The Terms of Service legislation sees the Church of England finally addressing issues around which it has been circling for some 50 years. At the time of writing, there are still further stages to be completed, in the General Synod and in Parliament, but some optimism is in order. Leslie Paul's The Deployment and Payment of the Clergy,Footnote ¹ published in 1964, provides a convenient starting point. It pointed to the gross and indefensible inequalities in the income of incumbents, and to the irrational distribution of clergy numbers around the country. The issues were addressed by the passage of the Endowments and Glebe Measure 1976 and the introduction, in 1975, of the ‘Sheffield’ formula for clergy deployment as between dioceses. Deployment within dioceses is, of course, in part a matter for pastoral reorganisation, and the earlier Pastoral Measure was revised and replaced in 1983.Footnote ² In the same decade, the Patronage (Benefices) Measure 1986 introduced the current system for the appointment of beneficed clergy.

Issues of the conditions of service of the clergy, or at least of incumbents, were debated from time to time. The focus was invariably on the freehold: it has been the most distinctive feature of clergy terms of service through the centuries, along with the notion of the incumbent's ownership of the incorporeal hereditament that is the benefice.Footnote ³ The debates tended to assume that the only alternative to the freehold was appointment for term of years, with various possibilities as to the extension or renewal of the term. The clergy were generally opposed to that alternative: a sample survey reported to the Joint Convocations in 1990 finding, that the majority (70 per cent) were opposed. Nonetheless, in the following year the General Synod accepted by 316 votes to 84 a Southwark diocesan synod motion calling for a review of all freehold offices and their replacement by appointments for a renewable term of ten years. As is often the way with synods, this apparently decisive vote led to the establishment of a committee, a consultation process and the conclusion that there was insufficient consensus to move forward. There was little discussion of the conditions of service of unbeneficed clergy. The assumption seems to have been that, if the position of the ‘freeholder’ – uncritically taken to be the paradigm case – was sorted out, the rest would somehow follow. Everyone was aware that curates were fewer than was once the case, but the effect of developments such as the introduction of team ministries increased the proportion of clergy who were unbeneficed (or who, as with team rectorsFootnote ⁴ and some residentiary canons,Footnote ⁵ held a freehold office for a term of years).

The disparity between the stipends of incumbents and assistant parochial clergy was gradually reduced as scales recommended by the Central Stipends Authority, set up in 1972, were implemented. The disparity between freeholders and others in terms of security of tenure attracted little attention in general debate, although a number of cases made the position clear. The Court of Appeal underlined the position of assistant curates in the case of Coker v Diocese of Southwark,Footnote ⁶ which concerned an assistant curate who had been dismissed on six months' notice by the incumbent, with the bishop's consent. The uncertainties surrounding the procedure for considering the question of the renewal of a team minister's tenure at the expiry of the specified term of years were exposed in R v Bishop of Stafford, ex parte Owen,Footnote ⁷ in which the Court of Appeal expressed a number of criticisms of the procedure. Mr Owen's supporters raised the matter in the European Parliament, which, in November 2002, passed a resolutionFootnote ⁸ noting that

Although not strictly a clergy case, R (on the application of Gibbs) v Bishop of Manchester Footnote ⁹ showed that the revocation of the licence of a lay worker, in this instance a Church Army captain, was within the power of the bishop under Canon E8 and that, where revocation was made on notice, there was no necessity for the bishop to demonstrate grounds for the revocation.

The general view amongst HR (human resource) professionals seems to be that fixed-term appointments have many disadvantages. The horizon that they set is an artificial one, not necessarily related to the stage in life reached by the office holder or the parish. The possibility of non-renewal may cause considerable anxiety, often unjustified, and in some cases there is no possibility of renewal, whatever the merits of the case.Footnote ¹⁰

SECTION 23 RIGHTS

It was a Government initiative that finally created the impetus for reform. Section 23 of the Employment Relations Act 1999 provides

1. (1) This section applies to any right conferred on an individual against an employer (however defined) under or by virtue of any of the following –

   1. (a) the Trade Union and Labour Relations (Consolidation) Act 1992;

   2. (b) the Employment Rights Act 1996;Footnote ¹¹

   3. (c) this Act;

   4. (d) any instrument made under section 2(2) of the European Communities Act 1972.

2. (2) The Secretary of State may by order make provision which has the effect of conferring any such right on individuals who are of a specified description.

This is concerned with the rights of what are called ‘atypical workers’ – people who do not work under the usual employment arrangements. Various sorts of agency workers are prime examples, but so are ministers of religion. After doing nothing for almost three years after the passage of the 1999 Act, the Government announced that it was minded to make some sort of order under section 23 applying to ministers of religion, and gave the Churches a few months (over the summer-holiday period) to comment. The consultation period was extended, and the responses made the Government realise that it was all a great deal more complicated than had been supposed, not least because of the vastly differing structures and ecclesiologies of the different Churches.Footnote ¹²

When the Archbishops' Council considered the matter, it realised that tinkering with one aspect of the matter was not sufficient. It set up a review group to consider not only the application to the clergy of what became known as ‘section 23 rights’ but also the question of the employment status of the clergy and the implications for the freehold. In particular, the Council saw the oddity of having two groups of clergy (freeholders and others) exercising the same vocation and ministry but some with rights as against the church authorities far greater than the typical employee and others with very few such rights at all.

What the Council said to the Government was this: ‘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, recognize their responsibilities and provide proper accountability’. Accordingly, it asked the review group not only to ensure a proper balance between clergy rights and responsibilities but also to consider, in that context, the future of the freehold.Footnote ¹³

The group had little difficulty in agreeing that the clergy should have rights modelled on, or akin to, the rights referred to in section 23 of the 1999 Act. ‘Modelled on, or akin to’ because a direct transposition of English and European law as to employment was not appropriate; some adjustment to suit the specific nature of the clergy case was acceptable both to the Government and the European Commission.

