Introduction
For those of us in the Church of England, questions about the conduct and discipline of clergy and other leaders have been thrust into prominence in recent years, in the wake of the Independent Inquiry into Child Sexual AbuseFootnote 1 (‘IICSA’) and other external reviews.Footnote 2 The issues raised are also significant for other Christian denominations and non-Christian faith groups; IICSA, for example, collected evidence more widely, summarised in its reports The Roman Catholic Church Investigation Report Footnote 3 and Child Protection in Religious Organisations and Settings. Footnote 4 The subject matter, gravity and public reactions to these reports underline the importance for the contemporary mission and ministry of all churches of their internal regulation, governance and disciplinary process. As Stephen Coleman has recently observed:
In the words of the Roman Catholic Canonist, Robert Ombres OP, ‘to study canon law is to study applied ecclesiology’. It may not be on message to say this in today’s Church of England, but canon law is at the absolute centre of our life as Church; we ignore it at our peril.Footnote 5
Responding to IICSA and subsequent reports has driven much of the Church of England’s consideration of clergy conduct in recent General Synods, but not exclusively. Reform of the current system has also been shaped by wider concerns about procedural fairness for complainants and respondents.Footnote 6 The Report of the ELS Working Party Reviewing the Clergy Discipline Measure 2003 (‘CDM’)Footnote 7 chaired by HH Peter Collier KC was influential in the framing of the Clergy Conduct Measure (‘CCM’).Footnote 8 Central to this work has been reappraisal of the role of the diocesan bishop or archbishops in disciplining clergy.
Episcopal disciplinary functions and duties are not necessarily well understood outside the Church. IICSA commented unfavourably on what they saw as the disparate and disorganised distribution of authority within the Church of England, where the bishops of its 42 dioceses exercise considerable autonomy under governance and disciplinary systems. Similar observations were made in relation to the Roman Catholic Church, drawing on the conclusions of earlier reports.Footnote 9 For an ecclesiastical lawyer, this polity, which in essentials we share with our Eastern brethren, is neither surprising nor illogical but it is all too easy simply to dismiss secular criticism as ill-informed. Part of the basis for the lawyer’s assumption is the pervasive influence of the Nicene Canons.
In summoning and nominally presiding at the Council of Nicaea in 325 AD, Constantine sought to settle and shape a new imperial religion as an instrument of civil governance, but Christendom today is very different from the world over which Constantine and his successors ruled. In this article, I aim to assess the extent to which disciplinary and related organisational principles established in the twenty Nicaean Canons endure and continue to serve the Church after 1700 years.
The canons – a summary
The twenty canons may be grouped as follows:Footnote 10
A. Discipline and hierarchical order of the clergy – canons 1, 2, 3, 9, 10, 17, 18
B. Organisation of ecclesiastical leadership and administration – canons 4, 5, 6, 7, 15, 16
C. Regulation of public penance – canons 11, 12, 13, 14
D. Reconciliation of members of heterodox groups – canons 8, 19
E. Liturgy – canon 20Footnote 11
Most of those in Group A established rules of admission to the ranks of clergy, prescribing examination of candidates and defining physical, doctrinal or moral impediments or irregularities. They also dealt with certain of the duties and functions of bishops. They aimed to prohibit those regarded as unworthy from entering sacred office. A candidate’s life would be examined by the diocesan bishop; serious sins or prior denial of the faith under persecution could constitute obstacles to ordination. If such faults were discovered after ordination, presbyters could be deposed.
Canon 3 forbade clerics to live with women, other than their closest relatives, although no penalty is specified. The women concerned (συνείσακτοι/virgines subintroductae) were probably ascetics but clearly the bishops had experienced and/or feared scandalous behaviour under the guise of spiritual friendship. Clergy were not required to be celibate, but the canon neither includes clergy wives in the ban, nor in the list of permitted females.
By canon 17, usurers were deposed from the ranks of clergy and struck off the κᾰνών (kanon)Footnote 12 – the roll of all who had an ecclesiastical function and therefore received support from the church.
The Group B canons imposed ecclesiastical organisation modelled on secular divisions of the Roman Empire into provinces, effectively consolidating and validating an order which was, by then, established.Footnote 13 The provincial metropolitan was superior to all other bishops and had the right, declared in canon 4, to confirm the election of any new bishop in his province. Election belonged to all the bishops of the province, ideally meeting in person; the canon provided, however, in case of difficulty, that at least three must come together to perform the ordination, but only after all the bishops had given their written consent. Canon 5 required provincial synods to be held twice a year, one of their functions being to hear appeals, by clerics and laity, against episcopal excommunication; no bishop was allowed to accept into his diocese a person excommunicated by another bishop. Similarly, canon 15 prohibited bishops, presbyters and deacons from transferring from city to city, on pain of the purported arrangement being annulled and the subject being returned to the church in which he was ordained. So great was the concern about this issue that canon 16 expressed the same prohibition in wider terms, applying it to ‘anyone enrolled in any rank of the clergy’, adding that ‘all pressure must be applied to induce them to return to their own dioceses’ and subjecting them to excommunication if they refused. As these rules only applied to those named on the roll of clergy (kanon), laity were not under the same discipline in this matter; this is unsurprising, since imperial officials, for example, might be posted far and wide, but it is interesting to note the existence of distinct requirements and discipline for clergy. Moreover, that discipline was clearly established as a significant element of episcopal oversight, administered on geographical and hierarchical lines.
