ECCLESIASTICAL JURISDICTION (AMENDMENT) MEASURE (Hansard, 20 May 1974)

§ THE LORD BISHOP OF LONDON

rose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Ecclesiastical Jurisdiction (Amendment) Measure be presented to Her Majesty for the Royal Assent. The right reverend Prelate said: My Lords, eleven years ago it was my privilege to commend to this House the Ecclesiastical Jurisdiction Measure. That was a very important Measure which reformed the ecclesiastical courts, which, as your Lordships will know, are the courts of this land as much as any of the secular courts. I was a very young and very inexperienced Member of your Lordships' House 1248 in those days, and my peace of mind was not smoothed or made easier by the knowledge that I should on that occasion be opposed by the formidable figure of Lord Alexander of Hillsborough sitting on the Opposition Benches, who was extremely suspicious of any Church of England Measure which came before your Lordships' House, since he saw what he regarded as the dark shadow of the Church of Rome lurking in the most innocent corners. However, he did not oppose the Ecclesiastical Jurisdiction Measure to which your Lordships gave your agreement in 1963.

A very important aspect of that Measure was contained in Part IX, which has the heading "Deprivation Consequent upon Certain Judgments, Orders or Decrees of Secular Courts". This section was lifted from the 1892 Clerical Discipline Act and it provided that if a clergyman had certain convictions, orders or findings made against him in the secular courts of so serious a nature as to disqualify him from carrying out the duties of a clerk in Holy Orders, then automatically and without further trial in an Ecclesiastical Court, that clergyman should be deprived of any preferment held by him and declared to be disqualified from further preferment.

The provisions of Section 5, which reflected the 1892 Act, are not as drastic as they sound. In certain cases the bishop is able to exercise a discretion and, moreover, the deprivation is not final. At any time, after consultation between the bishop and the archbishop, the clergyman concerned may be restored to the exercise of his Orders. The only final act is deposition—more familiarly known as "unfrocking"—which is an administrative act by the bishop in cases of the utmost seriousness, consequent upon deprivation and subject to an appeal to the archbishop. In fact, Section 5 is the most useful and most used part of the Measure. It ensures that, in cases where a clergyman has been found in the secular courts to have behaved in so offensive a manner that it would be scandalous for him to continue to exercise his Ministry, then without more ado he must cease to do so. The Bishop is relieved of having to try afresh the case in his court: the clergyman is relieved of the agony of a second investigation of the case. He is deprived of his preferment, though not, of course, of 1249 the pastoral care and concern of the bishop for his welfare.

However, Section 5 depends on the state of the secular law, and recent changes in that law have made it very difficult to apply the provisions of this part of the Measure. For instance, the operations of the Criminal Justice Act 1972 and recent divorce legislation have rendered this part of the Measure largely incapable of implementation. I was chairman of a Working Party set up to consider the implications of the changes in the secular law, and we were assisted in our deliberations by a number of distinguished lawyers, including the late Mr. Justice Stirling, an expert in divorce law, and the late Chancellor Walter Wigglesworth, an expert in ecclesiastical law. After prolonged and detailed examination, we came to the conclusion that the principle of automatic deprivation consequent upon certain findings of the secular courts was no longer a practicable way of proceeding. The reasons for this decision are set out in paragraphs 8 to 10 of the Legislative Committee's Report, which is in your Lordships' hands. Instead, this amending Measure details in paragraph 55 certain findings of the secular courts which render a clergyman liable, without further trial, to deprivation and disqualification. On receiving the finding of the secular courts, the bishop is required to refer the case to the archbishop of the province, together with the representations of the clergman concerned; and he will in his discretion decide whether or not, in the light of the decision of the secular courts, deprivation should follow. Section 56 makes appropriate provision in what we hope will be the rare cases in which archbishops and bishops are involved.

I ask your Lordships to note two salient points about the new procedure. First, it does not represent a second trial. It lays down the procedure for appropriate administrative action which is consequent upon the decisions of the secular courts. Secondly, the new proceeding is a relaxation of the form of procedure, perhaps in favour of the clergyman who may be involved. Under the Ecclesiastical Jurisdiction Measure, all comparable cases would have been subject to automatic deprivation. Under this Measure, all cases are subject to the discretion of the archbishop, advised by the bishop and 1250 informed by the representations of the individual concerned.

Finally, may I refer to a rather recondite point that has been raised elsewhere. The 1963 Measure refers to, "imprisonment or any greater penalty". This Measure omits reference to "any greater penalty". Thus, the new Section 55 fails to deal with a clergyman involved in high treason and certain offences in Her Majesty's dockyards, where the death penalty is still operative. The reply to this objection is that if a clergyman is hanged for such offences then deprivation of his benefice by law becomes irrelevant. If he should be reprieved then the lesser penalty applies. In any case, he could be tried in the courts for "conduct unbecoming to a clerk in Holy Orders". To the argument that a clergyman should never be subjected to judicial hanging but first of all should be deprived and deposed, we must reply that the mark of Holy Orders is indelible. Even if such a man is deprived and deposed, he continues to be a priest. I beg to move.