The bulk of the resulting legislation is to be found in the draft Ecclesiastical Offices (Terms of Service) Regulations (the Regulations).Footnote ¹⁴ These contain detailed provisions as to the right to statements of particulars of office and of stipend (which will include reference to the applicable disciplinary, capability and grievance procedures);Footnote ¹⁵ the terms applicable where an office holder is provided with accommodation;Footnote ¹⁶ ministerial development review, education and training;Footnote ¹⁷ and the right to time off work for various purposes.Footnote ¹⁸

The need to modify the language in which the normal employment rights are expressed was clearest in the last context, that of ‘time off’. Some argued that, at least for parochial clergy and bishops, it was impossible to pin down the notion of ‘time off’ with any precision; some indeed would say that a priest can never be wholly off duty. It was relatively easy to define an entitlement to annual leave, and a survey of diocesan practice revealed a broad measure of agreement. The draft Regulations specify a period of 36 days, and the statement of particulars of an individual appointment may specify the maximum number of Sundays that may be included.Footnote ¹⁹ The weekly rest period was more difficult. Eventually it was accepted that there should be a legal entitlement to an uninterrupted period of 24 hours, the customary ‘day off’, but of course it is an entitlement that may be waived (and in a crisis should be waived, as in any professional context). Particularly difficult was the notion of time off on ‘public duties’, a term defined to include work done for a public authority, including membership of a court or tribunal, or for a charity, friendly society or trade union.Footnote ²⁰ So this would include, to give just three examples, service as an independent member of the Standards Committee of a district council, as a Justice of the Peace, and as a charity trustee. There are two difficulties about legislating in this area. One is that we are talking of time ‘on public duties other than the duties of [the office holder's] office’. That assumes a boundary line that cannot be drawn with any precision. Many would say that for an incumbent to serve as governor of the local school, or the bishop as a member of the council of a university or theological college is a part, and a proper part, of the duties of the parochial or diocesan office. The same could be said of elected membership of the General Synod, which can come to make great demands on the time of those holding senior posts within its structures. That points to the other difficulty: that there may be cases in which an individual devotes such a large proportion of his or her time to this type of activity that the essential work of the parish is neglected. The draft regulations make a valiant effort to catch the right balance.Footnote ²¹

The amount of time that an office holder may spend on public duties under this regulation, the occasions on which, and any conditions subject to which, the time may be spent, are those that are reasonable in all the circumstances, having regard, in particular, to

1. i. How much time is required for the performance of the particular public duty;

2. ii. How much time has already been spent on public duties under this regulation;

3. iii. The nature of the office and its duties and the effect of the absence of the office holder on the performance of the duties of the office; and

4. iv. Any remuneration which the office holder is entitled to receive in connection with the duties of the office.

This is one of those ‘reasonableness’ tests that are characteristic of the common law. Some of the arguments advanced in criticism of this provision assumed that legal rules are always hard edged and, if a precise definition cannot be devised, nothing should be included. It is sometimes right to legislate to make a point – that clergy have a right to some private time, or time to pursue special interests – even if it is almost impossible to produce a tight definition of the boundaries. The regulation enables the bishop or archbishop to resolve any disputes,Footnote ²² the expectation being that the use of this power will seldom be necessary and that any exercise of it will show proper sensitivity to the interests of the priest and of those he or she serves. The reference to ‘conditions’ means that, where the public duty is well remunerated, there may be some effect on the stipend otherwise payable.

OFFICE HOLDERS NOT EMPLOYEES

By giving the clergy ‘section 23 rights’, the legislation makes little real change in current practice. In particular, the clergy remain office holders and not employees. Recent cases have raised some doubts as to whether that position would ‘hold’. In Percy v Board of National Mission of the Church of Scotland,Footnote ²³ it was agreed that the appellant, the Revd Helen Percy, had not entered into a contract of service, which is usually an essential feature of the employment relationship and a pre-requisite for a claim of unfair dismissal, but the House of Lords held that she had become party to ‘a contract personally to execute any work or labour’, which was sufficient for the purposes of the Sex Discrimination Act 1975 relevant to her claim. It was thought by some that Percy had reversed the traditional thinking about the status of a minister of religion, especially on one strand in the argument, which asserted that, as between church and minister there was no intention to create legal relations, there was therefore no contract in the usual sense. That was indeed the basis for a decision of the Employment Appeal Tribunal in Stewart v New Testament Church of God. That involved a pastor of the defendant church who was dismissed after financial irregularities had been found at his local church. In the Court of Appeal,Footnote ²⁴ however, Pill LJ held that what the House of Lords' decision did was to establish that the fact-finding tribunal was no longer required to approach its consideration of the nature of the relationship between a minister and his church with the presumption that there was no intention to create legal relations. It was open to employment tribunals to find, if a careful and conscientious scrutiny of the evidence justified such a finding, that there is an intention to create legal relations between a church and one of its ministers. He added that the religious beliefs of a community might be such that their manifestation did not involve the creation of a relationship enforceable at law between members of the religious community and one of their number appointed to minister to the others, whether the appointment was by the local congregation or under an episcopal form of government.

The draft legislation is clearly intended to create legally binding rights and duties applying to the clergy of the Church of England, but that has been the case for centuries under canon law. The recent cases do not seem to touch the Church of England. The repeated references to the ‘office holder’ in the draft Measure and Regulations underline the point. The review group was initially rather keen on employment contracts for all, and some still regret that that cause was lost, but the outcome reflects reality. There is simply not the degree of control that is implicit in an employment relationship, and that is the justification for vicarious liability. The clergy are not unlike barristers in independent practice: no employer, but a clear professional status. That implies a need for professionalism, and that justifies the great attention paid by the review group and by the Ministry Division to the initial training of ordinands, to continuing ministerial education, to ministerial development reviews, to the capability issues that can arise and to processes to deal with disciplinary issues.Footnote ²⁵

It became clear that there is at present some confusion in the way that certain priests, engaged wholly or in part on diocesan duties, are appointed. Some appear to serve in diocesan positions under a licence, when they are in reality employees of the Diocesan Board of Finance. One indirect result of the legislation will be greater clarity in this area, with a few more clergy serving wholly or partly under contracts of employment, without this prejudicing the general ‘office holder’ principle.