Canon 6 dealt with the status of the episcopal sees of Alexandria and Antioch, sparking much conflict, fortunately beyond the scope of this article, as are the liturgical canons 18 and 20.
Groups C and D demonstrate the Church grappling with the ramifications of persecution and doctrinal heterodoxy, but do not, as such, deal with clergy discipline.
Early acceptance and recognition of the Nicene canons
The canons were transmitted in ancient and medieval canonical collections in Greek then Latin and, from the 4th and 5th centuries, other languages of the Eastern Churches.Footnote 14 They were generally accepted and accorded recognition from the end of the 4th century across Christendom.Footnote 15 Their importance is illustrated by their usually being placed after the Apostolic canons in the conciliar list of binding and valid sources known as the Trullanum or Quinisextum (691/2).Footnote 16 In some western collections of the sixth and seventh centuries, the Nicaean Canons are preceded by a poem dubbing them ‘the summits of venerable law … the reins through which the clergy are guided in a just manner …’.
Significance of the canons
Many synodal canons had been in circulation before 325Footnote 17 but the gathering at Nicaea is regarded as the first Ecumenical Council. Its Canons, although not entirely novel, gained prestige from association with adoption by the Catholic Church of Nicene Christology.Footnote 18 Whilst there is no direct allusion to the Arian controversy, some canons, as we have seen, concerned the reconciliation of heterodox groups in response to differences in practice for dealing with people who had lapsed under imperial persecutionFootnote 19 and those who had adopted a non-Catholic Christology.Footnote 20
It has been observed that the growth of canon law, from the 4th century onwards, reflected ‘the Roman assumption that regulation through legal pronouncement was a necessary part of governing a community’.Footnote 21 As Christians moved from persecuted minority to tolerated group to exponents of the official imperial religion, so canon law increased in quantity, scope and enforceability. Erickson detects evidence of this shift in the Nicene canons on church structure and governance ‘if only because government officials needed to know who legally represented the Church’.Footnote 22 Hence, he notes that canon 4 prescribes a standard requirement (three bishops) with specific provision for relaxation. Similarly, canon 5 provides an open forum for reviewing episcopal excommunications.
One important implication of imperial patronage was that, unlike the canons of previous councils, there was now the prospect of enforcement by the secular arm, not merely via the intra-community remedies we find in the New Testament.Footnote 23 Thus, Arius and some of his fellow clerics were exiled (at least for a time) after refusing to accept the doctrinal pronouncements of the Council of Nicaea. Valliere comments:
Because the state was prepared to enforce them, canons became more than church rules; they became state laws, although the theoretical elaboration of this distinction would not come for some time.Footnote 24
Persistent enforcement of doctrinal orthodoxy arrived with JustinianFootnote 25 who:
effectively transformed the Roman Empire into what historians would call today a ‘confessional state’. The opening volume of the Codex Iustinianus (in marked contrast to the 5th century Codex Theodosianus) gave pride of place to laws concerned with ‘the most exalted Trinity and the Catholic Faith’ and began with Emperor Theodosius I’s proclamation of imperial Christianity as the official religion of the Roman state. Footnote 26
Reading that opening volume, one is relentlessly assailed by Nicene doctrine as Justinian and his law commissioners pursue the salvation of souls through micro-management of ecclesiastical life and property and the prospect of terrible penalties for those who fail to conform. The comprehensive listing of ecclesiastical offences found in Justinian’s Codex is markedly different from the almost random collection of norms comprising the Canons of Nicaea, which have more in common with the decisions of earlier synods.
Constantine’s conversion and the Nicene Council opened the way for centuries of ecclesiological and constitutional debate about the relationship of church and state. Despite shared acknowledgement of the conciliar canons, legal theory developed differently in Western and Eastern churches, as comparative study of the great 12th century canonists Gratian and Balsamon highlights.Footnote 27 Archbishop Rowan Williams added a contemporary reflection in his 2020 ELS lecture on St Thomas à Becket, Saving Our Order; as we know, the outworkings of church/state disciplinary jurisdiction cost that Archbishop of Canterbury not merely his office, but his life. Williams urged Christians today to think beyond the traditional narratives by reference, amongst other things, to ‘[s]candals about the sexual abuse of children in several Christian confessions’ which have ‘highlighted the risks of religious authority effectively creating immunity for gross offences by restricting punishment to the level of the discretionary and the pastoral’.Footnote 28
The constitutional reciprocities of establishment experienced by some reformed churches, particularly Scandinavian Lutherans, as well as the Church of England, are an important feature distinguishing them from Catholic and Free Churches. In the UK, the Makin Report and its aftermath have sparked secular public comment on this relationship, specifically the constitutional role of Anglican bishops, more acutely than any issue since womens’ orders.
