

(4) Where, in a case within subsection (3), the president of tribunals does not consider that the adult was a vulnerable adult at the time of the conduct in question, the president may at the same time decide whether nonetheless to give permission under subsection (1) for the proceedings to continue; and for that purpose, the second proviso to 10 subsection (1) has effect as if for "to be instituted" there were substituted "to continue despite having been instituted".]

NOTE: s.9 renumbered as subs.(1), and subss.(2)-(4) inserted, by Safeguarding and Clergy Discipline Measure 2016 s.7.

10. Institution of proceedings

(1) Disciplinary proceedings under this Measure may be instituted against any person who is subject to the jurisdiction of a disciplinary tribunal or the Vicar-General's court by virtue of section 6 above, by way of complaint made in writing, only as follows —

(a) in the case of a priest or deacon, by —

(i) a person nominated by the parochial church council of any parish which has a proper interest in making the complaint, if not less than two-thirds of the lay members of the council are present at a duly convened meeting of the council and not less than two-thirds of the lay members present and voting pass a resolution to the effect that the proceedings be instituted; or

(ii) a churchwarden of any such parish; or

(iii)any other person who has a proper interest in making the complaint;

(b) in the case of a bishop, by —

(i) a person nominated by the bishop's council of the diocese concerned, if not less than two-thirds of the members of the council are present at a duly convened meeting of the council and not less than two-thirds of the members present and voting pass a resolution to the effect that the proceedings be instituted; or

(ii) any other person who has a proper interest in making the complaint;

(c) in the case of an archbishop by —

(i) a person nominated by the archbishop's council of his diocese if not less than two-thirds of the members of the council are present at a duly convened meeting of the council and not less than two thirds of the members present and voting pass a resolution to the effect that the proceedings be instituted; or

(ii) any other person who has a proper interest in making the complaint.

(2) A complaint under this section shall be laid —

(a) in the case of a priest or deacon, before the diocesan bishop concerned,

(b) in the case of a bishop, before the archbishop concerned,

(c) in the case of an archbishop, before the other archbishop,

and references in the following provisions of this Measure to the bishop by whom a complaint is received shall, in the case of proceedings against a bishop or archbishop, be construed as references to the archbishop or other archbishop respectively.

(3) A complaint made under this section shall be accompanied by written particulars of the alleged misconduct, and written evidence in support of the complaint shall be sent to the bishop or archbishop, as the case may be, either with the complaint or at such later time as he may allow.

11. Preliminary scrutiny of complaint

(1) When a complaint in writing has been made in accordance with section 10 above it shall be referred in the first instance to the registrar of the diocese or province concerned, as the case may be, who shall thereupon scrutinise the complaint in consultation with the complainant with a view to —

(a) forming a view as to whether or not the parochial church council or other person making the complaint has a proper interest in doing so or, if the complainant purports to be a churchwarden, establishing that he is such, and

(b) forming a view as to whether or not there is sufficient substance in the complaint to justify proceeding with it in accordance with the following provisions of this Measure,

and the registrar shall notify the respondent that the complaint has been referred to him.

(2) Having scrutinised the complaint the registrar shall, within the period of twenty-eight days following its receipt by him or such longer period as he considers to be justified in the particular circumstances of the case, send a written report to the bishop by whom the complaint was received setting out the registrar's views and thereupon the bishop shall deal with the complaint in accordance with the following provisions of this Measure, having regard to the registrar's report:

Provided that the period of twenty-eight days referred to above shall not be extended as aforesaid more than once.

(3) On receipt of the registrar's report the bishop may dismiss the complaint and, if he does so, he shall give written notice of the dismissal to the complainant and the respondent, together with a copy of the report.

(4) . . .

(5) Where the registrar proposes to extend the period of twenty-eight days referred to in subsection (2) above, he shall, before doing so, consult the complainant and the respondent.

(6) The registrar may delegate any or all of his functions under this section to such person as he may designate.

NOTE: s.11: subs.(4) omitted by Clergy Discipline Measure (Isle of Man) 2005.