INNOVATIONS

The review group, as has already been noted, was charged to go beyond the issue of ‘section 23 rights’, and the overall package does bring about radical change. The most important is the notion of ‘common tenure’. I can claim to have invented this phrase, which manages somehow to suggest that the new form of security of tenure has ancient origins. As presented in the review group's first report, it was an enhancement of the rights of unbeneficed clergy. It would give them security of tenure, without limit of time but subject to capability, disciplinary procedures, health and a retirement age. It avoided the problems of fixed-term appointments, and combined a high degree of security with the possibility of dealing, through the Capability Procedure, with those who were clearly failing in their present offices. When the second report recommended that the same tenure should apply to future appointments to what are now freehold offices, the term had an added meaning: it was common tenure, a degree of security common to all serving in the ordained ministry.

This will eventually end the parson's freehold, although it will end fairly gradually because existing freeholders may keep it so long as they remain in their present office: there will be competition to see who is the last surviving clerical freeholder. The reality is that, once it is agreed that there should be a common system applied to all the clergy, they could either all be given the unreformed freehold – which would be unacceptable – or all be put on some other basis, which is what is proposed (though it is not, for most people, very different from the freehold).

The application of common tenure, which actually means holding office on the terms set out in the Regulations,Footnote ²⁶ is governed by the Measure, clause 1 of which lists the categories of person to whom it will apply and the process by which existing freeholders may opt to hold office on the new basis. Although, in this paper, the application of common tenure is discussed in terms of clerical office holders, the Measure provides for certain stipendiary lay office holders (deaconesses, readers and lay workers) to hold office on the same basis.

The legislation describes in detail when an appointment on common tenure may be terminated.Footnote ²⁷ The relevant circumstances include removal after the full Capability Procedure (which the legislation regulates indirectly, by specifying that the Archbishops' Council may issue directions as to that procedureFootnote ²⁸); the revocation of a licence issued in connection with an employment (for example as a hospital chaplain) when that employment ends; and when a post ceases to exist as a result of pastoral re-organisation. Under the present law, a priest-in-charge appointed pending pastoral re-organisation may lose office without any compensation. The new legislation will create a one-year ‘safety net’, in which the priest will receive compensation for loss of stipend and housing, unless and until he or she receives the offer of a suitable alternative post.Footnote ²⁹

Regulation 28 lists a number of exceptional cases in which common tenure will not be on offer and an appointment may be made for a term of years or until the occurrence of some event. The length of the list attracted some criticism but, apart from title posts (which will continue in their present form), the number of actual cases will not be great. They will include appointments to cover a period of leave of absence; cases where sponsorship funding is available for a limited period; and cases in which a priest returns to active ministry after a period away. The last-named category is broadly defined, but in some cases common tenure will be offered in the usual way: there is a clear difference between, for example, a married woman returning to stipendiary ministry after a few years spent with young children and the case of a priest who resigned in quasi-disciplinary circumstances and is later permitted to resume active ministry; in the latter case a probationary period may be thought wise.

An important innovation, although it can be regarded as a ‘section 23 right’, is the granting of a right to apply to an employment tribunal after the termination of an appointment through the Capability Procedure.Footnote ³⁰ Some argued for an internal church tribunal, despite the view of the church lawyers that there might well be difficulty in finding tribunal members of appropriate experience and expertise, or even an ecumenical tribunal, where the difficulties would be very great. The use of an employment tribunal would take the final review outside the church structures and remove any suspicion of bias, even unconscious bias; and employment tribunals are better equipped than some assert to handle cases from relatively unusual professional backgrounds.

Finally, one of the more peculiar features of the legislation is the grant, it seems for the first time, of a legal right to a stipend. Office holders on common tenure will be entitled to an annual stipend at least equivalent to the national minimum stipend recommended by the Archbishops' Council as Central Stipends Authority (after fees and any similar income are taken into account), and holders of a part-time post will have an appropriate stipend related to that.Footnote ³¹

PROPERTY ISSUES

As already noted, the Regulations effect a welcome simplification of property rights and duties for those on common tenure. More ambitious reforms canvassed included the abolition of the notion of a ‘benefice’, rejected as doing too much violence to a term used in so many contexts, and the transfer of the legal title to the parsonage to the diocese. This latter proposal was in the draft Measure as submitted for revision but was then rejected. Norman Russell's paper gives expression to the views that prevailed.

It was made plain by the review group that it was possible to write the rules as to the use and enjoyment of accommodation provided to office holders in ways that continued to distinguish between parish incumbents (who have legal title to the parsonage, but not of the rights that normally flow from ownership) and all others. It was judged by the group undesirable to retain this bit of nonsense; with hindsight it should have been removed when the obligation to repair the parsonage was transferred to the diocese under the Repair of Benefices Buildings Measure 1972. A vigorous campaign was fought against the group's proposals, which included assertions that rights were being taken away from the parishioners or the PCC or the registered patrons; that this was ideologically based ‘centralisation’; and that the change would create new risks were a diocese to become insolvent. There were answers to all these points, but those answers were almost unheard in the General Synod debate in February 2008. The result puts at risk one matter that the Synod had repeatedly endorsed: that the absolute right of veto over certain transactions, typically the sale of an unsuitable parsonage and its replacement by another, should become a qualified right, capable of being overridden if the diocese persuaded an outside body that the transaction needed to go ahead. The future of that issue will, presumably, be settled during the legislation's final stages in the Synod.

As a bishop, I hear stories about clergy (all in other dioceses): a priest who has felt the need to retire early because of the continuously antagonistic behaviour of a churchwarden, whose expectations of the priest in terms of time at work are unrealistic; another who had for some years been insisting on trying to exercise his ministry as he had throughout his 40 years, paying no attention to modern pastoral good practice, and found himself answering a serious discipline charge; and an incumbent whose parish is slowly but surely dying, but who sees no need to give up a pleasant, uncomplicated and undemanding life, and to contemplate retirement before midnight on his seventieth birthday.

