The Archbishops' Council is establishing a working group to identify ways of amending the employment arrangements of Church of England clergy with a view to enhancing safeguards against injustice and ensuring a proper balance between rights and responsibilities.

In its response to the Department of Trade and Industry discussion document on employment status and statutory employment rights issued in July, the Archbishops' Council accepts that there are 'unsatisfactory features in the present situation and that these need to be addressed'. "We accept that, for some clergy, the present arrangements do not provide sufficient safeguard against possible injustice. For a greater number, it is also at least arguable that the present arrangements do not provide an effective framework of accountability."

The response also points out that there could be 'major implications for the nature of the relationship between bishop and clergy and for the way in which parochial clergy are deployed, including raising questions over the sustainability of the clergy's historic right to the freehold'.

The group's first task will be to produce a report during 2003 on ways of improving the position of that minority of clergy who have neither freehold nor contract. The review will be chaired by Professor David McClean, Professor of Law at Sheffield University, and will be conducted in close consultation with clergy, who are involved at every level of the Church's synodical government, and with all others with an interest, including the AMICUS union.

CHURCH OF ENGLAND RESPONSE TO DTI DISCUSSION DOCUMENT

1. The Church of England welcomes the opportunity to respond to the discussion document which the DTI issued in July. This submission deals with the specific question of employment rights in relation to the clergy.

Ordination and Types of Clergy

2. Our starting point derives from our understanding of the mission entrusted to his followers by Jesus Christ and in particular of the specific responsibilities for that mission of those called to the threefold order of bishop, priest and deacon. All clergy who have received authority to minister in any diocese owe canonical obedience to their bishop, who in turn owes allegiance to the archbishop of his province.

3. Ordination and the existence of the historic threefold ministry of bishop, priest and deacon and the allegiance owed by priests and deacons to their bishop do not in themselves resolve questions about how best the relationships both among the clergy and between them and the wider Church should be regulated. In the course of Christian history a variety of models has been adopted. The relationship between 'orders' and 'office' has not been constant and there is no one pattern which is necessarily right for all times and all societies. But any model needs to be compatible with the Church's underlying understanding of Christian ministry.

4. The present arrangements in the Church of England have developed over many centuries. They have continued to evolve in recent years, notably with the substantial expansion in the number of people serving as non-stipendiary (i.e. unpaid, volunteer) clergy.

5. Stipendiary clergy fall into essentially one of three main categories (for more details see annex):

- the majority - some 5,500 - have the 'freehold'. Most of these are parish priests who hold the 'benefice' consisting of one or more parishes. Freehold has, in effect, been the historic norm for parochial ministry in the Church of England. It is also held by others such as bishops and deans. Other than in cases of disciplinary offence or other rare circumstances, clergy who have freehold have complete security of tenure up to retirement;
- over 1,000 clergy have contracts of employment. These are mainly in chaplaincies - hospitals, prisons, the armed forces - but also those who hold diocesan appointments, work for the National Church Institutions at Church House and at Lambeth Palace or teach at theological colleges. They may also hold bishops' licences to officiate in a particular diocese. But their employment status is regulated by contract and they have access to the employment tribunals in the normal way;
- the remaining 3,500 or so stipendiary clergy have neither the freehold nor a contract but operate under bishop's licence. Around 1,500 are assistant curates, i.e. clergy who are still in training posts following their ordination. The rest, some 2,000, who are in a Team Ministry or are priests-in-charge where the benefice has been suspended, pending possible reorganisation of parishes in the area.

The Church's Approach

6. The Church of England firmly believes that the clergy and all others who work for it are entitled to terms and conditions of service which adequately protect their rights, recognise their responsibilities and provide proper accountability arrangements. That has been the motivation behind a series of Measures in recent years, the latest of which is the new Clergy Discipline Measure which is now awaiting Parliamentary approval. Historically the clergy of the Church of England have, for the most part, enjoyed a measure of independence and security of tenure which far exceeds that of those in almost any other walk of life. This remains the case for the majority, who possess the freehold.

7. Parochial clergy, including those without the freehold, enjoy a wide measure of day to day autonomy in how they conduct their work. In many respects their position is more akin to that of an independent contractor than that of an employee. On the one hand, Church of England parochial clergy can in practice operate much more independently of their bishops than Roman Catholic parish priests, on the other they have much less direct accountability to the lay leadership of the local church than in some non-conformist denominations.

8. There have, nevertheless, been a very small number of contentious and well publicised cases in recent years which, regrettably, have highlighted weaknesses in the Church's present arrangements. These have all concerned clergy in the third category of paragraph 5 who have held time-limited appointments which the bishop has decided not to renew.