The Nicene Canons today in eastern and western traditions
Coptic Orthodox
Coptic Orthodox recognise the Council of Nicaea as ecumenical and its canons as authoritative.Footnote 29 As well as the canons, the Council approved a synodical letter for the Egyptian Church which was preserved by St Athanasius of Alexandria. Coptic canon law is not codified, but its sources are grouped in chronological or systematic collections, avoiding repetition and achieving consistency.
Eastern Orthodox
The Nicene Canons retain their status, together with Holy Scripture, Sacred Tradition and the Apostolic Ecclesiastical Ordinances, as fundamental sources of law for the whole Church; the Holy Canons are the ‘Rudder’ steering the Church of Christ to the heavenly harbour.Footnote 30
Codification, including the possible abolition of canons of an Ecumenical Council which are no longer useful, or modification of canons according to later ecclesiastical understanding, may only be undertaken by another Ecumenical Council. Changeability of canons was a matter for prolonged debate amongst Orthodox lawyers and theologiansFootnote 31 in the run-up to the Pan-Orthodox Council. The current Ecumenical Patriarch His All Holiness Bartholomew suggested as long ago as 1971 to an audience of Orthodox and Roman Catholic canon lawyers that:
this change of attitude should be specially taken into consideration in the field of penal law. A modification of the canons which regulate the relations of the Orthodox to other Christians and to other religions is also necessary.Footnote 32
But codification was not on the agenda at Crete in 2016, the last attempt at a Pan-Orthodox Council.
The interpretative principle of ‘οἰκονομία’ (economy) is applied by Orthodox canon lawyers, theologians and pastors as the means of ensuring that the canons are applied, under the inspiration of the Holy Spirit, for the salvation of souls in a manner which reacts to contemporary issues, while not derogating from Orthodox dogma. Mihai explains that:
The Holy Canons aspire to bring persons back into the grace of God and to help them overcome their fallen condition, while the secular law seeks punishment and restriction for prevention of the re-occurrence of the crime …Footnote 33
By way of example, οἰκονομία can be discerned in canon 8, which provides that Novation bishops joining the Church should be recognised as bishops when the Church needs bishops, but as priests when it does not.Footnote 34 This provision could be rationalised as a pragmatic response by the Council to a particular issue of the day and non-Orthodox might explain several of the canons in this fashion. Such an approach, however, would be to misunderstand the nature of Orthodox canon law and understate the role of the canons within that living tradition. Giving an illustration of the reactive potential of fundamental Orthodox law in the face of new issues, Mihai suggests that canon 1 (prohibiting ordination of those who have undergone voluntary castration) can be applied to the contemporary practice of what he terms ‘outrageous’ tattoos and piercings.Footnote 35
Latin and Eastern Catholics
To many contemporary non-Orthodox, it might, at first blush, seem extraordinary that canon 1 could still be capable of application but Dunn posits a possible comparable. Reflecting on the place of the Nicene Canons in the codified Roman Catholic system, he suggests that Lumen Gentium, the Dogmatic Constitution on the Church promulgated by Vatican II, stated that the teachings of an ecumenical council in matters of faith and morals are an example of infallible teaching, although Lumen Gentium is actually less sweeping, providing that ‘in certain circumstances the teaching of an ecumenical council in matters of faith and morals can be an example of infallible teaching’.Footnote 36 Nevertheless, relating this pronouncement to the 1983 Code of Canon Law, Dunn cites among irregularities for ordination ‘a person who has mutilated himself or another gravely and maliciously or who has attempted suicide’.Footnote 37 He suggests that application of canon 1 could bring within this prohibition a man who has undergone a voluntary vasectomy.
Turning now from the particular to the general, McGrath and Ombres, summarising principles of the law of the Latin Catholic Church, state:
Within the universal church, the origins of canon law as such are to be found in the 20 canons that were passed at the First Council of Nicaea.Footnote 38
They describe the medieval activity of collecting canonical decisions and the development of different approaches to canon law after the Great Schism, culminating in the 1917 Code of Canon Law. Pope John XXIII, convoking the Second Vatican Council, highlighted the significance of the Ecumenical Councils in the life of the church and promised a revision of the Code in the light of contemporary issues. The Codes of 1983 (Latin) and 1990 (Eastern) duly followed.