I see this package of legislation as a very significant milestone on a long journey towards providing for clergy, for whom I have a pastoral and spiritual responsibility. The proposed terms and conditions enable and encourage them to flourish by being fair, clear, challenging and protective; and answer calls, expressed from within the Church over many years, for improvement. They comply with what the Government and society see as best employment practice in a way that fits the Church's understanding of the priest's work as a ministry rather than a career, and an office rather than a job. They provide twenty-first-century terms and conditions for twenty-first-century ecclesiastical office holders in a way that respects the Church's historic partnership of bishop, clergy and people (as summed up in the phrase ‘the shared cure of souls’) and give the necessary flexibility to accommodate a broad range of traditions and churchmanships.

What General Synod has approved so far is legislation. If we want protection for the weak and vulnerable to be made universal and clear, then it needs to be expressed in legal terms. Similarly, flexibility is best guaranteed by legal arrangements that encourage a broad and rich diversity of ministry, encompassing the whole spectrum of churchmanship, tradition and innovation. Ironically, it is that very legislative framework that is causing many people to respond negatively, despite the fact that we have put as little as possible into the Measure, and as much as possible into Codes of Practice. I lay out the benefits below.

FAIRNESS

At present, we have an arbitrary first- and second-class system of tenure for clergy (including bishops), which bears no relation to the level of their responsibilities. This is both unfair and confusing. It would enrich the relationship between bishop and clergy if, as much as possible, all clergy had the same rights and accountabilities and the same rights to stipend and housing. A shared cure of souls between the bishop and all of his clergy implies a shared form of tenure. And this is why we need common tenure.

We believed that this also meant doing something about the nominal ownership of clergy housing. Bishops, cathedral clergy and parochial clergy currently occupy their housing in completely different ways, but General Synod, after a robust debate in February 2008, decided to leave things as they are.

CLARITY

There is a need for clearly defined rights. This was identified early on, by Professor Anthony Thiselton, as a defining mark of covenant relationships. This legislation will provide clergy with defined terms and conditions in the form of a written statement of particulars, so that they know where they stand in terms of their stipend, housing, fees and expenses. This will make it easier for bishops to delegate their responsibilities, secure in the knowledge that the results will, as far as possible, be fair and consistent. Having proper processes and ways of resolving problems – and proper training for those responsible for dealing with them – will actually save time. Having this supporting framework in the background will lighten loads and release bishops and clergy to spend more of their time and energy in giving the Church visionary, engaged and inspiring leadership.

ACCOUNTABILITY

Greater accountability will ensure that absolutely everyone – from the bishop right down to the curate in training – is aware of the need to follow good practice and proper procedures. At the moment, there is no workable means of dealing with clergy who fail to perform to an acceptable standard. If they have the freehold, the procedures are inoperable. If they do not have the freehold, the bishop can either remove them from office or, if it is for a fixed term, decide not renew it when it comes to its end. But this is neither fair nor good stewardship. It is not about imposing targets and making a fetish of measurement.

PROTECTION FOR THE VULNERABLE

This package will provide protection for the vulnerable, whether for the laity in a parish where a cleric is doing damage without actually committing a disciplinary offence, or (probably more often) for a cleric who finds him or herself at odds with some of the parish or the bishop and needs a mechanism for expressing a grievance.

MINISTERIAL DEVELOPMENT REVIEW

Accountability to God and to each other is not incompatible with using a Ministerial Development Review to reflect on how one is exercising one's ministry and on the appropriate stewardship of the time and talents that God gives clergy to exercise, be they bishops, priests or deacons. Ministerial Development Review already happens in most dioceses to a high standard, so we are resisting the production of a national scheme; yet there does need to be some consistency nationally, while preserving an appropriate degree of diocesan autonomy. Hence these guidelines on how it should be carried out, and the requirement in the draft legislation on bishops to have regard to this guidance in making arrangements to ensure that Ministerial Development Reviews are carried out within their dioceses.

Looking back over the work of the steering and revision committees, and, indeed, the debate in General Synod in February 2008, I was reminded of Archbishop Rowan Williams' presidential address to General Synod in 2003,Footnote ¹ which began: ‘Does the Church of England exist? One thing that recent weeks and months have reinforced for me is that there are several different “Churches of England”’. He went on to suggest that different groups within the Church of England do not communicate effectively with each other and that many of the groups making up what he describes as ‘the mosaic of English Anglicanism’ are sure that theirs is the natural, historically justified, faithful way of being an Anglican Christian.

The work of the Revision Committee, as we listened to the very many submissions to revise the draft legislation, was to listen and engage with the arguments of different groups and individuals who each felt that they were the real Church of England. The challenge before us was to seek to move from the principles outlined by Professor McClean to workable practices across a Church of England where the existing culture and the understanding of what it means to be an English Anglican vary widely, both from diocese to diocese but also within dioceses.

We needed to keep going back to the underlying principle of common tenure as we worked through the Measure and the Regulations: that clergy and stipendiary lay office holders should, so far as practicable, hold office on terms and conditions that were common to all. Nowhere was this brought into sharper focus than when we looked at the property issue. I do not find patrons or local benefactors rushing to offer financial assistance to improve or maintain parsonage houses. Sometimes a PCC will offer limited help, but in most cases PCCs do not have a sense of local responsibility for the house as opposed to the church building.

Others, including some archdeacons, took a very different view from my own experience and perception and saw the proposals as an assault on the very fabric of the Church of England as they know it. For them, the ownership of the parsonage house by the incumbent was a symbol of stability, history and the independence of the clergy over and against a regrettable tendency towards centralisation. Added to this were fears that we would be taking risks with our parsonages in the event of a Diocesan Board of Finance (DBF) becoming insolvent. In spite of our best attempts to deal with this through the creation of a Parsonage Board as a separate legal entity from the DBF, we did not convince members of General Synod.