9. Some of the recent criticisms of the Church have been based on a misunderstanding. It has never been the contention of the Church that its clergy are 'employed by God'. Moreover, there is no fundamental theological incompatibility between being a minister of religion and having a contract, with access to employment tribunals in the case of dispute. This is already the case in respect of Church of England clergy who work for the National Church Institutions and in the sector ministries such as prison and hospital chaplaincies.

10. Nevertheless, there is clearly a need to explore how additional protection can be provided for those clergy whose position is not adequately safeguarded by the present arrangements. Whether it would now be right to move to a situation in which far more or possibly all clergy had a contractual relationship with a Church employer requires more discussion within the Church than has been possible since July. Such a move would have major implications for the nature of the relationship between bishop and clergy and for the way in which parochial clergy are deployed, including raising questions over the sustainability of the clergy's historic right to the 'freehold'. Many continue to see the freehold as an important safeguard for the parish clergy. Others in the Church now believe that the freehold, deriving as it does from the pre-modern days of glebe and tithe, is an anachronism which does not strike the right balance between rights and responsibilities.

A Way Forward

11. The Archbishops' Council accepts that there are unsatisfactory features in the present situation and that these need to be addressed. We accept that, for some clergy, the present arrangements do not provide sufficient safeguard against possible injustice. For a greater number, it is also at least arguable that the present arrangements do not provide an effective framework of accountability. The necessary first stage is to identify options for tackling the shortcomings of the present arrangements, including the possibility of extending the use of contracts. This work would need to address a number of important issues with theological and pastoral as well as managerial and legal implications.

12. For example, if clergy were to have contracts would it be right, as AMICUS and others have suggested, for the parochial clergy to be employed by diocesan boards of finance or should it be the diocesan bishop? And what should be the involvement of the local parochial church council? Would it be practicable, as a first step, to introduce any new arrangements only in respect of non-beneficed clergy or would there inevitably be implications for those with the freehold? What would be the inter-action between access to the secular employment tribunals and the Church's own ecclesiastical courts, including the tribunals established under the Clergy Discipline Measure now before Parliament? What would be the impact on the present relationship between 'orders' and 'office'?

13. For the Government to make an Order under Section 23 before the Church of England has completed its own study of the options would, in our view, be wrong given the important issues which need to be addressed, including in relation to the particular nature of holy orders. To invoke Section 23 before adequate internal arrangements were in place could give the clergy new rights before the Church had the necessary mechanisms in place to secure the corresponding responsibilities and duties. Moreover, if the Church were to move to a much more general use of contracts these would automatically attract the normal range of employment rights without the need for Government intervention.

14. There is a further consideration. While the most publicised recent clergy employment case has concerned a Church of England priest, a number of the leading cases down the years have involved members of other denominations (Rogers v Booth [1937] 2 All ER 751 concerned a Salvation Army Officer, President of the Methodist Conference v Parfitt [1984] QB 368 a Methodist Minister and Davies v Presbyterian Church of Wales [1986] 1WLR 323 a Minister of that denomination. There are also a substantial number of ministers of other faiths. From the consultation meeting held at the DTI last month it was clear that some denominations and faiths would have fundamental objections of principle to the introduction of statutory regulations into this area. Although this does not represent the position of the Church of England, we respect the position taken by others and believe that their concerns need to be addressed. The way forward needs to take account of the concerns of all Churches and faiths. It would be far better for each of them to be able to own the solutions if possible.

Conclusion

15. We accept that recent events have established the need for change. The challenge to which we now commit ourselves is to identify the best way of delivering that. We have decided, therefore to establish a working group with the task of identifying ways of amending the employment arrangements of the clergy with a view to enhancing safeguards against injustice and ensuring a proper balance between rights and responsibilities. Its first task will be to produce a report during 2003 on ways of improving the position of that minority of clergy who neither have freehold nor contract. The review will be chaired by Professor David McClean CBE QC (Professor of Law at Sheffield University). It will be conducted in close consultation with clergy, who are involved at every level of synodical government and with all others with an interest, including AMICUS.

ARCHISHOPS' COUNCIL
December 2002

ANNEX

Tenure of office of ordained ministers in the Church of England: the present position

1. This appendix relates to the position of clergy holding office in the Church of England who receive a stipend in respect of their services. It does not cover non-stipendiary clergy (who give their services voluntarily) or sector ministers (e.g. hospital and prison chaplains) who have contracts of employment with the body that appoints them.