Some less obscure elements of the 1983 Code’s provisions relating to ordination and clergy discipline are more obviously derived from, or at least consistent with, the Nicene disciplinary Canons:
i. A bishop cannot confer orders outside his own jurisdiction without the permission of the diocesan bishop;Footnote 39
ii. The bishop ordaining his own subject who is destined to the service of another diocese must be sure that the one to be ordained is going to be attached to this other diocese;Footnote 40
iii. Age requirements for ordination to the diaconate, presbyterate and episcopate;Footnote 41
iv. Prohibition of apostates, heretics, schismatics and neophytes;Footnote 42
v. Canonical obedience to the Supreme Pontiff and ordinary;Footnote 43
vi. General obligation of living in continence;Footnote 44
vii. Obligation for clerics to behave with ‘due prudence in relation to persons whose company can be a danger to their obligation of preserving continence or can lead to scandal of the faithful’;Footnote 45
viii. Prohibition of absence from diocese ‘without at least the presumed permission of their proper ordinary’;Footnote 46
ix. Restrictions on engaging in trade and giving surety or promissory notes.Footnote 47
Similar provisions appear in the 1990 Eastern Code.Footnote 48 Dunn’s assessment of the place of the Nicene Canons in the life of the modern Roman Church concludes:
What we have today are traces of the Nicene canons in the current law of the Catholic Church, albeit modified in most instances with the passage of time and changing circumstances.Footnote 49
The Anglican Communion
The Principles of Canon Law Common to the Churches of the Anglican Communion (‘Principles’) recognise as sources of doctrine ‘the Creeds … and undisputed General Councils’.Footnote 50 There is no express recognition of the Nicene Canons – or indeed the canons of any other Ecumenical Council – as authoritative, but Principle 4 (concerning the sources and forms of law), states:
The laws of churches exist in a variety of formal sources which should be identifiable, including constitutions, canons, rules, regulations, and other instruments.Footnote 51
This list refers to contemporary written norms, but Principle 4.3 adds:
Historic sources recognised as such in the canonical tradition, including custom, have such status within a church as may be prescribed by its law.
The Principles are not themselves law. Rather, they are descriptive, seeking to enunciate common principles drawn from and consistent with the laws of those churches.
The law of the Church of England is not codified. Sir John Nicholl’s analysis in Kemp v Wickes (1809) remains accurate, if one reads the reference to statutes to include Church of England Measures and secondary legislation:
The law of the Church of England, and its history, are to be deduced from the ancient general Canon Law – from the particular constitutions made in this country to regulate the English Church – from our own Canons – from the Rubric, and from any acts of Parliament that may have passed upon the subject; and this whole may be illustrated, also, by the writings of eminent persons.Footnote 52
After the termination of papal jurisdiction in England, Ireland and Wales, the planned comprehensive law reform project did not reach fruition; the effective holding position, pursuant to section 7 of the Submission of the Clergy Act 1533, was that pre-1533 canon law was to continue in force, so long as it was not contrary to statute or the royal prerogative, arguably continuing the Nicene Canons to the extent that they were part of provincial or, possibly, western medieval canon law.Footnote 53 Several sets of canons were promulged under statutory authority, culminating in the Canons of 1603/4, which remained in force, largely unamended, until 1964/9.Footnote 54 The current set – interestingly, described as a ‘code’ although they are certainly not a comprehensive statement of Church of England lawFootnote 55 – includes amendments made by General Synod as recently as 2023. Canons of the Church of England are not binding of their own force upon the laity in generalFootnote 56 but are one of the prime means of regulating the ministry and conduct of clergy. Although they do not cite the Nicene Canons, one may apply Dunn’s approach to the Anglican canons by indulging in a little legal ‘archaeology’. If the ‘dig’ is widened to embrace other Church of England norms and the Principles, traces of the Nicene Canons appear more widely. Here is a selection of seven key ‘finds’:
First, canon C15 provides for the Declaration of Assent to be made by clergy at their ordination and upon their installation to a parish or Cathedral, in the following terms:
The Church of England is part of the One, Holy, Catholic and Apostolic Church worshipping the one true God, Father, Son and Holy Spirit. It professes the faith uniquely revealed in the Holy Scriptures and set forth in the catholic creeds, which faith the Church is called upon to proclaim afresh in each generation. Led by the Holy Spirit, it has borne witness to Christian truth in its historic formularies, the Thirty-nine Articles of Religion, The Book of Common Prayer and the Ordering of Bishops, Priests and Deacons. In the declaration you are about to make will you affirm your loyalty to this inheritance of faith as your inspiration and guidance under God in bringing the grace and truth of Christ to this generation and making him known to those in your care?