Alongside concerns about centralisation, we also received submissions, which we resisted, that sought to tie down too tightly the rights and duties of clergy. We wanted to balance consistency across dioceses with our understanding of the clergy as office holders not employees. An example of this was when we discussed Part V of the Regulations: ‘Time off work, time spent on other duties, and sickness’.Footnote ² How, we were asked, was it possible to specify what did or did not count as a working day for clergy? Standing counsel suggested helpfully that, although a working day was not defined expressly, it was implicit that a working day means any day that is not a rest day or part of a rest period or that is not taken as part of annual or special leave.

We also resisted the submission that the Regulations should be amended to permit taking Sundays off, as in most cases it would be inappropriate to have Sunday as a regular day off. There are exceptions, of course, and we needed to have sufficient flexibility to allow for that. Similarly with annual leave: the maximum number of Sundays that may be taken off as part of annual leave could be specified in an individual's statement of particulars but it would not be appropriate to be over-prescriptive. While common tenure introduces a new framework of rights and responsibilities, it recognises that the relationship between a minister and his/her bishop is about sharing the cure of souls, not an employee/employer relationship where the employer has a comprehensive power of direction over the employee.

In our determination to allow sufficient flexibility but also clarity for the office holder, Part II of the RegulationsFootnote ³ is particularly important. There is the right to a statement of initial particulars of office, which must be provided within one month of the office holder taking up the office. Any changes to these particulars must be notified to the office holder in writing. The statement is likely to be particularly important where a dual post or a fixed- or limited-term appointment is concerned and should prevent misunderstandings. Many of us will have heard of or know of situations where a priest believes that his or her bishop has given assurances at the time of appointment but then discovers that the goalposts have moved a few years down the line, perhaps because there has been a change of policy, or a change of bishop, or both. We have also introduced an entitlement for those in part-time posts to such stipend as may be specified in the statement of particulars.

We received a number of submissions relating to Ministry Development Review (MDR) and Continuing Ministerial Education (CME). Here again, we noted the variety of approaches and cultures across the dioceses and the need for appropriate flexibility in order that current good practice could be shared and built upon. Participation in CME becomes a duty, but what is offered must be appropriate to the needs of the particular office holder. We rejected proposals for national validation of schemes for MDR but accepted that each bishop should be required to make an MDR scheme for his own diocese.Footnote ⁴

There are clearly some fears regarding MDR and the introduction of capability procedures, and whether the two might be linked. If so, would this damage the existing level of confidence in MDR among clergy, especially as it will now be obligatory? The two are separate. The summary report produced after an MDR is agreed by both the reviewer and the reviewee and it would be quite wrong if this was used as grounds for starting a capability procedure. The purpose of MDR is to assist and support clergy in their personal and professional development, and is for everyone. However, if an issue identified during MDR is not dealt with over time, then it could become a capability issue. There needs to be an agreed Capability Procedure to ensure consistency across the Church of England, which, properly used, might be able to nip some problems in the bud and possibly mean less recourse to complaints under the Clergy Discipline Measure 2003.

Finally, there is the right to apply to go to an employment tribunal to claim unfair dismissal, use of which will be a last resort when all other attempts at resolution have failed. It is right that, in these circumstances, the Church submits to an external independent body, and employment tribunals are used to dealing with organisations with a distinctive ethos.

The great majority of those serving the Church do so to a high standard. However, there is a small minority who could be assisted and supported to fulfil their role better and to gain more satisfaction in their ministry. The principal concern of the Capability Procedure is to help people to improve and to deal with problems of poor performance before they become too serious to be remedied. For the small number of clergy for whom encouragement and support has not worked, the Capability Procedure would be invoked first, with an informal stage in which the person appointed by the bishop to run the procedure would take a view about whether there were in fact a capability issue and, if there were, to offer opportunities for improvement by various means, including the provision of counselling, conciliation and mediation, training and mentoring – as well as adjustments to the working pattern and a possibility of extra leave.

If the issue remained, the formal procedure would commence, involving different panels, the main steps of which are: first, formal warning from a panel of archdeacon or suffragan bishop or dean with one clergyperson and lay person; thereafter, final formal warning, from a panel of a different archdeacon or suffragan bishop or dean, together with the chair of the House of Clergy and the chair of the House of Laity; finally, removal from office, after consideration from a panel of the diocesan bishop, with one clergyperson and one layperson.

The procedures would ensure that proper human resources advice would be taken at every step, and would be fully in accord with the requirements of natural justice; there would be a right of appeal at every formal stage; the procedures would ensure that the clergyperson had full opportunity to respond to all points made; a panel – not a single individual – would be involved at every formal stage; and the clergyperson would have sufficient notice of any appearance before a panel and the right to be supported by a friend or union representative. Finally there would be the availability of an appeal to an employment tribunal.

In general terms, there is a fair amount of support for these changes and specifically for the need for a Capability Procedure. Most clergy are aware of one or two of their colleagues in their locality who are not flourishing in their ministry. In a culture where people shop around for a church that suits them – both for regular worship and for occasional offices – many clergy will know of disgruntled parishioners from elsewhere or be aware from their own observation that some of their colleagues are not able to exercise their ministry effectively.

It is also true that many laity are hoping for a new level of accountability for the paid office holders and staff of the Church. Many are themselves positively engaged in appraisal and personal development processes in their own employment – some of which may even influence their level of remuneration – and are subject to capability procedures. They are surprised that ministerial review is not more central to the life of the clergy, including bishops, and that there are no processes to respond to a situation in which a priest is no longer able to fulfil the role. For the Church to take note of this development is already to take seriously the contribution of lay people to the life of the Church and to recognise that secular gifts might not be so far removed from spiritual ones.

There is, of course, a small but vocal minority of clergy who oppose the Terms of Service legislation and its accompanying procedures and guidance on principle. They yearn for the days when a parson was placed in their freehold office for life – or at least until 70 – and left alone by bishops and the laity alike to exercise an independent and prophetic ministry. But it is my view that a larger and more representative group of clergy (perhaps a silent majority) see these proposals as reasonable in themselves but open to abuse in the way that they will be enacted.

