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Focus on Canon Law
Ecclesiastical courts and disciplinary jurisdiction
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In the last of a series of three articles on Canon Law, the Revd Terence Dunlop considers the functions and effectiveness of ecclesiastical courts, with regard to a recent blessing ceremony in a London church of a same-sex clergy civil partnership.
The couple used a version of the 1662 Book of Common Prayer’s Solemnization of Matrimony … Where the original prayer refers to joining "this Man and this Woman in holy Matrimony", the words were changed to read: " ... these Men in a holy covenant of love and fidelity."
Thus did the The Daily Telegraph report proceedings at a recent ceremony performed for two male clergy in St Bartholomew the Great in the City of London by the rector, the Revd Dr Martin Dudley.
The event in question provides an interesting case study by which to examine the function - and effectiveness - of the ecclesiastical courts in the exercise of their disciplinary jurisdiction. This article shall, in the first instance, seek to explore what implications there might now be for Dr Dudley in the ecclesiastical courts, before turning to consider - briefly - what might be the legal consequences if something similar were to happen in the Church of Ireland. I have deliberately avoided expressing my own views on homosexuality within the article in order to focus purely on the legal implications of the reported ceremony.
CHURCH DISCIPLINE
The primary object of the disciplinary aspect of Canon Law has traditionally been described as pro salute anime - for the health of the individual’s soul - and the implications of this can, of course, extend to the laity. Thus, Canon 16 of the Church of Ireland Canons provides for what is sometimes referred to as ‘Lesser Excommunication’, where, on a referral by the incumbent, the bishop may pronounce a sentence of exclusion from Holy Communion on an individual which is valid in every part of the Church. The grounds for such exclusion are "grave and open sin without repentance." However, it is the clergy who are the primary subject of the Church’s rules on discipline.
TYPES OF OFFENCE PUNISHABLE IN THE COURTS OF THE CHURCH OF ENGLAND
Recent legislation in the Church of England has maintained a twofold distinction in the types of offences for which clergy may face proceedings. First, offences falling under the general heading of ‘conduct’ (which includes ‘conduct unbecoming the office and work of a Clerk in Holy Orders’) are now dealt with under a new process in which a number of courses are open to the bishop, the most serious of which may result in the matter coming before a newly-constituted ‘bishop’s disciplinary tribunal’ (rather than the traditional consistory court). Sensibly, the strong emphasis here is on seeking to conciliate before the need for tribunal proceedings arises.
Second, any offences ‘against the laws ecclesiastical involving matters of doctrine, ritual or ceremonial’ are dealt with by an older procedure in a tribunal known as the Court of Ecclesiastical Causes Reserved.
HAS DR DUDLEY COMMITTED AN OFFENCE KNOWN TO CANON LAW?
If Dr Dudley is guilty of an ecclesiastical offence, it is likely to be a ritual one, since the wording used in the impugned liturgy is what gives cause for concern. It would, therefore, come within the jurisdiction of this last named court (which follows as closely as possible the procedures of the Crown Court). The only penalties (or ‘censures’) open to this court on a first offence are: 1. a ‘rebuke’, and 2. a ‘monition’ ordering the minister to do, or refrain from doing, a specified act. Press speculation about a possible ‘defrocking’ is, therefore, very wide of the mark.
Although the liturgy performed was ostensibly the marriage service, it was, in essence, a borrowing of the language of that service for the purposes of a service of blessing (or, perhaps, of prayer and dedication) of an already contracted civil partnership. So how precisely would those framing any charge describe the offence?
In his published letter to Dr Dudley, the Bishop of London refers to him having broken the House of Bishops’ Guidelines. This is a document issued by the English House of Bishops in July 2005 concerning Civil Partnerships. Paragraph 17 of those Guidelines states: "The House of Bishops affirms that clergy of the Church of England should not provide services of blessing for those who register a civil partnership." The bishop’s letter also refers to Dr Dudley’s oath of obedience. This is the oath which every licensed priest or deacon of the Church of England has taken, promising to "pay true and canonical obedience" to the bishop "in all things lawful and honest." It is noteworthy that, in the Church of Ireland, the equivalent oath commits the oath-taker to "render all due reverence and canonical obedience" to the bishop "in all lawful and honest commands." [My italics]
The difficulty for those contemplating prosecution of Dr Dudley is that guidelines are simply that: guidelines - strong advice, perhaps, but not commands having force of law and consequently not the sort of thing which demands obedience. Put another way: it would be a category error to regard episcopal guidance as something which results in prosecution where it has been disregarded.