The Canons require ecclesiastical judges, unless they are in holy orders, to make a similar declaration of faith.Footnote 57 These ‘historic formularies’ have shaped, not only the doctrine, polity and law of the Church of England, but all the churches of the Anglican Communion. The Book of Common Prayer’s three Creeds affirm Nicene doctrine. Qualified acceptance of General Councils in Article XXIFootnote 58 should not be interpreted as an attack upon the authority of the Council of Nicaea or the other ancient Councils generally recognised as ecumenical; its target was the Council of Trent.Footnote 59 Canon A5 provides that Church of England doctrine 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’, but there is no equivalent provision in relation to church law. Both Article XXI and Canon A5 articulate and exemplify a fundamentally different approach to the authority of Councils from that of the unreformed Eastern and Western Churches, accordance with holy Scripture being the sole test of lawfulness.
Second, as the Principles record, all Anglican Churches adhere to the threefold nature of holy orders, ordination by the diocesan bishop, and episcopal consecration by the laying on of hands of three validly consecrated bishops.Footnote 60
Third, the Canons of the Church of England cover the Nicene topics of age, fitness, examination, impediment, obedience, marital status, the role of the bishop in ordaining presbyters and deacons and consecration of a bishop, although the details vary in several respects from those of Nicaea.Footnote 61 The most important departure is that both men and women may be ordained as bishops, priests and deacons in the Church of England and in some other Anglican churches, including the Church in Wales, the Church of Ireland and the Episcopal Church of Scotland.
Fourth, the Ordinal, canons and statute allow for dispensations by the bishop or Archbishop of Canterbury.Footnote 62
Fifth, canonical obedience to the diocesan bishop or metropolitan is required of priests and deacons on the one hand and bishops on the other, reflecting Nicene principles of geographical jurisdiction and governance. Upon ceasing to hold office, the cleric continues to owe the duty of canonical obedience, but to the archbishop of the province or the bishop of the diocese in which s/he resides.Footnote 63
Sixth, the geographical limitation on ministry enshrined in Canon C8 has been given fresh significance as part of the Church’s modern safeguarding procedures.Footnote 64 While the impetus for this contemporary discipline is different from the concerns for doctrinal integrity and public order underlying Nicene Canons 15 and 16, the principles of canonical obedience to the diocesan bishop and need for permission to minister elsewhere can clearly be traced back to the rulings of the Council.Footnote 65
Finally, practising usury is not forbidden to Anglican clergy, but no minister holding ecclesiastical office shall engage in any trade or other occupation so as to affect the performance of his/her duties save insofar as authorised to do so by the ordinary, and financial probity is enjoined by the Code for the Conduct of Clergy.Footnote 66 The Nicene penalties for usury included being struck off the ‘κᾰνών’– the public list of clergy who were entitled to a stipend. Only in the last few years has the Church of England produced a statutory register of clergy.Footnote 67 The specific rationale for the contemporary list is different – to enhance safeguarding procedures – but there is common recognition of the public significance of clergy as persons in whose probity wider society has an interest. Much of Justinian’s successor ecclesiastical legislation was underscored by the same principle.
The Nicene Canons in an ecumenical context
Patriarch Bartholomew saw ecumenical potential in his projected work of codifying the Holy Canons, stating:
The Canon Law can facilitate ecumenical dialogue and must not obstruct it … There is no discipline of the sacred sciences as amenable to ecumenical endeavour as canon law …’Footnote 68
For example, common recognition of the canons listed in the Trullanum helps to found communion between the Latin and Eastern Catholic Churches. Kaptijn observes:
The Holy See and the drafter of the [1990] Code understood that the Eastern Catholic Churches share a common heritage in the canons of the first millennium … It is precisely because of this common heritage that the drafters thought it was possible to prepare a common code for all the Eastern Catholic Churches despite their different traditions and rites.Footnote 69
The work of the Colloquium of Anglican and Roman Catholic Canon Lawyers and of Professor Norman Doe and his collaborators on principles of Christian law is based on Doe’s proposition, when he writes, in relation to the Christian law principles: ‘Though dogmas may divide, laws link Christians across traditions’.Footnote 70
The ‘principles’ method comprises description of participants’ norms within a reflective gathering of multi-denominational church lawyers to identify shared principles of law. A ‘principle’, for these purposes, is:
[a] foundational proposition of general applicability … induced from the similarities of the regulatory systems of the churches studied … derived from their juridical tradition; and may reflect their theological understanding.Footnote 71
The multi-lateral Christian law process and its fruits are described in several publicationsFootnote 72 and the reports of the Anglican-Roman Catholic Colloquium, reproduced annually in this Journal. My brief ‘archaeological dig’ for Nicene canonical principles of clergy discipline suggests that a more thorough inter-denominational reflection could, at the very least, foster greater ecumenical understanding. By revealing how shared heritage is applied today in different contexts, such an exercise could also help churches to grapple with contemporary issues of self-discipline.