Here we need to stress what the Capability Procedure is not. It is not a means to clone the clergy of the Church of England into operating in the same way or having the same skill set. It recognises that God calls a variety of people into ministry and that, even in similar contexts, priests will undertake authentic and valuable ministry in different ways according to their gifts and the specific needs of the context. That is why each appointment would be accompanied by a statement of particulars and a role description, reinforced in regular Ministerial Development Review, which would attempt to recognise the distinctive opportunities and challenges of that ministry. Neither is this a parish viability procedure, where a priest operating in a particularly inhospitable context would be at a disadvantage compared to colleagues planting and growing in more fertile soil. The bishop and his colleagues would also need to recognize that the clergy's ministry of prophetic leadership might make them unpopular with some for a time and vulnerable to action by disgruntled clergy or lay people.

How bishops operate in role varies, but some at least see their responsibility as a ‘priest to the priests’ and fear that this process (perceived as complex and constraining) will damage the climate of trust in which that ministry is exercised. Bishops recognise that part of their calling, reflected in the scriptures and the Christian tradition, is to hold both love and discipline together. Like leaders and managers in many institutions, they know that their responsibilities are not exhausted with gentle encouragement, and that they are required to take responsibility for both pastoral care and discipline; parents know that a close and intimate relationship of love does not rule out the practice of ensuring proper conduct – indeed, it demands it; and any mature relationship depends upon the capacity of either party to draw attention to what they consider to be inappropriate behaviour or, in this case, inability to fulfil the role.

What is offered here is a carefully crafted and fair process, initially for the improvement of ministry and then later, in (we think) only a small number of cases, a process to address whether the priest is capable of holding office. We are clear that this process will be able to hold in balance the bishop's role as pastor as source of discipline. The process may not be easy, it may appear complicated at first and is necessarily time-consuming but, if bishops receive proper support from legal and human resource advisers, we are clear that its existence and its occasional use will be an appropriate expression of episcopal ministry. The process is there not to constrain the ministry of a bishop but to offer a framework that provides what we hope will become a tried and tested system for dealing with issues of capability fairly and safely.

One more general concern is that the Capability Procedure is nothing more than an uncritical adoption of secular standards that are in fact alien to the Christian tradition. This outlook bears examination because, though some might regret the new power of the laity, it seems to me that the Church should take into its life the genuine insights of its members, who apply to the Church what they know to be true and valid from the world of God's creation. Such a change of attitude is not only valid in itself; it also opens up the possibility of greater interaction between action and reflection. These must be kept together, if our mission is not to lapse into an altogether private language.

We should be giving a more positive flavour to these proposals as whole – importantly including the work on Ministerial Development Review. These proposals are not about policing the clergy, but enhancing their (our) ministry. It has to do with what, in the Human Resources trade, are called ‘competencies’: in the Church they are called gifts. If we are not careful, a ‘Capability Procedure’ might be perceived as little more than an ‘Incapability Procedure’, invoked only when bishops or congregations want to move someone on – or out. I hope that we can be more aspirational than this by seeing these proposals as contributing to a climate in which the clergy and other authorized ministers are keen to be the best that they can be in their ministries and that this may include learning to discover within ourselves our God-given gifts or competencies.

This paper focuses on the Capability Procedure, and seeks in particular to address the relationship between that procedure and two existing pieces of Church legislation: the Clergy Discipline Measure 2003 (CDM) and the Incumbents (Vacation of Benefices) Measure 1977 (IVBM). Taking the CDM first, the Terms of Service Review Group recognised at an early stage in its work that it was important that both the distinction between disciplinary and capability procedures and also the way in which they might interrelate with one another should be explored and clarified. The Group therefore approached the Clergy Discipline Commission and, in September 2004, there was a helpful meeting between the two bodies, which laid the foundation for subsequent work. The conclusions reached at that joint meeting were included in Part 2 of the Review Group's Report.Footnote ¹

The two procedures are quite distinct in their approach and their objectives. The CDM is concerned with misconduct, whereas the Capability Procedure is intended to address failure to perform to an acceptable professional standard. The focus of CDM proceedings, if the case is substantiated, is to impose an appropriate sanction for past misconduct, whereas the focus of the Capability Procedure is to bring about an improvement in future performance, with removal from office a very last resort if that cannot be achieved. Nevertheless, there is a degree of overlap between the operation of the two procedures, in that it is possible that initial steps under one process might lead to the conclusion that the matter should properly be dealt with under the other.

For example, a bishop receives a complaint under the CDM that a priest has been neglectful and inefficient in the performance of the duties of her office, in that she failed to turn up to take a funeral. Under section 8(1)(c) of the CDM, neglect and inefficiency are capable of amounting to misconduct. However, when the priest sends in her answer to the bishop, she explains that she deeply regrets what has happened. She had put down the funeral for the wrong day in her diary. She admits that administration is not her strong suit – her paperwork is in a mess and, although the PCC has bought her a computer, she really has no idea how to use it. In those circumstances, the bishop might feel that it was appropriate to make a determination to take no further action on the CDM complaint, and then instead to address the issue under the Capability Procedure. It could happen the other way round as well. An archdeacon exploring issues of poor working relationships in the initial stages of a capability procedure might, for instance, uncover much more serious allegations of bullying, which he then decides should properly be dealt with by way of a complaint under the CDM.

In view of this potential overlap, it is obviously essential that the parties should be clear at all times which procedure is operating, and that in no circumstances should both procedures be running at the same time in respect of the same conduct. Paragraph 9Footnote ² of the current draft Capability Procedure sets out those principles clearly. If they are properly observed, it is hoped that the Capability Procedure will be a useful additional tool for both bishops and clergy, and may help to reduce the number of complaints now being brought under the CDM in respect of matters that are essentially about capability rather than misconduct.