Significantly, Canon B5(2) of the Church of England Canons permits the minister having the cure of souls to use on occasions for which no provision is made forms of service considered suitable by him for those occasions (often referred to as ‘the local option’). There is a proviso that the service must not contravene the doctrine of the Church of England "in any essential matter." Canon B5(4) provides that "if any question is raised concerning the observance of the provisions of this Canon it may be [again, my italics] referred to the bishop in order that he may give such pastoral guidance, advice or directions as he may think fit."
So, the role envisaged for the bishop here (assuming the minister, in his apparent discretion, refers the question to him) is advisory and such pastoral guidance etcetera which he might give is not legally binding and will not have the effect of displacing the jurisdiction of the ecclesiastical court.
WHAT IS THE ESSENTIAL DOCTRINE OF THE CHURCH OF ENGLAND?
An argument could, I suppose, be made for saying that the service breached the terms of Canon B5 in that it contravened the doctrine of the Church of England in some essential matter. The English Canon A5 states that the doctrine of the Church of England "is grounded in the Holy Scriptures, and in such teachings of the ancient Fathers and Councils of the Church as are agreeable to the said Scriptures. In particular, such doctrine is to be found in the Thirty-nine Articles of Religion, The Book of Common Prayer, and the Ordinal."
But would the court view this issue as an "essential matter" of doctrine? Is the issue doctrinal at all or purely moral? These are open questions, but I suspect that the canon was designed to avoid liturgical words which deny some central doctrine of the faith such as the Trinity or the divinity of Christ (credal assertions considered necessary for salvation) and that the court would be very slow to find that the service contravened some "essential" point of doctrine.
NO PUNISHMENT WITHOUT LAW
Part of the difficulty here then is that there appears to be no unambiguous canonical prohibition against blessing civil partnerships on which to ground a successful prosecution. When the Canons were last drafted, this issue wasn’t live and it isn’t easy to anticipate - still less legislate for - the future directions in which clergy might ‘push the boundaries’. Furthermore, you will search the Articles, Prayer Book and Ordinal in vain to find references to homosexuality. Importantly, there is a principle of law - enshrined in Article 7 of the European Convention of Human Rights - which holds that no one shall be found guilty of any offence on account of any act or omission which did not constitute a criminal offence under the law at the time when it was committed.
Since the courts of the established Church of England are public authorities in the United Kingdom, they are required by law to act compatibly with the European Convention. If there is no positive, unambiguous law against blessing civil partnerships (and the issuing of episcopal guidance doesn’t create law), then arguably there should be no punishment. Of course, if Dr Dudley has breached some clearly stated law of the Church of England of which I am unaware - which is possible - then a successful prosecution might still be feasible. The upshot of all this is that if Dr Dudley is merely found to have disregarded the advice or guidance of his diocesan bishop (issued collectively in this case with his fellow English bishops), then it is difficult to see how such disregard could incur the censure of an ecclesiastical court. I, therefore, suspect that, when the Bishop of London considers the legal advice which he has sought, no prosecution of Dr Dudley will follow.
WHAT IF SOMETHING SIMILAR WERE TO HAPPEN IN THE CHURCH OF IRELAND?
The system of disciplinary proceedings in the Church of Ireland is in transition. We shall retain until the end of this year the system which has been in place since the nineteenth century. Under this old system, all charges alleging ritual offences are tried by the Court of General Synod.
From 1st January 2009, following recent synodical legislation, there shall be a new system involving a quite separate Disciplinary Tribunal which - unlike its English counterpart - will be competent to hear all complaints against clergy and bishops - whether they are conduct offences or offences relating to doctrine or ritual. Appeals will lie from that Tribunal to a new Appeal Tribunal. However, this new arrangement will also, commendably, place greater emphasis upon pastoral resolution and no proceedings in the new Tribunal can be brought until the bishop has concluded that resolution/reconciliation has proved either impossible or inappropriate.