Differing approaches to clergy discipline
Of course, the sharing of principles has its limitations. Common adherence to the three orders of ministry does not resolve ecclesiological issues about apostolic succession and authority or the nature and understanding of law or jurisdiction. Churches’ beliefs about their proper relationship to the state differ; what one Christian lawyer might characterise as erroneous Erastianism will be seen by another as important constitutional principle.Footnote 73 Because clergy discipline in serious cases is likely to involve some formal proceedings, differences in the composition, juridical nature and powers of courts and tribunals will limit the true extent of apparent congruity of principle. Nevertheless, the Colloquium considered clergy discipline at its second meeting in 2000 and identified the following principles: canonical obedience, actionable harm, correction by administrative process, full judicial process, courts, trials and appeals, lawful and just penalties, clergy discipline and secular court processes. They summarised:
Anglican and Roman Catholic canon law may be reduced to six fundamental propositions, virtually shared principles:
- a cleric is expected to lead a disciplined way of life appropriate to his clerical state and offices;
- clerical discipline is in the keeping of the ordinary as directed by the law;
- certain prescribed breaches of canon law are actionable and, in the disciplinary process, clergy are presumed innocent until proven guilty;
- formal judicial process and trials are to be avoided in preference, in precept or practice, to administrative resolution of disciplinary cases;
- there ought to be no punishment without a distinct breach of the law;
- the ecclesial response to the civil correction of clergy is a matter of discretion for the church itself, and resort by church authorities and clergy to the secular courts in discipline cases should be selective.Footnote 74
In 2022, the Colloquium returned to the topic under the heading ‘Penal Law’. They identified shared principles of ecclesial discipline, resolution of disputes, church courts and tribunals, due process and ecclesiastical offences and sanctions. The account of the session notes, ‘[i]n each church, bishops are fundamental to governance’ – a principle clearly derived from the Nicene Canons.Footnote 75 Having said that, a particular area where practice has developed distinctly is the precise role of the bishop and involvement of laity in clergy discipline. Catholic, Orthodox and Anglican clerical discipline is founded on the principle of canonical obedience but there are significant practical differences.
In the Church of England, although the bishop’s duty to administer discipline is enunciated in the Ordinal and Canons,Footnote 76 clergy discipline in serious cases has, since 2005, been administered by statutory ‘Bishops’ Disciplinary Tribunals’, in which the bishop’s role is relatively limited and, as we shall see, will soon be very limited. The constitution of the non-established Anglican Church of Ireland provides for a system of Disciplinary Tribunals for serious cases, consisting of a legally qualified chair, a bishop/cleric and a layperson, with appeals lying to a similarly constituted Appeal Tribunal.Footnote 77 The Church in Wales has a provincial Disciplinary Tribunal consisting of bishops, clergy, ecclesiastical judges and laity holding qualifications in medicine and/or counselling. Appeals lie to the Provincial Court consisting of clerical and lay judges.Footnote 78
This is a very different approach to episcopal jurisdiction from that of the Catholic and Orthodox churches. For Orthodox, offences of the clergy that do not cause scandal are dealt with through admonition and censure pursuant to the personal judicial authority of the bishop; penalties are corrective and may be suspended where there is repentance. Serious offences are heard by an episcopal or metropolitan court, constituted by the bishop and clergy selected by him, although the decision is the bishop’s alone. The Patriarchal Synod comprises the ultimate court of appeal.
The Catholic Codes ascribe responsibility for investigating complaints and managing disciplinary process generallyFootnote 79 to the ordinary who may decide that the matter should proceed extra-judicially or decree that a judicial penal process must be instituted;Footnote 80 in some cases, the ordinary is responsible for imposing penalties.
It is clear from the Nicene Canons themselves, the writings of Orthodox canonists and from Catholic writings and CodesFootnote 81 that the traditional nature and purpose of all the disciplinary canons, whether pertaining to clergy or laity, is not penal but sanctifying: as Erickson puts it in the Orthodox context:
they are cures for the disease that is sin, not the Church’s version of ‘doing time’ or ‘paying a debt to society’.Footnote 82
The 1983 Catholic Code retains the concept of emendatio pro salute animae as one of the elements to be taken into account in the imposition or declaration of penalties, ‘having in mind the restoration of justice, the reform (emendatio) of the offender, and the repair of scandal’.Footnote 83 Collier, in a fascinating article in a previous issue of this Journal, traces this theological concept as applied in the pre- and post-Reformation English Church. He notes that change did not come until the nineteenth century, during a period of general modernisation of the state with non-conformists now sitting in Parliament.Footnote 84 It was at this time that the language of ‘offences’ against laws ecclesiastical began to be used; the system continued with such language and approach (including the criminal standard of proof) until the Clergy Discipline Measure 2003. Despite modernisation, however, the bishop retained the initiative and might cause proceedings to end by imposition of a penalty with the consent of the cleric.