Turning to the difficult issue of pastoral breakdown and the fate of the IVBM, the draft Ecclesiastical Offices (Terms of Service) Measure includes a provisionFootnote ³ that the IVBM will cease to have effect in relation to those incumbents who hold office under common tenure, with the result that it will eventually cease to apply altogether. The IVBM has two arms. It provides a formal mechanism for addressing situations either where there has been a serious breakdown of the pastoral relationship between the incumbent and the parishioners – to which the conduct of one or both has contributed over a substantial period – or where the incumbent is unable to discharge his or her duties adequately because of age or infirmity. The Revision Committee was clear that Part II disability cases should fall squarely within the scope of the Capability Procedure. The draft procedure has a section specifically dealing with incapacity due to illness,Footnote ⁴ and there is provision in the draft Regulations for a medical examination where appropriate.Footnote ⁵

The Committee also took the view that pastoral breakdown caused by the conduct of the incumbent should properly be dealt with under either the CDM or the Capability Procedure, depending upon the nature and seriousness of the behaviour involved. This reflects established practice in the employment field, where tribunals have upheld findings of incapability where, for example, employees have shown themselves consistently unable to sustain acceptable working relationships with colleagues or clients.Footnote ⁶ However, it is recognised that the new legislation does not provide any means of redress in those situations where the breakdown of pastoral relationships is due wholly or principally to the conduct of parishioners. The IVBM offers a limited sanction in those circumstances, in that the bishop has power to rebuke the parishioners in question and to disqualify them from holding office as churchwarden or as a member or officer of the PCC for a period not exceeding five years.Footnote ⁷

The Revision Committee reached the conclusion that it would not be appropriate to retain the complex, expensive and rarely used procedures of the IVBM simply in order to preserve these limited sanctions against lay people. In its report to Synod,Footnote ⁸ the Committee acknowledged that there is more work to be done in this area, but suggested that it needs to be undertaken in a wider context than the scope of this legislation affords – to look again, for example, at the question of power to suspend lay office holders in the light of difficulties that have arisen in certain child-protection cases. The views of readers of this Journal as to the appropriate procedures that might facilitate the resolution of cases of pastoral breakdown would be welcomed.

I have been consistent in welcoming much of what has been proposed in the draft Ecclesiastical Offices (Terms of Service) Measure, particularly with respect to the common tenure aspects of Clergy Terms of Service. The Measure gives to bishops and archdeacons an opportunity to become more professional with respect to clergy review and the in-service education and training that should follow from it. I have long had major concerns about the transfer of the ownership of property from the benefice to (as originally proposed) Diocesan Boards of Finance (DBFs), more recently, Diocesan Parsonage Boards and, latterly, Parsonage Trusts. The original proposals to transfer the ownership of churches and churchyards from benefices to Diocesan Boards of Finance did not survive long at General Synod, and the issue of parsonage houses became a major issue of contention in the February 2008 session of General Synod.

The Synod was particularly worried about parsonage houses becoming a target for creditors, should the ownership be transferred to Diocesan Boards of Finance; they might well be vulnerable should a diocese become insolvent or be faced with major abuse claims. Parsonage houses were generally funded locally by local landowners, local public subscription or even by the parson himself. With the church and churchyard, the corporation sole effectively meant that they were held in trust to facilitate ministry in the parish or parishes of the benefice. They did not belong to the diocese. Even during a vacancy they were owned by the (local) sequestrators. They were certainly not given to bale out dioceses that found themselves in financial trouble.

The revised proposal that the ownership should be transferred to Parsonage Boards rather than to Diocesan Boards of Finance was an attempt to address these concerns, but many of us thought that, even with vesting in Parsonage Boards, the houses might still be vulnerable to action by creditors. The wall between the two Boards is paper thin, and in most dioceses the Parsonage Board is administered as a subcommittee of the Diocesan Board of Finance. In particular, there was a concern that, were parsonage houses to be subject to a charge and used effectively as the assets of the DBF, or seen by outsiders as assets of the DBF, the ownership of the Diocesan Parsonages Board might not be upheld against the claims of creditors, particularly in the case of a floating charge.

This concern appears to have carried some weight because, just before the Draft Measure came back to the February 2008 Synod, a revised proposal emerged from the Revision Committee, recommending that new Parsonage Boards be set up as separate charities in each diocese. The increased bureaucracy involved was not attractive and some of us felt that even this proposal had within it some vulnerability for individual houses associated with the proposal that the new charity should be ‘for the purposes and functions of the Board’. Most of these potential complications were easily addressed by leaving the situation unchanged.

My main objections to the current proposals are as follows. First, the working group that was originally set up under the chairmanship of Professor David McClean was established by General Synod to work on what was, in ordinary secular terms, a Human Resources issue. He argued that, if common tenure was to be common, there had to be common ownership of clergy houses. Put in those terms, that seems obvious. However, single-issue politics are rarely satisfactory and common tenure is only one filter through which one can look at the ownership of clergy houses. Through the filter of asset management, the balance of arguments might look very different. The profile of membership of the McClean working group, able as its members were, was a profile appropriate to the task given to it by General Synod. It was not chosen because of expertise in the field of asset management, yet it decided to recommend the transfer of the ownership of assets with a total value not far short of the assets of the Church Commissioners.

I would not necessarily be opposed to a properly constituted commission looking at all the property issues, but there are many complex matters involved and it has not been satisfactory to have them addressed as an appendix to work on clergy terms of service. In addition, those wishing to make gifts or leave benefactions to the church are generally more attracted to the local church than a national church body. Parsonage houses themselves bear witness to that, as does the willingness of many to fund parishes and restore the fabric of our churches.

There is no obvious reason why the ownership of parsonage houses needs to be transferred. There were allegations that ‘difficult’ clergy could stand in the way of rationalisation of parsonage property. It is true in principle, but only rarely a problem in reality. In any case, through pastoral reorganisation, the ownership of many former parsonage houses has been transferred to Diocesan Boards of Finance and this still continues.