12. Courses available to bishop

(1) If the complaint is not dismissed under section 11(3) above the bishop shall, within the period of twenty-eight days following the receipt by him of the registrar's report under section 11(2) above . . . , or such longer period as he considers to be justified in the particular circumstances of the case, determine which of the following courses is to be pursued —

(a) he may take no further action, in which case the provisions of section 13 below apply; or

(b) he may, if the respondent consents, direct that the matter remain on the record conditionally, in which case the provisions of section 14 below apply; or

(c) he may direct that an attempt to bring about conciliation in accordance with section 15 below is to be made; or

(d) he may impose a penalty by consent in accordance with section 16 below; or

(e) he may direct that the complaint is to be formally investigated in accordance with section 17 below.

(2) Where the bishop proposes to extend the period of twenty-eight days referred to in subsection (1) above he shall, before doing so, consult the complainant and the respondent.

NOTE: s.12: subs.(1): words omitted by Clergy Discipline Measure (Isle of Man) 2005.

13. No further action

(1) Where the bishop determines that there is to be no further action the following provisions of this section shall apply.

(2) The bishop shall reduce his determination to writing and shall give a copy of it to the complainant and the respondent.

(3) . . .

NOTE: s.13: subs.(3) omitted by Clergy Discipline Measure (Isle of Man) 2005.

14. Conditional deferment

(1) Where the bishop, with the consent of the respondent, determines that the matter is to be recorded conditionally the following provisions of this section shall apply.

(2) The complaint and the bishop's determination shall be notified to the archbishop concerned and remain on a record maintained by the diocesan registrar concerned for such period not exceeding five years as the bishop may determine and, subject to subsection (3) below, no further action shall be taken.

(3) Notwithstanding the provisions of section 9 above, if another complaint is made under section 10 above against the respondent and that complaint is dealt with under paragraph (c), (d) or (e) of section 12(1) above, the recorded complaint may be dealt with under any of those paragraphs together with the other complaint.

(4) The bishop shall reduce his determination to writing and give a copy of it to the complainant and the respondent. He shall also supply them with a statement explaining the effect of subsections (2) and (3) above.

15. Conciliation

(1) Where the bishop determines that an attempt to bring about conciliation is to be made he shall afford the complainant and the respondent an opportunity to make representations and, if both of them agree to the appointment of a conciliator, an appointment shall be made under subsection (2) below.

(2) The appointment of a conciliator shall be by the bishop with the agreement of the complainant and the respondent.

(3) The bishop shall not appoint any person to be a conciliator unless he is satisfied that there is no reason to question the impartiality of that person.

(4) A conciliator appointed under this section shall use his best endeavours to bring about a conciliation between the complainant and the respondent and —

(a) if, within the period of three months following his appointment or such further period as he may, with the agreement of the complainant and the respondent, allow a conciliation is brought about, he shall submit a report on the case to the bishop, together with such recommendations as he may wish to make;

(b) if a conciliation is not brought about but the complainant and the respondent agree that another conciliator should be appointed, the bishop may appoint that other person as the conciliator for the purposes of this section;

(c) if a conciliation is not brought about and the complainant and the respondent do not agree as aforesaid, he shall refer the matter back to the bishop.

(5) If —

(a) the complainant and the respondent do not agree to the appointment of a conciliator or as to the person to be appointed, or

(b) the matter is referred back to the bishop by the conciliator under subsection (4)(c) above,

the bishop shall proceed to deal with the complaint under paragraph (a), (b), (d) or (e) of section 12(1) above.

16. Penalty by consent

(1) Where the bishop considers that the imposition of a penalty by consent might be appropriate, he shall afford the complainant and the respondent an opportunity to make representations and, if the respondent consents to the imposition of a penalty under this section and he and the bishop agree as to the penalty, the bishop shall, subject to subsection (2) below, proceed accordingly and thereafter no further step shall be taken in regard thereto.

(2) Where it is agreed that prohibition for life or resignation is the appropriate course the respondent or the bishop may, within the period of seven days following the date of the agreement, withdraw his agreement and the prohibition or resignation shall not be implemented in pursuance of this section.

(3) If the consent of the respondent to the imposition of a penalty under this section is not obtained or he and the bishop are unable to reach agreement as to the nature of the penalty, the bishop shall proceed to deal with the complaint under paragraph (e) of section 12(1) above.