As noted above, Williams questions whether the traditional doctrine is sufficient for dealing with the gross harm done to individuals and the collective harm done to the Church by the sin of abuse committed by ministers upon vulnerable people, including children. Collier, similarly, challenges traditional discipline for failure to attend to what Williams terms the ‘lateral’ element; ‘the idea in Genesis 4:10 of a brother’s blood crying out from the ground’, he says, ‘has been lost’.Footnote 85 The IICSA recommended that penalty by consent should never be used in relation to safeguarding complaints so that such matters cannot be hushed up on the basis of hoped-for repentance and amendment of life. A regrettable feature of abuse cases has been the practice of moving someone on to a fresh parish, diocese or province in the hope that history would not repeat itself, sometimes with tragic consequences. Although motivated by different concerns, Nicene strictures against clergy transferring church or diocese, co-operation between bishops and the principle of appeal to the synod of all bishops are calculated to achieve consistency and some measure of openness; whilst this could not be said by any means to constitute a complete disciplinary or safeguarding system, the principles are capable of translation into contemporary processes and merit attention.
There is a current of opinion within and outside the Church of England which discerns a public aspect to clergy discipline. This philosophy is reflected both in extant statutory guidanceFootnote 86 and the proposed replacement to the Clergy Discipline Measure 2003 (‘CDM 2003’).Footnote 87 Section 1 of the Clergy Conduct Measure 2025 (‘CCM 2025’) provides that:
1. Every person exercising a function for the purposes of this Measure must have due regard to –
(a) the purpose of the system provided by this Measure, which is to maintain the collective good standing of clergy and to hold to account those clergy who fall below the standards required of them; and
(b) the role of bishops and archbishops in administering discipline.
This provision introduces subtle but important changes from the CDM 2003, which simply requires due regard to be had to:
the role … of the bishop or archbishop who, by virtue of his office and consecration, is required to administer discipline.Footnote 88
Disciplining of errant individuals is now to be expressly related to the public reputation of clergy generally and the breadth of the duty means that this statutory purpose will inform all decisions under the CCM 2025. These ideas, together with the term ‘conduct’ rather than ‘discipline’, undoubtedly owe something to comparison with contemporary regulation of other professions.Footnote 89 The General Synod paper, Under Authority Revisited, referred to St Paul’s recognition that we are members one of another, observing:
Where clergy fall short the whole Church is impacted … the purpose and character of clergy discipline must be to support the collective good standing of all faithful men and women who are called to serve and to place at its centre the interests of justice for all those who are affected by the faults, failings and shortcomings of clergy.Footnote 90
Much of the handling of disciplinary complaints against clergy is to be undertaken by a variety of lay officers to whom the bishop is now obliged to refer any complaint so that it can be allocated to one of three ‘tracks’ – grievance, misconduct, serious misconduct – or rejected as vexatious, totally without merit or out of time.Footnote 91 Moreover, the wider public interest is addressed through provisions requiring that any conduct which, if proved, would amount to the commission of an offence must be referred to the police and serious child-related complaints must be reported to the relevant local authority.
Grievances are, essentially, to be mediated by suitable clergy or lay people. Misconduct will be investigated by a skilled clergy or lay assessor who will make findings and recommendations as to disposal to the bishop or, in the case of an archbishop, the President of Tribunals.Footnote 92 The bishop may impose a different penalty but cannot depart from the findings. Serious misconduct will be dealt with judicially, being investigated by a national, as opposed to diocesan or provincial, team. If the President then considers that there is a real prospect of a finding of serious misconduct, the complaint must be referred to a bishop’s disciplinary tribunal or, in the case of a bishop or archbishop, the Vicar General’s Court. Tribunals will continue to belong to the bishop in name only, being chaired by a senior lawyer, assisted now by one clergy and one lay member. The new Measure does, however, preserve the ability – not duty – of a tribunal or court imposing a penalty to invite the written opinion of the responsible bishop to which it must then have regard.Footnote 93
Appeals will continue to lie to the Court of Arches/Chancery Court, presided over by the Dean/Auditor, now sitting with one clergy and one lay member. Misconduct involving matters of doctrine, ritual or ceremonial will continue to be determined by the Court of Ecclesiastical Causes Reserved, consisting of senior secular judges and bishops; this Court has never sat in a clergy discipline matter since its creation in 1963.
The new clergy discipline system departs from the traditional approach in significant ways, most particularly in removing much of the bishop’s oversight and discretion, in the greater involvement and authority of lay people and the introduction of statutory duties of reporting to secular authorities in certain cases.
A new and more excellent way?
There are high hopes for the CCM 2025.Footnote 94 This positivity is a tribute to the efforts of the Ecclesiastical Law Society’s Working Party on clergy discipline, amongst others. The Anglican approach to law reform does not include overt reference to the Ecumenical Canons and it is fair to say that the 2025 Measure is, in large part, a reaction to the perceived failings of CDM 2003, itself the product of dissatisfaction with a collection of norms significantly shaped by nineteenth century Parliamentary intervention.Footnote 95 The Church’s Implementation Group noted, in particular, ‘a consistent theme’ of responses to consultation identifying ‘a fractured relationship between the episcopate and those they discipline’. While the Group wanted to ‘re-affirm the primacy of episcopal authority in the new system, as reflecting the established theological and ecclesial position in the Church of England’, they proposed modification; the bishop’s ‘key functions’ would be to receive the complaint, support the parties and implement the outcome.Footnote 96 The CCM 2025 reflects this policy, which does represent a considerable shift from the traditional approach.