There is a value in the present arrangement. It protects parsonages from short-sighted decisions. Both dioceses and parishes, struggling with their revenue budgets, are easily tempted to sell houses (their family silver) to fund revenue expenditure. PCCs have been doing this quite widely in recent years with houses for curates, often to fund church fabric repairs or interior reordering of a church building. Dioceses likewise, struggling with their revenue budgets, are easily tempted to fill the gap by selling a former parsonage house. Vesting clergy homes in the parson or sequestrators has been a useful way of keeping houses for the purposes for which they were provided intergenerationally.

The diverse constitutional arrangements of the Church of England, rather like those of the nation, have grown up over a very long period of time and have within them many checks and balances that counteract tendencies to centralise power. Although not designer masterpieces, patronage arrangements, the trustee ownership of theological colleges and the parson as owner of benefice property have, with other provisions, provided checks and balances that have allowed a wide range of traditions and churchmanships to flourish in the Church of England. This is not generally replicated in the other provinces of the Anglican Communion, which have, on the face of it, tidier constitutional arrangements. Centralisation of the ownership of property cannot do other than alter the balance of the way that the bishop and diocese relate to the parson and parish.

Most Synod legislation has some unintended consequences. Transferring the ownership of parsonage houses from the corporation sole to diocesan bodies would almost certainly have significant unintended consequences that are currently unforeseen and probably unforeseeable. Furthermore, the focus on parsonages in the General Synod debate in February 2008 had the unfortunate consequence of leaving other provisions without the level of scrutiny that is desirable. In some quarters, there is a concern that some of the provisions of clause 2 of the draft Measure give more powers to the Archbishops' Council than many have realised. It would be good for Synod to have another opportunity to consider the revised text of the Measure prior to final approval, since the removal of clauses 5 and 7 will have significant effects for other provisions of the Measure.

I believe that I am not alone in viewing unenthusiastically the prospect of introducing the apparatus of ‘human resources management’ into the organisation of the church: Continuing Ministerial Education, Ministerial Development Reviews, Capability Procedure, grievance procedure. This is brought into being with the laudable intention of helping those who will be subject to such procedures, as well as also seeking to provide that they should be accountable rather more directly than to their consciences and God. There may be those who can point to structures of this kind in organisations where everything works splendidly. But the concern may still reasonably be held that in fact they are likely to lead to the recruitment of human resource teams on to the staffs of each diocese, a lot more paperwork, and a lot more time spent on internal examination. It will certainly cost a lot of money. The time and the money could, of course, be very well spent. It will be difficult to make these structures work.

The freehold, to my mind, does have many merits. However, whatever view one takes about it, it undoubtedly inhibits the flexible deployment of the clergy. Such flexible deployment has been on the agenda of the Church for many years. One may conveniently start, however, with the Paul Report.Footnote ¹ This was, it will be recalled, not directly about clergy terms of service but about The Deployment and Payment of the Clergy. However, the first conclusion of the Report was that there were too many clergy in the country and not enough in the towns. So the question arose as to how you got them from the country and into the towns. The Report concluded that this could not be done by the abolition overnight of the freehold. Accordingly, it proposed that freehold should gradually be transformed into leasehold, that is, an entitlement to hold a benefice for a period not exceeding ten years. This would introduce the necessary flexibility into the system to transfer clergy to where they were most needed. It was also perceived to have wider benefits:

In 1967, Partners in Ministry began by asserting that ‘The effect of the Commission's proposals will be that the clergyman will derive his status and security, not from the office that he holds but from his being ordained and on “the strength” of a diocese’.Footnote ³ These were the thoughts of the swinging sixties. As Leslie Paul and Fenton Morley perhaps knew in their hearts, these proposals were too radical for their day, and freehold survived unscathed into the twenty-first century. However, one might have expected that, when clergy terms of service were eventually revisited, something along the same lines might have emerged. This was not to prove to be the case. Why did the Group reviewing clergy terms of service reject Leslie Paul and Fenton Morley's proposals? The answer is that, even if freehold looked even more anachronistic in 2004 than it had done in the 1960s, the concept of job security did not. We were now in a world where employees had a right not to be unfairly dismissed. Moreover, selling to clergy the idea that they could be moved about the diocese at will might have been so controversial as to jeopardise the prospect of any reform of the system at all.

Chapter 7 of the Review of Clergy Terms of Service: Report on the First Phase of the Work Footnote ⁴ is headed ‘An inappropriate model: “on the strength of a diocese”’. It includes the following:

Paragraph 59 could stand as a defence of freehold. It is interesting to consider how many clergy wives were in employment in 1964Footnote ⁶ – it was a different world.Footnote ⁷ Now a clergy wife or husband is likely to be the principal breadwinner in a clerical household and this is a significant factor as a practical matter that has done much to make clergy less mobile since 1964.

Something is lost in just abandoning the Paul/Fenton Morley proposals. It would be a good thing if, however good or bad their vicar was – or whatever his or her particular range of strengths and limitations – a parish could be reasonably confident that he or she would move on after a reasonable period – say seven to ten years. And the expectation that he or she would move would be something to encourage the man or woman who has grown old or tired or complacent, or inured to failure. Are we really convinced that the Ordinary no longer badly needs the power to move someone on for his own or the parish's good?

In the world to which we are moving, concerns of this kind are to be addressed within the context of security of tenure in the post that is held; and the existence of Ministerial Development Review and capability procedures should not blind us to this fact. As regards freehold office holders, the change will not make much difference with respect to flexibility. But the current flexibility inherent in the system, which arises by virtue of the existence of the large number of clergy who do not have the benefit of the freehold, will be reduced.Footnote ⁸

The view was taken that, in order to achieve accountability, it was necessary to sacrifice flexibility: that ‘on the strength of the diocese’ was not practical politics. It is imperative to try to make the new procedures work because there will be less inherent flexibility in the system. We do not want to have exchanged the rigidity of freehold for a system that is just as rigid, and with accountability procedures that do not work.