[(3A) Where at any time after the bishop has directed, under section 12(1)(e) above, that the complaint be formally investigated in accordance with section 17 below or after the [appointed person] has referred the complaint to a disciplinary tribunal, the bishop and the respondent may, if the respondent admits the misconduct which is the subject of the complaint, agree to the imposition of a penalty under this section and the bishop shall, subject to subsection (2) above, proceed accordingly and thereafter no further step shall be taken in regard thereto.]

(4) The bishop shall notify the complainant of any action taken in pursuance of this section and shall also notify the archbishop of the province concerned and the registrar of the diocese concerned of any penalty agreed in pursuance of subsection (1) above.

NOTE: s.16: subs.(3A) inserted by Clergy Discipline (Amendment) Measure 2013 s.2(2); words in square brackets substituted by Clergy Discipline (Amendment) Measure (Isle of Man) 2013 Sch. para.2.

17. Formal investigation

[(1) Where the bishop directs that the complaint is to be formally investigated, he shall refer the matter to —

(a) such person as he may appoint for the purpose (hereinafter referred to as "the appointed person"), in the case of a complaint appearing to him to fall within the jurisdiction of a disciplinary tribunal; or

(b) the designated officer, in the case of a complaint appearing to him to fall within the jurisdiction of the Vicar-General's court;

and it shall then be the duty of the appointed person or the designated officer, as the case may be, to cause inquiries to be made into the complaint.

(1A) If, as a result of such inquiries —

(a) it appears to the appointed person that the complaint falls within the jurisdiction of the Vicar-General's court, or

(b) it appears to the designated officer that the complaint falls within the jurisdiction of a disciplinary tribunal,

the appointed person or the designated officer, as the case may be, shall notify the bishop accordingly.

(1B) Subject to subsection (1A) above, after the appointed person has made due inquiries, he shall —

(a) determine whether there is a case to answer in respect of which a disciplinary tribunal should be requested to adjudicate;

(b) if he decides that there is a case for the respondent to answer, declare that as his decision and refer the complaint to a disciplinary tribunal for adjudication;

(c) if he decides that there is no case for the respondent to answer, declare that as his decision (and thereafter no further steps shall be taken in regard thereto); and

(d) reduce his decision to writing and give a copy of it to the complainant, the respondent and the bishop.

(2) Subject to subsection (1A) above, after the designated officer has made due inquiries, he shall refer the matter to the president of tribunals for the purpose of deciding whether there is a case to answer in respect of which the Vicar-General's court should be requested to adjudicate.]

(3) If the president of tribunals decides that there is a case for the respondent to answer he shall declare that as his decision and refer the complaint to [the Vicar-General's court] for adjudication.

(4) If the president of tribunals decides that there is no case for the respondent to answer he shall declare his decision, and thereafter no further steps shall be taken in regard thereto.

(5) The president of tribunals shall reduce his decision to writing and shall give a copy of it to the complainant, the respondent, the bishop and the designated officer.

NOTE: s.17: subss.(1) & (2) substituted, and subss.(1A) & (1B) added, by Clergy Discipline Measure (Isle of Man) 2005; subs.(3): words in square brackets substituted by ibid.

18. Conduct of proceedings

(1) In disciplinary proceedings under this Measure it shall be the duty of [the appointed person or the designated officer, as the case may be,] or a person duly authorised by him to conduct the case for the complainant.

(2) In any such proceedings [the chancellor of the diocese or the president of tribunals, as the case may be,] may direct —

(a) that the complaint is to be withdrawn, whereupon no further action shall be taken in the proceedings; or

(b) that an attempt or further attempt to bring about conciliation is to be made, whereupon the provisions of section 15 above shall apply.

(3) In any such proceedings —

(a) the standard of proof to be applied by the tribunal or court shall be the same as in proceedings in the High Court exercising civil jurisdiction;

(b) the determination of any matter before the tribunal or court shall be according to the opinion of the majority of the members thereof and shall be pronounced in public together with its reasons therefor;

(c) the hearing shall be in private, except that the tribunal or court, if satisfied that it is in the interests of justice so to do or the respondent so requests, shall direct that the hearing shall be in public in which case the tribunal or court may, during any part of the proceedings, exclude such person or persons as it may determine.

NOTE: s.18: subss.(1) & (2): words in square brackets substituted by Clergy Discipline Measure (Isle of Man) 2005.