For most Anglicans, the important question is not: ‘does the new Measure erode Nicene principles of episcopal governance?’ – rather: ‘will it work?’ And by ‘work’, we might mean ‘put our church on an even keel’ after a particularly bruising period. Sanctification of the Church is the work of the Holy Spirit, not legislators but, as the bishops assembled at Nicaea 1700 years ago recognised, good governance and good discipline are undergirded by sound law. The specific problems of the twenty-first century are different from those of the fourth, but it remains critical for the Church to regulate the conduct of its clergy. The Church of England has, perhaps, arrived at a classically Anglican solution – traditional foundations supporting contemporary structure. The particular distribution of weight between tradition and modernity is not the same as in other churches operating in different contexts but this does not mean that one approach is sound and others not.
Nowadays, Christians of different denominations are learning, through the study of law, to articulate shared fundamental principles, rather than anathematise each other. The ecumenical nature of the Conference convened in Chichester in June 2025 is a sign of such collaboration, as is the participation of ecumenical friends in contemporary Synods; public statements by His Holiness Pope Leo XIV and His All Holiness Ecumenical Patriarch Bartholomew signal their desire for Christians to work together to bring the gospel to the wider world. A quarter of a century has elapsed since the Colloquium considered clergy discipline generally, and imminent legislative change in the Church of England since the 2022 session means that it would be timely to return to the topic, perhaps by reconvening the Ecumenical Christian Law Panel so as to embrace lawyers from other churches which include the pronouncements of the Council of Nicaea within their heritage.
Acknowledgements
This article is a lightly edited version of a paper delivered at the Ecclesiastical Law Society’s conference, Nicaea Received: 1700 Years of Canons, Councils, and Ecumenism, convened at Chichester Cathedral in June 2025. The author is grateful to the following people for their assistance and encouragement: His Eminence Angaelos, Coptic Archbishop of London; Fr Robert Ombres OP; Professor Norman Doe KC (Hon). Any errors are the responsibility of the author.
ANNEX
Group A: Concerning the Clergy
1. Concerning those who make themselves eunuchs and others who suffer the same loss at the hands of others (De his qui se ipsos abscidunt)
2. Concerning those who are admitted to the clergy immediately after baptism (De neophytis)
3. Concerning women who have been brought in to live with the clergy (Quae mulieres cum sacerdotibus commorentur)
9. Concerning those who have been promoted to the rank of presbyter without examination (De his qui sacerdotium sine examine promoventur)
10. Concerning those who have denied the faith in persecution and have been promoted to the clergy (De his qui in pesecutioninus negaverunt et postmodum ad clericatum promoti sunt)
17. Concerning clerics who practise usury (De clericis qui usuras accipiunt)
18. That deacons should not give the eucharist to presbyters or be seated above them (De privilegiis presbyterorum)
Group B: Concerning Organisation of Ecclesiastical Leadership and Administration
4. Of the number needed to appoint a bishop (De ordinatione episoporum)
5. Concerning the excommunicated, that they must not be received by others; and concerning the duty to hold synods twice a year (De excommunicatis)
6. Concerning the forms of primacy belonging to some cities; and that bishops may not be created without the consent of the metropolitan (De primatibus episcoporum)
7. Concerning the bishop of Aelia (Jerusalem) (De honore episcopi Heliae, id est Hierusolimae)
8. Concerning the so-called Cathars (De his qui se catharos, id est mundus appellant)
15. Concerning a cleric who transfers from city to city (Quod non oporteat demigrari)
16. Concerning those who do not remain in the churches in which they were promoted (De his qui in quibus promote sunt ecclesiis non demorantur)
Group C: Regulation of Public Penance
11. Concerning those who have denied the faith and are numbered among the laity (De his qui praetor necessitate aliquam nagaverunt)
12. Concerning those who have made a renunciation and then returned to the world (De his qui renuntiaverunt et iterim ad saeculum sunt regressi)
13. Concerning those who seek communion at the point of death (De his qui in obitu positi communionem deposcunt)
14. Concerning catechumens who have lapsed (De catechumenis lapsis)
Group D: Reconciliation of members of heterodox groups
8. Concerning the so-called Cathars (De his qui se catharos, id est mundus appellant)
19. Concerning the followers of Paul of Samosata who come over (De his qui ab errore Paul Samosateni refugiant, et de diaconissis)
Group E: Liturgy
20. That one must not kneel on Sundays or during the season of Pentecost (De flectendu genu)