In distinction to Canon B5(2) of the English Canons, our own Canon 5 affords the clergy a narrower discretion in departing from liturgical norms. By Canon 5, members of the clergy "may at their discretion make and use variations which are not of substantial importance in any form of service prescribed in the Book of Common Prayer or elsewhere,"provided that they are "reverent and seemly and shall be neither contrary to nor indicative of any departure from the doctrine of the Church."
Canon B5(4) provides that, if any question is raised concerning any such variation, or as to whether it is "of substantial importance," the same "shall be (my italics) referred to the bishop, who may give such pastoral guidance, advice or directions as are thought fit, but without prejudice to the right of any person to initiate proceedings in any ecclesiastical tribunal." Thus, liturgical variations are circumscribed in two ways: 1. they mustn’t be of substantial importance, and 2. they must be consonant with Church of Ireland doctrine. This appears to mean all aspects of that doctrine - essential or otherwise. Additionally, there is a canonical obligation to refer the variation to the bishop if any question about it is raised (although this supposes that someone has raised a question).
Doubtless, if some cleric in Ireland were to seek to emulate Dr Dudley’s actions sometime this year (which this article shouldn’t be taken as recommending), any prosecution would focus on the provisions of Canon 5.
Among the questions for the Court of General Synod would be whether the service contained variations of substantial importance and whether the blessing of a civil partnership was contrary to the doctrine of the Church of Ireland. This is not as clear cut as it at first blush appears (again, mightn’t the issue be a moral rather than a doctrinal one?), but it is at the very least arguable and the wording of Canon 5 clearly imposes greater limits than its English analogue.
The chances of a successful prosecution, while certainly not guaranteed, are probably, therefore, higher in Ireland than in England and it would be unwise to regard the absence of disciplinary action in England as grounds for assuming that actions similar to those of Dr Dudley could be performed here with impunity.
A CONCERN REGARDING THE NEW DISCIPLINARY SYSTEM
A word, in conclusion, about one aspect of the new system which should, perhaps, give some pause for thought. If a similar incident were to occur in the Church of Ireland when the new tribunal system is in place, the same considerations as those noted above would still be in play, but there would be an additional factor provided by section 39 of the recent legislation. That section requires the Tribunal to refer to the House of Bishops any matters of doctrine or ritual for a statement setting out the Bishops’ "collective understanding" of "the current and orthodox position of the Church of Ireland" and that statement would be binding on the parties and the Tribunal. Whether the bishops arrive at such a collective understanding unanimously or by simple majority is left to their discretion. Furthermore, following such a statement, no appeal can be made to the Appeal Tribunal.
On the face of it, this may seem a perfectly reasonable provision, allowing as it does for an authoritative and conclusive clarification of some disputed point of doctrine or ritual. However, it is surely of some concern that a cleric might be found guilty of something which has been authoritatively declared to be doctrinally or ritually censurable, not at the time when the act is performed, but only afterwards. Such an outcome would contravene the principle of no punishment without the law noted above. And, while the Church of Ireland is, unlike the Church of England, not strictly bound to adhere to this principle, there is nevertheless something unjust about someone being found guilty of an offence as the result of what amounts to retrospective law-making. This ‘referral’ procedure also risks taking us away from another important principle of the criminal courts which holds that if a criminal statute is ambiguous, the defendant should have the benefit of the ambiguity.
I don’t necessarily believe that this was the conscious intention of those who drafted the legislation, nor is my analysis intended to promote suspicion/ mistrust of the House of Bishops. The Church needs to ensure that key doctrinal safeguards are in place. However, a case such as the one under consideration in this article may be precisely the sort of situation where the absence of any prior, clear-cut prohibition against what was done may be circumvented by dint of an ex post facto declaration that the deed was illegal. Even those who might be happy with this outcome on the particular facts of this example should reflect on the wider implications of such a development.
Prosecutions against clergy for doctrinal/ritual offences are, mercifully, rare in the Church of Ireland - the last such was the discontinued prosecution for heresy of the Dean of Clonmacnoise in 2002 - and we have to go much further back in time to find the one before that.
It is to be hoped that it will not be necessary to invoke the mechanism of the new Disciplinary Tribunal in the future, but, if such issues do arise, it will be important for the House of Bishops to be mindful of and sensitive to not merely the pastoral but also the legal implications of its deliberations.
The Revd Terence Dunlop is a non-stipendiary priest in the Diocese of Connor.
His views in this article have been expressed in a personal capacity.