Clergy holding freehold office

2. The majority of stipendiary clergy (some 5,500) hold freehold office. They include archbishops, bishops, deans, most cathedral canons, archdeacons and many parish clergy. These office-holders enjoy a very high degree of security of tenure. Once appointed, they are entitled to hold office until the compulsory retirement age of 70 and cannot be removed from office except in the following circumstances:

Disciplinary action
- Disciplinary proceedings may be brought in the ecclesiastical courts in respect of certain offences, including conduct unbecoming the office of a cleric and serious, persistent or continuous neglect of duty. Deprivation (being removal from office and disqualification from holding an future preferment) is one of the censures available to the court in cases of grave misconduct. The cleric has rights of appeal to the provincial appellate court (the Court of the Arches or the Chancery Court of York) or (in certain cases) to a Commission of Review composed of three Lords of Appeal and two diocesan bishops.
- Legislation recently passed by General Synod will, if approved by Parliament, introduce new disciplinary procedures that take account of current practice in secular professional organisations. Proceedings will (in most instances) be brought before a specially constituted tribunal. Removal from office remains a penalty that may be imposed in serious cases. Clerics retain their rights of appeal. Synod has been concerned to ensure that the legislation is fully compliant with the Human Rights Act 1998, and has taken advice from leading counsel in this regard.

Mental or physical incapacity
- Bishops and archbishops who are incapacitated from performing their duties by reason of mental or physical disability may be required to resign their office. This action must have the support of an archbishop and two senior bishops, and the person concerned may demand a medical report.
- Other senior clergy may be removed from office on these grounds following a special meeting of the cathedral chapter at which the views of the cleric concerned must be represented .
- Parish clergy holding freehold office (known as the incumbent of a benefice) may be removed from office by the diocesan bishop on grounds of physical or mental incapacity following an enquiry instituted by the secretary of the diocesan synod . Removal is viewed as a last resort: the bishop has other courses of action (such as providing assistance and granting leave of absence) available to him. Provision is made for financial compensation for loss of office.
- In all these cases the cleric's pension rights are preserved.

Pastoral breakdown
- The diocesan bishop may make a declaration removing an incumbent from his office where there has been a serious breakdown in the pastoral relationship between the incumbent and the parishioners . This can only happen after a lengthy procedure culminating in an enquiry before a specially constituted tribunal. Provision is made for the cleric to receive financial compensation.

Pastoral reorganisation
- A benefice or archdeaconry may be dissolved as a result of pastoral reorganisation within a diocese, in which case the office will cease to exist . Again, this can only happen after a lengthy legal process in which all interested parties have the right to make representations and (ultimately) a right of appeal to the Privy Council. Provision is made for financial compensation.

Clergy not holding freehold office

3. A smaller number of stipendiary clergy (currently around 3,500) do not hold freehold office but are licensed by the diocesan bishop. The terms of the licence vary according to the office held.

- Until 1st May 1996, some team rectors held freehold office and the status of freeholders still in post is preserved. Team rectors and vicars appointed after that date have incumbent status but are licensed for a fixed term of years .The licence cannot be terminated on notice during that fixed term. The licence may be extended for a further term or terms, but there is no automatic right to such an extension.
- Other parochial clergy without freehold office may be licensed by the bishop for a fixed term or without limit of time. Clergy in this category are most commonly priests in charge, who hold office while a benefice is in suspension (i.e. no incumbent may be appointed) or assistant curates.
- Licences of these other parochial clergy may be revoked summarily by the bishop at any time (including during the currency of a fixed term) for any cause that he considers good and sufficient but the cleric must first be given an opportunity to challenge the bishop's reasons for so doing, and the revocation is subject to a right of appeal to the archbishop of the province .
- A licence granted for a fixed term may not be terminated on notice (as opposed to summarily) during the currency of that fixed term. Otherwise , if the licence so provides, it may be determined on reasonable notice, and there is no right of appeal if such notice is given. The appointment of an assistant curate may also be terminated on six months' notice by the incumbent of the benefice in which the curate holds office, subject to the consent of the bishop
- Parochial clergy without freehold office (with the exception of team ministers) are not subject to the compulsory age for retirement nor to the provisions for removal from office on grounds of incapacity or pastoral breakdown described in paragraph 2 above. They are subject to the same disciplinary procedures as freeholders. However, it has been the general practice in cases of misconduct by licensed clergy for the bishop to revoke the licence rather than invoke the statutory disciplinary procedures. The Church has recognised that this position is unsatisfactory and has agreed to remedy it. The Clergy Discipline Measure will (if approved by Parliament) prohibit the revocation of a licence, or the termination of the appointment of an assistant curate, on grounds of misconduct which could give rise to disciplinary proceedings. In such cases, the procedures introduced by the Measure must be followed.